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Appeal from judicial district court, parish of Natchitoches; Charles V. Porter, Judge. Vincent Harris was convicted of murder, and appeals. Affirmed.

Jack & Fleming, for appellant. Walter Guion, Atty. Gen., and W. A. Wilkinson, Dist. Atty. (Lewis Guion, of counsel), for the State.

BLANCHARD, J. Defendant appeals from a conviction of murder without capital punishment, and a sentence of life imprisonment at hard labor. The first bill of exceptions recites that a juror on his voir dire was asked, on behalf of the prosecution, "if he would require a higher degree of circumstantial evidence to convict than positive evidence of eyewitnesses." He answered he would, and was thereupon challenged for cause. Over the objection of defendant, the challenge was -sustained, the trial judge stating: "I explained to the juror that the degree of proof which the law required was that which was sufficient to satisfy the mind beyond a reasonable doubt, and that it made no difference whether this proof was supplied by circumstantial evidence or direct evidence, notwithstanding which the juror persisted in declaring that he would require a higher degree of proof in a case of circumstantial evidence than in other cases." It is unnecessary to analyze this ruling of the judge to ascertain whether it be correct or erroneous, in view of the fact that the bill of exceptions does not disclose defendant had exhausted, or did exhaust before the jury was made up, his peremptory challenges, and, in consequence, he had been compelled, later, by reason of the earlier action of the court in sustaining the objection of the state to the juror in question, to accept an obnoxious juror. In State v. Aarons, 43 La. Ann. 406, -9 South. 114, where the defense was that the trial judge had, for cause, erroneously sustained certain challenges to jurors by the state, this court said: "The accused has no legal ground of complaint unless the ruling in the rejection of a juror worked him an injury in the selection of a juror obnoxious to him on legal grounds, after the exhaustion of his peremptory challenges." See, also, State v. Creech, 38 La. Ann. 481; State v. Breaux, 104 La. 541, 29 South. 222.

The complaint of the second bill of exceptions is that defendant was not permitted, on cross-examination of a witness for the state, to show that the woman killed was a common prostitute and kept a public house. The judge recites as reasons for exclusion that: "The fact that the deceased was a common prostitute, and that she kept a public house, were utterly irrelevant to any of the issues presented." Defendant urges error, because, on direct examination by the state, the witness had testified that two or three days before the homicide was committed the accused had told him he had been

endeavoring to get the deceased to consent to sexual intercourse with him, and that he intended to make one more effort. In view of this, it is urged that defendant should have been permitted to show the deceased was a lewd woman and would not probably have declined his solicitations in this regard. There might be force in this objection if the bill of exceptions enlightened us as to the object or reason of the state in putting in the evidence recited. Was the state seeking to show a motive for the crime on part of the accused, viz.: that he killed the woman because she refused to yield to his embraces? If so, the bill should have so stated. It is absolutely silent on the point. It stops short at the words "and that he intended to make one more effort." It may be the testimony was offered for the purpose of showing motive; defendant in his brief states it was; but outside of this statement in the brief (which is not the proper place to inform the court of it) we are left to conjecture that such was the object of the state. Conjecture does not warrant the serious action of reversing the verdict in this case. Being unapprised by the bill as to the object the state had in proving what it did, we cannot say the judge erred in his ruling denying the defense the right to show the deceased was a lewd and abandoned woman. The testimony was irrelevant, as the judge ruled it was, unless offered to rebut or weaken evidence that had been allowed to go in to show motive. There is nothing in the bill to show defendant offered it for that purpose. Non constat that the judge would have ruled the evidence sought to be admitted was "utterly irrelevant to any of the issues presented," had it been offered to rebut or weaken previous testimony adduced by the state to show motive.

From the third and last bill of exceptions we learn that a witness for the state testified. in substance, that on the morning following the homicide, certain parties were engaged in examining and tracing footprints leading from the house of the accused to that of the deceased and back again; that the accused, from a position in the rear of the gin house near the house of the deceased, witnessed this movement; and that, taking alarm, he fled, though no one as yet had charged him with the crime, running across the field in the direction of the spot some three miles away, where he was later come up with and arrested by parties who had gone in pursuit. It further informs us that this testimony was offered by the state as a circumstance the flight of the accusedtending to show, with other circumstances, guilt, and that, to rebut and overcome the presumption arising from said alleged flight, defendant tendered certain witnesses, named, to show that instead of fleeing he (defendant) had gone to the place of residence of the witnesses offered and notified them of the fact that the woman had been killed

