"We, the jurors, find the acues gilty of manslater. G. W. Venables, "As Forman." Faulty spelling and the misuse of several words which are surplusage are not sufficient causes for setting aside a verdict which is clear and certain as to its meaning and in defendant and the deceased on the Monday previous to the killing, which took place on the following Wednesday, and that the killing took place when defendant demanded the payment of a fixed balance of the account between him and the deceased of $2.65, acknowledged by the deceased to be due the defendant, and which he had agreed to pay on the following Saturday, and that it had been shown that defendant provoked the dif- tive verdict when it is rendered waives the [5] Besides, "failure to object to a defecficulty on Wednesday, and was the aggressor, right to move for a venire de novo." 12 Cyc. and assaulted the deceased with a shotgun, demanding to be paid this balance; and, fur-701; State v. Jeanisse, 125 La. 360, 51 South. ther, that the deceased had left the defend tent. 290. [6] The word "verdict" is derived from ant, after having given him all the money he the Latin "veredictum," meaning a true dec had in his pocket, while under the cover of the gun in defendant's hands; that the deceased and defendant had separated, going in different directions, when the deceased cursed defendant, and defendant shot the deceased with the shotgun which he was carry ing; that some few of the shots entered directly behind the shoulder of the deceased, and some 50-odd struck him in the side of the face, temple, and head. laration. It is the answer of the jury made by the court to their examination. Whatever upon any cause, civil or criminal, committed they sign beyond this is immaterial, and to be rejected. It is a very important act; it is the culmination of the trial, and embodies the conclusion of the jury upon the questions of fact litigated on the trial. It is the decision of the jury, and, as such, it must stand if it is clear, intelligible, and responsive to the charge. Bill of exceptions No. 6: Defendant offered to show that the wife of the deceased, Mrs. Singleton, who was dead at the time "The verdict in a criminal case need not be of the second trial, had not been summoned by the foreman or any one else, for the comin writing, or, if written, need not be signed as a witness on the former trial of this de-mon-law practice, which we follow, is that verfendant. Objection was made by the state dicts are delivered by some member of the on the ground of irrelevancy, and the objec-recorded by the clerk, and read to the jury as jury, usually called the 'foreman,' ore tenus, tion was properly sustained. It does not appear in the record that Mrs. Singleton had been a witness to the killing, and no object whatever is stated by the defendant for offering this testimony. recorded, who are then asked if that is their verdict, and, if the answer is 'yea,' the finding, rendering and recording is complete. ** * lologists. All that the law requires is their abil"The law does not require jurors to be phiity to appreciate the facts, and to apply the law. When they have done that, and expressed their sense in an intelligible and unequivocal form, the law is satisfied. Thus, 'Guilty of [3] Bill of exceptions No. 10: This bill is taken to the refusal of the judge to give a special charge to the jury referring to self-mansluter,' 'Guilty withoit capital purnish,' defense, in the language requested. The charge was given, but with some modification. The per curiam of the court shows that the special charge should not have been given, even in a modified form. The evidence is not before us, and the charge of the court is not in the record. But the reference hereinbefore made to the judge's per curiam, attached to several bills of exceptions, shows that: "It was a case of willful murder." A judge should decline to charge the law of self-defense altogether, where there is no evidence to sustain the plea, and where the evidence shows that the deceased was walking away from the defendant when he was shot and killed. State v. Guidor, 113 La. 727, 37 South. 622; State v. Erwin, 133 La. 550, 63 South. 167. [4] Bills of exceptions Nos. 11 and 12: These bills are based upon the motions in arrest of judgment and for a new trial, which involve the form and sufficiency of the verdict in the case. The verdict is in the following words: Guilty of burgurly,' 'Guilty of and assault by suting with intent to murder,' 'We, the Guilty as charged in both accounts,' are each jury, find the prisoner as guilty as charged,' equally intelligible and sufficient bases for record and judgment, and especially so when the rectly read to them, answered 'Yes' to the query, jury, upon being polled, and the verdict cor'Is that your verdict?' * "It does not affect the verdict that the foreman has so badly written his name that it is impossible to say whether it is Wilder or Welder, or that 'foreman' is omitted after signature, or that the word is misspelled 'for-man.' Where the foreman could not write, and the jury, and signed, Jaa Washington,' though verdict was written by another member of the there was