1. To maintain a plea of self-defense, there must be an actual physical attack or hostile demonstration of such a nature as to afford reasonable ground to believe that the design is to destroy life or inflict great bodily harm. State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599.

2. Mere belief of the accused is not sufficient, nor is an anticipated attack.

3. The judge should decline to charge the law of self-defense when there is no evidence tending to sustain such a plea. Ib.

4. An actual intent to take life is not a necessary ingredient in murder or manslaughter. 2 Bishop, Crim. Law, §§ 676, 679.

5. Where the accused was indicted for murder and convicted of manslaughter, and the verdict and sentence was set aside on his appeal, and the case remanded, whereupon the accused was tried for manslaughter and found "guilty as charged," held, that the verdict was responsive to the charge of manslaughter, and not to the charge of murder. State v. West, 13 South. 173, 45 La. Ann. 928.

(Syllabus by the Court.)

Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge. William Halliday was convicted of manslaughter, and appeals. Affirmed.

Burke & Burke, for appellant. Walter Guion, Atty. Gen., and Edwin Sidney Broussard, Dist. Atty. (Lewis Guion, of counsel), for the State.

LAND, J. The accused was charged with murder, and convicted of manslaughter. He appealed to this court, and we reversed the verdict and sentence, and remanded the case for further proceedings according to law. State v. Halliday, 111 La., 35 South. 380.

On the second trial the accused was found "guilty as charged, strongly recommended to the mercy of the court," and was sentenced to imprisonment at hard labor in the State Penitentiary for a term of eight years.

After the judge had charged the jury in writing, counsel for accused requested the following special charges, viz.:

"(a) When one believes himself, from the attending circumstances, to be in imminent danger of great bodily harm from the attack or anticipated attack of an opponent, he is justified if he takes the life of the opponent, if that be, in his judgment, the only means of safety to himself. And where the difficulty arises on his premises or those in his custody, he may use such force without retreat.

"(b) The necessity of taking the life of the opponent must be judged from the standpoint of the party killing. The fact that it subsequently developed that there was no such peril is not to be charged against him, if, from the attending circumstances, he verily believed the danger at the time existed.

1. See Homicide, vol. 26, Cent. Dig. §§ 156, 157. 36 SO.-48

"(c) In order to hold the defendant guilty of manslaughter, it is incumbent upon the state to prove that the defendant had the intention to kill."

The trial judge refused to give the above special charges, and the accused excepted. The refusal was also made the ground of a motion for a new trial.

The judge assigned in the bill itself no reasons, but made a statement containing his reasons for refusing said special charges, and also a statement of facts, which were made of record.

He, in brief, states that special charges "a" and "b" were abstract propositions of law, not applicable to the facts of the case; that his written charge covered the law of the case, and that special charge "c" was not a correct proposition of law in the abstract. 1. Special charge "a" does not contain a correct statement of the law of self-defense.

In the leading case of State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599, the court said:

"If there be an actual physical attack of such a nature as to afford reasonable ground to believe that the design is to destroy life or to commit a felony upon the person assaulted, the killing of the assailant in such a case will be justifiable homicide in self-defense."

The special charge makes the right of selfdefense depend on the mere belief of the accused arising from an anticipated attack, instead of reasonable ground to believe, founded on an actual physical attack or hostile demonstration.

2. Special charge "b" contains the same error of assuming that the right of self-defense depends on the belief of the accused.

We agree with the trial judge that the requested charges had no application to the facts of the case.

The only witness for the state who saw the blows struck testified that they were inflicted while the deceased was attempting to escape; that the weapon used was a thorn stick about 21⁄2 inches in diameter, and about 4 feet long; that the second blow struck the deceased on the back, and the third on the back of the head; that during this time the deceased was running away in a stooping position, as if to avoid the licks; and that deceased fell upon receiving the third blow, and bled from the eyes, ears, and nostrils very freely.

The attending physician testified that the deceased died from the effect of a hard blow on the back of the head, which fractured the skull and ruptured the brain.

