ently, and has no domicile; or conceals himself, so that process cannot be served on him -a writ of attachment may run from a justice of the peace court to any part of the parish; and that a writ of fieri facias from such court may be executed in any part of the parish; and that constables shall have authority to act throughout the extent of their respective parishes. that Charles A. Poirson is a notary public of the parish of Iberia, and that, as such, he is empowered to administer oaths, he (respondent) had nothing before him to authorize the assumption that he (Poirson) had been appointed by the New York court a commissioner to receive depositions in a case pending before that tribunal, and hence was not in a position to apply the compulsion authorized by R. S. § 604. [3] Again, neither the alleged commission nor the interrogatories attached to it inform us, or could have informed the respondent, as to the issues presented in the case of Oscar Hammerstein v. New York Press Company, and, although a third person, called as a witness, may be subjected to a very unpleasant examination, for the purpose of eliciting facts which are material or relevant to a litigation in which he has no concern, a judge who is not in a position to determine whether such facts are relevant or not ought not to compel him to make disclosures concerning them, particularly where, as here, they appear to relate entirely to his private life and affairs. Cyc. vol. 13, p. 924 et seq.; Elliott on Evidence, vol. 2, § 1006 et seq. So, also, writs of attachment and execution may run from the district courts, respectively, to any part of the state, but it does not follow that the district court for the parish of Cameron can compel the attendance of a witness residing in the parish of East Carroll; nor does it follow that, because constables are empowered to act throughout their respective parishes, in so acting they are to execute orders which justices of the peace are unauthorized to give; the facts being that other sections of the Revised Statutes than those to which we have been referred provide that, under certain circumstances, constables shall discharge the duties of sheriffs and coroners (R. S. §§ 619, 641). and that, in this particular case, the constable refused to serve the subpoena on the relatrix, and that it was served by a deputy sheriff. We, therefore, conclude that the respondent, justice of the peace, was without authority to compel the relatrix to appear and testify beyond the limits of the ward in which she resides, and hence was without authority to punish her for refusing so to do. Beyond that, the instrument purporting to be a commission, issued from the Supreme Court of New York county, is not authenticated according to the Act of Con- (April 24, 1911. gress of May 26, 1790, c. 11, 1 Stat. 122, providing the manner in which the records and judicial proceedings of the courts of one state shall be attested, in order to entitle them to recognition in the courts of another state, and, whilst it is true that the respondent could take judicial cognizance of the fact For the reasons thus assigned it is ordered, adjudged, and decreed that the sentence for contempt herein complained of be annulled and set aside, and the relatrix discharged. (55 South. 709.) No. 18,685. STATE v. MANCUSO. Rehearing Denied June 17, 1911.) (Syllabus by the Court.) 1. INDICTMENT AND INFORMATION (§ 125*)— DUPLICITY-INTOXICATING LIQUORS. A bill of information drawn under section 910, Revised Statutes, charging defendant with keeping a grog and tippling shop and retailing spirituous liquors without a license, embraces but one offense, and is not bad for duplicity. State v. Stover, 111 La. 92, 35 South. 405;| State v. Smith et al., post, p. 61, 55 South. 710, just decided. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*] 2. INDICTMENT AND INFORMATION (§ 121*)BILL OF PARTICULARS-INTOXICATING LIQUORS. A bill of particulars which fails to fix with clearness the place of commission of the alleged offenses will be sufficient, when construed by the court in advance of the trial, to indicate a certain place, given as the business place of defendant, in the bill, and with notice from the judge to the state and defendant that evidence will be limited to sales at that place. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 316-320; Dec. Dig. § 121.*] Appeal from the Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge. "At the time the question came up for discussion whether or not the state had complied with the order of court in furnishing the bill of particulars, I interpreted, in open court, the bill furnished by the state and made it clear that I considered what was meant, and stated that I would hold the district attorney to the interpretation then made by me of what said bill meant; among these was the alleged failure to designate with any particularity the place where said alleged sale or sales of liquor or intoxicants were made, and I held that the statement made in said bill of particulars meant that the alleged sales were made at the place of business of said Mancuso, in the city of Lake Charles, mentioned in said bill, and not at any other place; and gave notice that the state on the trial of the case would be confined to said place. This was before the accused was arraigned for trial. If there was any doubt as to what was meant by the district attorney, the interpretation of the court, together with the notice given both sides in open court, made it certain." [1] The second bill of exceptions is taken to the overruling of the motion to quash the John Mancuso was convicted of illegal sale bill of information under which defendant of liquor, and appeals. Affirmed. was to be tried, on the ground that it charged D. R. Rosenthal and Robt. R. Stone, for ap-him with having sold liquors at three differpellant. Walter Guion, Atty. Gen., and Jos. ent times, and to two separate persons, which Moore, Dist. Atty. (G. A. Gondran, of counwere separate and distinct offenses. sel), for the