the state. The state continues to assess the property to the owner, and he has the right to redeem. If he fails, the state requires the listing and reoffer for sale of the property still for the collection of the taxes, and at last, if no sale can be made, the state takes the title and the Auditor sells it when enough can be realized to collect the taxes due upon it. Such are the requirements in general terms of the revenue acts, and particularly of the clearing-up act (Act 80, p. 88, of 1888), as to all taxes due after 1880.

"As the state's right to collect the taxes assessed against the property herein from 1880 to 1888 had been destroyed by the judgment of November 16, 1891, it seems plain that her power to sell said property for said extinct taxes was at an end. If so, the Auditor's deed of April 27, 1898, to Mr. Wall was ultra vires, and conferred no title, and his title to Judge Marr was a mere nullity. Inasmuch as these semblances or pretenses of the title are clouds upon plaintiff's title, their inscription on the records should be removed.

"Adjudications to the state for said taxes were incidents or steps in the process of collecting, and were not absolute and indefeasible titles. As such incident made so by the general tax statutes of the state, they fell with the extinction of the taxes which they devised and made to collect, and the tax rolls and records in the mortgage office were the proper bureau for full information. The records of that office showed that on April 27, 1898, when Mr. Wall took the Auditor's title, all taxes due on this property by Vaughn from 1880 to 1888 had been extinguished, and erased by the judgment against the state November 16, 1891.

"My conclusion is that the act of the Auditor in executing the deed of sale to Mr. Wall on April 27, 1898, was ultra vires, and conveyed no right or title to the property. In re Seim, 111 La. 555-556, 35 South. 744."

Opinion.

Before passing to various other questions involved in this case, we direct our attention primarily to the one on which the district judge based his judgment of court of November 16, 1891, decreeing that the taxes on the properties up to 1888 prescribed and ordering their erasure. If the state had at that time occupied the position of a quasi creditor of Vaughn with taxes and tax privileges then existing, or alleged to be then existing, on those properties which would require future proceedings against the same for their enforcement, the judgment in the rule could have been successfully invoked against the tax collector who would have had recourse to such proceedings, but in the present instance matters had reached a point where such action was not, and would not be, needed. The properties had already been sold at the tax sale in 1885, made by Cavenac, tax collector, and the legal title of the properties had already been placed in the name of the state. Whatever may have been the intent as to the ultimate purpose of the state in taking the legal title of the property, that fact had as its legal result the doing away of any proceedings to enforce payment of the taxes thereon by sales. The taxes quoad the state were extinguished as to the owner under the circumstances, but not by and through prescription. Prescription after the sale would not enter as a factor in

determining what the relative rights of the state, and those of Vaughn or the bank might be. When, therefore, several years after such a sale had been made the bank raised an issue whether prescription had run upon the property or not, it raised a totally irrelevant and improper issue, one which the state had no interest to contest. It would have been interested only in the event that its title to the property, through the tax sale, had been contested. No such attack on its title was made by the bank. It did not claim then, nor does it claim now, that, when the adjudications to the state were made through the Cavenac sales, the particular taxes in enforcement of which the sales were made were then prescribed. Questions as to future taxes on the state's own property were matters which did not arise out of the situation. In dealing with matters as they existed at the date of the rule, the bank overlooked the fact that the state had held the legal title to the properties on which the bank had had a mortgage ever since September, 1885, and that through that very sale the bank's own mortgage had been cut off, and extinguished, if the adjudication was a valid one as the rights of the state would have primed the rights of the bank. Augusti v. Citizens' Bank, 46 La. Ann. 529, 15 South. 74.

We cannot give to the judgment on the rule the force and effect given to it by the trial judge.

The first attack made by the bank upon the adjudications to the state was that made by it in the suit reported in 111 La. 601, 35 South. 780, which was one brought on the 31st of October, 1901, to remove the inscriptions of those titles as clouds upon its own title, in which that issue was raised, and sought to be determined not contradictorily, with the state, but with Wall, who claimed title under the Auditor's conventional act of transfer, and Marr, the vendee of Wall. The state officials took no steps (after the adjudication of the properties to the state in 1885 under the tax sales made by Cavenac, state tax collector), towards placing the state in possession of the property adjudicated to it. They obviously considered that the rights of the state had become fixed by the adjudications themselves, and there was no necessity of following up the same by taking possession in any way. They allowed matters to drift in the condition the adjudications had placed them.