The accused testified, in substance, as follows:

"That the deceased was not sitting on the table, but that he and the deceased were sitting on the ditch bank to discuss the matter, the accused trying to quiet the deceased. when the controversy arose between them; and believing that the deceased, who had arisen and was reaching for a stick, would

strike him, he grabbed a stick and struck the deceased."

There is nothing in this testimony of the accused to show that he had reasonable grounds to believe that he was in danger of life or great bodily harm. On the contrary, his belief was that the accused would strike him, and that is all.

The size of the stick he reached for is not stated.

The judge states that the special charges were not applicable to the facts, and this is sufficient until the contrary be shown by recitals in the bills of exception or otherwise.

In the Chandler Case, supra, the court said that it was the duty of the trial judge to decline to charge the law of self-defense where it was not applicable to the state of facts before the jury. Of course, where there is any evidence before the jury tending to show selfdefense, the law on that subject should be given in charge.

3. "An actual intent to take life is not a necessary ingredient in murder, any more than it is in manslaughter." 2 Bishop, Crim. Law, §§ 676, 679.

4. The accused filed a motion in arrest of judgment, on the ground that the verdict, "Guilty as charged," convicted the accused of the murder charged in the indictment, of which he had been acquitted, and not of manslaughter, for which offense he was on trial. The motion was overruled, and the accused excepted. This point was decided adversely to the contention of the accused in State v. West, 45 La. Ann. 928, 13 South. 173.

Finding no reversible error in the record, the verdict and sentence appealed from are affirmed.

(112 La. 850)

No. 15,144. STATE v. BOLLERO.

(Supreme Court of Louisiana. June 6, 1904.) CRIMINAL LAW-ALLOTMENT OF CASES-EVI

DENCE AT PRELIMINARY HEARING.

1. Cases may be allotted in the criminal district court of the parish of Orleans previous to the finding of an indictment. The inception of a case, in the constitutional sense, is its inception in the ordinary sense, and means the first step necessary to be taken in order that subsequent proceedings may follow, and that is the filing of the papers of the case in the condition in which they happen to be when transmitted to the court, provided they are then sufficient to seise the court of the subject-matter.

2. The settled jurisprudence of this state is to the effect that testimony taken at the preliminary examination is admissible on the trial if the accused was afforded an opportunity for cross-examination and the witness is permanently absent from the state.

3. The permanency of the absence of a witness is sufficiently established if it is shown that the witness has gone to another state to reside, and that there is no present prospect of his return.

(Syllabus by the Court.)

Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.

George Bollero was convicted of murder, and appeals. Affirmed.

Paul Louis Fourchy and Paul Roussel (Adams & Otero, of counsel), for appellant. Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty., and St. Clair Adams, Asst. Dist. Atty., for the State.

PROVOSTY, J. The defendant was convicted of murder, without capital punishment, was sentenced to imprisonment in the peni. tentiary for life, and he appeals.

His first reliance is upon an objection made by him to the allotment of his case in the lower court. The criminal district of the parish of Orleans is divided into two sections, and cases are required to be apportioned to the sections by lot. The manner of the allotment is prescribed by the Constitution and by rule of court, as follows:

*

"Said court [meaning the criminal district court] * shall have authority to adopt rules, not in conflict with law, regulating the order of preference and proceedings in the trial of cases, and the method of allotting and assigning such cases, and of reallotting and reassigning them in case of vacancy in the office, recusation, absence or disability of one or more of the judges, or in case such action is deemed necessary for the proper administration of justice. All prosecutions instituted in, and all cases appealed to said criminal district court shall be equally allotted or assigned by classes among the judges, and each judge or his successor, shall have exclusive control over any case allotted or assigned to him, from its inception to its final determination in said court, except as herein otherwise provided." Const. art. 139. The rule of court is as follows:

"Sec. 6. When the record of any criminal case is filed in the clerk's office of the criminal district court, the case shall be allotted upon that record; all informations subsequently filed from this record shall follow this first allotment."