by some one, and requested them to go to the place where her corpse lay and render such service as the occasion might require; that one of the parties thus requested did go; that it was at the place of residence of these witnesses, and just after informing them of the homicide and making the request alluded to, he (defendant) was arrested by the parties who had gone in pursuit of him; and that he intended further to prove by the witnesses what he had said to them at the time he called upon them-this to the end of showing that his act was not one of flight, but a mission of kindness, the parties thus notified being connections or friends of the deceased. The state objected to this testimony and was sustained by the trial judge, who recites at length the facts and incriminating circumstances leading up to the flight of the accused and his subsequent arrest, and tells us the accused, himself, was permitted to testify that his object in leaving the place where the killing occurred, while the officer conducting the inquest was engaged in tracing the tracks of the supposed murderer, was to notify the relatives of the deceased of her death, and the witnesses he offered were permitted to testify that he did tell them the deceased had been killed. But, besides this, the judge informs us the accused undertook to testify that a relative of the deceased, who lived on the same place with the latter, and who was not summoned or offered as a witness, had, just prior to his alleged flight, requested him to go at once and notify the relatives who lived on the other and adjoining plantation; that this was objected to by the state as hearsay and as a self-serving declaration by the accused, and was excluded as such, as was, also, the testimony sought to be elicited from the witnesses the accused tendered as to the statements made to them by the accused to the effect that he had been requested by the relative of the deceased to notify them of the latter's death. It will be observed that the bill of exceptions under consideration names certain witnesses who were offered by the defense to prove certain alleged facts. The inquiry, therefore, must be confined to a consideration of whether or not the judge's ruling was correct in not permitting the witnesses thus named to give the testimony they were offered to give. The judge states, in his ruling, the accused undertook to testify that a relative of the deceased had, just prior to his alleged flight, requested him to go at once and notify the relatives who lived on the other plantation, and that, on objection by the state, he declined to permit this statement to be made by the accused. We are of the opinion this ruling was erroneous; that it was competent for the accused to give in evidence such statement; and if this had been included in the bill of exceptions, if the accused had been named in the bill as one of those witnesses called by the defense to testify and whose testimony had i

been excluded and against the exclusion of which the bill had been reserved, we would reverse this verdict and remand the case. But the bill does not name the accused as one of those witnesses, to the exclusion of whose testimony it was taken. It names only Severin Sauville, Henry Butler and Susan Bush, and it was evidently reserved only to the exclusion of their testimony. So, it must be held that no objection, legally presented, is before us relating to the judge's ruling in regard to the testimony of the accused adverted to. The ruling denying the defense the right claimed, to prove by the witnesses Sauville, Butler and Bush what the accused said to them at the time he came to where they were upon the other plantation, was correct. Whatever the accused said to them on that occasion is to be considered a selfserving declaration on his part and inadmissible. In thus ruling the learned judge kept in line with the law governing and refusing the introduction by an accused person of his own declarations or statements not forming part of the res gestæ. Whart. Cr. Ev. (9th Ed.) §§ 690, 691; State v. Thomas, 30 La. Ann. 600; State v. Gonsoulin, 38 La. Ann. 459.

Judgment affirmed.

MONROE, J., dissents.

(107 La.)

CRICHTON et al. v. WEBB PRESS CO.,
Limited. (No. 14,268.)1
(Supreme Court of Louisiana. Feb. 3, 1902)
APPEAL-APPOINTMENT OF RECEIVER-BOND
-FILING TRANSCRIPT.

1. Act No. 159 of 1898 provides a special rule for appeals from judgments appointing or refusing to appoint receivers to corporations, from which neither the parties to the cause nor the court can depart. The statute directs that appeals in such cases must be taken and perfected within 10 days from the entry of the order appointing or refusing to appoint a receiver, and the appeal shall be returnable in 10 days from the date of such order.

2. An appeal is taken and perfected by obtaining an order of appeal and executing a bond of appeal. The filing of the transcript in the appellate court on the return day is a separate and distinct matter. Extensions of time for that purpose are obtainable from the appellate court for proper reasons assigned. (Syllabus by the Court.)

Appeal from judicial district court, parish of Webster; J. T. Watkins, Judge.

Action by Thomas and J. E. Crichton against the Webb Press Company, Limited. Judgment for defendant. Plaintiffs appeal. Dismissed.

Wise & Herndon, for appellants. L. K. Watkins, for appellee.

NICHOLLS, C. J. The plaintiffs and appellants brought suit against the defendant, asking the appointment of a receiver, under 1 Rehearing denied.