The bank obviously took a different view of the situation. It held that the state, having recognized Daniel Vaughn as the owner, assessed taxes upon it as his, and proceeded against it as his, necessarily recognized at the same time that he held the constructive possession of those properties which was linked to the fact of such ownership; that, tax proceedings not being accompanied by a seizure, left the owner's possession undisturbed and intact, and that, in order to oust Vaughn absolutely from his ownership and construc

tive possession, it was necessary that the state should have followed up the adjudication by some step placing the state in possession; that the statutes required this to be done in order to give to property owners a final notice and warning that their property had been sold and afford them, when steps should be taken to placing the state in possession an opportunity to attack the adjudications and vindicate their rights if any they had. The bank, notwithstanding the adjudication, moved forward in execution of its special mortgage, evidently upon the theory that, holding relations of privity with Vaughn in respect to the property subject to the mortgage, it had the right to avail itself of every right in the premises which Vaughn himself had, and that it was authorized to proceed against Vaughn and the property up to the time that he had himself finally lost all legal connection with it. It therefore proceeded by executory process and under the proceedings bought in the property, and claiming that by virtue of such acquired ownership it had become subrogated to all rights which Vaughn had; among others, to the right which he still held of holding constructive possession, and being afforded a legal opportunity to contest the adjudications to the state and vindicate Vaughn's rights and its own until some proceeding should have been taken by the state to obtain possession; that, until such step had been taken matters remained inchoate in the condition in which they were at the date of the adjudications. It denies that Wall has ever been placed in possession, or that from a legal standpoint he is to be considered in possession of the property. It claims that the property being at the time he undertook to take possession in custodia legis in favor of the bank, no possession could be given legally by the sheriff to the prejudice of the rights of the bank under its seizure. It denies that any proceedings were taken by Wall contradictorily with it, or any one else to be placed in possession, and in its pleadings it insists that legally the property is still in the possession of the sheriff. It insists that, the state not having taken possession itself under the adjudication, the Auditor was legally unable to convey to Wall a possession which the state did not have itself, and, if Wall acquired any rights at all under the transfer from the Auditor which it denies he did, he could acquire at utmost the rights of the state under the adjudication, coupled with the obligation to take legal steps to acquire possession, and, in so doing, afford it an opportunity to contest the adjudications to the state and vindicate the rights of Vaughn and of itself through and under Vaughn's rights. It claims, however, that the legal situation was not such when the Auditor transferred the property to Wall as to have given him, under any authority so to do under Act No. 80, p. 88, of 1888; that at none of the tax adjudications referred to by the Auditor as

furnishing him with the authority to sell the property to Wall had the properties ever been sold as property which had already been adjudicated to the state; that the adjudications made by Bouny and by Cavenac were proceedings taken directly against the parties alleged to be the owners of the properties, and in whose names they had been assessed, and in direct, primary enforcement of current taxes; that these adjudications were, besides this, null and void and subject to attack, and it had the right to attack them.

Defendants insist that they are entitled to the benefit of the prescription of three years provided for in article 233 of the Constitution; that not only has the act to Wall been of record for three years after the Constitution of 1898, but so also had the tax adjudications made to the state by Bouny and Cavenac by which the title of the bank's debtor Vaughn had been divested; that not only had the acts been of record, but the purchaser had been in actual possession of the property for over three years, and the bank had been given thereby full notice of adverse claim and possession. They further claim that the bank has no legal interest to question the authority of the Auditor and the legality of his acts as its claims, and that of Vaughn had been cut off by the adjudication, and the acts of the Auditor were matters exclusively between the state and the Auditor and those claiming to hold under the latter.

The properties involved in this litigation were properly assessed in 1884 in the name of Daniel Vaughn, as he was beyond dispute the owner thereof at that time. They were sent to tax sale properly in his name and adjudicated to the state, and such act of adjudication was duly and properly recorded in the conveyance office in April, 1886. Those properties have been chargeable with their pro rata share of contribution towards the governmental purposes ever since, but neither Vaughn, the owner, nor the bank, which held a special mortgage on them, have paid, nor has either offered to pay, a cent of taxes upon them during that long period. Vaughn has evidently long since abandoned the properties. During the long period since 1886 the bank made no move in the direction of attacking the adjudications to the state. It now seeks collaterally in an action to remove a cloud upon its title to be recognized as the owner of the property, and to be placed in possession of the same without paying, or offering to pay, a cent of taxes upon it. It ignores entirely the rights of the state, and, if successful in this case, it will have acquired by disregarding its duty to it a position greatly more advantageous than that held by citizens who through these years have paid regularly their taxes. The bank was in position before and has been ever since 1885 to have avoided the prejudicial effect to it of a sale of the properties to the state at a very small expense, but it did not think proper to avail itself of its opportunity to do

