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The plank A was not in the crossing at learn the facts. Abbott, Municipal Corpora. all. The plank B was not in its place. It tious, vol. 2, p. 2321. had tilted over at an angle of about 45 de

The evidence, as we have already stated, grees, and no longer answered the purpose shows that the condition had been bad á for which it had been placed in the crossing, number of months before the plaintiff fell. but was an impediment to pedestrians who The defect was not slight. We have seen attempted to cross. Plank C was all that that there was one board missing entirely. remained of the crossing at the time that The other had fallen from its place in the plaintiff attempted to cross.

crossing. The remaining board was not sufThere was no light at the corner of Web- ficient on a dark night for a pedestrian to ster and Patton streets.

cross with safety; nor was it to be expectPlaintiff charges that his injury was the ed that a pedestrian would become a high result of defendant's negligence in not keep- stepper, and step across the gutter without ing up its sidewalk at this place; that if bothering himself about a crossing.

If a the city had not neglected this crossing as

12-inch board were adopted as a sufficient it did he would not have fallen.

width, it might be different; pedestrians The bad condition of this crossing dates would accustom themselves to that width. As back some time. Some of the witnesses tes crossings are made with three 12-inch boards, tified as far back as a year before the ac

no one would consider a board of 12 inches cident that the bridge was in bad repair. as wide enough to serve the purpose of the Others remember to have seen it in that average pedestrian. condition about a month before the plaintift

We give no importance to the alleged want fell.

of light. If that were all, plaintiff in our There cannot be any question. The weight opinion would have no case. We have reof the evidence shows that it had been out ferred to it because it was one of plaintiff's of repair some time prior to plaintiff's fall. allegations, and evidence was admitted in reTwo of plaintiff's witnesses testified that

gard to it. the department of public works had been

We will mention that the fall of plaintiff warned of the necessity of renewing or re

was not in a remote part of the city, where pairing this crossing; that there had been pedestrians do not often pass. It was in a requests made and notices given to the de- settled portion, where residents have greater partment to repair this bridge; and that it rights in regard to streets, sidewalks, and follows that the city was well aware of the crossings. necessity of having it put in good condition.

The evidence also proves that notice of the After the plaintiff had fallen, and had defect had been given to a councilman. This suffered the injuries of which he complains, councilman testified that he had directed the the crossing was repaired; other boards complaint clerk of the office of the commiswere put in, and a light was furnished on sioner of public works to make an entry of the petition of persons residing near.

this notice. The defendant denied liability, and urged

The councilman was grossly mistaken, or that the plaintiff was guilty of contributory the clerk. The clerk testified that there is no negligence.

such entry in the books, and that he received There is no question but that a munici.

po notice. pality must keep its streets and sidewalks

The councilman was corroborated in his in a condition sufficiently safe to enable those testimony. The one who had made the rewho walk over them to cross the gutters at quest of him testified as to the request, and intersections without imminent danger.

in addition he said he had written a letter It must be said, however, that the city to the office of the commissioner of public is not an insurer of the safety of the pedes- works. The following is an excerpt from the trian, and that it must appear that the dans testimony of witness Mr. Leche: ger was owing to the negligence of the city. "Q. Are you positive that you wrote this let. There is no negligence for which she can

ter to the commissioner of public works before be held, unless it appears that she has been

the accident? A. Yes, sir; I am positive." warned or notified, either expressly or by The councilman, Mr. Bisso, in testifying implication.

was very emphatic. He had no interest in The neglect to make the repair for a con- the matter whatever; nothing to gain, nothsiderable time gives rise to an implication ing to in the least influence him in the matwhich is considered in the light of a suffi. ter. He testified that the bridge was in bad cient notice to render the city liable. condition, and says that witness Leche asked

The foregoing finds support in Blume v. him to “report to the commissioner of public New Orleans, 104 La. 348, 29 South. 106, works office and have it repaired," and and Lorenz v. City, 114 La. 802, 38 South. “I did so within the next two or three days 566.