Defendant's case was sent to the criminal district court from the Second city criminal court, and was at once given a docket number and allotted. It fell to Section A. By oversight, when the indictment was found by the grand jury, a second allotment was made, and the case fell to Section B. Defendant was arraigned in Section B, but, the fact of the previous allotment having been discovered, the second allotment and the arraignment were set aside, and the case was sent to Section A. Then another arraignment was had, and the defendant pleaded to the jurisdiction of Section A, on the ground that the case belonged by allotment to Section B.

The point he makes is that the "inception" of a cause, in the sense of article 139 of the Constitution, is the finding of the indictment, and that therefore the allotment made before the finding of the indictment was premature, the case not having then had an inception, and, as a consequence, counted for nothing.

This exact point was considered and overruled in the case of State v. Williams, 34 La. Ann. 1198. It would be sheer waste of time to undertake to add anything to what is there said. Defendant relies upon the case of State v. Sadler, 51 La. Ann. 1397, 26 South. 390, but that case is easily distinguished. In it the facts were that two defendants, who up to the finding of the indictment had been proceeded against separately for the same crime, and whose cases had been allotted and had fallen one to each of the sections of the court, were united by the grand jury in one indictment, so that the two cases became one, and had to be tried in one or other of the sections of the court, and a new allotment became necessary and was accordingly made. The court said:

"It seems clear that the only thing that could have been done was just what was done the docketing of the cause under a new number, and allotting the same as a new one."

True, the court did also say in the course of argument that the "finding of the indictment" was the "inception" of the cause in the constitutional sense. But that statement was in no wise necessary to the decision of the case; it was purely obiter. Nor can it be sustained. The inception of a cause in a court, in a constitutional sense and in every other sense, is the first step or proceeding necessary to be taken in order that the subsequent proceedings may follow. The lodging of the papers in the criminal district court, no matter in what shape those papers may be, provided they are sufficient to seise the court of the subject-matter, is the inception of the case. If this were not so, a case would have two inceptions, one in fact and one in law. The Constitution makes no such nice distinction. It says broadly that the cases shall be allotted, and that "each judge or his successor shall have exclusive control over every case falling to him from its inception to final determination in said court." We fully agree with the concurring opinion of Manning, C. J., in the Williams Case, to the effect that:

"The sole object of the constitutional requirement that criminal prosecutions shall be apportioned between the judges by lot is to prevent any selection of cases by preference. Chance must determine which judge shall try each case. When that is accomplished, I think it a matter of indifference how, at what

stage of the proceedings, the lot is cast. The constitutional provision is of that class that requires the most liberal construction in the interest of society and public order."

The next reliance of the defendant is on a bill of exception to the admission of testimony taken at the preliminary examination, foundation having been laid for the introduction of the evidence by proof that the witness was permanently absent from the state.

The able counsel of defendant contend, and seemingly succeed in showing, that in all the states of the Union having the same constitutional provision as ours requiring the accused to be confronted with the witnesses against him, except in two, Alabama and Arkansas-that is to say, in more than threefourths of the states-and by the unanimous sentiment of the text-writers, and the settled doctrine of the English courts, such evidence is inadmissible; but the learned counsel concede that the jurisprudence of this state, established by a long line of decisions, is the other way. However much we may be impressed with the very strong argument of counsel, we think it is now too late to undertake to shake that jurisprudence, and we shall adhere to it. State v. Harvey, 28 La. Ann. 106; State v. Jordan, 34 La. Ann. 1219; State v. Granville, Id. 1089; State v. Stewart, Id. 1037; State v. Douglass, Id. 524; State v. Coudier, 36 La. Ann. 291; State v. Allen, 37 La. Ann. 685; State v. Riley, 42 La. Ann. 995, 8 South. 469; State v. Timberlake, 50 La. Ann. 308, 23 South. 376; State v. Arbuno, 105 La. 719, 30 South. 163; and State v. Kline, 109 La. 622, 33 South. 618.

