in a case on all fours with the one at bar, that 'section 982 is in no manner superseded by Act No. 107, p. 161, of 1902.'

"And you held in State ex rel. Jefferson v. Gray, 111 La. 854, 35 South. 952, that Act No. 66, p. 93, of 1902, and section 8, Act No. 107, p. 163, of 1902, were not in conflict and did not supersede the one the other.

"It is so clear that the act under which defendants were sentenced is constitutional that we rest the case, with the prayer that the writs be denied and lower court ordered to recall bond of defendants."

"The General Assembly made no attempt to obey this direction until the passage of Act No. 107; hence the lawmaker had construed the article to be directory, as imposing a duty, but at the same time not requiring that the duty should be performed within any particular time. It was surely not intended by the framers of the Constitution of 1898 that criminal statutes denouncing misdemeanors and minor offenses should be nullified by the failure of the Legislature to grade the same at its first session. Article 155 denounces no penalty, and there is no power that can compel the Legislature to take affirmative action. The performance of a duty

In the brief filed on behalf of relators, counsel says:

"No attack is made on the constitutionality of the statute under which the conviction of relators took place. The attack is leveled only against that part of the penalty clause of Act No. 66, p. 93, of 1902, which authorizes the imprisonment of relators. The act is constitutional in so far as it authorizes the prosecution of relators for the offense charged against them. It is constitutional in so far as the fine part of the penalty is concerned, to wit, that, if convicted, relators shall be fined in a sum not less than $100 and not more than $500. In this respect the mandate of article 155 of the Constitution was observed. The minimum and maximum penalty as to the fine is fixed, but not so as to that part of the penalty relating to imprisonment. There neither the minimum nor the maximum penalty is fixed. The fine part of their sentence should stand. The imprisonment part should be set aside."

Opinion.

In the year 1898 a Constitution for the state was adopted. Article 155 of that instrument is in these words:

"The General Assembly shall grade all misdemeanors and minor offenses against the state and shall fix the minimum and maximum penalties for the same."

At that date section 982 of the Revised Statutes (which reads: "Whenever the punishment of fine and imprisonment shall be left by law to the direction of any court the fine shall not exceed one thousand dollars nor the imprisonment two years") was in full force. It had for many years influenced the General Assembly as to the terms in which it enacted many of the criminal laws of the state. The laws as so enacted had been constantly enforced by the courts. Article 155 of the Constitution is a constitutional direction, addressed to the General Assembly. It leaves to that body to determine for itself the time, the manner, and the extent of carrying it into effect. It was not a limitation upon the power and authority of the Legislature, which was as le gally free as it was before. It carried with it no penalty for its nonexecution. Until the action of the General Assembly is affirmatively unconstitutional, it cannot be reached by the courts. The Constitution does not vest in the judiciary supervisory jurisdiction over the General Assembly, or authorize it to remedy inaction on its part. In State v. Robira, 118 La. 253, 42 South. 792, this

depends solely on its own volition, guided by its D. 540, 62 N. W. 129. The failure to perform sense of public duty. In re State Census, 6 S. such a duty, though mandatory, does not nullify an act of the Legislature. Schulher v. Bordeaux, 64 Miss. 59, 8 South. 201."

When the General Assembly in 1902 took action on the subject, it only did so partially. In Act No. 107, p. 161, of 1902 (the first statute which made an attempt at grading criminal misdemeanors), the Legislature showed that in its opinion there were crimes which, if susceptible in fact of being graded, should none the less stand alone as having but one grade, and for which the punishment should be single or uniform; that is to say, without reference to the particular circumstances under which they should be committed. Slander, for instance, was so classed to be a crime of that character. "The retailing of liquors without a license," dealt with in Act No. 66, p. 93, of 1902, was also a crime of that character. It was directed against the "retailing of liquors without a license" in prohibition parishes, as distinguished from doing so in parishes where such selling was allowed, conditioned, however, upon obtaining a license from the local authorities. The retailing of liquors without a license, referred to in Act No. 66, p. 93, of 1902, was a substantive crime, one separate and distinct from that denounced in Act No. 107 of the. same year. It was not repealed or superseded by the later act. There are no particular circumstances attached by this law itself to the retailing of liquors without a license in prohibition parishes which causes the gravity of the offense to be greater or less by reason of the same. Every offense falling under that statute is made under the terms of the law itself to stand upon the same footing. Should there be, in any case falling under that statute, particular facts which would tend to palliate the offense, it is left to the judges themselves to ascertain the same through the evidence adduced, and to give to such facts the mitigating effect flowing from them, which they would deem right, either under the power which specially belongs to them under the particular statute, or which belongs to them under some general statute. The authority of the General Assembly to leave to the judges trying criminal cases the right to fix to some extent the punishment to be meted out to persons convicted