I know it was reported to the comOf course, the defect must exist, and after missioner of public works office, because I gen. the defect the municipality must have had erally stood there and dictated to the clerk reasonable time for its repair. In other

where the streets were, where the intersection

was, and which side.

ence by the clerk in the office of the commis-, there was negligence on the part of the de sioner?

fendant, we take up the matter of the extent "A. Yes, sir; I am positive."

of the injuries suffered. This witness also states further:

The distinguished surgeon, by whom plain- "When Mr. Leche reported this bridge to me, tiff was attended, has given a circumstantial I immediately reported it to the office of the description of the wounds, and after having commissioner of public works. I think it was described them thoroughly he gave his stateabout two weeks after this I had occasion to ment as to what was done by the attending call on Dr. Ernst, and I met Mr. Weinhardt coming into that office as I was going out, and physicians to relieve the plaintiff. I said, 'Mr. Weinhardt, what is the matter; We will not reproduce the entire statement; what has happened to you?' and he said, 'I it shows that plaintiff had greatly suffered ; broke my arm, for I fell on the bridge, corner Webster and Patton streets.' I told him that the pain was intense. There was complete I had reported the cause of the accident two vacuate dislocation of both bones, but esor three weeks before that date."

pecially of the ulnar. The ulnar nerve was This witness does not seem certain as to paralyzed. The effect was to cause the comtime. Taking his evidence in connection plete disability in the use of the left arm. with that of the other witness before named, The arm injured was 242 inches shorter than

the other. It may be inferred that his report was of a

He had not entirely recovered when the date anterior to the accident.

The contention of defendant is that this trial was held, although, as we understand, notice of the defective crossing was given to the complete use of his left arm, and the evi

he was considerably better. He did not have the councilman after the accident. Mr. Leche, who testified as a witness, dence shows that the lower part of his arm

is almost entirely disabled. swore, as just above stated, that he gave the

The expenses incurred by him were about notice before the accident. The jury, who

$1,200. heard him make this statement, observed him, believed him. He is not directly contra

Judgment affirmed. dicted by any one. True, Mr. Bisso is not quite positive about the date of the notice. He did not remember the date, and in seek

(125 La. 347) ing to arrive at the time by referring to other

No. 18,037. incidents he was not fortunate; he did not

STATE V. JOHNSON. fix the date with absolute certainty.

(Supreme Court of Louisiana. Jan. 31, 1910.) Taking the evidence of these two named witnesses together it does fix the date of the

(Syllabus by the Court.) notice prior to the accident.

1. CRIMINAL LAW (8 406*)-EVIDENCE-LET

TER WRITTEN BY DEFENDANT, We quote the following:

A letter dictated by the defendant, and "The burden is on defendant to plead and which tends to prove a material element of the prove that it did not have reasonable time in crime charged, is properly admissible in eviwhich to make the repairs before the injury dence, and testimony to identify it is also adwas received." Abbott, vol. 3, p. 2329.

missible.
[Ed. Note. For other cases,

see Criminal The city has failed to prove want of suffi- Law, Cent. Dig. 88 894-896; Dec. Dig. $ 406.*] cient time to make necessary repairs; also 2. WITNESSES (8 383*)—IMPEACHMENT-LETTER want of sufficient notice.

WRITTEN BY DEFENDANT-COLLATERAL MATBut, be that as it may, the crossing had been in bad repair for some time. It devolved the pleadings, and did not tend to prove a col

The letter bore on a material allegation in upon the city to repair it.

lateral fact, but was properly admissible to conAgain, conceding that the councilman did tradict the accused in regard to a material fact. not notify the department, although he has [Ed. Note.-For other cases, see Witnesses, sworn, as we have just stated, the notice to Cent. Dig. $ 1224; Dec. Dig. § 383.*] him was sufficient, for a notice to a city coun

Appeal from First Judicial District Court, cilman is notice to the city. He has a duty Parish of Caddo; T. F. Bell, Judge. to perform in regard to streets. Abbott, vol.

Willis Johnson was convicted of crime, and 3, p. 2330.

appeals. Affirmed. There are a number of decisions directly pertinent. City of Columbus v. Strassner, B. H. Litchenstein, for appellant. Walter 124 Ind. 482, 25 N. E. 65.

Guion, Atty. Gen., and James M. Foster, Dist. The same view is expressed in Smith v. Atty. (R. G. Pleasant, of counsel), for the City of Des Moines, 84 Iowa, 685, 51 N. W. State. 77 ; Cook v. City of Anamosa, 66 Iowa, 427, 23 N. W. 907.

BREAUX, C. J. The grand jury of the There are still other decisions, quite a parish of Caddo, on the 27th of October, 1909, number.

found a true bill against Willis Johnson, who Having come to the conclusion that the was over 17 years of age, for felonious and verdict of the jury was correct in finding that carnal knowledge of an unmarried female, *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indeze

TERS.

named in the indictment, aged between 12 ceptions was that the proof is, as stated by and 18 years.

the district judge, that the defendant prompt. Defendant was arraigned on the 10th day ed the letter. It was admitted to contradics of November last.

the defendant in regard to a material fact, He was found guilty by the jury and con as before stated. demned to serve a term of five years in the The ruling affords no good ground of objecpenitentiary.

tion. Counsel for defendant in his brief before We will add that there is no merit in the this court states that he has abandoned all ground of the defense that the defendant had other bills of exceptions save two.

testified as to a collateral issue, and in re We have read the points abandoned, and gard to which he could not be impeached; found no reason to infer that they should not defendant citing State v. Donelon, 45 LA. have been abandoned.

