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2. OBSTRUCTING JUSTICE (§ 3*) - OFFICERS EXECUTING PROCESS.

Section 865 of the Revised Statutes of 1870, as amended and re-enacted by Act No. 11 of 1882, not only makes it an offense to illegally resist, oppose, or assault any officer of the state while serving the process of any court, but also makes it an offense to assault and beat or wound any officer, or other person duly authorized, while serving such process. The section is broad enough to cover a town marshal, or any other municipal officer, or person duly authorized, to serve or execute the process, writs, or orders of municipal courts.

[Ed. Note.-For other cases, see Obstructing Justice, Cent. Dig. §§ 3-12; Dec. Dig. § 3.*] Appeal from Fifth Judicial District Court, Parish of Jackson; Cas Moss, Judge.

M. B. Kelly was convicted of resisting and assaulting an officer while attempting to serve and execute a process, and appeals. Affirmed.

Samuel Barksdale, of Jonesboro, for ap

pellant. R. G. Pleasant, Atty. Gen., and Julius T. Long, Dist. Atty., of Winnfield (G. A. Gondran, of Donaldsonville, of counsel), for the State.

guilty as charged, "with the mercy of the court."

Defendant interposed a motion in arrest of sentence on the ground that the marshal of the town of Jonesboro was not a state officer.

This motion was overruled, and the defendant was sentenced to imprisonment at hard labor in the state penitentiary for a term of 12 months. Defendant appealed.

[1] It was proven on the trial of the motion to quash that the defendant and Frank Ferguson had been previously indicted by the grand jury of the parish for feloniously cutting and stabbing J. H. Jones with a dangerous weapon, with intent to kill. It was admitted by the state that the indictment and information were based on the same state of facts.

Defendant's counsel argues that the lawmaker never intended that two bills should exist and be pending against a person for one and the same offense, and that the plea of lis pendens should be permitted in both criminal and civil cases. Unfortunately for the argument, the fixed jurisprudence is otherwise.

tion is no bar to another prosecution under a "The pendency of an indictment or informadifferent indictment or information. There may be several indictments or informations pending in the same court, for the same offense, against the same defendant." Marr's Crim. Juris. p. 579.

[2] Section 865 of the Revised Statutes of

1870, as amended and re-enacted by Act No. 11 of 1882, reads as follows:

"That whoever shall illegally resist, oppose or assault any officer of this state, while serving or attempting to serve or execute the process, writ or order of any court, or shall assault and beat or wound any officer or other person duly authorized, while serving or executing any process, writ or order aforesaid, shall on conviction be imprisoned not exceeding two years at hard labor or otherwise, or fined not exceeding one thousand dollars or both at the discretion of the court."

LAND, J. The information charged that the defendant did willfully, feloniously, and maliciously resist, oppose, and assault, beat and wound one J. H. Jones, an officer of the state of Louisiana, to wit, marshal of the town of Jonesboro, while he was attempting to serve and execute the process and order This section makes it an offense to illegalof the mayor's court of said town, by arrest-ly resist, oppose, or assault any officer of ing one Frank Ferguson for cursing and this state, while serving or attempting to swearing in a. public place and near a pri- serve or execute the process, writ, or order vate house within the town aforesaid, in the of any court, or to assault and beat or wound presence of the said marshal, and for ex- any officer or other person duly authorized, posing his person in a public place in said while serving or executing any process, writ, town, in violation of the ordinances of said or order, aforesaid. It would seem that the first part of the section applies to any officer of the state, and the second to any officer or other persons duly authorized to serve or execute the process, writs, or orders of any court, and that in the case of state officer to illegally resist, oppose, or assault is an offense, and in the case of any other officer or person the offense consists in assaulting and beating or wounding him while serving or executing process, etc. The information covers both cognate offenses, and if Marshal Jones was not a state officer, he certainly

town.

The defendant moved to quash the information for the following reasons, to wit:

"That the accused is held for trial and is charged in a bill of indictment for cutting and stabbing the same person at the same time and place as the wounding charged in this bill of information, and that this accused is held and charged for the same offense in two separate bills."

The motion to quash was heard and overruled. Defendant was then tried on his plea of not guilty before a jury, and was found

The only question herein involved is the possession of low marshy land on which fence had been erected. The evidence satisfie

PROVOSTY, J., being absent on account of the court that the fence on the land at the in illness, takes no part.

LOTS 2 70 10
10
ORIGINALLY OWNED BY
CLAYTON,

BOUGHT BY HOWCOTT

KEY LOTS 11, 12, 23, 24 PROPERTY OF MRS. FELLMAN, 12 NOT INVOLVED IN THIS SUIT.

