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information had been secured as to whether the defendant had had or not the benefit of his constitutional right of compulsory process for obtaining the attendance of witnesses. The constitution intends that an honest effort shall be made to serve the summons, and that the witness shall be compelled to attend unless he has a good reason for not doing so. It is needless to inquire here whether reasonable rules may not be prescribed by the legislature or by courts for regulating the exercise of this right, since defendant makes no contest in that regard, but insists that he has complied with these rules. In the case of State v. Boitreaux, 31 La. Ann. 188, this court said: "When, to procure the attendance of his witnesses, the defendant has in proper time ordered subpoenas to issue, he cannot be compelled to apply for attachments, swear to the facts that he intends to prove by them, or to go to trial in their absence, until an earnest and fruitless attempt has been made to bring them into court." And again, in the case of State v. Adam, 40 La. Ann. 745, 5 South. 30, this court said: "The constitutional guaranty to an accused of a right of compulsory process for the attendance of his witnesses is not to be trifled with. It is not a dead letter, and must be enforced." This was a case very similar to the one at bar, in that the subpoena had gone to the sheriff of the neighboring parish, and no return had been made, so that it was not known whether the subpoena had or not been served. The court said: "The accused was entitled to know of such return, and, in the absence thereof, could not be driven to trial." See, also, the case of State v. Thomas, 40 La. Ann. 154, 3 South. 589, where the court emphasizes the necessity of affording to an accused facilities for producing all the testimony which the nature of his case may admit of. It was not necessary for defendant to make a new affidavit and obtain a new order for entitling himself to the compulsory attendance of the witness. The requiring of this affidavit and order is in the interest of the witness and of economy, as a check upon the unnecessary bringing of witnesses from a distance at great inconvenience to the witnesses and expense to the public; and this consideration is fully met by one affidavit and one order. The statute does not prescribe that the affidavit and order shall be made at the term of court, but that they shall be made in anticipation of the term of court. It reads as follows: "In all criminal prosecutions in which the punishment may be death or imprisonment at hard labor in the penitentiary, witnesses may be compelled to attend the sessions of court from any parish of the state, if the prosecuting attorney or any citizen or accused shall state on oath what it is expected to prove by said witness, and the judge or court in vacation, upon examination of the case and affidavit, shall in his discretion determine whether the attendance of the witness is indispensable to the trial and for that purpose

the court before which a prosecution is pending may cause to be issued subpoenas and attachments to its officers as the case may require." Rev. St. § 1036. This statute says that the order may be obtained in vacation. This means at some time before the commencement of the term of court. What length of time before the term of court is not specified. We can see no good reason why an order made in October should not hold good until the following February, in the absence of proof that the witness has changed his domicile, or that the judge has had reason to change his opinion in regard to the indispensability of the witness. The essential thing is that there shall be an order. Such order, when once made, ought to hold good until revoked. How far the admission as to what the witness, if present. would testify to, may be made to stand as a substitute for the compulsory attendance of the witness is a question which, under special circumstances, may present serious difficulty, but which cannot arise in this case, when, so far as appears, no effort whatever was made by the sheriff to secure the attendance of the witness. In such a case the defendant, if ruled to trial over objection, is clearly deprived of his constitutional right. As a matter of course, Act No. 84 of 1894 was not intended to operate as a nullification of this right to the compulsory attendance of witnesses. To give it such a construction would place it in direct conflict with the constitution. State v. Berkley, 92 Mo. 41, 4 S. W. 24.

It is therefore ordered, adjudged, and de creed that the verdict and sentence in this case be set aside, and that the case be remanded to the lower court to be proceeded with according to law.

(107 La.)

STATE v. GUY et al. (No. 14,335.)1 (Supreme Court of Louisiana. March 31,

1902.)

CRIMINAL LAW APPEAL — BILL OF EXCEPTIONS CONCLUSIVENESS-CONTINUANCE -ADMISSIONS BY STATE.

1. A bill of exceptions, in that part of it where the trial judge gives the reasons for his ruling. did not deny the previous statement of the bill that a witness, called in rebuttal by the state, was permitted to impeach a witness for the defense by giving evidence that de fendant's witness had, on a previous trial, testified differently from what the state, in the instant trial, admitted he would swear to were he present. Held, that since the bill is signed by the judge, and since that part of it which he wrote does not deny the specific averment it must be accepted as true and effect given to it.

2. Where the state admits, under Act No. 84 of 1894, for the purpose of avoiding a continuance, that an absent witness would. if present, testify to certain material facts proof of counter declarations made by the w ness on another occasion will not be received in evidence. To admit the same would be

1 Rehearing denied April 28, 1902.

violation of the rule requiring a foundation to be laid before introducing the impeaching evidence.