Ann. 744, 12 South. 922. It does not appear In the first bill of exceptions taken, it is that the fact sought to be proven presented a stated that on the trial the district attorney collateral issue. On the contrary, the unconoffered to examine a witness regarding the tradicted statement of the bill of exceptions contents of a letter, written 10 or 15 years shows that it bore on a material point. It anterior to the date of the trial by some one was admissible because the fact sought to be else than the defendant. This bill states: proven was relevant to an issue in the case

"Which the defendant says he dictated, a under the pleadings, to wit, the age of the part of; that he merely told 'the writer certain female with whom It was charged that the things that he wanted in the letter,' to wit, 'the defendant had carnal knowledge. It was ad. fact and date of the death of a woman supposed missible to discredit the witness. It follows to be his wife, the mother of the two girls who testified in the case'-to which line of inquiry that the objection that it was a collateral and to which evidence counsel for defendant ob- fact was not serious. jected."

We are unable to disturb the verdict of the The objection was overruled by the trial Jury and the sentence of the court on the court, holding that:

ground urged by the defendant. “The question put was for the purpose

For reasons assigned, the verdict of the

of identifying the letter which the defendant had jury and the Judgment of the court are at. stated as a witness he had caused to be writ- irmed. ten.”

It appears that in some way this was per

(125 La. 860) tinent to prove the age of the female men.

No. 18,016. tioned in the indictment.

STATE v. JEANISSE et al. This letter could not have been admitted without the proof.

(Supreme Court of Louisiana. Jan. 31, 1910.) Defendant's counsel states in the brief that

(Syllabus by the Court.) the defendant is a negro and could neither CRIMINAL LAW ($ 894*)—VERDICT—RENDITION read nor write.

-ERROR OB INFORMALITY. of this there is no proof in the record.

Until a verdict is received and recorded, Dictating the letter, or suggesting its con

there is no verdict, and the jury have the right

to alter it. Where the foreman handed to the tents to the one who wrote it, was the act of judge a slip of paper, on which was written in the defendant.

pencil words to the effect that two of the defendIn the statement of the trial judge, contain

ants were guilty of murder and the third of ed in the bill of exceptions, it was possible to whether the jury intended to render a written

manslaughter, and the judge thereupon inquired consider the letter as his, and as setting out verdict, and the jury replied, "No," that they his utterances at the time. The letter was intended to render an oral verdict, as instructed pertinent to the issue and properly admitted by the court, and thereupon rendered a verdict

ore tenus, conforming to the finding as written In the second bill of exception, defendant on the slip, which was received and recorded objected to the same letter as that above on without objections, held, that the writing on the the ground that it was not admissible, as it slip was properly considered by the trial judge contained a statement of a collateral fact, and ity, if any, in the rendition of the verdict, was

as a mere memorandum, and that the informal. because, as it was a collateral fact, the wit- waived by the failure of the defendants to obness could not be impeached by contradict-ject and except at the time, and that the de

fendants were not prejudiced by the alleged ing him.

irregularity in the proceedings. The court in the per curiam said that it

[Ed. Note.-For other cases, see Criminal was admitted for the purpose of contradicting Law, Cent. Dig. 8 2115; Dec. Dig. $ 894.*] the defendant as a witness on a material

Provosty, J., dissenting. point.

The advanced age of the defendant, and Appeal from Eighteenth Judicial District the fact that he is unlettered, afford no good Court, Parish of Acadia; William Campbell, ground of objection, even if the facts were Judge. before the court. They are not.

Joseph Jeanisse and others were convicted The evidence brought up in the bill of ex-l of manslaughter, and appeal. Affirmed.