In last resort, counsel argue that the permanency of the absence of the witness was not established. The father of the absent witness testified that his son had left four months ago, and was living in Orange, Tex., where he was courting a young lady whom he expected to marry, and had said he was not coming back to New Orleans; that the only reason why his son would come back would be if he could not get work in Texas, but that there was more work in Texas than here, and that he did not expect his son would return, but would marry the girl and remain in Texas. That evidence was sufficient, in our opinion, to show the permanency of the witness' absence. It showed that for the time being there was no prospect of his return.

Judgment affirined.

(112 La. 854)

No. 15,025.
JACKSON v. BURNS.

(Supreme Court of Louisiana. June 6, 1904.) DIVORCE ALIMONY.

1. Both parties acquiesce in the judgment of divorce rendered.

In addition to the decree severing the marriage ties, the judgment condemned the defendant husband to pay alimony to his wife under article 160 of the Civil Code.

The defendant objects on the ground that the wife, from whom he was divorced, has not shown that she was in necessitous circumstances, and has not complied with the phrase of the article which reads, "If the wife who has obtained the divorce has not sufficient means." Article 160, Civ. Code.

In the absence of proof of her necessitous circumstances, the court must decline to decree that alimony is due by the husband.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.

Action by Louisia Jackson against Henry J. Burns. Judgment for plaintiff. Defendant appeals. Reversed.

William Reed Mills Whitney, and Benjamin Rice Forman, for appellant. Francis Rivers Richardson, for appellee.

BREAUX, C. J. This suit involves alimony which the wife claims from defendant husband, from whom she was divorced by decree of the district court on the 29th of June, 1903.

The suit was regularly brought for a divorce, and, after having heard the testimony, the judge of the district court decided that she was entitled to a divorce, which was granted, and the bonds of matrimony dissolved. He further decreed, in the same judgment as that in which the divorce was decreed, in favor of plaintiff for alimony at the rate of $5 a month for May, June, July, and August, and $10 a month for September, October, November, December, January, February, March, and April, for each year, the payment to commence to run from July 1, 1903; and the judgment decreed further that plaintiff is entitled to one-half of the property acquired during the marriage.

From this judgment the defendant appeals only as relates to alimony.

There is a son 17 years of age born of the marriage between plaintiff and defendant. We are told by the testimony that he was at work for his own living at the date that the suit was tried.

Defendant on appeal does not complain of the judgment of divorce. He accepts the situation brought about by the judgment, except that portion which decreed that he must pay alimony to his wife. He is quite willing to part from her, we infer, but he is unwilling, very much so, to pay for her support. It may be very irksome-indeed, we do not for an instant question but that it is-but

we must interpret the law as it is written. When the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her, in its discretion, out of the property of her husband, alimony, which shall not exceed one-third of his income. Civ. Code, art. 160.

"The alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage." Id.

The grounds of the defense are that there is no evidence that the plaintiff has not sufficient means for her maintenance, and that there is no evidence before the court showing how much is the income of defendant.

We understand from the testimony that it is not possible for her to remain at the matrimonial home. That there was cause for leaving is sustained by the decree of divorce, of which the defendant does not complain.

Under the circumstances of the case we cannot look upon plaintiff's absence from home as an abandonment of her husband. This plea of abandonment is invoked in order to sustain the proposition that during the five years she was not at home she managed to find the means for her maintenance, and that it is fair to infer that she does not now need alimony. The testimony is silent in regard to the means she may have for her support. If she has no means, it devolves on her to prove it. Not the least attempt was made to introduce proof to show her necessitous circumstances.

No presumption against her grows out of the fact that she did not sue out a rule for alimony pendente lite under article 148 of the Civil Code, but she must be held to a proof of the fact that she is poor and without means.

She has sued and asks for alimony. If her claim for alimony was made in time, we are not to assume that her silence heretofore upon the subject makes against her. She, none the less, must make the proof before mentioned. The onus of proof is with the wife.

No testimony goes to show that the mother is in any way supported by the labor of her

son.

We have concluded to remand the case for further evidence on the lines before mentioned; that is, whether she has or has not means of support within the meaning of the article cited supra.