(Syllabus by the Court.)

Appeal from judicial district court, parish of St. Landry; Edward T. Lewis, Judge. Zenon Guy and others were convicted of larceny, and Guy appeals. Reversed.

Veazie & Pavy, for appellant. Walter Guion, Atty. Gen., and R. Lee Garland, Dist. Atty. (Lewis Guion, of counsel), for appellee.

BLANCHARD, J. A bill of information was filed against Zenon Guy and several other parties, charging them with the larceny of three hogs. Guy was brought to trial and convicted. From a sentence of 12 months' imprisonment at hard labor, he appeals. When the case was called for trial he applied for a continuance on the ground of the absence of certain witnesses, who had been subpoenaed on his behalf. He was required to make a legal showing for continuance. This he did under affidavit. He set forth he expected to prove by J. E. Miller, an absent witness, that the hogs alleged to have been stolen were seen after the day upon which he (the accused) is charged to have stolen them, and that they were at the time ranging in the woods with the hogs of another party whose name is given. The district attorney, thereupon, admitted that if the witness Miller was present he would testify to the fact set forth in the affidavit. Act No. 84 of 1894. On this, the trial judge overruled the motion for continuance and proceeded with the trial. The accused, in placing his evidence before the jury. read to them the affidavit for continuance as containing the evidence Miller would give if present, and the court instructed the jury that, under the admission of the state, they (the jury) were to receive and consider the evidence the same as though it had been given by Miller on the stand as a witness. In rebuttal. the state offered a witness to prove, as the bill of exceptions recites, that on a previous trial of the case Miller had testified the hogs he had seen ranging in the woods were three other hogs belonging to the prosecuting witness, and not the three hogs forming the subject of the larceny. The defense objected to this testimony on the ground that no foundation had been laid for proof of contradictory statements of the witness Miller. The objection was overruled, the court holding it was competent for the prosecution to show that the testimony of the absent witness referred to other hogs and not to those alleged to have been stolen; that the witness was called to show that the hogs said to have been seen by Miller were not the hogs in question. But the bill of exceptions, in that

part of it where the judge gives the reasons for his ruling, does not deny the previous statement of the bill that the witness, called in rebuttal by the state, was permitted to impeach Miller and to give evidence that he (Miller) on the previous trial had testified differently from what the state, in the instant trial, admitted he would swear to were he present. Since the bill is signed by the judge and since that part of it which he wrote does not deny this specific averment, we must conclude the state's witness was permitted to testify that Miller, on the previous trial, had made statements contradictory to that put in his mouth by the affidavit for continuance. This being so, the ruling of the judge is reversible error. Under the admission of the state, Miller is to be considered, for the purpose of the trial, as having been a witness placed on the stand by the defense, and that he testified the hogs alleged to have been stolen were seen by him after the day upon which the offense was laid, and that the very hogs so alleged to have been stolen were the ones he saw roaming in the woods. It could not legally be shown by the state that he had made, at another time, a statement contradictory of this, without such time and occasion, place and circumstance, together with the statement, having been called to his attention, and he had been given the opportunity to explain. So, too, where an attempt is made to impeach a witness by the showing of contradictory statements made by him in testimony given on a former occasion, the attention of the witness must be specially called to the passages in his previous testimony constituting the contradiction, and he must be accorded the opportunity to explain, qualify, admit, or deny before the impeaching evidence is receivable. It was, of course, com petent for the state to show that the hogs Miller had seen and about which he had testified on the previous trial were different hogs from those stolen, but it was not competent to show that, while he now testified, or was put in the position of testifying, he had seen the very hogs alleged to have been stolen roaming in the woods subsequent to the theft, he had. on the previous occasion, testified the hogs he had thus seen were different hogs. The state could show by competent evidence he was mistaken as to the identity of the hogs, but the state could not, without the proper foundation laid, show that while he now identified the hogs in the woods as those averred to have been stolen, he then declared they were a different lot of hogs. See 29 Am. & Eng. Enc. Law (1st Ed.) p. 788, and notes.

Let the verdict herein be set aside, the judgment appealed from be reversed, and let the case be remanded to be proceeded with according to law.

(107 La.)

STATE v. SMITH. (No. 14,242.) (Supreme Court of Louisiana. Feb. 17, 1902.) For majority opinion, see 31 South. 693.

MONROE, J. I am of the opinion that the counsel appointed to take the place of the district attorney became functus officio when that officer appeared and resumed the discharge of his duties, and that the subsequent participation therein of both the district attorney and his substitute rendered the prosecution illegal. I therefore respectfully dissent.

