brief. But on the record as presented to us, there is nothing which entitles the accused to relief at our hands.

Judgment affirmed.

Murder — Manslaughter. — As to what reduces murder to manslaugh. ter, see Campbell v. Commonwealth, 88 Ky. 402, ante, p. 348, and note.

MURDER-MALIOR.-There can be no murder in any degree without malice. Voluntary manslaughter is the most culpable phase of homicide possible without malice: Gibson v. State, 89 Ala. 121; 18 Am. St. Rep. 96. The use of a deadly weapon in cases of homicide raises the presumption of malice: Gibson v. State, 89 Ala. 121; 18 Am. St. Rep. 96; compare Croom v. State, 85 Ga. 718, ante, p. 179, and note. Murder in the first degree may be proved by the mere fact of the killing, and the attendant circumstances, and where no circumstances rebut the presumption, the law presumes that the unlawful act was both malicious and intentional: State v. Alexander, 30 S. C. 74; 14 Am. St. Rep. 879; State v. Brown, 41 Minn. 319.

MURDER-INTENT-PROOF OF OTHER CRIME. -The jury should disre gard evidence introduced to prove a previous conviction of felony, which is also charged in the indictment: People v. Von, 78 Cal. 1. Evidence of a sim ilar offense committed by defendant at another time and place is never admissible against him, except to show intent: Strong v. State, 86 Ind. 208; 44 Am. Rep. 292, and note 299-308; Commonwealth v. Campbell, 7 Allen, 541; 83 Am. Dec. 705; note to Thayer v. Thayer, 100 Am. Dec. 113. Where one is on trial for murder, evidence of an assault upon the wife of the deceased just after the killing is admissible, as tending to show the motive which actuated defendant in killing the husband: Benson v. State, 119 Ind. 488; but see Shaffner v. Commonwealth, 72 Pa. St. 60; 13 Am. Rep. 649; State v. Lapage, 57 N. H. 245; 24 Am. Rep. 69.

Intent is a question of fact, not of law. It may be inferred from acts of violence or the use of a weapon which is calculated to cause death: Lane v. State, 85 Ala. 11; but see Patterson v. State, 85 Ga. 131, ante, p. 152, and note. The intent must precede the killing: Green v. State, 51 Ark. 189. An anmistakable intent to kill is not necessary to prove murder: State v. Hoover, 4 Dev. & B. 365; 34 Am. Dec. 383; or an assault with intent to kill: Lane v. State, 85 Ala. 11. To establish murder, it is sufficient that defendant had mental capacity enough to form a specific intent to commit the homicide, apprehended the nature of the act, and committed the killing willfully, deliberately, and premeditatedly: State v. Swift, 57 Conn. 407.

SWEENEY V. SHAKSPEARE.

[42 LOUISIANA ANNUAL, 614.)

MUNICIPAL CORPORATION RIGHT TO CONTROL RIVER BANK. — A city has the right to control, manage, and administer the use of the river banks within the corporate limits for the public convenience and utility; to establish wharves and landings; to erect and provide facilities for the use of vessels and water-craft; and to charge just compensation for the use thereof. Riparian owners or their lessees have no right to appropriate these banks to their exclusive use for such or any other purposes, and they have no private property in the use thereof which is in the public. MUNICIPAL CORPORATIONS-RIGHT TO CONTROL USE OF RIVER BANK. The discretion exercised by a municipal corporation in determining what are proper and needful facilities for commerce, and on what part of the river bank, within its limits, they should be established, is not a proper subject for judicial control or interference. Whatever incidental damage may result to riparian proprietors or their lessees from the exercise of such discretion is damnum absque injuria.

MUNICIPAL CORPORATIONS - RIGHT TO CONTROL USE OF RIVER BANK. A riparian owner along the banks of a river within the corporate limits of a city, or his lessee, has no right to erect on the batture outside the levee in front of his property, upon piles driven in the earth, sheds or other structures for his own exclusive use and benefit; and in case of such erection the city may order the same removed, and upon refusal by the owner, may remove them.

T. M. Gill, for the appellant.

Francis B. Lee, assistant city attorney, for the appellees.

WATKINS, J. As a dealer in coal, the plaintiff has constantly on hand a number of barges laden with coal, and for their safety and security he avers it to be necessary that there should be some place on the banks of the Mississippi River, and within the parish of Orleans, where same may be landed and secured, and where suitable quarters may be provided in which to store the necessary apparatus with which to protect and secure said barges and other boats, and also for the purpose of housing the men employed, and who are required to be in immediate and constant attendance.

In his petition he avers that he has leased certain batture and riparian property about five or six miles above Canal Street landing" where he has, at large expense, sunk piles and clusters of piles, or hitching-posts, to which he makes fast said barges and boats of coal, and has built two small wooden houses at an expense of about five hundred dollars, in which to house the men, ... and to store the apparatus absolutely necessary to his business," etc.; that the mayor and commissioner of public works "threaten to interfere with him

in the peaceful possession and use of said house, and to remove, or cause the same to be removed, on the ground that he is a squatter and obstructing Calhoun Street."

This he denies, and affirms that he is the lessee, or tenant, of the aforesaid batture and riparian rights, from the Texas and Pacific Railroad Company, the owner thereof.