So. In 1891, instead of seeking to avoid the payment of the taxes on the property by urging as it did their prescription, it should have paid them. The Auditor would doubtless have transferred the property to the bank at that time as readily as it did afterwards to Wall. The adjudication to the state of its debtor's property has been of record in the conveyance office for the parish of Orleans ever since July, 1885. We think it is now too late for the bank, and under the circumstances of this case, to successfully set aside the adjudications to the state made in 1885.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment of the district court be, and the same is hereby, annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that plaintiff's demand be, and the same is, hereby rejected, and its suit dismissed, with costs in both courts.

(120 La.)

No. 16,709.

STATE v. BRADLEY.

(Supreme Court of Louisiana.

Dec. 2, 1907.) 1. HOMICIDE-INCONSISTENT DEFENSES. Appellant, indicted for murder, was convicted, and has appealed. He defended on the ground of self-defense and insanity. The two defenses are not necessarily inconsistent. [Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 624-628.]

2. JURY-VENIRE-MOTION TO QUASH.

The motion to quash filed in this case was not under section 15 of Act No. 135, p. 223, of 1898, made too late. The trial had not been entered into.

3. SAME-JURY COMMISSIONERS-TERM OF OFFICE OATH.

The jury commissioners appointed by a district judge do not cease to be such upon the election of a new judge. Once appointed and qualified, they continue to hold their office by affirmative action of the judge until they are displaced. The district clerk, who is ex officio a jury commissioner, is not required under the law to take in addition to his oath as clerk a special oath as jury commissioner. 4. SAME-VENIRE.

The complaint urged against the venire from which was drawn the jury to try this case is not well grounded under section 15 of Act 135, p. 223, of 1898.

5. HOMICIDE-EVIDENCE.

The defense, claiming that accused was insane at the time he committed the homicide he was charged with, offered testimony to show that threats had been made against him by the deceased, who was known by him to be a violent and dangerous man, and that these threats had been communicated to the accused. The testimony was not allowed to be submitted to the jury. Under the condition of the evidence already before the jury as recited in the bill of exceptions taken to this ruling, the testimony should have been admitted.

[Ed. Note. For cases in point, see Cent. Dig vol. 26, Homicide, §§ 293–296, 380.]

(Syllabus by the Court.)

C. W. Bradley was convicted of murder, and appeals. Reversed and remanded.

Milton Carter Elstner (John Thomas Watkins, of counsel), for appellant. Walter Guion, Atty. Gen., John Nicholls Sandlin, Dist. Atty. (Stewart & Stewart, C. E. McDonald, and Lewis Guion, of counsel), for the State.

NICHOLLS, J. The grand jury for the parish of Webster returned into the district court for that parish on the 6th of December, 1906, an indictment against the defendant, C. W. Bradley, charging him with the murder of one Thomas B. Martin. He was arraigned on December 10th, and pleaded "not guilty."

The case was continued over from the December term, 1906, to the June term, 1907. On June 4, 1907, defendant, through his counsel, moved to quash the venire and bill of indictment. The motion was overruled, and the case was fixed for trial for the 10th of June, 1907, when it was taken up and tried. The jury returned the following verdict:

"We, the jury, find the prisoner guilty as charged without capital punishment."

The defendant moved for a new trial, which was overruled. The court thereafter sentenced him to confinement at hard labor in the Louisiana State Penitentiary for the period of his natural life, to date from his arrival there subject to the commutation laws of the state.

Defendant appealed.

During the course of the trial eight bills of exception were taken on behalf of the defendant.

The first bill was taken to the refusal of the court to sustain defendant's motion to quash.

The second bill was taken to the exclusion of certain statements made by the defendant to the marshal of the town of Minden (with reference to the facts which took place at the time of the killing of Martin) as not being part of the res gestæ.

The third bill was to the refusal of the court to allow to be introduced evidence to prove the dangerous character of the deceased, and threats of the deceased against the accused.

The fourth bill was to permission having been given by the court to take the evidence of one Tabor, over an objection, that the state had at that time closed its case, and the testimony in question was not in rebuttal of any facts which had been offered by the defense.

The fifth, sixth, and seventh bills were in reference to certain statements made by C. E. McDonald, one of the counsel assisting in the prosecution in his argument to the jury. The eighth bill was to the refusal of the court to grant defendant a new trial.

Defendant moved to quash the venire of

petit jurors which was drawn to serve at the June term, 1907, for the reason that the jury commissioners did not take the oath as required by the Constitution and laws of the state, and because the jury commissioners did not repair to the clerk's office, and there supplement the jury list, and draw the jurors as required by law. For the same reasons defendant moved to "quash the venire of grand jurors who returned the bill in this case," and to "quash the indictment" so returned.

The district judge assigned as his reason for refusing this motion to quash that the jury commissioners were legally appointed and constituted; that they were appointed by the district judge, and were holding at his pleasure as provided by statute; that they all had taken the constitutional oath and also the oath provided by the acts; that the clerk was ex officio a member of the commission, and the oath that he had taken as clerk of the second district court for Webster parish covered his duties as said member, if he had not taken the oath provided by the statute.

Bill of Exception No. 2.

The bill recites that on the trial of the cause defendant had proved by the marshal of the town that at the time the gun was fired he was within 100 yards of the scene of the difficulty, and went at once in that direction, meeting the defendant, who came to meet him as he came from the scene of difficulty, and gave him his gun, and thereupon defendant offered to prove the statement which was then made to him at a place in full view of the scene of the homicide and nearby, to which the state's counsel objected, for the reason that it was not a part of the res gestæ, which objection was erroneously sustained by the court.

In reference to the matter covered by the bill, the district judge states that "defendant offered, as part of the res gestæ, to prove by the town marshal a statement he had made to him as he, the marshal, was walking down the sidewalk of the town of Minden."

The killing took place in the parallelogram 40 or 50 yards from the sidewalk, and after the shooting defendant walked across to the sidewalk, and walked up same a distance of 40 or 50 yards, where he met Philipps, and gave him his shotgun, and then made the statement offered as res gestæ.

The defendant had walked a distance of 90 or 100 yards in the town of Minden before the words were stated to Philipps-not just before, during, or just after the shooting, as the law requires. Too much time elapsed giving defendant time to make up a statement. The court did not consider the statement of the res gestæ, and excluded it.

The third bill recites that, on the trial of the case, it was a material inquiry as to the mental condition of the defendant on the day and at the time of the homicide. And, evi

dence having been offered tending to show that the defendant was of insane mind and mentally and legally irresponsible for his acts upon that occasion, and it having been established by competent medical experts who had heard the testimony adduced on the trial of the cause, both upon the part of the state and the part of the defendant, that there were indications of insane and irresponsible conduct on the part of the defendant on the day of the killing, both immediately preceding and following the act of the homicide, and it having been further specifically stated by the medical experts that threats against the life of the defendant made against him by a man of well-known dangerous and violent character (the said threats having been communicated to him) would have been a strong superinducing cause leading to a mental condition that would have made him incapable of distinguishing between the right and wrong of the act committed, and further deprived him of sufficient control of his will, it thereupon became an important and material inquiry as to whether such threats had been made against the life of the defendant by a man of known violence and dangerous character, and, further, those threats had been communicated to the defendant, and, in aid of this contention on the part of the defendant, the following named witnesses were offered to prove the said dangerous character of the deceased and the communication of his threats to the defendant: J. J. Holmes, Dr. S. J. Harrell, A. Glass, Walter Hadley, B. G. McIntyre, C. C. Walker, and D. M. Hadley -which testimony was rejected by the court. In reference to this matter the court said: "After the court had ruled that the defendant had not shown the overt act by proof, and ruled out all evidence of dangerous character and threats which he had tendered to show and prove self-defense, his counsel offered to prove dangerous character and threats for the purpose of proving insanity of defendant, the court held that he could not be allowed to (in this way) get legal evidence before the jury. The defendant had made a voluntary statement giving in detail the bad and dangerous character and threats in his statement. He was allowed to state any and every thing in this statement which he did, and the whole matter in that way was already before the jury, and, for the purpose of showing his insanity, the bad and dangerous character and threats were all before the jury from defendant's voluntary statement for them to consider, and the fact that defendant knew of them from his own statements, for the purpose of determining the question of insanity, the jury knew as to these threats and dangerous character at that time as well as they could know by further mentioning them in detail, therefore, that this ruling did not injure defendant nor deprive the jury of the knowledge of the fact that defendant knew of the threats

and dangerous character, and that the same was on the mind of defendant-to which ruling the defendant then and there duly excepted, and tendered a bill of exception, which was allowed and ordered entered of record."