on the jury no man of that name, but one named 'Jiles Washington,' it was held idem juror was not questioned, and that such irregsonans, especially when the identity of the ularity was trivial and hardly worthy of notice." Marr's Crim. Juris. § 467, p. 808. The minutes of the court in this case show that, after the jury had returned into court with its verdict, that it "the jury, was asked by the clerk, 'Is this this your verdict, gentlemen? so say you all?' and every one having replied in the affirmative, the court accepted the verdict, and ordered the The verdict of the jury having been in writing, all irregularities due to incorrect spelling of words in such verdict is cured by the clerk reading the verdict correctly, and asking each juror if that was his verdict, and by the reply of each juror that it was. State v. Wilson, 40 La. Ann. 751, 5 South. 52, 1 L. R. A. 795; State v. Smith, 33 La. Ann. 1414; State v. Ross, 32 La. Ann. 854. us. There was no demand by either party in the case that the jury be polled, and the law does not require such polling of the jury. State v. Atkinson, 104 La. 570, 29 South. 279; State v. Colomb, 108 La. 253, 32 South. 351; State v. Jackson, 42 La. Ann. 1171, 8 South. 297. The charge of the trial judge, if written, is not in the record, and is not therefore before It does not appear whether he directed the jury to return a written verdict or not. It is very likely that he did direct the foreman of the jury to write the verdict, and to sign the same as foreman. The word "Jurors," used by the jury in the verdict, is not an essential part of the verdict, whether oral or written; it is surplusage, and need not be considered in arriving at the intention and meaning of the verdict. The same may be said with reference to the word "as," before the word "foreman." [7] The court doubtless charged the foreman to sign the verdict “as foreman," and the foreman acted literally by putting the words "As Forman" after his name. The judge in instructing the jury, and the foreman in thus acting, used the word "as" in the ordinary sense, "in the character or under the name of." It is customary for the foreman, as such, to sign such a verdict. State v. Jeanisse, 125 La. 360, 363, 51 South. 290. The written verdict need not to have been signed by the foreman, or by any other member of the jury. 12 Cyc. 689. As the verdict in this case is clear that the accused was found guilty of manslaughter, it must be sustained. Judgment affirmed. 2. MUNICIPAL CORPORATIONS (88 437, 472*)PAVING ASSESSMENT-OBJECTION BY PROPERTY OWNER-Grounds. The question of the right of the owner of "abutting" property to contest a local assessment for the paving of the street upon which property is not benefited, or that the benefit his property abuts, upon the ground that the is not as great as that derived by other property, has been settled adversely to that contention by repeated decisions of this court and of the Supreme Court of the United States. Corporations, Cent. Dig. §§ 1051, 1120; Dec. [Ed. Note.-For other cases, see Municipal Dig. §§ 437, 472.*] Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge. Action by the City of Shreveport against the Shreveport Traction Company. From judgment for plaintiff, defendant appeals. Affirmed. Wise, Randolph & Rendall, of Shreveport, for appellant. J. M. Foster, City Atty, of Shreveport (G. W. Jack, of Shreveport, of counsel), for appellee. Statement of the Case. MONROE, J. Defendant has appealed from a judgment condemning it to pay $4,387.64, less $1,187.64, paid on account, or $3,200, being one-third of the cost of paving the two roadways of Park avenue, in Shreveport, for a distance of 1,140 feet, assessed against it as the owner of property abutting on said roadways, agreeably to the provisions of Act No. 10 of 1896, which provides (section 1) that the authorities of any town or city (New Orleans excepted) having a population exceeding 10,000 shall have power to pave its streets and alleys, or any part thereof, not less than one block, and to levy and collect special taxes or local assessments on the real estate abutting the street or alley to be improved, for the purpose of defraying a part of the cost of such work; that (section 2): "The owners of real estate so abutting shall PROVOSTY, J., being absent on account of pay two-thirds of the entire cost of such work illness, takes no part. * and the corporation shall pay onethird, * * provided that, where a railway bed and track occupies a portion of the street, it shall pay in proportion to the space occupied and, that the intersections municipality and railroad occupying a portion shall be paved at the expense of the of the same in the proportion to the space the said roadbeds may occupy with relation to the whole intersection." It is The defense is that the property against which the tax is assessed is not "abutting" property, within the meaning of the law; that, if it should be so found, it derives no benefit from the paving, and the assessment is confiscatory and unconstitutional. alleged in the answer that the property in question measures 20 feet in width by 900 feet in length, running through the middle of Park avenue, but the sketch annexed to the answer seems to call for greater length, and the paving bill sued on calls for 1,140 feet, and there is no dispute in regard to the ty, for its proportion of the cost of paving amount. the roadways. "It is admitted that the lots facing this The doctrine of the cited cases has been street" (referring to Park avenue), "other affirmed in Fayssoux v. Succession of Baronthan the land in question, are 50 feet front ess De Chaurand, 36 La. Ann. 547; Asphalt that the Paving Co. v. Gogreve, 41 La. Ann. 251, 5 by 150 feet in depth; South. 