the city council against said ordinance. That | judgment of the Caddo district court dismisshe is now and was a member of the city council on June 9, 1892, and as such voted for the ordinance enacted on said date by said council, repealing the ordinance granting certain rights to the Shreveport Electric Railway & Motive Power Company, and that it was his right and his duty so to vote, for the reasons (among others) assigned by the Caddo district court in the opinion and judgment dismissing said suit No. 4,001. That the charges made against him and his fellow members of said council, in the petition in said suit No. 4,001, and verified by the oath of said W. E. Hamilton, and the allegations of said petition with regard to himself anu to his said fellow members, in so far as ey affect the petitioner, are false, libelous, and slanderous, designed and calculated to injure and destroy the character and reputation of petitioner as a private citizen and public official, and his credit and repute as a business man; and that said charges and allegations constitute a charge of felony, and a criminal and infamous offense under the laws of the state of Louisiana; and that said W. E. Hamilton well knew when he published said charges, and verified them by his oath, that same were false, libelous, and slanderous, and same were maliciously made and with full advice; that said charges and allegations were so made and published by said W. E. Hamilton without cause, wantonly, maliciously, and with intent to injure petitioner, and that said charges, as made and published in said petition, the said Hamilton has verbally reiterated, made, and published, at various times before and after the institution of said suit No. 4,001, to citizens of Shreveport and to others, with design to injure petitioner, and destroy his character and credit. That the said petition of the said Hamilton in said suit No. 4,001 shows on its face no cause of action against petitioner and the other members of the common coun. cil named thereon, and that he and said other members were made defendants in said suit wantonly, maliciously, and for the corrupt purpose of influencing thereby the offcial action of petitioner and said other members in the interest of said Hamilton and a certain corporation, to wit, the Shreveport Railway & Land Improvement Company, wherein said Hamilton is a large stockholder, together with his father-in-law, Edward Jacobs, his brother-in-law, Walter B. Jacobs, and wherein said W. E. Hamilton, Edward Jacobs, and the said W. B. Jacobs and First National Bank of Shreveport (whereof said W. E. Hamilton is vice president and said W. B. Jacobs is cashier) are large stockholders, and are otherwise largely interested; it being the purpose and intention of said Hamilton to destroy the value, and force the sale to said Shreveport Railway & Land Improvement Company, of the property and franchises of the Shreveport City Railway Company, a rival corporation. That, since the ed said suit No. 4,001, the road and franchise of said City Railroad Company have been purchased by the Shreveport Railway & Land Improvement Company, or by the parties principally interested therein. That if it be true, as alleged in the said petition of said Hamilton, that the ordinance of June 23, 1891, therein set forth, vested rights and privileges in the Shreveport Electric Railway & Motive Company, then the repealing clause of June 9, 1892, was unconstitutional, null, and void, and such rights and privileges were not thereby in any manner impaired or affected; and if said company held no vested right under said ordinance of July 23, 1891, then said company had no right nor cause of action, as set forth in petition in said suit No. 4,001. That under either supposition he and his fellow members of the city council could not properly be made parties defendants to said suit No. 4,001. That there was no occasion to make him and his fellow members parties defendants in said suit, or to make the charges therein made against them. That the allegations and charges made in said petition and affidavit, against him and his fellow members of the city council, were not pertinent to the issue, or in any way or manner necessary for the protection of the rights therein alleged to exist. That said suit No. 4,001 is not, and never has been, a real suit,-that same was and is the fraudulent simulation of a suit,—that there was no party plaintiff thereto; and that the pretended corporation, styled therein "The Shreveport Electric Railway & Motive Power Company,' has no existence and has never existed, all of which said William E. Hamilton well knew, at the time he made said false, malicious, and slanderous charges against petitioner and his said fellow members. That his reputation was in all respects good, prior to the said charges as aforesaid, falsely, wantonly, and maliciously made and published by said W. E. Hamilton. That the said charges so made and published by said W. E. Hamilton have injured his reputation; have been detrimental to his standing and social position in the community where he lives and elsewhere; have had a tendency to degrade him with his fellow men; have impaired his credit and injured his business, which is that of a cotton buyer and factor, and caused same to materially decline, to his great financial loss; have subjected him to mortification and insult; and have outraged his feelings to an extent which cannot be sufficiently measured by money, but at least to the extent of $15,000. That he was entitled to exemplary and punitive damages against said Hamilton, to the amount of at least $10,000. That he was compelled to employ counsel to defend him in said suit No. 4,001, at an expense to him of $150, for which amount, also, he should have judgment against said Hamilton." He prays that Hamilton be cited, and that he have judgment against him for $25,140, interest and costs. The district court held that the exception was well taken, and dismissed the suit. Plaintiff has appealed. In the reasons for judgment, the district judge said: "There can be no doubt that the averments of the petition of suit No. 4,001 are libelous in their character. To charge a public official with having been a party to a fraudulent conspiracy, and to have been influenced in his official capacity by corrupt motives, is certainly a defamation likely to cause a breach of the peace, and great wrong to the sufferer. Such a charge, if published in a newspaper, would undoubtedly be actionable in damages, if it were shown to be false and malicious. But defendant contends that this charge was made in the course of judicial proceedings, in good faith, that it arose upon a proper occasion, and was pertinent to the issue, and is therefore protected as a privileged communication. Under the common law of England, no action lies against an attorney or litigant for defamatory words spoken or written in a pleading in judicial proceedings, even though they were unnecessary to support the case of the client, and were uttered or published without any justification or excuse, and from personal ill will towards the part defamed, arising from some previously existing cause, and are irrelevant to every question of fact in issue before the court. It seems, then, that under the English law the mere fact that the defamatory language was used in a judicial proceeding is an absolute protection regardless of all the considerations. Plaintiff's counsel contends that in Louisiana privileged communications in judicial proceedings are unknown to our law, and that article 2315 of the Revised Civil Code furnishes the true and only rule for determining the right of action in all cases-libel and slander included -where damages are claimed for torts, even though the defamatory matter be published in a judicial proceeding. Many authorities are cited to support this position, notably that of Miller v. Holstein, 16 La. 389. I have examined these proceedings, and they undoubtedly show that the English law of absolute protection does not prevail here, and that the foundation and measure of liability for a libel uttered in a judicial proceeding are found in article 2315 of the Code; but I do not understand them as holding that no sort of priviledged communications is known to our law." The learned judge then proceeded to cite and quote a number of decisions in which the defendants in suits brought against them for damages had been protected from liability, by reason of the acts complained having occurred in the course of judicial proceedings; and from those decisions he reached the conclusion that in some cases an absolute exemption from liability existed, and that the present case was one of that character. There is a great difference between an absolute exemption from lia bility for damages under a given state of facts proven, and an absolute exemption from liability to a suit for the purpose of testing whether such a state of facts exists as would convey with it such protection from damages. There is a great difference between the situation of parties at the end of a lawsuit, and after evidence adduced, and that of parties at the beginning of a lawsuit, standing on pleadings. There can be no doubt that the fact that an act complained of occurred in judicial proceedings may have a great bearing and influence upon both the burden and sufficiency of proof on the final result, on a question of a liability to damages for that act. Such a fact being shown, with its attendant circumstances, may sometimes afford partial protection, sometimes afford adsolute protection; but it may also frequently intensify and aggravate a wrong. The de termination of such questions depends almost necessarily upon facts resting still in pais, which can only be positively and finally ascertained through the instrumentality of a suit. While it may be true that, given a particular state of facts, legal protection from liability would follow as a matter of law, it is none the less true that the facts themselves on which exemption is based are open to inquiry and to judicial scrutiny. Any other doctrine would convert the courts of the country into instrumentalities for wrong and into engines of oppression. Nothing in the Gardemal Case, (La.) 9 South, 108, which was one tried on its merits and turned upon the burden and sufficiency of proof, is out of line with the views herein expressed. that case, this court, speaking of privileged communications, said: "In privileged communications the party is protected from the damages, unless the occasion was used as a means of inflicting a willful and malicious injury upon the plaintiff," and, re ferring to protection arising from judicial proceedings, it declared: "If extended to those who were in the honest pursuit of private right." It was never once intimated that the courts of our state were places from which, as from places of secure refuge, parties could with impunity perpetrate wrong. Weil v. Israel, 42 La. Ann. 955, 8 South. 826. We have examined plaintiff's pleadings very carefully. They are both full and precise. If, in their consideration, we strike out and eliminate the question of "privilege," it must be conceded plaintiff's petition disclosed a course of action. If we replace that question, we find that plaintiff has specifically affirmed the nonexistence of the conditions upon which the right of exemption is dependent. He has a right to go to trial on that issue, as one of fact, to be ascertained by evidence. For the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, the case reinstated, and that it be remanded for further proceeding according to law. In (45 La. Ann.) YOUREE v. HAMILTON. (No. 363.) (Supreme Court of Louisiana. Oct. 11, 1893.) Appeal from district court, parish of Caddo; S. L. Taylor, Judge. municated threats is admissible in support of the theory of self-defense, to show that the deceased sought the meeting or provoked the combat, that he harbored malice and animus for the defendant, and generally to illustrate his conduct and motives. Whart. Crim. Law, § 1027; Stokes v. People, 53 N. Y. 174; Keener v. State, 18 Ga. 194; CampLeonard & Thatcher, for appellant. Wise & bell v. People, 16 Ill. 18; Holler v. State, 37 Action by H. H. Youree against William E. Hamilton for libel. From a judgment for defendant, plaintiff appeals. Reversed. Herndon, for appellee. 1. Evidence of uncommunicated threats was properly excluded where, taking and considerIng as a whole the evidence adduced on the trial as recited by the judge, there was no testimony legally tending to show a case of self-defense, and where, taking as true the recitals of the district judge as to the facts of the case, the defendants made an unprovoked attack upon the deceased, and killed him, the evidence indicating this to have been the result of preconcerted design on their part. 2. The record in this case being, flagrantly defective, the verdict of the jury is set aside, and the judgment annulled; the principles announced in State v. Shields, 33 La. Ann. 993, being applied. (Syllabus by the Court.) Appeal from district court, parish of St. Mary; L. C. Allen, Judge. Ben Depass and James Depass were convicted of murder, and appeal. Reversed. D. Caffery & Son, for appellants. When the question is as to what was deceased's attitude at the time of the fatal encounter, or where it appears that evidence has been introduced tending to show that the act of homicide was committed in self-defense, evidence of previous uncom Ind. 57; People v. Arnold, 15 Cal. 476; People v. Scroggins, 37 Cal. 676; 93 U. S. 465. When two witnesses testify to a state of facts tending to show self-defense, and are contradicted by the testimony of several other witnesses, proof of uncommunicated threats should be admitted, in support of the theory of self-defense, and to show that the deceased sought the meeting or provoked the combat, that he harbored malice and animus towards defendant, and generally to illustrate his conduct and motives. M. T. Gordy and J. R. Land, Dist. Attys., for the State. NICHOLLS, C. J. The defendants, Ben Depass and James Depass and Alexander Landry, Jr., were jointly indicted for the murder of Alfred Edwards, and, upon trial by jury, Ben and James Depass were found guilty as charged, without capital punish ment, and Alexander Landry was acquitted. Ben Depass and James Depass have appeal. ed from the sentence against them, and rely for the reversal of the judgment of the lower court upon objections urged in a bill of exceptions reserved in that court, and upon an assignment of error in the supreme court. The bill of exception was as follows: "Bill of exception. The defendants placed upon the stand Alexander Landry, Sr., a witness, to prove that, shortly before the fatal meeting between the accused and Alfred Edwards, the said deceased was heard to utter threats against the lives of defendants, which threats were not communicated to defendants. The defendants having previously placed upon the stand Aaron Johnson, Henry Carlin, Ben Depass, and Alexander Landry, Jr., to prove that Ben Depass, who fired the fatal shot, only fired after a demonstration made against him by the deceased, which demonstration consisted in the drawing of a pistol and the pointing of it at Ben Depass, and said witnesses having sworn to such a statement of facts, the evidence of uncommunicated threats, aforesaid, was sought to be introduced in support of the plea of selfdefense, and not for the purpose of showing the quo animo of the defendants, but for the sole purpose of showing that the deceased sought the meeting or began or provoked the combat, and to show the animus of the deceased, and to illustrate his conduct and motives. The testimony of the four above-mentioned witnesses showed that the acts of the deceased at the time of the encounter that resulted in death were at least ants in this court urge that the ruling of the district judge upon the subject of uncommunicated threats was erroneous, claiming on the authority of Whart. Crim. Law, § 1027, and Wiggins v. People, 93 U. S. 465, that "proof of uncommunicated threats is admissible where the question is as to what was deceased's attitude at the time of the fatal encounter, or where it appears that other evidence has been introduced tending