Bill of Exception No. 4..

This bill recites that, upon the trial of the cause, the state having closed its case and the defendant having offered his testimony, thereupon the state came to offer its evidence in rebuttal, and in tendering the said evidence in rebuttal the state tendered a witness, Tabor, and offered to prove by him that the defendant, several hours before the homicide, about four miles distant from the place of the homicide, with the defendant going in a direction away from the place where the difficulty subsequently occurred, was seen in the possession of two guns, which evidence was not in rebuttal of any evidence offered on the part of the defendant, to which evidence the defendant objected because it was not in rebuttal of any facts offered by the defendant, which objection was overruled and the evidence admitted.

In his per curiam, the judge says:

"The defendant had offered to show that his mission to town was a peaceful one. This evidence was offered to rebut this evidence and idea."

Bill No. 5.

This bill recites that, upon the trial of this cause, the counsel of the state, C. E. McDonald, in making the closing argument on the part of the state, stated that he had defended the man who killed Clem Franks, and that man was not Tom Martin, and that he was convicted and sentenced to the State Penitentiary, which fact had not been proved or offered to be on the trial of the cause; but an effort had been made by the defense to introduce evidence to show in proof of the dangerous character of T. B. Martin, deceased, that he had caused the killing of Clem Franks, which evidence had not been allowed by the court for the reason assigned in bill of exception No. 3, which statement was very prejudicial to the interest of the defendant, and was at once objected to by the counsel for the defense, and a bill of exception was then and there reserved, to which statements of counsel for the state the defendant excepts, as the statements were not withdrawn and were prejudicial to the defendant, nor did the charge of the court instruct the jury with reference to the statements.

In the judge's per curiam, it is stated that the defendant had made a voluntary statement to the jury which was not evidence in the case. Counsel for defendant afterward had him sworn as a witness, and asked him if his voluntary statement he had made to the jury was true, and before counsel for state could make an objection, and before

the court could rule on the question, he an swered it was all true.

Defendant's attorney argued to the jury that his statement was evidence. Counsel for the state in his argument was answering argument of defendant discrediting the statement of Bradley, and the court thinks this did not prejudice the case.

Bill of Exception No. 6.

This bill recites that, upon the trial counsel for the state, C. E. McDonald, in making the closing argument on the part of the state, stated that he had defended the man who shot Bill Berry, and that it was not Tom Martin, and that he was tried and convicted, which fact had not been proved or offered to be on the trial of the cause; but an effort had been made by the defense to introduce evidence to show that in proof of the dangerous character of T. B. Martin, deceased, that he had caused the shooting at Bil! Berry, which evidence had not been allowed by the court for the reasons assigned in bill of exceptions No. 3, which statement was very prejudicial to the interest of the defendant, and was at once objected to by the counsel for the defense and a bill of exceptions was then and there reserved, to which statement of counsel for the state the defendant excepts, as the statements were not withdrawn and were prejudicial to the defendant; nor did the charge of the court instruct the jury with reference to the statements.

The judge gives as his reasons the same as those given in bill No. 5.

Bill of Exception No. 7.

This bill recites that on the trial of the cause counsel for the state, C. E. McDonald, in making his closing argument on the part of the state, stated that he inferred that the defendant C. W. Bradley was carrying two guns, about which the witness Tabor testified, out into the woods where timber was being cut, for the purpose of killing Tom Martin, which fact had not been proved or offered to be on the trial of the cause.

The judge in his per curiam states that this was only a proper deduction from the evidence defendant had offered that Bradley was over there for the purpose of cutting timber, and did not prejudice the case.

Bill of Exception No. 8.

Defendant's application for a new trial was based upon the claim that the verdict was contrary to the law and the evidence, and because, after the jury had been drawn, impaneled, and sworn and charged by the court, the deputy sheriff who had them in charge unthoughtedly spoke to the jurors about the facts of the case, and as to their verdict. The court refused a new trial, assigning as his reasons that the verdict was in accordance with the law and the evidence, and that the deputy sheriff had said nothing