848; State ex rel. City of New Orleans v. Railroad Co., 42 La. Ann. 550, 7 South. 606; City of Shreveport v. Weiner & Loeb, 64 South. 718; No. 19,759 of the docket (recently decided). The question of the right of an abutting proprietor to contest a local assessment for paving on the ground of inequality or lack of benefit to the property has been settled adversely to the contention of the present amount claimed from the 50-foot front in the land in controversy is the same amount that has been assessed against the 50-foot front lots, facing the street by 150 in depth *; that, prior to the paving, each of these lots, 50x150 feet, was worth, say, $800 each, and that, since the paving, each one is worth about $1,000; that the * $1,187.64 was paid by the Traction Company as due for paving intersections of streets, where streets run across defendant by the decision in Kelly v. ChadPark avenue and that no part of wick, 104 La. 719, 29 South. 295 (affirmed the same was paid on account of the paving by the Supreme Court of the United States opposite the strip of ground in question; in 187 U. S. 540, 23 Sup. Ct. 175, 47 L. Ed. • that the area of the strip of ground 293), and other decisions of this court and referred to in the petition is 17,020 square of the Supreme Court of the United States feet, and that, in the ordinary lots facing affirming the doctrine there enunciated. the said street, 50 by 150 feet, there are Bruning v. Chadwick, 109 La. 1067, 34 South. 7,500 square feet in each lot, making the 90; Bacas v. Adler, 112 La. 812, 36 South. strip in question the equivalent of 2.27 lots 739; City of Shreveport v. Kansas City S. & in area; that the assessment was G. R. Co., 125 La. 587, 51 South. 648; Fourlevied in due and legal form, and that the my v. Town of Franklin, 126 La. 154, 52 amount sued for is the correct amount which South. 249; French v. Barber Asphalt Comwould be due if plaintiff had the legal right pany, 181 U. S. 324, 21 Sup. Ct. 625, 45 L. to assess the strip of ground in controversy, Ed. 879; Cass Farm Co. v. Detroit, 181 U. the sole question being the right of the city S. 396, 21 Sup. Ct. 644, 45 L. Ed. 914; Shuto levy the assessment." mate v. Hennen, 181 U. S. 402, 21 Sup. Ct. 645, 45 L. Ed. 922; Detroit v. Parker, 181 U. S. 399, 21 Sup. Ct. 624, 45 L. Ed. 917; L. & N. R. Co. v. Barber Asphalt Co., 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819. Opinion. [1, 2] The question of the liability of abutting proprietors for paving in front of property situated as is that of the defendant was settled in this state by the decisions in the cases of Marquez v. City of New Orleans, 13 La. Ann. 319, and Correjolles v. Foucher, 26 La. Ann. 362, in which the positions of the defendants were much stronger than is that of the present defendant. In the case first mentioned, it appeared that Claiborne street, in New Orleans, like Park avenue, in Shreveport, had a middle ground (which the court held to be a locus publicus, and called a "promenade"), with a roadway on either side, and it was held, because of its ownership, or supposed ownership, of the same, that the city was liable for the paving of the roadways, as an abutting proprietor, though Spofford, J., did not concur in that view, being of opinion that "the green or middle portion of Claiborne street was just as much a 'public thing' and just as exempt from assessment under the city charter as the two roadways along the same street." The facts in the case of Correjolles v. Succession of Foucher differed from those in the Marquez Case only in that the middle ground on St. Charles street was occupied by the New Orleans & Carrollton Railroad Company, and the contention was sustained that it was "either the proper ty of that company or of the public," and, in either case, was bound, as abutting proper The admissions in this case show the value, before and after the paving, of the 50x150 foot lots fronting on Park avenue, but there is no admission and no evidence in regard to the value of defendant's property, whether, as now used, for the purposes of its railroad, or as it might be used if buildings were erected on it fronting upon two sides. Property so situated may be more or less valuable, according to its use to the owner and the character of the improvements. As we are left to speculate upon the subject, we should say that the paving of the streets through which a street railway runs would tend to increase the resident population and thereby increase the traffic of the road. Judgment affirmed. PROVOSTY, J., being absent on account of illness, takes no part. a brewery which sells in the original and unbroken packages in quantities over five gallons. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 53; Dec. Dig. § 52.*] Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; T. M. Milling, Judge. Action by the State against the AnheuserBusch Brewing Company for licenses. From judgment for defendant, plaintiff appeals. Affirmed. Percy Saint, of Franklin, for the State. D. B. H. Chaffe, of New Orleans, and Charles A. O'Niell, of Franklin, for appellee. SOMMERVILLE, J. The state of Louisiana sues the defendant brewing company for licenses for the years 1910, 1911, 1912, and 1913, at the rate of $200 for each year, for retailing alcoholic liquors during the said years, in the town of Franklin, in this state. Defendant answers, denying that it is a retail dealer in liquors, but admitting that it had sold beer in the original and unbroken packages, as imported from the state of Missouri into this state, directly to consumers, and that said packages contained more than five gallons. There was judgment in favor of defendant, and plaintiff appeals. The case was tried on an agreed statement of facts, to the effect that defendant company was domiciled in the city of St. Louis, Mo.; that it sold in the original and unbroken packages only; that it generally sold its beer to retailers, and only in quantities of over five gallons in each package, and only in the original and unbroken packages; that during the years indicated it had a warehouse in Franklin, La., where it had made several sales of beer to consumers, that is, to persons who were not retailers, in the parish of St. Mary, in quantities exceeding five gallons in each sale; that it has paid a wholesale license tax to the state of Louisiana for the years indicated; and that "the plaintiff bases its demand in this suit for a retail liquor license upon the authority of act No. 176 of 1908 of the Legislature of Louisiana." Plaintiff states: "The only question for the court to consider is whether the sale of beer by a brewing company, in quantities exceeding five gallons, direct to consumers for use, and not for retail, comes under the head of retailing liquor." Reference to Act No. 176 of 1908, p. 236, shows that the suit of the state for retail liquor licenses from defendant cannot be maintained. The title to that act shows that it is one to regulate the business of barrooms or other places where alcoholic or spirituous, vinous, or malt liquors, or intoxicating beverages, are sold in quantities of less than five gallons; and section 3 of the act carries out this provision of the title, and restricts the provisions of the act to sales of liquors of quantities of less than five gallons. It is clear that the act has no application to the defendant, which sells in the original and unbroken packages in quantities over five gallons. Act 176 of 1908, the Gay-Shattuck Law, is a police regulation, governing barrooms and similar places where liquors are sold in less quantities than five gallons; and this act, in section 11, makes it "unlawful for any firm, corporation or any officer, director or stockholder of any corpora tion engaged in the business of brewing or distilling, manufacturing, or selling, or distributing, by wholesale of intoxicating liquors, to ob tain a license for the business of conducting & barroom, * ly in concerns so engaged, or to be the owner, or lessee, or to be interested in the lease of any premises used for any such business under the provisions of this act." or to be interested financial Counsel for plaintiff argues that it would be a great hardship upon retailers of liquor if defendant is permitted to sell to consumers in quantities of more than five gallons in the original and unbroken packages, as they are imported into this state, without requiring it to pay a retail liquor license. That is a matter which entirely rests with the Legislature, and not with the courts. It is unnecessary to review the provisions of the general license act, No. 171, 1898, § 11, p. 408, which fixes the brewer's license at $20, for the reason that the state is not claiming that license, or any license under said act. In the case of State v. Pabst Brewing Co., 128 La. 770, 55 South. 349, we hold that that company was liable for a retail liquor dealer's license under the Gay-Shattuck Law, for the reason that it sold beer in quantities less than five gallons, although sold in the original and unbroken packages, to consumers and dealers indiscriminately. We made a similar application under the act in the case of State v. De Bary & Co., 130 La. 1090, 58 South. 892, where the defendant sold imported wine and liquors in the original and unbroken packages, but in quantities of less than five gallons. Plaintiff relies on the decision in the case of State v. Spence et al., 127 La. 336, 53 South. 