Act No. 159 of 1898. Their demand was rejected, and the appointment of a receiver was refused. The trial was had in open court. A written opinion was read in open court, and filed in open court on December 4, 1901. On December 14, 1901, on motion of plaintiffs, an order was granted them in open court for an appeal, suspensive or devolutive, "returnable to the supreme court, at New Orleans, in ten days, according to law." An appeal bond was signed and filed on December 18th. On December 22d Messrs. Wise & Herndon, attorneys of plaintiffs, filed a motion in this court praying that the return day for filing the transcript of appeal be extended to the 3d of January, 1902. The applicants stated that they filed with the motion the affidavit of the clerk of the district court, showing that he would require further time to complete the transcript of appeal. The paper referred to was not an affidavit, but a certificate of the clerk of the district court, under the seal of the court, dated December 21, 1901, in which he certified to the fact of the rendering of the judgment in favor of the defendants; the fact that an order of appeal, suspensive and devolutive, had been applied for and granted on the 14th of December, returnable to the supreme court, in New Orleans, in 10 days, according to law; that the transcript in the case was tedious, and could not reasonably be made in the length of time allowed by the order of the district court. The clerk asked that the time be extended at least 10 days. The court was not in session when the motion was presented, but it was received and ordered to be filed by the clerk here. The supreme court only met on the 6th of January, 1902. On the 30th of December, 1901, the defendants, through their counsel, applied to the supreme court for an order from it directing its clerk to issue a certificate showing abandonment of appeal, and applying in the alternative for a dismissal of the appeal. On the 2d day of January, 1902, the plaintiffs filed the transcript of appeal. The court directed these various documents to be filed by its clerk as of date of receipt by him.

The grounds assigned by the defendants for having a certificate of abandonment issued, or the appeal dismissed, were that, under Act No. 159 of 1898, the appeal from a judgment appointing or refusing to appoint a receiver must be perfected in 10 days from the signing of the order appointing or refusing to appoint a receiver; that there was no timely motion made for the granting of an appeal; that the order of appeal granted on the 14th of December was not timely; that the bond filed on the 18th of December was too late, as more than 10 days had elapsed from the entry of the order and judgment refusing to appoint a receiver; that, if the order of the judge in granting the appeal was timely, it could only carry out the statute and have the effect as it implies of making the appeal returnable "according to law"

equivalent, as it were, to an order entered nunc pro tune; that such an order could not have the effect of granting to the appellants 20 days in which to perfect the appeal, when the statute only gave 10 days; that the application of the plaintiffs filed in the supreme court on the 23d of December, 1901, could have no legal effect and stand in the way of granting the certificate, for the reason that the appeal was not perfected and the appeal bond in the lower court was not filed in time, and the application to have the return day extended was not filed in time, and could not be considered by the court, and it was not made under oath and in due form.

The practice of this court has been to permit applications for extension of return days made to the court when it was not in session to be filed by the clerk on the day of their receipt, and to act thereon nunc pro tunc on the first judicial day of the court thereafter by an ex parte order, but granted "without prejudice." Appellee having contested the right of the plaintiffs to have been granted an extension, and the right to be heard on appeal, we have examined the rights of both parties in the premises. In view of the fact that at the time appellee applied to have this court direct its clerk to issue a certificate of abandonment of appeal, appellants had already prayed for an extension of the return day of appeal, it was deemed best not to act ex parte, but to decline the application, and let matters be tested contradictorily on the motion to dismiss the appeal, and it was so ordered. If, at the time the application for an extension of time was filed in the supreme court, plaintiffs had already lost their right of appeal, any order of ours granting the application would have to be set aside, on opposition thereto, as having been improvidently made. The first question is, therefore, whether at that time plaintiffs' right of appeal had lapsed. The appeal in this case was taken by plaintiffs, who were demanding to have a receiver appointed to the defendant corporation from a judgment rejecting their demand. The fourth section of Act No. 159 of 1898 (a statute specially regulating the practice of appointing receivers of corporations under articles 109 and 133 of the constitution) gives to any party interested an appeal from the judgment of court which may be rendered on such an issue. The section declares that: "Such appeal must be taken and perfected within ten days from the entry of the order appointing or refusing to appoint a receiver. Such appeal shall be returnable in ten days from the date of such order and shall be tried by preference in the appellate court. Any interested party may apply within thirty days after the entry of the order of appointment of a receiver, to vacate same on legal or just grounds, and may appeal from an adverse judgment but shall not suspend the functions of said receiver." The short period granted for the