He avers "that his said houses are not only necessary, as aforesaid, to the commerce in which he is engaged, but are neither on, nor do they obstruct, any street, and are built on the outside of the levee, upon piles driven in the batture aforesaid, and which batture is some three hundred feet in width from the levee to the water's edge."

Against the threatened interference alleged, plaintiff obtained an injunction, in order to preserve the status quo.

The city attorney ruled plaintiff to show cause why his injunction should not be dissolved on the ground that his petition stated no cause of action; and pending the trial of the rule, he specially excepted to his petition, on the same ground, and prayed that the suit be dismissed.

On trial, the rule was made absolute, the exception sustained, and suit dismissed. From the judgment plaintiff has appealed.

The city attorney's contention is, that conceding the plaintiff to be the lessee of the railroad company, and that the company was the proprietor of the soil over which the plaintiff's right of use extends, and yet he discloses no legal right in himself or in his lessor to permit the construction of such houses or other permanent structures on the batture, as those described in his petition.

On the other hand, the plaintiff's counsel seeks to restrict the issues to the limits prescribed in his petition, i. e., as to whether or not he was a squatter, and his houses an obstruction to Calhoun Street.

We do not think the issues can be so restricted; for conceding that plaintiff was not a squatter, but a lessee, and that the houses he had erected were no obstruction to Calhoun street, and yet the mayor of the city and the commissioner of public works have a perfect legal right to question his authority to build houses "outside of the levee, upon piles driven in the batture," as plaintiff avers he did.

The district judge evidently entertained this view, and rested his decision on our opinion in Watson v. Turnbull, 34 La. Ann. 857, which appears to be conclusive of the whole case. In that

AM. ST. REP., VOL. XXI.-26

case we said: "Within the corporate limits, the city of New Orleans, under her charter and under the general law, has the right to control, manage, and administer the use of the river banks for the public convenience and utility; to establish wharves and landings; to erect and provide facilities for the use of vessels and water-crafts; and to charge just compensation for the use thereof. Riparian proprietors have no right to appropriate to their exclusive use these banks, and they have no private property in the use thereof, which is in the public. The discretion of the city authorities, in determining what are proper and needed facilities for commerce, and on what part of the river bank, within her limits, they should be established, is manifestly not a proper subject for judicial control or interference. Whatever incidental damage may result to proprietors from the exercise of their unquestionable corporate rights, it is damnum absque injuria."

The bank of river has been defined to be " "that space which the water covers when the river is highest in any season of the year": Morgan v. Livingston, 6 La. 216.

The term "batture" "is applied principally to certain portions of the bed of the Mississippi River which are left dry when the water is low, and are covered again, either in whole or in part, by the annual swells ": Hollingsworth v. Chaffe, 33 La. Ann. 548.

It therefore follows that plaintiff's vendor, as a riparian proprietor, has no right to appropriate to its exclusive use any portion of the batture, and it has no right of property in the use thereof; that the city authorities are vested with a discretion in determining what are proper and needed facilities for commerce, and on what part of the batture they shall be established.

Hence the plaintiff, as lessee, acquired under his contract no such right, and under the law he could not select the place at which he should establish the landing-place for his coal boats and barges.

In Pickles v. McLellan Dry Dock Co., 38 La. Ann. 412, we held that the defendant had no right to locate their dock and drive piles in the bed of the river near the shore, although owner of the riparian property.

In Railroad Co. v. Winthrop, 5 La. Ann. 36, it was held that a conversion of a portion of the batture in front of Carrollton into a wood-yard was not a public use, but a private destination of property.

In Hudson v. Mayor, 3 La. 564, the court decided that "any works or constructions made by individuals calculated to prevent their use entirely, or to abridge it, may fairly be considered as public nuisances, and subject to be abated by the authorities of the city."

In Mayor v. Magnon, 4 Mart. (La.) 9, the court held that "as the fisherman could not justify the inclosure of a space of ground on the bank of a river for the safety of his net when spread to be dried, nor the erection of a warehouse for the storage of fish, the carpenter cannot justify the erection of a permanent shed or building for the safety of his tools or the materials which he uses, nor to fence the ground for the protection of the timber which it may be his interest to accumulate."

From these frequent adjudications on the subject, we think it is well settled that the plaintiff was without right or authority to build houses on the batture, and rest their foundations upon piles driven in the ground. This was an evident appropriation, to his exclusive use, of the river bank within the limits of the city, in direct violation of the right of control and administration vested in the city.

The judgment appealed from is correct, and it is therefore affirmed.

Rehearing refused.

MUNICIPAL CORPORATIONS—WATERS. —A city may establish a public wharf, where any duly dedicated street abuts upon a navigable stream, without regard to whether the riparian owner has title to the land under the water: Backus v. Detroit, 49 Mich. 110; 43 Am Rep. 447. And city may forbid a person owning a lot abutting upon a river, upon which no wharf or public landing has been established, to use such lot as a wharf or landing, without permission of the city and the payment of wharfage: Dubuque v. Stout, 32 Iowa, 80; 7 Am. Rep. 171. A city, having power by its charter to do all things necessary to be done by corporations may appropriate a part of the bank of a public river within its limits for public use: Memphis ▼. Wright, 6 Yerg. 497; 27 Am. Dec. 489.