REAR FENCE BUILT BY MRS. FELLMAN

AE, ED, DC. Wire fence built by Howcott and traded to Mrs. Fellman, which plaintiff now claims to have built.

Letters inclosed by circles indicate corresponding points on plaintiff's blueprint as marked by his witness, Ward.

not found it possible to arrive at the conclu- | length of time. The position of defendant, in sion that no line of fence had been put up argument, which she seeks to sustain with along the boundary lines of the land, or the testimony of this witness, was that plainlines which they understood were bound- tiff did not build a new fence, that it only rearies. In other words, these men constructed paired an old fence, which defendant claims a fence; if they erred and did not follow the was hers by exchange with Mr. Hɔwcott. lines closely, plaintiff could still stand in judgment in this jactitation suit. Witness for defendant testified that there was a fence, that it was an old fence, that the wire had rusted, and that part of said fence was broken; conceding all this from the point of view of defendant's testimony, it remains that there was, to say the least, serious attempt made to put up the fence. The testimony of plaintiff is positive that they did put up the fence as alleged, that immediately afterward the property was assessed in its name and it paid the taxes. Plaintiff sought to sell the land or let it, but no one would buy or lease. The testimony shows that this land is low and swampy, of little value at the time, and doubtless, for that reason, neither defendant or plaintiff gave very close attention to what each thought was its right to the land.

There are several reasons asserted against defendant: First, the witness is uncertain about an existing fence, particularly some seven years after the fence had been built; second, the ground was low and damp, and the fence in that time may have become rusty, may have fallen down, and dwindled away to nothing. In view of the uncertainty created by the testimony, it is not possible to successfully charge plaintiff's agents and employés of having appropriated a fence or part of a fence. There remained very little, if anything, to appropriate and repair of the old fence of 1904.

According to this witness, defendant did not claim the lots fronting on Marks street, but claimed the lots on Pear street, which she had inclosed. Another witness for defendant, one who directed the building of the fence for defendant, testified that he inclosed No timely attempt was ever made by de- two key lots on Leonidas street and the lots fendant to inclose the land or take posses-on Pear street, and two key lots on Joliet sion. We use the word timely because de- street. This description does not include all fendant's first attempt to go into possession the lands of which plaintiff claims the poswas made after this suit had been instituted. session, for the deed of sale under which A former claimant to land, in the square be- plaintiff claims possession includes, (1) lot fore mentioned, was a witness for defendant. 22, forming the corner of Marks and JefferHe testified that his claims were for nine son, "now Joliet" streets, and lot 13, fronting lots, which he had fenced in 1904 with a two-part of this square. If only part of the land strand wire fence; he stated that it had not been surveyed, an error had been committed; the land to which he laid claim as owner was on Pear street and not on Marks street, as he had at first thought.

The wire fence in the rear of the lots was 120 feet from AB, according to the copy of a plat in evidence which is attached for reference. He added that the line from C to D and from E to AB was built by him. We have not found that the map included the whole tract.

Said claimant of land said that he never had it repaired because he was informed that defendant claimed the property. He subsequently made a trade with Mr. Fellman, and said to him:

"Take whatever fence I have on your lot and I will take your fence and we made an exchange."

This witness states that no one can say anything "about a fence." Illustrating, he

said:

"Mr. Wall and I built in the third district $700 worth of fence, and I do not think we have got $100 worth of fence left. You cannot tell how long a fence will stand or last."

is in possession of plaintiff, he would have the right to maintain his action.

From the further testimony of defendant's witnesses, the wire fence on the place fronting on Pear street was in bad condition. The testimony shows that the fence along the line A B, which plaintiff alleges it had constructed, was in good condition; it was constructed, plaintiff's witness testified, in 1911.

The thought occurs at this time, if there was not an adverse fence on the land, why did defendant, after the suit had been instituted, cause fencing along the property to be destroyed.

It must have been the fence of plaintiff, as no other fence shows adverse possession except that inclosed by its wire. The testimony of the civil engineer who surveyed the land for defendant on the 1st of February, 1912, attracted our attention. His competency and integrity in this closely contested suit are not questioned in the least. His testimony is clear, direct. He states that the portion of the fence on Marks street was in fair condition; the portion in the rear of the lot fronting on Marks street was also in a fair condition; the portion of the side toward Joliet street was in bad condition, and

The defendant will have it that this old the portion on Leonidas street was down, alfence was built in 1904.