taking and perfecting of such an appeal was doubtless intended to provide specially for the case of an appeal from an order "appointing" a receiver, in view of the importance of a quick determination of the issue. The importance is not so great, perhaps, where the application has been refused; but, be this as it may, the statute has made no distinction between the two cases. Under the terms of the statute, the plaintiff was called upon to take and perfect his appeal within 10 days from the date of the judg ment. This means he must have obtained an order of appeal, and furnished a bond under the order within the delay fixed. An appeal is perfected by the furnishing of a bond, and not necessarily by the filing of the transcript in the case within that time. That time may be extended by the appellate court, for good and sufficient reasons assigned. The district court in this case, when applied to, made the appeal returnable in 10 days "according to law." The order did not state it was returnable in 10 days from the order granting the appeal, but in 10 days "according to law." Counsel of appellants construed the order to mean as if it read “returnable in ten days hereafter," and on that theory executed their bond on the 18th of December, while in fact the time limit for perfecting the appeal under the statute had expired. The effect of the order of appeal, construed as appellants construed it, was to make the period for the perfection of the appeal 20 days, instead of ten, as "the ten days according to law" were at the date of the order of appeal then expiring. The obvious belief of both the district judge and appellants' counsel was that the judge was authorized to fix and extend the "return day" under section 31 of the Revised Statutes. Section 31 declared that "in all cases the judge of the court from which an appeal is taken shall make the appeal returnable to the appellate court at the next return day for appeals from the parish, if there shall be time enough after granting, to give notice required by law and to prepare the record, if not then he shall fix this return day for the following term day." Act No. 92 of 1900 enacted that "the judge of the district courts throughout the state (the parish of Orleans excepted) shall fix the return days in all civil cases appealable to the supreme court, provided that the judge shall fix the return day in the order granting the appeal which shall not be less than fifteen, nor more than sixty days from the date of the orders except by consent, and further enacted that all laws or parts of laws in conflict therewith were thereby repealed, and that the act take effect from and after its passage." We are satisfied from an examination of the transcript which has been filed that it would have been difficult to have prepared it during a term of court in 10 days, though nothing is said in the application for or in the order of appeal of the necessity of any extension on that account. There is no doubt that had the ap

pellant executed a bond on the 14th of December, the day upon which he applied for and obtained an appeal, he would thereby have "perfected" his appeal, under the terms of the law, leaving open the transmission of the record as a separate and independent question for later consideration and action. He did not do so, evidently relying upon the right and power of the judge to fix the return day at 10 days from the date of the order of appeal.

Appellees contend that Act No. 159 of 1898 is a special law providing for a particular class of cases, and is unaffected by section 31 of the Revised Statutes of 1900, and they cite State v. Porter, 104 La. 538, 29 South. 273, in support of this position. We are very reluctant to dismiss appeals, but appellees have legal rights in this matter, which we are not permitted to disregard. Appellees' position is correct, and we are compelled to dismiss the appeal. Appellants should, on the rendering of a judgment against them, have applied at once for an appeal, and the court should have fixed the return day aecording to the terms of the law, leaving to them to apply to this court for an extension of time to file their transcript, if they found it could not be completed in time for the return day.

The appeal is hereby dismissed.

(107 La.)

POLICE JURY OF PARISH OF AVOYELLES v. CORPORATION OF MANSURA. (No. 14,323.)

(Supreme Court of Louisiana. March 3, 1902.) POLICE JURY-AUTHORITY OF PRESIDENTLOCAL OPTION-VOTE OF PARISHPAROCHIAL ELECTION.

1. A resolution of a police jury, authorizing its president to employ counsel to enjoin a municipal corporation from selling intoxicating liquors during the year 1902, is held to be sufficient authority. without further action by the jury, for the president to institute suit and stand in judgment therein.

2. If the people of a parish, by ballot, may vote liquor selling out of the parish, so that the prohibition is binding for 12 months on all the wards and cities and towns within the parish (and that is the law), such a vote taken throughout the parish every 12 months would continue prohibition in and throughout the parish indefinitely.

3. It is only where a parish fails to act in the way of repetition of the edict of prohibition, within 12 months of its former election. or of the beginning of the prohibitive period. that a town or city can take action to emancipate itself from the restraint put upon it by the parochial election.

4. Once a parish speaks for prohibition its voice is paramount throughout its limits, binding on all, citizens and municipalities alike, and continues so for 12 months, and if at or near the close of the 12 months it speaks again for prohibition, it silences any contrary voice which, meanwhile, may have been spoken in towns or cities within its limits.

Breaux and Monroe, JJ., dissenting. (Syllabus by the Court.)

Appeal from judicial district court, parish of Avoyelles; G. H. Couvillon, Judge.