Rehearing refused.

(107 La.)

CITY OF NEW ORLEANS v. KEE. (No. 13,663.)

(Supreme Court of Louisiana. April 14, 1902.) HEALTH ORDINANCE-INSPECTION OF LAUNDRIES-FEE-CONSTITUTIONAL LAW -DUE PROCESS OF LAW.

The ordinance adopted was a health ordinance. To maintain it, an inspection of laundries was necessary. The reasonable fee imposed to pay the inspector for his services was properly charged to the defendant. The inspection was made for the benefit of the business itself, as well as in behalf of the public health. From the point of view, sustained by the facts, that it was compensation for services rendered, the ordinance is not unconstitutional on any of the grounds urged by defendant.

(Syllabus by the Court.)

Appeal from recorder's court of New Orleans; James Hughes, Judge.

Sam Kee was convicted of violating a city ordinance, and appeals. Affirmed.

Rufus J. Paddock and Edward Barnett, for appellant. Joseph E. Generelly, for appellee.

BREAUX, J. Appellant complains of a fine imposed by the recorder of the First recorder's court for his having violated that section of the ordinance of the city numbered 15,709, C. S., which reads, "That the said board shall collect from all owners and managers of laundries or public wash houses a reasonable fee sufficient to cover the cost of such inspection, charging for each and every inspection the sum of twenty-five cents." Appellant is the owner of a public laundry, and was its owner at the date an inspection was made in accordance with the ordinance in question. He refuses to pay the inspector's fee of 25 cents. The defense was that the fine was illegally imposed, under the ordinance, for the reason that it is unconstitutional, and that it is the taking of property without due process of law.

We, in the first place, are called upon to determine whether the ordinance is a health ordinance. We think it is. The expressed purpose of the ordinance cited supra is to maintain cleanliness, and to compel laundrymen to use only clean water for washing

clothes, and to prevent the employment of persons who have diseases that are contagious, and to prohibit them from washing the clothes of persons inflicted with any contagious or infectious disease. The objection is not so much directed against the inspec tion, for we take it that no one will seriously contend that the city has no authority to inspect a business in the cleanliness of which so many are directly interested, as it is against the fee of inspection. The control and regulation of the laundry business have generally been held to be vested in municipal corporations.

enue.

But as to the fee: This objection falls, in the presence of the fact that it is a compensation for services rendered, and that it is in no respect an imposition for the sake of revThe authority to impose a reasonable inspection fee for an equivalent arising from the inspection was recognized by this court. The claim for the fee was rejected because plaintiff sought to recover the fee as a source of revenue. Mayor, etc., of St. Martinsville v. The Mary Lewis, 32 La. Ann. 1293. In other jurisdictions courts have sustained claims for inspection fees imposed for the benefit of the business itself, as well as of the community. To quote: "When quarantine regulations provide for the disinfection of goods or of a vessel which have probably been exposed to contagion, the services rendered may be regarded as for the benefit of such goods or vessel, because from such services they are relieved from the suspicion of being dangerous, and are exonerated from further detention and purification; and the charge for the services so performed may be imposed on the owner of the property, or a lien may be created upon such property for the amount of such charges,"-citing Harrison v. Mayor, etc., 1 Gill, 264; Ferrari v. Board, 24 Fla. 390, 5 South. 1; Morgan's L. & T. R. & S. S. Co. v. State Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237. Again, in another jurisdiction: "Inspection fees are not taken, but are imposed under the principle that they are compensation for services rendered in and about making such inspection, which is presumably beneficial to the person upon whom the fees are imposed, under and by virtue of the general police power of the state."-citing a number of decisions. Chicago W. & V. Coal Co. v. People (Ill.) 54 N. E. 961, 48 L. R. A. 554. From the point of view of equivalent received, there can, in our view, arise no reasonable objection to a small inspection fee, imposed to pay the inspector. A similar question was before us recently for decision. We can see no good reason to arrive at a different conclusion than was expressed in the decision to which we refer. City of New Orleans v. Hop Lee, 104 La. 601, 29 South. 214.

Something was said arguendo about discrimination, and that this small amount would fall unequally upon the small and the large laundries. We have not found the dis

criminative effect in the enforcement of the ordinance. Besides, the only objection raised here is that of the constitutionality of the ordinance. We have not found it unconstitutional, and it therefore remains for us to affirm the judgment.

The law and the evidence being in favor of plaintiff, the judgment is affirmed.

(107 La.)

LOUISIANA STATE BOARD OF HEALTH
V. STANDARD OIL CO. (No. 13,909.)
(Supreme Court of Louisiana. April 14, 1902.)
STATE BOARD OF HEALTH-INSPECTION OF
COAL OIL-FEE.

Act No. 192 of 1898, in establishing the state board of health, and requiring it to see to the inspection of coal oil throughout the state, by reasonable implication confers upon said board authority to provide the means of defraying the expense of such inspection in the usual manner, to wit, by the exaction of an inspection fee from the dealer in the oil; and such fee is not a tax, but a charge for services rendered.

(Syllabus by the Court.)

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

Action by the Louisiana State Board of Health against the Standard Oil Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Saunders & Gurley, for appellant. Francis C. Zacharie, for appellee.

MONROE, J. The sole question presented in this case is whether the state board of health is entitled to collect fees for the inspection of petroleum and its products outside of the city of New Orleans. The defendant has appealed from an adverse judgment. By Act No. 37 of 1877 such inspection was required to be made in every city and town of not less than 2,000 inhabitants, except the city of New Orleans, by inspectors appointed by the municipal authorities, and in the city of New Orleans by inspectors appointed by the board of health. The municipal authorities in the various cities and towns were authorized to fix the salaries of the inspectors appointed by them, and the board of health was authorized to fix the salaries of the inspectors appointed by it. So far as the municipalities were concerned, they doubtless found authority in their charters by virtue of which they were enabled to collect such fees as were necessary to defray the expense thus imposed upon them; but there was and is a special provision in the act of 1877 authorizing the board of health to charge a specific fee for inspection in the parish of Orleans. By the second section of Act No. 192 of 1898 the obligation of providing for the inspection of petroleum throughout the state, as well as in the parish of Orleans, was imposed on the state board of health, created by that act, leaving to the local boards, which are also provided for, the regulation of the sale of the

article. No specific provision is, however, made by the act of 1898 concerning inspection fees, and it is claimed by the defendant that, in the absence of any direct grant, the board is without authority to exact such fees, notwithstanding that it renders, and is obliged to render, the service. This position, we think, is untenable. The rule of construction applicable to the charters of municipal corporations is equally applicable to the charter of the state board of health. As to municipal corporations, it is well understood that they may exercise not only powers expressly granted, but those necessarily or fairly implied in or incident to the powers expressly granted, and also those which are essential to the declared objects and purposes of the corporation. 1 Dill. Mun. Corp. (4th Ed.) 89. The same rule of construction is applied in cases of private corporations. Tayl. Corp. (3d Ed.) 120; Mor. Priv. Corp. 149. The functions for the discharge of which the state board of health is established are of vital consequence to the whole people of the state, affecting them in the matter of health and safety; and there is no reason why a narrower rule of construction should be applied to the powers of that board than to those of corporations of comparatively minor importance. When the general assembly vested in the board the authority, and imposed upon it the obligation, to see to the inspection, throughout the state, of an article of commerce, which, uninspected, may be dangerous to human life, it is a reasonable inference that it intended that the means for the accomplishment of the work should be provided in the manner which, it may safely be said, is universally recognized and adopted; i. e., by the imposition of a charge upon the dealer in the article inspected sufficient to defray the cost of inspection. In the case of City of New Orleans v. Hop Lee, 104 La. 601, 29 South. 214, it was held that a fee exacted from the proprietor for the inspection of a laundry was neither a tax nor a license, but was merely a charge to cover the cost of inspection, and, it might have been added, for services rendered. It is a wellsettled doctrine that the power vested in a municipal corporation to license a particular occupation carries with it the right to charge a reasonable fee for the issuance of the license. 1 Dill. Mun. Corp. (4th Ed.) 357, 358; Welch v. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383; City of St. Paul v. Dow, 37 Minn. 20, 32 N. W. S60, 5 Am. St. Rep. 811. The same principle applies in the instant case, and the argument that the board of health may abuse its power by sending inspectors from New Orleans to inspect oil in distant parts of the state, and by charging the traveling and hotel expenses as inspection fees, is, it seems to us, based upon a groundless apprehension. When a case of that kind is presented, it will be considered upon its merits. There is no such state of facts suggested in the record before us.

Judgment affirmed.

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DECEASED-IMPEACHMENT OF VERDICT.

1. A man, called as a juryman, answered, on his voir dire, to counsel for defense, he thought the man who committed the homicidal deed ought to be punished, and that as soon as he heard of the case he formed that opinion. Challenged for cause, he was questioned by the court and answered he had no prejudice against the accused; as a juror would decide the case according to the evidence as given by the witnesses and the law as expounded by the court; no outside impression or opinion would influence him in his verdict. Held, competent as a juror.

2. The mere expression by a citizen of a just indignation on hearing of the death by violence of another, does not disqualify him from jury service in the case.

3. It is objectionable for the defense to ask of jurors, on their void dire, questions like the following:-"In a criminal prosecution, as a juror sworn to try a case and when forming your verdict, to whom would you give the benefit of the doubt-the state or the accused?" "If accepted on this jury would you give the benefit of any doubt created in your mind by the evidence to the accused and acquit him?" "Would that doubt have to be a very great one, or a reasonable one?"

4. It is for the trial judge, at the end of the trial, to charge the jury relative to the law of "reasonable doubt," and it is not to be supposed in advance jurors will decline to heed the charge so to be given, or will refuse to be instructed by the court.

5. But in order to test the animus of a juror towards the accused, it may be permissible for the defense, first explaining or having the judge explain the meaning of "reasonable doubt," its application to the case, and his duty to acquit should it exist, to ask the juror whether he would give the accused the benefit of such doubt.

6. Evidence of threats made by the deceased a short time prior to the killing is not admissible until foundation therefor is laid by proof of an overt act showing purpose to execute the threats.

7. It is the province of the trial judge to decide whether the evidence submitted pro and con of overt act makes sufficient proof thereof to lay the foundation for the admission of testimony as to antecedent threats.

8. While his ruling in this regard is subject to review here, great reliance is placed upon his discretion and judgment in such matters he having seen and heard the witnesses.

9. If evidence of a previous threat be not admissible because not accompanied then or afterwards by an overt, hostile act, it follows, logically, the statements constituting such threat cannot be admitted in evidence as part of the res gestæ.

10. If other witnesses than the accused could not legally testify to alleged antecedent threats because no foundation therefor had been laid by proof of overt act, neither may the accused, himself, do so, when called to the stand as a witness in his own behalf.

11. If the accused may not give such testimony under oath on the stand as a witness in his own behalf, neither is he permitted to do so when tendered by his counsel to make before the jury an unsworn statement in his capacity as the accused on trial.

12. Jurors are not competent as witnesses to impeach their verdict. A court must draw its 1 Rehearing denied April 28, 1902,

knowledge of the misconduct of jurors from some other source.

Monroe, J., dissenting. (Syllabus by the Court.)

Appeal from judicial district court, parish of St. Martin; T. Don Foster, Judge.

Horter J. Perioux was convicted of manslaughter, and appeals. Affirmed.

Mouton & Simon and Broussard, Dulany & Broussard, for appellant. Walter Guion. Atty. Gen., and Anthony N. Muller, Dist. Atty. (Lewis Guion, of counsel), for the State.

BLANCHARD, J. Defendant was indicted for the murder of Gabriel Buillard, found guilty of manslaughter and sentenced to five years at hard labor. He appeals. Various objections are presented in support of his contention that he was not tried and convicted according to law.

Bergeron,

He

juror, on his voir dire stated, in reply to questions by counsel for defendant, he thought the man who killed Buillard ought to be punished, and that as soon as be heard of the case he formed the opinion the man who slew him ought to be punished. was challenged for cause by defendant. Whereupon the trial judge propounded ques tions to him, with the result that he replied that he had no prejudice against the accused; that as a juror he would decide the case according to the evidence as given by the witnesses on the stand and the law as expounded by the court; that no outside impression or opinion would influence him in his verdict: that he had talked to no one about the case and no one had talked to him about it; and that he had not formed or expressed any opinion as to the innocence or guilt of the accused. It is well settled that the man who makes such answers to the court is competent to sit on the case as to which he is called as a state juror. State v. Kellogg, 104 La. 581, 29 South. 285. The mere expression by a citizen of a just indignation on hearing of the death by violence of another does not disqualify him from jury service in the case.

It is objectionable for the defense to ask of jurors, sworn on their voir dire, questions like the following:-"In a criminal prosecu tion, as a juror, sworn to try a case and when forming your verdict, to whom would you give the benefit of the doubt-the state or the accused"? "If accepted on this jury, world you give the benefit of any doubt created in your mind by the evidence to the accused and acquit him?" "Would that doubt have to be a very great one, or a reasonable one?" The law requires the trial judge, at the end of the trial, to charge the jury that if a reasonable doubt find lodgment in their minds as to the guilt of the accused, they must give the latter the benefit of the same and acquit, and it is not to be supposed, in advance. that the jury will decline to heed the charge so to be given, or that a juror will refuse

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