All that is necessary is that the extent of this power and authority be made known by the General Assembly, and not left to be determined by the judges themselves. A judge is not required necessarily to find such authority in the special act under which a party is convicted. He may find it in a general act; the authority given to him in such gen eral act reaching over to and applying to the special case. This court has constantly recognized that fact, and the Legislature, in framing its criminal laws, has acted upon the strength of that recognition by the judiciary. It would be disastrous and unjustifiable for this court to change its position on that subJect at this late day. In State v. Pearson, 110 La. 397, 34 South. 578, this court dealing with a statute passed after 1898, said, referring to article 155 of the Constitution:

"It was left to the Legislature to do by general act, or in each particular act it might pass relating to misdemeanors, what the latter clauses of that article command, viz., fix the minimum and maximum penalties for such offenses. The article does not direct that the General Assembly, in enacting each particular law relating to misdemeanors, shall in such act fix the minimum and maximum penalties therefor. It directs the grading of misdemeanors and minor offenses and the fixing of minimum and maximum penalties. The first part of the article is unquestionably directory. The latter part may be mandatory. But, if mandatory, it may be done by general statute, and we find such a general statute in force limiting maximum fines, while the particular statute under which the appellee is being proceeded against limits the minimum fine assessable against him. As we have seen, Act No. 107, p. 161, of 1902, purporting to carry article 155 into effect, really does so as to certain minor offenses only, and the said act by its thirteenth section leaves unrepealed laws not inconsistent with it. Section 982, Rev. St., is not inconsistent with it. We hold that section 982 and the statute under which the appellee is being prosecuted, taken together, met the re.quirements of article 155 of the Constitution, and left that portion of the third section under discussion out of the slough of despond; i. e., unconstitutionality."

In the same volume (State v. Cucullu, 110 La. 1093, 35 South. 300) the defendant was convicted of having violated Act No. 34, p. 42, of 1902 (passed since the Constitution of 1898). The punishment for the offense was by a fine not exceeding $100, or by impris onment in the parish prison not exceeding one year, or both, in the discretion of the judge.

It was claimed by the appellant that the act was unconstitutional; that it violated article 155 of the state Constitution, in that it did not fix the maximum and minimum penalties for acts denounced and punished as

misdemeanors.

With reference to that contention this court said:

"The punishment affixed by the statute for its violation was a fine not exceeding $100 or imprisonment in the parish prison not exceeding one year. The minimum penalty as to the fine is the least amount of money recognized by law.

fine was fixed at $100, and the maximum imlimit of punishment are both fixed, with a disprisonment one year. The lower and the upper cretionary power conferred upon the judge to fix the punishment to be applied to any particular case according to the facts, from a mere nomimprisonment up to, but not beyond, one year inal fine up to, but not beyond, $100, and the in the parish prison. We find nothing in the Constitution prohibiting the Legislature from er of fixing the punishment between declared leaving to the trial judge the discretionary powlimits. The questions raised herein are to some extent met and covered by the decision in State v. Pearson, recently decided."

Relator has no legal concern in the lower limit affixed to the punishment of the crime, which is really in his favor. The minimum penalty is fixed in the interest of the state, to guard against too great consideration on the part of judges towards convicted persons.

When the statute declares that the punishment for a crime shall be "imprisonment not exceeding a given time," it necessarily follows, ex vi terminorum, that any punishment less than that mentioned as a maximum penalty is authorized and valid, unless an express limitation is mentioned. In the absence of such expressly declared limitation, the lawmaker will be held to have intended that the punishment downward should be as low as the least recognized subdivision. That is the necessary result of the terms of the law.

The lawmaker has not said that each act should mention that fact in express words. To have required that each act should state that the minimum for imprisonment under it should be fixed at the least recognized subdivision of time, or one second, would be to say that the law required a vain and useless act. The court has repeatedly held that it does not require vain and useless acts to be done.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the orders hereinbefore granted be withdrawn and set aside, and it is now ordered and decreed that the relators' application be rejected and dismissed, at their costs.

(123 La.)

No. 17,633.

STATE v. FERRIS.

In re FERRIS.

(Supreme Court of Louisiana. May 13, 1909.)

Charles Ferris was convicted of crime, and applies for writs of certiorari and prohibition. Application rejected and dismissed.

William Alexander Mabry, for relator. Respondent Judge, pro se. Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty. (Frank J. Looney and Ruffin Golson Pleasant, of counsel), for the State.