This witness did not remember definitely about these fences. He was not prepared to

most the full length was destroyed.

He said that the fence in the rear of the lots fronting on Marks street was better

straighter and in a better condition. The witness referred to above as having made the exchange with defendant swore as to this fence, as to leave nothing warranting the conclusion that it was the fence he had put up. Taking this testimony with that of other witness warrants the conclusion that it was not defendant's fence.

In answer to a question, he said that he found a wire fence encircling the ten lots, with the exception of the wire fence off the line from Joliet street.

A dairyman whose home is near by the land said of a fence along one of the sides that it was in bad condition. Still this proves that there was a standing fence.

The character of the fence is not of the first importance, if it shows that it is an inclosure. The witness said that, when he went to live on the place, about one year three months before the suit was brought, there was a fence around the property.

We do not take it that this was the fence of W. H. Howcott, the former owner.

It follows that this is the fence acquired by defendant in exchange as before mentioned. These were the questions propounded to witness and answered as follows:

"Q. Now it has been testified here that a survey of the property was made in February of this year. Now, since February, this year, what has become of the fence that was around the property?

"A. This old fence?

repaired so as to make it W. H. Howcott's fence, the assessed former owner, nor defendant's.

In that fence deal, which resulted in an exchange because of error in regard to the land itself, the fence of defendant had been in consequence, built on Mr. Howcott's land and Howcott's fence on defendant's land; the former never found that any of defendant's fence received in exchange remained, nor does the evidence show that in this respect defendant was more fortunate. So that, when her husband had the fence torn down, we do not take it that it was the Howcott fence.

Plaintiff placed the property in the hands of a real estate agent to sell it for him, and this agent placed "posters" on the property "For Sale."

The defendant endeavored to obtain possession by having the fence taken down. As relates to equity, we will state little is said as relates to claim for possession; one, the defendant, claims under a tax title; the other, plaintiff, we have noted, claims under a deed.

In the judgment appealed from, the court allowed $150 fee of attorney, although not specially claimed.

In this contention for possession we will not allow fee of attorney.

It is ordered, adjudged, and decreed that judgment appealed from is amended by strik

"Q. Yes; the fence that was there when you ing the fee of attorney allowed; after

came there in December?

"A. It was torn down.

"Q. By whom was it torn down?

"A. Mr. Fellman there, I guess, had some

one hired to throw it down.

"Q. You mean to say that, during the pendency of this suit, Mr. Fellman has had this fence torn down?

"A. Yes, sir."

amendment, the judgment is affirmed, at appellee's cost on appeal.

PROVOSTY, J., dissents.

No. 19,757.

TINNEY V. VITTUR.

(134 La. 549)

(Supreme Court of Louisiana. Jan. 19, 1914. Rehearing Denied Feb. 16, 1914.)

Now we have not found that defendant ever had her own fence thrown down. On the contrary, after this suit had been instituted, another fence was constructed in place of the old one, in order to assert her ownership. At another time, while testifying 1. PROCESS (§§ 67, 154*)—WAIVER OF SERVICE

to the

the following was said:

"Let me explain this to you. There is Marks street, here is Joliet street, and here is Leonidas street. This is Pear street and the new basin. The survey shows that the fence that you found around the property when you came there in December was off the line on Joliet street-off at the front marked CD-on the Waddill survey. Now, when the fence around the rest of that square was torn down, this portion of fence from C to D was left standing, wasn't it? "A. It was all torn down."

This was not the fence of Mr. Fellman. No one else claimed to have owned the fence. But it is said that it was a fence that plaintiff had repaired.

The question arises between "repairs" and "construction," without evidence to solve it for defendant.

(Syllabus by the Court.)

-INJUNCTION.

for an injunction and waive service of the writ; A sheriff may accept service of a petition but, even if he had not done so, an exception of improper service is personal to him and cannot be urged by his codefendant in injunction.

[Ed. Note. For other cases, see Process, Cent. Dig. 88 54, 161, 209; Dec. Dig. §§ 67, 154.*] 2. INJUNCTION (§ 148*)-BOND

TION OF SURETY.

QUALIFICA

If a surety on a bond is worth the amount of the bond, he is a good surety, and it is not qualify as surety. necessary that he should own real estate to

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 323-334; Dec. Dig. § 148.*] 3. HOMESTEAD (§ 141*)-EXEMPTION-SURVIVING WIFE.

Where the surviving wife as the head of a family is in possession of community property as owner of an undivided one-half and usufrucIn the first it was not shown that it was tuary of the other undivided one-half, she is en