Defendant is a longshoreman. The testimony shows the wages usually earned oy those who follow that occupation.

For reasons assigned, the judgment appealed from is avoided, annulled, and reversed as relates to alimony, and the case is remanded to receive evidence regarding the means vel non of plaintiff, and for decision regarding alimony by the district court after further evidence will have been admitted.

Costs of appeal to be taxed to appelles.

2. The appeal from the judgment homologating an account was taken by petition and citation out of term time.

No service was made on the creditors who were interested in the judgment. It was not due to the omission of the clerk. The creditors are interested in maintaining the judgment. If they are not interested, it is because they have been paid, and, further, if they are not interested, there is "no matter in dispute or fund to be distributed within the court's jurisdiction." Article 85 of the Constitution.

In either case, under repeated decisions, the appeal must be dismissed.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.

In the matter of the succession of Margaret Le Sage. From an order homologating the executor's account, Ernest Pollock appeals. Dismissed.

Dart & Kernan, for appellant. Alfred Joshua Lewis, for appellee.

MONROE, J. The final account of the decedent's executor, verified by his affidavit made before a notary public outside of court, was offered for homologation; and, it having been shown that it had been advertised as required by law, and that no opposi- | tion had been filed, it was duly homologated. Thereafter Dr. Pollock applied for and obtained an order for a suspensive appeal from the judgment of homologation, and he assigns as error that there is due him $300, and that the executor's attorney admitted the claim, but thereafter filed the account without advising opponent, and placed him thereon for only $125, and that said account was homologated without the requisite proof of its correctness.

What passed between the opponent and the counsel is dehors the record, and cannot be here considered, though it is proper to remark that the counsel for the executor, in the brief filed by him, denies that he admitted the correctness of the appellant's claim.

Under the authority of Barry Bros. v. White Lead & Color Works, 107 La. 236, 31 South. 733, we must, however, hold the ex parte affidavit of the executor to be insufficient evidence to support the judgment homologating his account.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that this case be remanded to the district court, to be there proceeded with according to law; the

costs of the appeal to be paid by the succession; those of the district court to await the final judgment.

On Rehearing.

(June 20, 1904.)

BREAUX, C. J. The succession of the late Mrs. Margaret Le Sage was opened in due form. She died testate, leaving a city lot to her grandson Henry Caspar Ebert, and to her other grandchildren the remainder of her property, subject to usufruct stated in the will, and appointed James Jones the executor.

The will was probated on the 9th day of July, 1902, and its execution ordered, and letters testamentary were issued, and inventory made showing that the property was worth over $6,136.

On the 28th day of July, 1902, the right of the heirs and legatees of Mrs. Le Sage was recognized, and an order was issued placing them in possession of all the property left by her.

On the 21st day of July the testamentary executor filed an account, on which he placed the claim of appellant, a physician, for $125. He had rendered a bill to the executor for $500, which the executor undertook to curtail by reducing it as just stated, leaving a balance of $375, which appellant claims.

Notice of the filing of this account was given by the usual advertisement in the newspapers.

This account was approved and homologated by a judgment of the court on the 4th day of August, 1902.

On the 15th day of August following, appellant, by petition, and not by motion in open court, asked for an appeal, and asked that the executor be cited to answer the appeal.

The order of appeal on this petition was issued on the 18th day of that month. The executor and creditors were not cited to answer the appeal.

Objection is urged by appellee on the ground that it is "the duty of the appellant to complete his appeal by citing or causing to be cited the parties to the judgment." In addition, in his exception, counsel for the executor avers that the executor has not been cited. As counsel had filed an appearance for the executor prior to filing the second exception, he cannot very well be heard to urge that the executor has not been cited. Moreover, appellant, in his petition, asked for citation to be served on the executor. Failure to cite him was, in consequence, an omission of the clerk.

It is entirely different as relates to the creditors and other parties to the account. The petition of appeal made no mention of these creditors and parties, and did not ask for a citation to be served on them.

In Succession of Romero, 25 La. Ann. 534, the creditors on the tableau were not cited.