State. SOMMERVILLE, J. Defendant appeals from a judgment and sentence after trial, before the court without a jury, on the charge of having kept a grog and tippling shop and of retailing spirituous liquors, without previously obtaining a license from the proper authorities, under section 910, Revised Statutes. [2] The first bill of exceptions in the record is to the ruling of the trial court on the sufficiency of the bill of particulars furnished by the district attorney, in that it did not locate the exact place where the grog and tippling shop was kept, and the liquors were sold by defendant. The objection is fully met in the reasons of the court attached to the bill. They are as follows: The reasons of the trial judge for his action are good and sufficient. They are as follows: "The bill of information taken in connection with the bill of particulars, which was the filed, do not, when read together, charge sepastate of the case when the motion to quash was rate offenses. The bill of information charges shop, and retailing spirituous liquors without a the defendant with keeping a grog and tippling license. The bill of particulars mentions two or more sales at the same place. This does not make the bill bad for duplicity. The bill is drawn in the language of the statute, and the words 'grog and tippling shop' necessarily imply a place where more than one sale is made; and therefore two or more sales from the same place may be alleged in and proved under the same bill of information, and in the same count, in order to show that the accused was running a grog and tippling shop." The third bill of exception, to the overruling of the motion for a new trial, embraces matters not reviewable by this court. these reasons, the judgment is affirmed. For (55 South. 710.) No. 18,687. STATE v. SMITH et al. Atty. Gen., and Joseph Moore, Dist. Atty. (G. SOMMERVILLE, J. Defendants were (April 24, 1911. Rehearing Denied June 17, tried and convicted on a similar affidavit 1911.) (Syllabus by the Court.) 1. CRIMINAL LAW (§ 1151*)-CONTINUANCEREVIEW. Granting of continuances is largely in the discretion of the trial courts, and their action thereon will not be disturbed, where that discretion has not been abused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. 8 1151.*] 2. INDICTMENT AND INFORMATION (§ 125*)DUPLICITY. to that upon which John Mancuso was tried and convicted, before the judge, without a jury, and which has been just now decided. Ante, p. 58, 55 South. 709. [1] The first and fourth bills of exceptions are to a refusal of the judge a quo to continue the trial when the case was called, because of the short time elapsed (less than 48 hours) after arraignment. The matter of continuances is largely left to the discreA bill of information drawn under section tion of the trial judge; and this discretion 910, Revised Statutes, charging defendants with keeping a grog and tippling shop and retailing is shown not to have been abused in this inspirituous liquors without a license, embraces stance. Defendants had been formerly chargbut one offense, and is not bad for duplicity. State v. Stover, 111 La. 92, 35 South. 405; State v. Mancuso, ante, p. 58, 55 South. 709, just decided. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*] 3. INDICTMENT AND INFORMATION (§ 82*) CONSTRUCTION. When two persons are charged with keeping a grog and tippling shop, they are clearly charged as principals. [Ed. Note. For other cases, see Indictment and Information, Dec. Dig. § 82.*] 4. WITNESSES (§ 255*) — EXAMINATION - REFRESHING MEMORY. Memoranda made within eight hours after purchasing drinks at grog and tippling shops, giving dates, names of liquors, names of persons present, etc., were made about the time of the events recorded, and they may be used by the witness who made them for the purpose of refreshing his memory while on the witness stand. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*] Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge. R. H. Smith and another were convicted of selling liquor without a license, and appeal. Affirmed. Robert R. Stone and David R. Rosenthal, for appellant R. H. Smith. Walter Guion, ed, and had obtained a bill of particulars, when the district attorney nolle prosequied the case. The present proceeding is a reinstatement of the first case. Defendant had sufficient time in which to inform himself of the nature of the charge, and to prepare himself for trial. Bill of exceptions No. 2 refers to the charge of duplicity, stated in the Mancuso case, and overruled. [2, 3] Bill of exceptions No. 3 is taken to the failure of the bill of indictment to state whether defendants were principals, agents, or employés, and if agents or employés, that the name of the principal was not disclosed. The two defendants were charged with keeping a grog and tippling shop and selling liquors without a license. They are both charged as principals, and there is nothing misleading in the charge. Each defendant knew whether he was the keeper of a grog and tippling shop or not; and evidence which failed to show that either or both defendants kept such shop would have resulted in an acquit tal of one or both. [4] Bills of exceptions Nos. 5 and 7 are taken to the ruling of the court permitting This bears upon the weight given the evidence by the trial judge, which we cannot review. The judgment appealed from is affirmed. witnesses to testify from memoranda made | sonville, Fla., and confessedly paid five dollars a day and expenses' within a reasonable by them some six or eight hours after buying, amount, employed by a so-called 'Good Govor having seen bought, spirituous liquors ernment League' of Lake Charles." from defendants in their grog and tippling shop, as being too remote in time at the hour of making said memoranda. The evidence was as to dates of visits to defendants' place of business, and purchases and sales and kinds of liquors bought and sold. The time within which such memoranda were made was of such short duration that the memory will be assumed to have been sufficiently fresh of the circumstances to recall them clearly, and it was therefore competent for the witnesses who had made the memoranda to use same to refresh the memory. (55 South. 