to show that the act of homicide was committed in self-defense." They contend that the present case was brought under the operation of that rule. We do not think so. Taking the recitals of the district judge as to the testimony adduced (which was not taken down in writing) as correct, we do not see what applicability the rule invoked has to the case at bar. Taking the testimony as a whole, and so considering it, we do not think it can be said there was testimony legally tending to show a case of self-defense. The court, under the state of facts shown, could not do otherwise than act as it did. of a doubtful character, and defendants offered to introduce the said evidence of uncommunicated threats for the sole purpose stated, and disclaimed any other purpose. The state objected to the introduction of this evidence, and the court sustained the objec tion for the following reasons: The evidence of uncommunicated threats sought to be introduced in this case was rejected on the objection of the district attorney, because the proof in the case-even the testimony of the witnesses mentioned in this bill of exceptions, three of whom were prosecuted for the murder of Edwards, and the other, Aaron Johnson, was arrested for the same offense-left no doubt of the fact that the defendants were the aggressors, and it shows that they made the attack that resulted in the death of Edwards. The facts that led up to the homicide are the following: Three hours before the homicide, Jim Depass and Alexander Landry, two of the men charged with murder in the indictment, were beating another man. Edwards parted them, and said it was not right for two to jump on one. Afterwards, Jim Depass met his brother, Ben Depass, and had some conversation with him. Ben Depass then went to a store and bought some cartridges, and loaded his pistol with them. Three hours afterwards, Ben Depass, Jim Depass, Alexander Landry, Henry Carlin, (the cousin of the defendants,) and Aaron Johnson assembled at a point near the railroad depot. As Edwards passed, he saw them and stopped, and said, 'Good evening, gentlemen.' They responded, and for several minutes they conversed quietly together. During this conversation one of the Depass boys said to Edwards: "That little seven-shooter of yours is no account.' Edwards answered: 'It is not a seven-shooter, but a good five-shooter.' He took it out and showed it to them, and then put it back in his pocket. The conversation continued with no reference to a difficulty. A short while afterwards, while Edwards was leaning up against a post with his side towards the Depass boys, and not looking at them, Jim Depass suddenly struck Edwards on the head with a large rock, which staggered him, and made him reel about in a dazed condition. While in this condition, Ben Depass shot and killed him. While Edwards was reeling and stag- | against these appellants, sentencing them to gering from the blow on the head made with the rock, he attempted to draw his pistol, and did get it out before Ben Depass killed him. Ben Depass and Aaron Johnson said 1 that Edwards pointed it at him. No other witnesses bear him out in this. All the disinterested witnesses (and they were several) say that Edwards was shot down while in the act of drawing, and while he was dazed and staggering from the rock blow. The evidence indicated a preconcerted design on the part of Edwards' slayers, and showed conclusively that they made an unprovoked attack upon him and killed him." Defend The accused assigned for error in the supreme court the following irregularities in the proceedings of the court below, as being shown by the transcript: "That the bill of indictment on which they were tried was not found by a grand jury regularly organ ized, nor was it ever properly found and presented by such grand jury in open court." We have examined what purports to be a record of the proceedings of this case. On the last page we find a certificate signed by "J. B. Verdun, Jr., Deputy Clerk of 17 Judicial Dist. Court, Parish of St. Mary," to the effect that the foregoing 20 pages contain a true and correct transcript of all the proceedings had, evidence adduced, and documents filed in the suit of the State of Louisiana v. Ben Depass et al., No. 569 of the criminal docket of the seventeenth judicial district court. The transcript fails to show the opening of that court, either on the first or any other day of the term; it fails to show that a grand jury was ever impaneled or sworn, or that any appointment of foreman was made; and it is throughout so flagrantly defective as to make it difficult to be dealt with as a judicial record at all. We see from it that a judgment has been rendered the penitentiary for life. This judgment, and the verdict upon which it was based, cannot stand on such a record. State v. Shields, 33 La. Ann. 993. If the clerk of the district court for the parish of St. Mary had deliberately designed bringing about this result, he could not have succeeded more effectually than he has. For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from, and the verdict on which it was based, be set aside, and that the said judgment be annulled and reversed, and that defendants be detained in custody subject to the fur ther orders of the district court of the parish of St. Mary, to await further prosecution or proceedings according to law. (45 La. Ann.) STATE v. BOSWELL. (Supreme Court of Louisiana. Oct. 27, 1893.) CRIMINAL LAW- REBUTTing RebuttaL EVIDENCE -PRACTICE 1. Defendant in a criminal case is not entitled, as a matter of legal right, to offer testimony in rebuttal of testimony in rebuttal. 