NICHOLLS, J. The issues in this case are identical with those in No. 17,626 of our docket. 49 South. 530.

For the reasons therein assigned, it is hereby adjudged and decreed that the orders herein heretofore granted be withdrawn and set aside; and it is now ordered and decreed that relator's application be rejected and dismissed, at his

(123 La.)

No. 17,634.

STATE V. GRAS et al.

In re GRAS et al.

(Supreme Court of Louisiana. May 13, 1909.) A. Gras and others were convicted for unlawfully obtaining intoxicating liquor, and apply for writs of certiorari and prohibition. Denied, and application dismissed.

William Alexander Mabry, for relators. Respondent Judge, pro se. Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty. (Frank J. Looney and Ruffin Golson Pleasant, of counsel), for the State.

NICHOLLS, J. The issues in this case are identical with those in No. 17,626 of our docket, this day decided. 49 South. 530.

For the reasons therein assigned, it is hereby adjudged and decreed that the orders herein heretofore granted be withdrawn and set aside;

and it is now ordered and decreed that relators' application be rejected and dismissed, at their costs.

(123 La.) No. 17,639.

STATE v. WORSHAM et al.

In re WORSHAM et al.

(Supreme Court of Louisiana. May 13, 1909.) A. L. Worsham and Henry Sartini were convicted of an illegal sale of intoxicating liquors, and apply for writs of certiorari and prohibition. Denied, and application dismissed.

John Rutherford Land, for relators. Respondent Judge, pro se. Walter Guion, Atty. Gen., and James Martin Foster, Dist. Atty. (Frank J. Looney and Ruffin Golson Pleasant, of counsel), for the State.

MONROE, J. The issues in this case are identical with those in No. 17,626 of our docket. 49 South. 530.

For the reasons therein assigned, it is hereby ordered, adjudged, and decreed that the orders herein heretofore granted be withdrawn and set aside; and it is now ordered and decreed that relators' application be rejected and dismissed, at their costs.

(123 La.) No. 17,641.

STATE v. CAMPISI et al.

In re CAMPISI.

(Supreme Court of Louisiana. May 13, 1909.) Vic Campisi and others were convicted of illegally selling intoxicating liquors, and said Campisi applies for writs of certiorari and prohibition. Denied, and application dismissed.

Cal. Dial Hicks and Frank Alexander Blanchard, Jr., for relator. Respondent Judge, pro se. Walter Guion, Atty. Gen., James Martin Foster, Dist. Atty. (Frank J. Looney and Ruffin Golson Pleasant, of counsel), for the State.

MONROE, J. The issues in this case are identical with those in No. 17,626 of our docket. 49 South. 530.

For the reasons therein assigned, it is hereby ordered adjudged and decreed that the order herein heretofore granted be withdrawn and set aside; and it is now ordered and decreed that relator's application be rejected and dismissed, at his costs.

KELLY. STATE.

(Supreme Court of Alabama. May 11, 1909.) 1. CRIMINAL Law (§ 132*)—VENUE-CHANGETIME FOR APPLICATION.

Where an application by an accused for change of venue was made on the day set for trial, but no affidavit or other evidence was offered in support thereof, it was properly denied, as too late, in the absence of good reason shown for the delay.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 249; Dec. Dig. § 132.*] 2. CRIMINAL LAW ( 1151*)-APPEAL-DISCRETION OF COURT-CONTINUANCE.

Continuances being within the discretion of the trial court, its action in granting or refusing a continuance will not be reviewed on appeal, unless a gross abuse of the discretion is shown.

Law, Cent. Dig. § 3045; Dec. Dig. § 1151.*] [Ed. Note. For other cases, see Criminal 3. WITNESSES (§ 2*)-ATTENDANCE-RIGHT OF ACCUSED TO COMPULSORY PROCESS.

Accused was not denied his constitutional right to have compulsory process for his witnesses, where to have issued process for them at the time application was made would clearly have been unavailing for that trial, and where the state was compelled to admit a showing for the absent witnesses.

Cent. Dig. § 2; Dec. Dig. 2.*] [Ed. Note.-For other cases, see Witnesses,

4. WITNESSES (§ 268*)-CROSS-EXAMINATIONQUESTIONS.

In a murder case, there was no error in denying accused the right to ask a state's witness whether or not the witness was a beginner at the game of craps, as it was not a proper inquiry.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 931; Dec. Dig. § 268.*] 5. CRIMINAL LAW (§ 429*)-EVIDENCE-CITY ORDINANCES.

In a prosecution for murder of a police of ficer, where there was proof tending to show that accused was violating a city ordinance when decedent, who was attempting to arrest him and others with him, was killed, municipal ordinances of the city were properly admitted in evidence; proper predicate having been made. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 429.*]

6. CRIMINAL LAW (§ 670*)-TRIAL-OFFER OF EVIDENCE NECESSITY EXCLUSION QUESTION.

OF

Where it was not made to appear what the answer would be to a question asked a state's witness as to where he got a pistol in question, so that the court would know whether the evidence would be relevant, it was not error to exclude the answer.

Law, Cent. Dig. § 1593; Dec. Dig. § 670.*] [Ed. Note. For other cases, see Criminal 7. WITNESSES (8_305*)-CROSS-EXAMINATION -ACCUSED AS WITNESS.

Where an accused elects to testify for himself, he waives his constitutional right not to be compelled to give evidence against himself (Const. 1901, § 6), and elects to assert his statutory right to testify and becomes subject to cross-examination and impeachment the same as other witnesses, and he may be questioned by the state as to prior statements made by him, whether they are shown to have been voluntary or not, and his answers thereto may be contradicted by other evidence.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. 1054; Dec. Dig. § 305.*]

In a murder case, a charge that before the jury can convict accused they must be satisfied to a moral certainty, not only that the proof is consistent with his guilt, but that it is wholly inconsistent with every other rational conclusion, and unless they are so convinced by the evidence of his guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest they should find accused not guilty, was properly refused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1906; Dec. Dig. § 789.*] 9. CRIMINAL LAW (§ 772*)-INSTRUCTIONSPARTICIPATION IN OFFENSE.

In a murder case, a charge that if the jury believe from the evidence that accused had submitted to arrest on the night when decedent (a police officer, killed while attempting to arrest accused and others) was killed, and took no part in the conspiracy, if a conspiracy existed, and did not fire the shot which killed decedent, they should acquit, was properly refused. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 772.*]

10. CRIMINAL LAW (§ 1159*)-APPEAL-REVIEW-FINDINGS.

Findings of facts by a jury as well as the inferences by them properly drawn from the evidence, are conclusive both upon the trial and Supreme Courts.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1159.*] Appeal from City Court of Talladega; G. K. Miller, Judge.

Frank Kelly was convicted of murder in the first degree, and appeals. Affirmed.

The facts are stated in the opinion of the court. The following charges were refused to the defendant: (6) "Before the jury can convict a defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." (8) "If you believe from the evidence that Frank Kelly had submitted to arrest on the night when Thompson was killed, and took no part in the conspiracy, if a conspiracy existed, and did not fire the shot which killed Thompson, then you must find the defendant not guilty."

Cecil Browne and J. C. Burt, for appellant. Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen., Marion H. Simms, Sol., and Whitson & Harrison, for the State.

The

to support the averments of the application or petition for the change of venue. court, on motion of the solicitor, dismissed the application. On this showing we are not able to say that there was error in the dismission or denial of the application.

It has been held that the application comes too late, if not filed until the day of trial, unless some good reason is shown for the delay. None was shown in this case, so we cannot say the dismissal was error. Fallin's Case, 86 Ala. 13, 5 South. 423; Byers' Case, 105 Ala. 31, 16 South. 716; 1 Mayfield's Dig. P. 858. Had this application been made in time and supported by proof, we think the change of venue should have been granted. There can be no doubt that there was intense feeling and prejudice prevailing in Talladega county at the time of this trial against all persons charged with the murder of Police Officer Thompson; this being the offense with which the accused, together with a number of other negroes, was charged. But on the showing made in support of the application we cannot say that it was error to deny the change of venue.

Continuances are within the discretion of the trial court, and its action in granting or refusing a continuance will not be reviewed by this court on appeal, unless a gross abuse of the discretion is shown. White v. State, 86 Ala. 69, 5 South. 674; 1 Mayfield's Dig. p. 232.

The accused was not denied his constitu

tional right to be confronted by the witnesses against him, nor to have compulsory process for his witnesses.

Many of his witnesses were confessedly secreting themselves to evade arrest upon the charge of murder. The state was required to admit a showing for the absent witnesses for defendant. To have issued process for them at the time application was made would clearly have been unavailing for that trial. Winter v. State, 123 Ala. 1, 26 South. 949; Walker v. State, 117 Ala. 85, 23 South. 670.

There was no error in denying to defendant the right to ask a state's witness whether or not the witness was a beginner at the game of craps. It was not a proper inquiry

on this trial.

MAYFIELD, J. The indictment in this case was returned on March 7, 1908. The accused was arraigned on March 17, 1908, and the trial was set for April 9th following. On the day set for trial accused moved the court for a change of venue. plication was sworn to by accused.