games of chance usually played in gambling-houses, or by gamblers, prima facie evidence that the house or place where the same are found is kept for the purpose of gambling, does not have the effect to deprive a person charged with keeping and maintaining a room for the purpose of gambling of the benefit and protection of the presumption of innocence which remains with every one on trial for crime as long as there is a reasonable doubt of his guilt.

2. SAME-INSTRUCTIONS-NEW TRIAL.

The judge having failed to charge the jury that the law presumes every man innocent until he is proven guilty by proper evidence, and that if they had any reasonable doubt of the guilt of the defendant, arising from the evidence, they should acquit him, and having refused to instruct them, in effect, that the fourth section of the statute referred to above did not remove the presumption referred. to, a new trial should be granted, as the jury may have withheld from the defendant the benefit of such presumption of innocence.

(Syllabus by the Court.)

Error to criminal court of record, Duval county; LOTON M. JONES, Judge. Hartridge & Young, for plaintiff in error. The Attorney General, for the State.

RANEY, J. This is a writ of error to a judgment of the criminal court of record of Duval county; the plaintiff in error having been convicted upon information charging him with having unlawfully kept, exercised, and maintained a room for the purpose of gaming.

The same instructions that were asked and refused in the case of Wooten v. State, ante, 39, handed down with this, were presented and denied in this; and the same charges were given to the jury in this as were given in that, except that stated in the fourth subdivision of our opinion in the former case, to the effect that "the law presumes every man innocent until he is proven guilty by proper legal evidence, and, if you have any reasonable doubt as to the guilt of the defendant arising from the evidence, you shall acquit him." The effect of this charge, as doing away with the necessity of giving the instruction set out in the fourth subdivision of that opinion, which was asked and refused, is fully explained. If it had not been given, we should have granted a new trial in Wooten's Case. There is nothing in the statute under which the information in these cases were filed that deprives a person charged under it of the benefit and protection of the presumption of innocence which remains with every one upon trial for crime as long as there is a reasonable doubt of his guilt. Whart. Crim. Ev. §§ 322, 718. In the absence from the record in this case of the charge given in the other, we cannot but feel that the jury may, in view of the refusal of the judge to give the instruction asked, have withheld from the plaintiff in error the benefit of the presumption in question, and have attributed to the fourth section of the statute an effect to which it is not entitled. A new trial must be granted, and the opinion in the Wooten Case is sufficient as to any point suggested by the record before us as likely to arise in this case upon a new trial. The judgment is reversed, and a new trial granted.

LINMAN et al. v. RIGGINS.

(Supreme Court of Louisiana. October 6, 1888. 40 La. Ann.)

1. EXECUTORS AND ADMINISTRATORS-SALE BY ORDER OF COURT-IMPEACHMENT BY ADMINISTRATOR.

A party who has been administrator of an estate, obtained the order of sale under which the property was sold to pay debts, and inaugurated and consummated the proceedings complained of in an action of nullity, cannot be permitted to impeach them by his own testimony. Such a person cannot be permitted to impeach his own official acts, nor to contradict the judicial proceedings had in the course of his gestion.

v.5so.nos.4,5-4

2. SAME-PURCHASE BY ADMINISTRATOR.

There is no legal prohibition against, but there is a legal permission granted to, an administrator to purchase property at a probate sale of the effects of the succession he represents, provided he be the surviving partner in community of the de

ceased.

3. SAME-DEBTS ALLEGED NOT TO BE DUE-JURISDICTION.

Complaints made of an order of court directing the sale of property to pay the debts of a succession alleged not to be due, after the sale is perfected, and in a suit to which the administrator is not a party, do not go to the court's want of jurisdiction, and to avail the same must be seasonably urged, or they will be barred. 4. SAME-RIGHTS OF PURCHASER.

A purchaser at a probate sale, made under an order of the probate court, to pay debts of a succession that are stated on a tableau therein filed, is not bound to look beyond the decree recognizing the necessity therefor.

5. SAME DEFECTS-LIMITATION OF ACTIONS.

art.

The period of five years' prescription fixed by the terms of Rev. Civil Code, 3543, cures "all informalities connected with or growing out of any public sale made * at public auction, " and is a bar, "perfect and complete, in respect to minors, married women, and interdicted persons."

* *

(Syllabus by the Court.)

Appeal from district court, parish of Caddo; S. L. TAYLOR, Judge. Suit by H. B. Linman et al. against Jane H. Riggins, in which plaintiffs seek the revocation and dissolution of an alleged probate sale of real estate. Plaintiffs appeal from a judgment dismissing the action as of nonsuit.

J. L. Hargrove, for appellants. Alexander & Blancherd, for appellee.

WATKINS, J. Plaintiffs, as the heirs of Catherine Linman, deceased wife of Herman Linman, seek the revocation and dissolution of an alleged probate sale of real estate, and which was, at the time of her death, an asset of the legal community; and they claim one-half interest thereon. They substantially allege that, notwithstanding Herman Linman administered the succession of the deceased, an administration was wholly unnecessary, inasmuch as it owed no debts that could not have been satisfied out of the assets of the community, other than the real estate, for the sale of which there was no necessity. The petition states that Linman was regularly appointed, qualified, and confirmed administrator; caused an inventory to be made; filed a tableau of debts; procured an order for the sale of the real estate to pay debts of the succession; and caused a perfectly formal sale to be made, for the stated sum of about $13,000 cash. That on the same day the ostensible purchaser transferred same property to Linman, in his individual capacity, for $13,643, -part cash, and the remainder on terms of credit, with security of mortgage and vendor's lien. That the price of the probate sale was never paid, and the conveyance thereat to Harper, and from Harper to Linman, were simulations, and intended to enable the latter to acquire an apparent title to the property indirectly, which he could not acquire directly, and that same are null and void. That, in the foreclosure of his mortgage, Harper became the adjudicator at sheriff's sale, and at his death it passed to his legal representative; and that this conveyance was void because the note Harper held was without consideration. The defendant pleads, as an exception, the want of a previous tender of the amount of the purchase price at the probate sale, and which went to discharge the debts of the deceased; and, with full reservation, he answered, and averred that Harper's title is one acquired in good faith, under the probate proceedings above recited, under the order of a competent court to pay succession debts, and that the purchaser paid the price and conveyed the property to Linman. He further avers that all of said proceedings were valid and legal, and in good faith, and thereupon he pleads the prescription of one, three, and five years in bar of this action. On the trial, the court a quo dismissed the plaintiffs' action as of nonsuit, and they have appealed. In this court the defendant answers the appeal, and prays for a final judgment rejecting plaintiffs' demands in toto.

1. The plaintiffs introduced as their witness the Linman who was administrator, and obtained the order of sale under which the property was sold, and who inaugurated and consummated all of the proceedings above described, and by whom to substantiate the various allegations of their petition. To the introduction of this witness, by whom to prove these facts, the defendant objected on various grounds, and among them are the following, viz.: First. That Linman could not be heard to stultify himself, and impeach his own official acts as administrator, nor contradict the judicial allegations and judicial proceedings in the succession he administered. Second. That he would not be heard to contradict his own statement under oath, attesting the correctness and existence of the debts placed by him upon the tableau filed in said succession; and subsequently the correctness of the final account, and the genuineness of the debts which purported to have been paid; or to state that same was not just, and due by the succession, or that he had not, as administrator, paid the same. Third. That he could not be heard to impeach or contradict his receipt, as administrator, in which he acknowledged the payment of the purchase price from Harper. For the reasons assigned the testimony of the witness, Linman, was disallowed, and it has been brought up annexed to a bill of exceptions. It appears from the succession record, that was offered in evidence by the plaintiff's attorney, that all the grounds of objection were well taken; and particularly the one to the effect that he had sworn in open court, on the trial of the tableau and account, that the debts enumerated were due by the succession, and that same had been paid by him out of the proceeds of the succession sale. It is absurd to suppose that any court of justice would listen to the statements of any witness, in support of such propositions, which would, of necessity, involve the witness' perjury and turpitude; and although there is an abundance of it, we deem it unnecessary to cite authority in support of our opinion. There is no doubt of the correctness of the lower judge's ruling.

2. The only pertinent evidence in the record on the main issue is that of one of Linman's attorneys. He states his recollection to be that the whole of the purchase price was not paid in cash by Harper, and that Harper was a creditor of the succession, and desired a title in himself, and intended to convey it to Linman, and give him time to redeem or pay the debts due him. This testimony clearly demonstrates that these titles were not fraudulent simulations, but real and actual sales, that were translative of the property, though it may have been for an inadequate price. Pochelu v. Catonnet, 40 La. Ann., 4 South. Rep. 74.

3. Simple reference to the Code will suffice to show that there was no legal impediment to a purchase by Linman at the probate sale of the effects of the succession of his deceased wife, and late partner in community. It provides that "any executor, administrator," etc., * * * may purchase at the sale of the effects of the deceased, whose estate he may represent, when he is the surviving partner in community," etc. Rev. Civil Code, art. 1146. There was no occasion for Harper to have accepted title as a person interposed for Linman. This pretension is groundless.

4. Conceding, for the argument, that the evidence shows, or would show, that only a small portion of the alleged succession debts were actually and really due, and it would in no manner affect the questions at issue. In Webb v. Keller, 39 La. Ann. 55, 1 South. Rep. 423, we discussed and decided this question, and used the following language, viz.: "The complaint made of the order of court directing the sale, on the ground that the estate of Dr. Webb owed no debts, or, if it did, none that had been recognized and proved before a family meeting or the court, does not go to the court's want of jurisdiction. The debts were subsequently placed upon a tableau and proved, to the satisfaction of the judge, who was competent, and same was homologated; and he directed the proceeds of sale to be applied to their payment. This was a mere

irregularity, and not a cause to challenge the proceedings as null and void." That suit was similar in many respects to this, and had a like object of attainment, and the quoted ruling is applicable.

5. In that case we further said that "it is the well-settled jurisprudence of the court that the purchaser at a sale made under an order of the probate court, which is a judicial one, is not bound to look beyond the decree recognizing its necessity. He must look to the jurisdiction of the court; but the truth of the record, concerning matters within its jurisdiction, cannot be disputed. Graham's Heirs v. Gibson, 14 La. 146; Ball v. Ball, 15 La. 182; Rhodes v. Bank, 7 Rob. (La.) 66; Coulter v. Cresswell, 7 La. Ann. 368; Shaffet v. Jackson, 14 La. Ann. 154; Succession of Gurney, Id. 622; Webb v. Keller, 26 La. Ann. 596; Fraser v. Zylicz, 29 La. Ann. 536; Herriman's Heirs v. Janney, 31 La. Ann. 280. The purchaser at a judicial sale of property of -a succession is not bound to look further back than the order of court directing the sale." Succession of Hebrard, 18 La. Ann. 485; Woods v. Lee, 21 La. Ann. 505; Beale v. Walden, 11 Rob. (La.) 72; Brosnaham v. Turner, 16 .La. 440; Nesom v. Weis, 34 La. Ann. 1004. Defendant has stated his case strictly within this rule. All mortuary proceedings, and those leading up to and embracing the probate and judicial sales in question, are perfectly regular, and the probate sale was made under the authority of an order of court to pay the debts of the succession.

*

6. The prescription of five years, which the defendant pleads, under Rev. Civil Code, art. 3543, cures "all informalities connected with or growing out of any public sale made * * · at public auction,” and this bar is perfect and complete in respect to "minors, married women, or interdicted persons.” The preceding argument and citations of authority prove that the matters complained of are, in truth and reality, only matters of irregularity, and do not involve an absolute nullity or illegality. They are all cut off by the defendant's plea of five years' prescription.

7. The learned judge of the district court dismissed the plaintiffs' action as of nonsuit. It appears clear to our minds that this was not just to the defendant, who has made out her defense most clearly and satisfactorily, and is entitled to final judgment; and the judgment of the court a quo must be amended. It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended; and it is further ordered and decreed that the demands of the plaintiffs be rejected and disallowed, and at their costs in both courts.

STATE 0. WILSON.

(Supreme Court of Louisiana. October 6, 1888. 40 La. Ann.)

1. CRIMINAL LAW-TRIAL-MISCONDUCT OF JURY.

It is not misconduct on the part of a jury to procure and read law-books after they have concluded their deliberations, and decided upon their verdict, although it has not been formally rendered in open court.