Percy T. Ogden, for appellants. Walters and Eddie Jeanisse, guilty of manslaughter and Guion, Atty. Gen., and John J. Robira, Dist. strongly recommended to the mercy of the court." Atty. (R. G. Pleasant, of counsel), for the

That said slip was not signed by the foreState.

man, and the judge, after reading it, told

the jury that if they wished to return a LAND, J. Joseph and Eddie Jeanisse and written verdict they would have to retire to Pierre Daigle were jointly indicted for the their room and write one, and have it signed crime of murder. They were tried, and Jo by the foreman in his official capacity. That seph Jeanisse and Pierre Daigle were found thereupon they answered that they came into guilty as charged, without capital punish- court to render an oral verdict and were ment, and Eddie Jeanisse was found guilty of ready to do so; and the judge told them to manslaughter, and recommended to the ex- render the verdict orally in open court, which treme mercy of the court. Defendants filed was done by the foreman, as shown by the a motion for a new trial and a motion in minutes. arrest, which were overruled. Thereupon

There was no essential difference between Pierre Daigle and Joseph Jeanisse were sen- the two so-called verdicts, and the verdict tenced to imprisonment at hard labor for as entered on the minutes was affirmed by life, and Eddie Jeanisse to like imprisonment each and every member of the jury. The unfor five years.

signed writing on the slip handed to the judge Defendants have appealed, and rely for re

was never intended as a verdict, but as a versal on alleged informalities in the rendi

mere memorandum. The jury was charged tion of the verdict. The minute entries show to bring in an oral verdict, and came into that the jury

court intending to render an oral verdict, "appeared in open court in the custody of the and did render such a verdict, as shown by sheriff, were polled, and all answered to their the minutes. That the writing on the slip games, and on being asked by the court if they had agreed upon å verdict, the said jurors, of paper was intended as a verdict is a mere through their foreman, Joseph Sarver, answer- assumption, unsupported by the evidence. ed, Yes,' and delivered the following yerdict, Counsel for defendants was present, and did to wit: “We, the said jurors, find the prisoners, Joseph Jeanisse and Pierre Daigle, guilty of not consider the incident of the slip of suffimurder as charged without capital punishment, cient importance to warrant even an inquiry, and accused, Eddie Jeanisse, guilty of man. to say nothing of an objection. It seems to slaughter, and recommended to the extreme mercy of the court, as charged against them in us, under the facts and circumstances of the the bill of indictment filed against them. Where- case, that the trial judge properly considered fore, the said jurors being polled as to whether the writing on the slip as a mere memoranor not this was their verdict, and each and every one of them answered, 'Yes, this was their dum, especially when informed that the jury verdict,' the court ordered said verdict recorded, intended to render a verdict ore tenus. which was accordingly done."

Surely, under the circumstances, the trial Defendants, then and there present and judge had the right to inquire as to the in

tention of the jury. represented by counsel, made no objections to the rendition or recordation of the verdict. dict is rendered, is to write the finding on

The uniform practice, where a written verThree days later the defendants filed a motion for a new trial on the ground that the

the indictment or information. It is also jury had rendered two verdicts, one a writ- customary for the foreman as such to sign ten verdict, which was never read out in such a verdict. This written verdict has no open court and seems to have been lost, and legal effect until duly recorded and confirmed the other an oral verdict, rendered by the by the jury in open court. foreman of the jury from his seat in the jury

Where a verdict is informal or incomplete, box in open court, without retiring with the

Bishop says: jury to deliberate, and without consulting "If the court does not interpose an objection with the members of the jury.

to the verdict when rendered, the parties should, The trial judge and the clerk were sworn vol. 1, p. 621, $ 1004.

and have it corrected." Crim. Prac. (3d Ed.) as witnesses in behalf of the defendants. From their testimony it appears: That the The same writer also says: judge charged the jury to bring in an oral

“Should a verdict be accepted from the jury verdict. That the jurors retired to delib- so imperfect in form that there can be no judg: erate, and after consulting together informed ment upon it, the consent of both parties to it the sherit that they were ready to render will be presumed, because either was entitled to their verdict. That on coming into open Criminal Law, $ 998.

have it perfected when rendered.” Bishop, New court they were polled, and then were asked if they had arrived at a verdict. That there Until the verdict is received and recorded, upon the foreman arose from his seat and it is no verdict; and the jury have the right banded to the judge a slip of paper, upon to alter it. Graham & Waterman on New which was written in pencil the following Trials, vol. 3, p. 1406. words:

“Failure to object to a defective verdict when “Pierre Daigle and Joseph Jeanisse, guilty of it is rendered waives the right to move for a

Defendants made no objection to the ver- tion; that the suit was brought for the bendict as rendered, and have not been prejudicefit of Bernard Levy, the original owner of ed in the least by the alleged informality, the judgment, and that the nominal plainbecause, as a matter of fact, the verdict as tiff, Alfred Theriot, had no interest in the rendered conformed to the finding as written prosecution of the suit, which was a fraudon the slip of paper handed to the judge. In ulent conspiracy between Levy, Theriot, and law, there was only one verdict rendered. Daigle to defraud the owner and holder of Judgment affirmed.

said mortgage note; and that said Levy

should be made a party to the suit. PROVOSTY, J., dissents on the facts.