Action by the police jury of the parish of Avoyelles against the corporation of Mansura. Judgment for plaintiff, and defendant appeals. Affirmed,

Adolph Vallery Coco, for appellant. Joseph Clifton Cappel and E. J. Joffrion, for appellee.

BLANCHARD, J. In the year 1900 the police jury of the parish of Avoyelles, acting under authority of Act No. 76 of 1884, submitted to the electors of the parish, at an election held for the purpose, the question of the sale, or prohibition of the sale, of intoxicating liquors in said parish. Theretofore the sale of such liquors had been carried on in the parish. The election ordinance provided that if the people voted against the continuance of their sale, the prohibition should begin from and after January 1, 1901. At the election which ensued, prohibition carried, and beginning with January 1, 1901, licenses for drinking houses and shops were withheld. In the autumn of 1901, action was taken by the authorities of Mansura, an incorporated village in the parish of Avoyelles, to submit to the voters of that municipality the question of granting a municipal license to sell liquors within the corporation limits beginning January 1, 1902. At the election held for the purpose 20 votes were cast out of a total of 25 registered voters in the town. All of the 20 were for authorizing the sale of liquor. Subsequently, to-wit:-in December, 1901, and before 12 months of prohibition, resulting from the previous parochial election, had expired, the police jury of the parish again submitted, by proper ordinance, to the voters of the parish the question of continuance of prohibition vel non in the parish from and after January 1, 1902. At this election 817 votes in favor of prohibition were cast, and 240 against prohibition. Thereupon due proclamation was made of the result, viz:-that the people of the parish had legally decided to prohibit the sale of intoxicating liquors throughout the parish from and after January 1, 1902. Apprehending that, notwithstanding this second vote of the parish, the authorities of Mansura would issue licenses for the sale of liquors in that town for the year 1902, predicating their action in this regard on the election heretofore referred to as having been held in the town, the police jury, following the announcement of the result of the second parochial election, passed this resolution:-"Resolved that the president be and he is hereby authorized to employ counsel to enjoin the different corporations of the parish from selling intoxicating liquors during the year 1902." Whereupon the president of the jury brought the present action against the town of Mansura to prohibit, by injunction, its officials from issuing licenses for the sale of liquor in the town for and during the year 1902.

Brushing aside as of no consequence cer

tain minor matters that arose in the case, the real defense to the suit is found to be (1) want of authority in A. B. Irion, president of the police jury, to institute and prosecute the suit, or to stand in judgment for the police jury; (2) that the election held in the town of Mansura in the fall of 1901, at which the sale of spirituous liquors was authorized in the town, was entitled to have full effect as against the parish for 12 months from the time from which such sale was authorized, to wit:-January 1, 1902.

The case was tried by jury, who returned a verdict in favor of the plaintiff, and from the judgment predicated thereon, defendant prosecutes this appeal.

1. The resolution adopted by the police jury is sufficient authority for its president to institute this suit and stand in judgment therein for the parish. It might have been fuller and more explicit, but its meaning is clear enough. It is not expected that an ordinance of a police jury will be drawn with that degree of preciseness and skill which characterizes acts adopted by higher legislative bodies. This resolution authorized the president of the jury to employ counsel for a specific purpose, to-wit:-to enjoin the incorporated towns in the parish from authorizing the sale of liquors in the year 1902. This grant, then, by direct terms empowered the president to employ counsel to enjoin the towns from permitting liquors to be sold, and there followed from it, by necessary implication, the power to bring a suit, for only by suit, or process at law, could a writ of injunction be obtained. The authority conferred to institute a suit involves and carries with it the power to stand in judgment in such suit. The proper party, under the law, in whose name a suit by a parish should be brought, when authority therefor is given by the police jury, is the president of the jury, acting, as was the case here, for and on behalf of the jury.

But it is urged that. subsequent to the adoption of the resolution authorizing the president of the jury to employ counsel to enjoin the towns, that official reported to the jury he had engaged two lawyers who would undertake to represent the parish for a fee of $400, and that a resolution offered by a member of the jury to appropriate that sum for the purpose was, on motion of another member, laid on the table. The contention, in effect, is that this tabling of the proposition to appropriate money to fee the counsel employed, or proposed to be employed, was tantamount to the withdrawal of the previous authority conferred to employ counsel. We think not. The tabling of the resolution to appropriate $400 did not operate, under the general parliamentary law, the repeal of the preceding resolution authorizing the presi dent to employ counsel. Not only is repeal by implication not favored, but there was nothing in the action taken, refusing to appropriate the money, inconsistent, from a

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