2. SAME-VERDICT.

Because inartificial expressions and words are employed in framing a verdict, by the jury, the same will not be annulled and set aside, if same are sufficient in terms to reasonably convey the idea intended. The rule idem sonans is applicable. (Syllabus by the Court.)

Appeal from district court, parish of Lincoln; ALLEN BARKSDALE, Judge. The indictment charges that the defendant did "feloniously and of his malice aforethought, with a dangerous weapon, to-wit, a pistol, shoot J. W. Davis, with intent to kill and murder him." Having been tried, convicted, and sentenced to imprisonment in the penitentiary, he has appealed, and rests his claim to relief on two bills of exception,-a motion in arrest of judgment, and an assignment of error in this court.

E. E. Kidd, for appellant. E. H. McClendon, Dist. Atty., for the State.

WATKINS, J., (after stating the facts as above.) 1. After conviction the accused claimed a new trial on the ground that the jury had been guilty of misconduct, to his prejudice, in this, viz.: that during their deliberations upon their "verdict" they obtained and examined a law-book, and consulted the same with reference to the case, and that this misconduct on their part vitiates the verdict. Annexed to the defendant's bill, and brought up with it, is the testimony of the deputy-sheriff, who states that the jury had a law-book in their hands prior to bringing in their verdict, but he did not know whether they examined it or not. He further states that this was subsequent to their having been charged by the court, and also subsequent to the time when they had informed him that they had found a verdict, and requested him to inform the court. If the jury had already concluded their deliberations, and decided upon the verdict they were to render to the court, their examination of a lawbook subsequently did not in any manner affect or impair it, and it was not misconduct on their part, and the rights of the accused were not prejudiced. State v. Garie, 35 La. Ann. 970; State v. White, Id. 96.

2. The motion for a new trial having been overruled, the defendant sought to arrest the judgment on the ground that the verdict, which was reduced to writing, is null and void, because it is vague, uncertain, and illegal in form, not in accordance with the written instructions of the court, and not responsive to the charge in the indictment, or "any charge of crime known to the law," and it cannot therefore be enforced. The indictment is brought up in the original, and thereupon is indorsed the verdict of the jury, which is, ipsissimus verbis, viz.: "We, the jury, find the accused guilty with & assault by sutinge with the intent to murder. L. E. RICHARDS, Foreman." There is special complaint made of the phraseology, as being vague and uncertain, and our attention has been directed to the words "with & assault," and "sutinge," as illustrations. It is clear to our minds that the idea the jury intended to convey by the former was that they found the prisoner guilty of an assault with intent to murder, and only clothed that idea with inartificial verbiage. Among the different forms of verdict which the judge directed the jury they might render is the one following, to-wit: "We, the jury, find the accused guilty of an assault with intent to murder." The latter word "sutinge" is undoubtedly a lapsus penna, and the result of accident, or inadvertence, and was intended to have been written "shooting." It appears from a bill of exceptions reserved by the district attorney that when the verdict was first returned into court and read he discovered there was some ambiguity or uncertainty in its language, and requested the court to direct the jury to retire, and bring in a plain and responsive verdict. This request was declined by the judge, who assigned the following reasons for so doing, viz.: "The court considered the verdict responsive and intelligible. When reading the verdict the clerk hesitated at the word in the verdict spelled 'sutinge,' and the foreman of the jury at once prompted by stating that the word was shooting.' On motion of defendant's counsel the jury was polled, and the clerk read the verdict, distinctly pronouncing said word 'shooting.' The prompting by the foreman was before the district attorney made the motion to have the verdict corrected; and, considering that word as being intended and written for shooting,' the court considered the verdict as being intelligible, and fully sufficient to be the basis of sentence." The judge declined to set aside the verdict at the request of the defendant, and to this ruling he reserved a bill, and thereto the judge appended a statement in which he assigned like reasons, and some additional ones, viz.: That many words beginning with the letters "s" and "" are pronounced as though spelled "shu" or "shoo," and hence the rule idem sonans applied. He further assigned that "if what followed the word 'guilty' is not intelligible it is to be rejected as surplusage." In our minds there is no doubt of the fact that the jury intended the "sutinge" for "shooting," and, such being the case, their verdict is responsive to the indict