On the trial of the case, evidence was in. troduced showing that the mortgage note was

held by the St. Mary Bank & Trust Company (125 La. 363)

as pledgee to secure a loan made to the deNo. 17,736.

fendant Dumesnil. THERIOT V. DAIGLE et al.

The judge, after stating that the mortgage (Supreme Court of Louisiana. Jan. 31, 1910.) note was held by the said bank as an inno

cent third holder, and that any judgment ren(Syllabus by the Court.)

dered in the case would not affect the bank, FRAUDULENT CONVEYANCES ($ 255*)-ACTION handed down a decree as follows, to wit: TO CANCEL MORTGAGE-NECESSARY PARTIES. Where A. executed a special mortgage to adjudged, and decreed that there be judgment

“As between the parties hereto, it is ordered, secure a note payable to his own order, and by in favor 'of the plaintiff and against the defendhim indorsed in blank, in favor of B. and any future holder of said note, and B. pledged the ants, declaring the mortgage entered by Pierre note before maturity to C. as collateral security 20 day of March, 1906, illegally executed, null,

Daigle in favor of Telemaque Dumesnil on the for a loan of money, and subsequently D., a and void. It is further ordered that defendants judgment creditor, brought suit against A. and B. to annul and cancel the mortgage as a fraud- pay all costs of this suit, to be taxed.” ulent simulation, held, that C. was a necessary

The defendant Dumesnil has appealed. party to the suit.

[Ed. Note. For other cases, see Fraudulent The plaintiff has answered, praying that the Conveyances, Cent. Dig. $8 741-751; Dec. Dig. judgment be amended so as to leave out all § 235.*]

reference to the St. Mary Bank & Trust Com. Appeal from Twenty-Third Judicial Dis- pany, not a party to the suit. trict Court, Parish of St. Mary; Henry D.

The note was indorsed in blank, and the Smith, Judge ad hoc.

mortgage was in favor of Telemaque DumesAction by Alfred Theriot against Pierre nil and any future holder of the note. Daigle and others. Judgment for plaintiff,

One week after the execution of the act and defendants appeal. Reversed and re

of mortgage, Dumesnil pledged the note to manded.

the St. Mary Bank & Trust Company as col

lateral to secure a loan of $1,500, represented Hall, Monroe & Lemann, for appellant Du- by his own note, wbich was discounted and mesnil. Foster, Milling & Brian, for appellee. the proceeds credited to hi account.

It follows that the said bank, as holder of LAND, J. Plaintiff, as a judgment cred- the mortgage note, occupies the position of a itor of the defendant Pierre Daigle in the mortgagee to the extent of its claim against sum of $336.93, with interest and costs, in- Dumesnil, whose interest in the mortgage is stituted suit to annul and cancel as a fraud merely residuary. ulent simulation a certain recorded special

Under this state of facts, the question arises mortgage to secure a note for $2,500, execu- whether the bank, as the holder of the note, ted by Pierre Daigle in favor of Telemaque is a necessary party to the suit to annul the Dumesnil or any future holder.

mortgage in question. The bank's interest in Defendant Dumesnil filed an exception of the subject-matter is obvious, and, as holder no cause of action, which was overruled.

of the note, the bank has all the rights of The same defendant then filed an exception a mortgagee to the extent of that interest. of want of proper parties, because the mort

The right to have a mortgage canceled cangage note had been by him transferred for a not be tested, unless those who have a real valuable consideration and in the ordinary or pretended interest are made parties. State course of business. The exception failed to of Louisiana v. Le Blanc, Judge, etc., 5 La. state the name of the transferee or holder of 329. This doctrine has been reaffirmed by an the note. The judge ordered the exception unbroken line of decisions. to stand as a part of the answer.

In Ashbey V. Ashbey, 41 La. Ann. 141, 5 Defendant Dumesnil, reserving the benefit South. 547, the court said: of his exceptions, answered, pleading a gen

“It has been uniformly held in our jurisprueral denial of all the allegations of the peti- dence, and, indeed, it stands to reason, that a tions, except such as were specially admitted. mortgagee, not made a party to proceedings by Further answering, the defendant averred which a judgment was obtained ordering the re

corder of mortgages to erase a mortgage held that the mortgage and note were executed by him, will not be bound by them. in good faith and for a valuable considera "That doctrine, which is really an axiom of

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