2. The fact that after the defendant had closed his case the state recalled some of its own witnesses and interrogated them as to matters which might have been relevantly and properly introduced originally as part of the state's evidence in chief, does not necessarily affix to that testimony the character of new and direct "criminative" evidence in chief. In the case at bar the testimony was strictly on the line of rebuttal, and, not going beyond rebuttal, must fall, as to its contradiction, under the rules governing testimony offered in rebuttal of rebutting testimony. The purpose of the testimony was to disprove, not to prove, and was not offered at that late stage of the proceedings to introduce against the accused an admission or confession to establish his guilt. If accused feared that the jury would give to the rebutting evidence legally introduced an effect beyond its legitimate scope, his remedy lay in asking from the court special instructions on that subject, and not in departing from the rules governing the practice in relation to that kind of testimony. (Syllabus by the Court.) Appeal from district court, parish of East Baton Rouge; George W. Buckner, Judge. Richard Boswell was convicted of murder, and appeals. Affirmed. H. F. Brunot, for appellant. Geo. K. Favrot and John R. Land, Dist. Attys., for the State. In criminal cases, objections to the rulings on the trial can be considered by the supreme court only when contained in a formal bill of exceptions, and the bill must be filed. 30 La. Ann. 1170; 31 La. Ann. 804; 36 La. Ann. 308. It is not error to refuse a continuance asked for because of the absence of witnesses, when the facts they could prove are immaterial, and would not have constituted a defense. 27 La. Ann. 375; Mann. Unrep. Cas. 391; 39 La. Ann. 419, 2 South. 184. Under any circumstances it requires the clearest proof of misconduct on the part of the jury, or of some member of it, to justify the setting aside of their verdict. The burden being on the defendant to show misconduct, he must make out a case, at least by preponderating evidence. Thomp. & M. Jur. § 436. It is elementary that, after the state has closed in rebuttal, the defendant cannot introduce evidence in rebuttal. There must be an end to the examination of witnesses and the trial of cases. NICHOLLS, C. J. The defendant, Richard Boswell, indicted for the murder of his wife, was tried by a jury, found guilty as charged, and sentenced to be hung. He has appealed. He urges that during the trial of the case, and after the testimony for the defendant (except for the right reserved to introduce rebuttal evidence) was closed, the judge a quo improperly refused to permit the defendant to rebut certain evidence subsequently introduced by the state, which he claims to have been new evidence. He further urges that the court erred in overruling his motion for a new trial based upon the charge "that the sheriff entered the jury room when the jury was deliberating upon a verdict in this case, and called Juror Betz (who was in favor of a verdict of guilty without capital punishment, aside to a window, out of the hearing of the jurors and held an earnest conversation with said juror, which said juror immediately returned to the other jurors, and voted and urged thereafter an unqualified verdict against defendant." We will dispose of this last complaint by saying that every allegation made in the motion, and every inference drawn from the same, was affirmatively disproved by the testimony taken, with the exception of that which stated that the sheriff (who had the jury in charge) had a conversation with the Juror Betz. The district judge correctly overruled the motion. In signing the bill of exception which the counsel of accused reserved to his refusal to admit the testimony offered for the defense, the judge states the facts upon which his ruling was predicated, as follows: "The accused was charged with the crime of murdering his wife. The state opened the case by introducing evidence to show accused's guilt. The accused was placed on the stand as a witness in his own behalf. He admitted the killing, but claimed it was an accident; the pistol going off accidentally, and only one shot was fired, which fatally wounded his wife. He testified that, after his pistol went off, he went to his front gate, and threw the pistol away in a certain direction. He said he told his attorney, about four days before his trial, the direction he had thrown his pistol. His attorney, Mr. Brunot, with three other witnesses, testified that they had gone to the place designated by counsel, and found a pistol with one chamber empty. The pistol was exhibited to the jury, was identified by the accused as the one he shot his wife with, and it was shown that the pistol had been exposed to the dew, rain, and sun for over four weeks before it had been found by Mr. Brunot and the other witnesses. The state then introduced witnesses to show that the accused, after he shot his wife, placed the pistol with which he did the shooting on a table; that the pistol showed two chambers discharged. Alec Johnson swore he had taken the pistol from the table in accused's room, and produced it before the jury, identifying |
