If the ordinance is legal and valid the power of the recorder to inflict the penalty is undoubted, since the passage of Act No. 41 of 1892, which authorizes the recorder "to enforce obedience to or to punish the violation of all ordinances passed by the city council thereof in execution of the powers and duties indicated in sections 7 and 8, and the amendments thereof of Act No. 20 of 1882, known as the charter of the city of New Orleans, by fine or imprisonment, or both, or by imprisonment in default of the payment of the fine, provided that the fine shall not exceed twenty-five dollars for each offense, nor the imprisonment more than thirty days as provided by section 12 of Act 131 of 1877."

956 The penalty, therefore, under said act can be enforced for the violation of a city ordinance, as the right has been expressly conferred by the legislature.

The only question, therefore, which is presented is as to the power of the city council to enact said ordinance. It is admitted that there is no express power granted to the city in its charter to create the office of inspector and a board of inspectors of boilers and steam apparatus, and to require the owners and users of boilers and steam apparatus to employ engineers licensed by the city, and for said users of such boilers and machinery to submit them to inspection and to pay fees therefor.

The contention of the city of New Orleans is that its charter authorizes it to pass all ordinances necessary to preserve the peace and good order of the city, and to maintain its cleanliness and health, and, therefore, it has the power to enforce by fine and imprisonment the violation of an ordinance for the protection of life and property, and that said ordinance. was enacted for the protection of the lives of the citizens of New Orleans.

If said ordinance springs from a necessary and implied incident to the power expressly granted to preserve the public peace and to maintain the cleanliness and health of the city it is a valid ordinance. There can be no doubt that it does not spring from the power to preserve the public peace as incident to the exercise of that power.

Ordinances to preserve the public health have been liberally construed, and the authorities have gone to a great length in enumerating the implied powers of municipalities to enact laws to protect the community from infectious and contagious diseases, from bad water, against nuisance injuri

ous to health, and noxious odors and gases. As the preservation of the public health and the safety of the inhabitants is one of the chief purposes of local government, all reasonable ordinances in this direction have been sustained.

The ordinance in question does not pretend to preserve and promote public health. But it is claimed that it protects the life of the citizen by providing for the inspections of steam-boilers, etc., and this is implied from the power to legislate for the public health, and that its preservation is necessary to protect the life of the citizen.

Ordinances of this character, to preserve public health, are generally directed to those objects which in themselves are presumed 957 to be injurious to the public health, such as those enacted for the purpose of abating nuisances which are injurious to health, the location and regulation of markets, hospitals, slaughter-houses, cemeteries, etc; those for the prevention of the introduction of contagious and infectious. diseases and their dissemination in the community, and on all matters which may promote the cleanliness and health of the city.

The establishment of steam machinery in a particular locality is not, in itself, injurious to public health. It is dangerous only either from coming into too close proximity to it or from the explosion of boilers or the breaking of the machinery.

If the ordinance is a valid one, it must fall under the general welfare clause, either found in charters of municipalities or inferred from the powers granted. Dangerous articles, such as gunpowder, oil, dynamite, or other such articles composed of elements which are likely to explode from the slightest extraneous causes, by the agitation of the particles composing them, are generally regulated under this implied. or granted authority as to their location and sale; but even in these cases an enlargement of the powers granted will not be exercised further than necessary to carry into effect the specific power granted.

In the instant case the power to create the office of inspector and a board of inspectors and examiners, with the power to examine engineers and to grant certificates of competency, and to inspect boilers, etc., is nowhere to be found in the city charter, and the necessary implication for it cannot be inferred from any of the powers granted. Probably the only implication from the granted powers found in the charter would be

the right to locate steam-boilers, machinery, and apparatus in a safe place, where an explosion would do the least injury. It has been held, and properly so, that, under the authority to make police regulations or to pass by-laws for the good government of the corporation, it has the right to require hoistaways inside of stores to be inclosed by a railing and closed by a trap after business hours of the day. It was regarded as a reasonable regulation because it did not unreasonably interfere with private rights. But if these owners of the hoistaways had been compelled to pay for their repeated inspections there can be no doubt that the exactions would have been held to be unreasonable.

958 We have carefully examined the ordinance and find it illegal in every feature. There is no power in the charter to authorize it; it is not a necessary implication from the specific powers granted, and is unreasonable.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided, reversed, and annulled, and it is now decreed that said Ordinance No. 6647, council series, be declared null and void, and the prosecution of defendant thereunder be dismissed.

Rehearing refused.

MUNICIPAL CORPORATIONS-POWERS.-A municipal corporation has only such powers as have been expressly delegated to it and their appropriate incidents: Wilson v. Beyers, 5 Wash. 303; 34 Am. St. Rep. 858; Whiting ▼. West Point, 88 Va. 905; 29 Am. St. Rep. 750, and note; Huesing v. Rock Island, 128 Ill. 465; 15 Am. St. Rep. 129, and note; St. Louis v. Bell Telephone Co., 96 Mo. 623; 9 Am. St. Rep. 370. The power to enact a city ordinance must be vested in the city by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation, and not simply convenient: Anderson v. City of Wellington, 40 Kan. 173; 10 Am. St. Rep. 175, and note. See, also, the note to Flournoy v. Jeffersonville, 79 Am. Dec.

STATE V. LANGFORD.

[45 LOUISIANA ANNUAL, 1177.]

WITNESSES-COMPETENCY-UNDERSTANDING.-The mere fact that a witness states, on cross-examination, that she does not know the consequences, nor how she could be punished, if she testifies falsely does not render her incompetent on the ground that she does not understand the nature of an oath, especially when she exhibits as much intelligence on the witness-stand as ordinary persons of her class. RAPE-EVIDENCE-RES GESTE-CORROBORATION. — A witness to whom complaint has been made by the victim of a rape, or an attempt to rape, is not, at the trial, permitted to repeat, on direct examination, all the details of the outrage, and the name of the ravisher, as subsequently reported to such witness, but can only testify to the fact that the complaint was made, and as to the condition of the victim when making the complaint. When such statements are part of the res gesta they are admissible, or may be drawn out by defendant on cross-examination; and they may also be admitted to corroborate the testimony of the prosecutrix, but only when her testimony has been impeached. JURY TRIALS-IMPROPER CONDUCT OF OFFICER VITIATING VERDICT.-The fact that an officer of the court who has charge of the jury during its deliberation in a criminal case speaks reprovingly to a juror for not agreeing to a verdict which such officer conceives should be returned, and states to the juror that the case is plain, constitutes such misconduct as vitiates the verdict, and entitles the defendant to a new trial. RAPE-SUFFICIENCY OF INDICTMENT.-An information for assault with intent to commit rape, charging that defendant, with force and arms, unlawfully did make an assault upon the prosecutrix, with intent her, the said prosecutrix, then violently and against her will feloniously to ravish and carnally know, is sufficient, although it fails to allege that the assault was made "feloniously," "forcibly," or "violently." W. C. Roberts, for the appellant.

J. R. Land, district attorney, for the state.

1178 PARLANGE, J. The defendant has been found guilty by a jury of an assault with intent to ravish, and he has been sentenced to imprisonment in the state penitentiary for a term of eighteen months. He has appealed, and he relies upon four bills of exception to reverse the judgment of the lower

court.

By his first bill of exception he contends that the prosecutrix "was not a competent witness." The only ground for this contention is that on cross-examination she stated that "she did not know the consequence, nor how she would be punished in case she testified falsely."

The judge a quo, in overruling the objection to the competency of the witness, stated that "from the manner of the

witness on the stand and her answers to questions, she exhibited as much intelligence as ordinary persons of her class."

1179 We understand the defendant's counsel to contend in his brief that the statement of the prosecutrix proves her to be a person who does not understand the nature of an oath. This contention is without force. There is nothing in the record to support it. The prosecutrix may well have meant that she was ignorant of the instrumentalities by which the criminal law would punish her if she committed perjury, and that she did not know what the legal penalty would be. This would neither prove her to lack "proper understanding" within the meaning of Act 29 of 1886, nor to be ignorant of the nature of an oath. We are fortified in reaching this conclusion by the statement of the judge a quo who heard and saw the witness, and to whom a large discretion is left in the

matter.

The judge refers evidently to the intelligence and mental capacity of the witness, and he did not consider the statement as relating to her ability to comprehend the nature of an oath. Competency is the rule, incompetency the exception. The burden is on the defendant to show the witness incompetent. He has failed to do so. If his intention was to show that the prosecutrix did not understand the nature of an oath he could easily have addressed her such questions as would have made the scope of his inquiry clear to her, and would have elicited from her such an answer as would have shown plainly whether she had or had not the proper understanding of the nature of an oath.

The second bill of exception reserves the objection of defendant to the admission of the testimony of a witness who was offered by the state to prove the statements made to him by the prosecutrix as to the crime for which the defendant was being tried.

In the case of State v. Robertson, 38 La. Ann. 618; 58 Am. Rep. 201, this court held that a person to whom complaint has been made by the victim of a rape, when placed on the witness-stand, cannot be permitted to repeat all the details of the outrage and the name of the ravisher, as reported to the witness, but can only testify as to the fact of the complaint having been made and as to the condition of the victim when making the complaint. Bishop, in his treatise on Criminal Procedure, states that this is the English and the more common American practice. To the same