711.) No. 15,432. CITY OF NEW ORLEANS v. NEW OR- June 5, 1911.) "The record (memoranda, note entry, etc.) (Dec. 5, 1904. On Further Motion to Dismiss, must have been made at or about the time of the event recorded. Whether in a given case it was made so near that the recollection may be assumed to have been sufficiently fresh must depend on the circumstances of the case." Greenleaf, § 439. Bill of exceptions No. 6 is to the offer and admission in evidence of two bottles of beer by the state, on the ground that the bottles had been in possession of the witness during some 90 days, instead of in the possession of the clerk of the court. Act No. 45 of 1886 is cited in support of the contention presented. That is an act amending section 1015 of the Revised Statutes, which has reference to the duties of justices of the peace, or other committing magistrates in the parishes, and recorders in the parish of Orleans. It has no application to the conduct of witnesses in the district courts of the state. Bill of exceptions No. 8 is to the action of the court in overruling the motion for a new trial. The motion embraces the grounds heretofore considered in the other bills, and the further ground: "That the court erred in giving weight, sufficient to convict, to the testimony of witnesses Pinson and Higginbotham, who were uncorroborated, and acted as they themselves admit, beseeching the sale of the alleged intoxicants; said witnesses being strangers to this community, and hailing from Jackson, Miss., and Jack (Syllabus by the Court.) On Motion to Dismiss. 1. DISMISSAL OF APPEAL CONTENTION OF PARTIES. The issue is whether an appeal should be dismissed obtained on motion in court out of regular term time made on the same day judgment was rendered. The contention of appellee is that the appeal could be legally obtained only on petition and citation. 2. COURTS (§ 69*)-PROCEEDINGS IN VACATION -STATUTORY PROVISIONS-REPEAL. Statute 132 of 1890 is still a live statute, not having been repealed expressly, nor by implication. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 69.*] 3. COURTS (§ 69*)-STATUTES (§ 159*)—ProCEEDINGS IN VACATION-REPEAL OF STATUTE. It is not impliedly repealed by Statute 4 of 1896. sistency between the earlier and the latter law. (a) There is no direct repugnancy or incon (b) The earlier authorizes the courts throughout the state to try cases for expropriation of lands, for public purposes, during vacation. (c) The latter authorizes the civil district court for the parish of Orleans to grant interlocutory orders, issue writs, trial rules, hear causes in partition proceedings, and do and perform other acts expressly mentioned in the text of the act. There is nothing inconsistent or incongruous between the two acts. (d) Intention to repeal will not be presumed, and there is no repeal unless the inconsistency is inevitable. The grants of authority could be united in | cution, and, where such suit pending is in this one act, without the least incompatibility of court on appeal, the appeal may be dismissed. one with the others. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3129, 3130; Dec. Dig. § 787.*] [Ed. Note.-For other cases, see Courts, Dec. 69: Statutes, Cent. Dig. § 229; Dec. 159.*] Dig. BREAUX, C. J. [1] The grounds pleaded Act 132 of 1890 (different from Act 124 of 1880) provides that suits under sections 1479, 1480, and 1481 of the Revised Statutes for ex- by appellee to dismiss the appeal are that propriation may be brought in vacation. This section 1479, as amended by Act No. 227 of the motion for appeal was made at cham1902, provides: "Whenever the state, or any bers, out of term time, and that the appeal political corporation of the same, created for the purpose of exercising any portion of the was not prosecuted, as it should have been, government powers in the same,' etc. (Italics by petition and service on the appellee. ours.) This charter of right includes the domestic corporations and excludes the foreign. There is nowhere else any grant of authority to for eign. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 69.*] 7. COURTS (§ 23*)—JURISDICTION BY CONSENT. Moreover, the cause was tried in vacation by consent of parties. Consent in effect gave jurisdiction up to and including the motion for the appeal, and the order of appeal entered the same day the judgment was rendered. There was no hardship in the fiction of the law involved in constructive presence, as appellee was not bound day by day thereafter to watch the minutes of the court, as in decision reported in 4 La. Ann. 583. If there be doubt, the appeal should remain. 21 La. Ann. 733. The city of New Orleans in July, 1904, brought suit for the expropriation of lands for a public purpose adjacent to one of its parks and owned by defendant. On intervention of Geo. W. Friedrichs to become a party, his petition was granted, and he was made a party. He joined in the defense. An injunction was issued at plaintiff's instance restraining and preventing defendant from cutting down trees and shrubs on the property. The injunction was bonded, except as to the ornamental trees upon the property, which the court excepted in the [Ed. Note.-For other cases, see Courts, Cent. order permitting the defendant to bond the Dig. 88 75-81; Dec. Dig. § 23.*] On Further Motion to Dismiss. 8. APPEAL AND ERROR (§ 787*)-ABANDONMENT-WANT OF PROSECUTION. injunction. A suspensive appeal from this order permitting the defendant to bond was refused. On the day set for trial of the cause, the Under Act 107 of 1898 a suit is considered jurors were present, and all were ready for abandoned when, at any time before obtaining trial. final judgment, the plaintiff allows five years An exception of no cause of action to elapse without taking any steps in its prose- was taken up, and, after hearing of parties, 129 LA.-3 |