596, where defendants were prosecuted for retailing spirituous and intoxicating liquors without a license in the prohibition parish of Calcasieu. It is expressly provided in the Gay-Shattuck Law, Act 176, 1908, that its terms and provisions shall have no effect whatever in prohibition territory. The case of Spence et al. was therefore decided without reference to that act. We there held that the general license act of 1898, containing the definition of wholesale and retail dealers, would govern in deciding whether defendants were wholesale or retail dealers; and we concluded that defendants were retailers of spirituous liq uors as found in the indictment; and we affirmed the judgment appealed from, which found them guilty and sentenced them to punishment. The Gay-Shattuck Law, under which the state claims the licenses from this defendant, does not cover wholesale dealers at all, and it does not define who retailers are; but, according to the provisions of that act, one who sells in original and unbroken packages in quantities of more than five gallons is excluded by its terms, and cannot be compelled to pay a license thereunder. Judgment affirmed. PROVOSTY, J., being absent on account of illness, takes no part. (134 La. 576) No. 20,319. STATE v. TUJAGUE. (Supreme Court of Louisiana. Jan. 19, 1914. Rehearing Denied Feb. 16, 1914.) (Syllabus by the Court.) PARENT AND CHILD (§ 17*) - PROSECUTION FOR NONSUPPORT JURISDICTION. "The juvenile court shall also have jurisdiction of all cases of desertion or nonsupport of children by either parent." Section 3, Act No. 48, of 1910, p. 72. [Ed. Note. For other cases, see Parent and Child, Cent. Dig. §§ 176–181; Dec. Dig. § 17.*] Appeal from Juvenile Court, Parish of Orleans; A. H. Wilson, Judge. August Tujague was convicted of failing to support his minor child, and appeals. Af firmed. Loys Charbonnet, of New Orleans, for appellant. Chandler C. Luzenberg, Dist. Atty., and A. D. Henriques and B. J. Daly, Asst. Dist. Attys., all of New Orleans, for the State. SOMMERVILLE, J. Defendant was charged in the Juvenile Court for the parish of Orleans, with failure to support his minor child, a daughter over 17 years of age, where he was convicted and sentenced. Defendant filed a plea to the jurisdiction of the Juvenile Court, alleging that his daughter was over 18 years of age, and asked that the affidavit against him be dismissed. The plea to the jurisdiction was overruled, and defendant has appealed. Act No. 34 of 1902, p. 42, makes it a misdemeanor to desert or willfully neglect and provide for the support and maintenance by any person of his wife or minor children in destitute or necessitous circumstances; and the minor children here referred to are those under 21 years of age. tection of the physical, moral and mental well being of such children; not punishable by death or at hard labor and of all cases of desertion or nonsupport of children by either parent." The act further defines what are "neglected" and "delinquent" children, over which the Juvenile Court has jurisdiction. But the section just quoted from not only gives jurisdiction to the Juvenile Court over “neglected" and "delinquent" children, but also: "Of all cases of desertion or nonsupport of children by either parent." The Juvenile Court had, therefore, jurisdiction over this case. Act 83 of 1908, p. 96, was by concurrent resolution and vote of the people made a part of the Constitution of the state. Act No. 245 of 1908, p. 364. Act No. 83 of 1908 was subsequently amended by act No. 48 of 1910, P. 72, which act, in turn, became a part of the Constitution by virtue of Act No. 135 of 1910, p. 211; but the jurisdiction of the Juvenile Court was not in any way restricted in this last act. In section 3 of that act it is provided that: "Said court shall also have jurisdiction of all cases of desertion or nonsupport of children by either parent." In the case of State v. Rose, 125 La. 1080, 52 South. 165, the question under consideration was as to the validity of the affidavit charging defendant with employing a “delinquent" child under 14 years of age on the stage of a theater. We there hold that the indictment against Rose was insufficient, and that he had not been charged with any offense cognizable in the juvenile courts of the state, in one of which he had been convicted. The desertion or nonsupport of a child was not involved. not to warrant a verdict of guilty. In a prosecution for robbery, evidence held [Ed. Note.-For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.*] Appeal from Circuit Court, Pontotoc County; Claude Clayton, Judge. Jett Stuart and others were convicted of robbery, and they appeal. Reversed, and appellants discharged. Fontaine & Fontaine and Mitchell & Roberson, all of Pontotoc, for appellants. Geo. The Juvenile Court for the parish of Or-H. Ethridge, Asst. Atty. Gen., for the State. leans was created by act No. 83 of 1908, p. 96. It was given jurisdiction, in section 9: "Of the trial of all neglected and delinquent children, and of all persons charged with contributing to the neglect or delinquency of such children, or with the violation of any law now in existence or hereafter enacted for the pro Frank Sandlin, and Murry Smith were in. REED, J. Jett Stuart, Manuel McKensey, dicted for robbing Owen Tutor. Appellants were convicted, and each sentenced to the penitentiary for 15 years. Owen Tutor is a white man, who resides For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |