field was as wide open to plaintiffs as to defendants to make estimates on the timber. It is not pretended that this estimate of 18,000,000 feet was given as the result of an examination made by experts.

If the oxen are as bad off as plaintiffs and some of their witnesses depict them, plaintiffs have but themselves to blame for buying them. They were given a full opportunity to inspect them.

The preponderance of the evidence is that in speaking of the haul the defendants had reference to the average haul, not to the furthest haul. A glance at the map (and plaintiffs do not deny that they were advised by the defendants to get one, and they had ten days in which to do so) would have shown at once what the furthest haul was.

That the plaintiffs made a most disadvantageous contract there can be no doubt. But they appeal in vain to the courts. The courts can only enforce the contract as made. The contract is the law of the case, and, though it happens to be a hard law, it must be enforced nevertheless.

By way of reconventional demand the defendants show that by reason of the failure of the plaintiffs to carry out the logging contract and to pay the notes as agreed all the notes have become due and are secured by vendor's privilege on the outfit. They show further that as additional security for the payment of the notes and of the execution of the logging contract the plaintiffs transferred certain real estate to one Herman W. Rook; that, plaintiffs having abandoned the logging outfit, defendants had to take charge of and care for the same at an expense of $51 or $52 per week; and that this expense is properly chargeable to plaintiffs. They pray judgment on the notes and for the 10 per cent. attorney's fees, and for recognition of the vendor's privilege on the outfit, and for the amount of the expenses incurred in keeping and taking care of the outfit; and they pray that Herman W. Rook be cited, and that the property sold to him be ordered to be seized and sold to satisfy the judgment herein.

As the logical consequence of the rejection of plaintiffs' demand, there must be judgment sustaining this reconventional demand.

One of the plaintiffs worked for a few days at carrying out the logging contract, 111 LA.-2

and then abandoned it. Whether this was because of the discovery that the contract was a difficult one to carry out, or because of a disagreement among the members of the firm in connection with another branch of their business, is not certain. Then another of the plaintiffs undertook to carry out the logging contract, and worked at it for about a month, and in turn gave up the undertaking, apparently, however, more because of lack of funds than because of the reasons now set up for annulling the contract. Then the plaintiffs threw up the contract altogether, and abandoned the outfit, leaving it to shift for itself.

Herman W. Rook answers that "the property described in defendants' answer was deeded to him at the request of both plaintiffs and defendants, as evidenced by the deeds hereto annexed, under the terms and considerations as set forth in the hereto annexed counter letters, and that he has no personal interest in the property otherwise than as shown by the annexed documents." The documents support the allegations of this answer.

There being no proof of the value of the two oxen not delivered, we have to choose between remanding the case, in order that the trial court may fix this value, and fixing the value ourselves from our own knowledge. We will adopt the latter course, and fix the amount at $100, announcing at the same time that on complaint from either party we will amend the judgment, and remand the case for the fixing of this value.

It is therefore ordered, adjudged, and decreed that there be judgment setting aside the judgment appealed from; condemning defendants in solido to pay to the plaintiff's the sum of $5,732, with 8 per cent. per annum interest from September 30, 1902, and 10 per cent. upon the aggregate of said amount in attorney's fees; recognizing defendants' vendor's privilege for said amount, less attorney's fees, upon the logging outfit in question; ordering the said outfit, as well as the real estate described in defendants' answer as having been sold to Herman W. Rook, be seized and sold to satisfy this judgment; condemning plaintiffs in solido to pay to the defendants $243 for expense of keeping outfit up to date of the trial in the lower court, and reserving to defendants the right

to sue for any further expenses incurred in the keeping of said outfit; allowing to the plaintiffs a credit of $100 as of date September 30, 1902; and condemning plaintiffs to pay the costs of both courts.

(35 South, 375.)
No. 14,938.

STATE v. ROBERTSON.

(Nov. 16, 1903.)

CRIMINAL LAW EVIDENCE CONFESSIONSOBJECTIONS-EXAMINATION OF WIT

NESSES.

1. The evidence does not prove that defendant was intimidated, or that his confession was not free and voluntary. There was no inducement held out to defendant to confess. The confession was properly admitted in evidence.

2. Objection to the admissibility should he made at the time that the witness testifies and a bill of exception is reserved. It is not timely to urge the objection on motion for new trial, and then to take a bill of exception.

3. The examination of witnesses had been closed. It was a matter of discretion with the district judge to reopen it at that stage. It does not appear that his discretion was improperly exercised.

4. In ordinary cases the witness ought to be examined as to facts only, and not as to any opinion or conclusion. A witness must not be examined in chief as to his belief or persuasion. Starkie on Evidence, p. 172.

a

The testimony was not admissible, as it was mere opinion or a suspicion of defendant's guilt. The fact that there was a greasy spot on defendant's coat was admissible as part of the res gestæ, if germane, but not the inference of guilt, or suspicion of guilt, or belief of guilt of the defendant.

5. Admissible and inadmissible evidence were embraced in one sentence (and generally sentences are not broken or interrupted) when admitted. Here, because of an opposing rule, part of the sentence was not admissible-that part which begins with the words "I believe."

The other point raised about taking down all the testimony has no merit. The point with reference to dates as fixed, regarding the jury, presents no ground requiring decision, as the defendant will have to appear before another jury drawn for another term.

(Syllabus by the Court.)

Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.

Dudley Robertson was convicted of burglary, and appeals. Reversed.

J. R. Davis, for appellant. Walter Guion, Atty. Gen., and Edward Broussard, Dist. Atty. (Lewis Guion, of counsel), for the State.

BREAUX, J. The defendant, Dudley Robertson, was indicted by the grand jury of Iberia on the 2d day of June, 1903, for feloniously and burglariously breaking and entering in the nighttime the building in which J. J. Chiasson has his store. He was put on trial on the 12th of June, 1903. After hearing had he was found guilty of "breaking and entering," under section 850 of the Revised Statutes of 1876. His punishment was assessed by the trial judge at four years in the penitentiary. From the verdict and sentence he appeals.

The first bill of exception had been reserved after the verdict had been rendered, and contains the complaint that his confession of guilt used against him at the trial was extorted by fear and violence while he was in custody some eight miles distant from the jail, where he was held in custody about a day and a half; it appearing to him that he would never be taken to jail unless he confessed guilt, and that his confession was forced upon him as a matter of self-preservation.

The substance of the narrative of the trial judge on this point is that the accused was taken to the store it was suspected he had burglarized, and where he had worked for some time. He was kept there, although not under physical force, and, just before starting for the jail in a buggy with a deputy sheriff, he confessed that he had committed the crime.

The trial judge further, in substance, states that due foundation was laid, and that no objection or bill of exception was made or reserved; that, in his charge to the jury, he stated that the law was cautious and exacting in permitting confessions; and that, if they believed the confession was the result of threats and consequent fear, it was within their province not to give it consideration in finding their verdict.

We are informed by the record that the defendant failed to take a bill of exceptions to the ruling of the trial judge admitting the confession. We are further informed that no objection was made at all, and that the evidence of the confession was admitted with

out objection. It is well settled by repeated decisions that errors in ruling on criminal matters are available on appeal only by exceptions. A defendant cannot, as in this case, take the chances of an acquittal, by permitting the evidence to go to the jury without objection, by directing the jury's attention arguendo to the illegality of its admission, and, if the jury find a verdict of guilty, then bring up the point by appeal by exception taken to the ruling on the motion for new trial. This view is clearly laid down in the books. None the less, ex gratia, we have gone a step further, and have given due consideration to defendant's contention that he was influenced by threats and violence to make the confession. The record of the facts does not sustain that contention.

We have not before us any evidence of any actual duress under which the defendant was placed at any time prior to his making the confession. We have seen that his assertion in the bill of exception, regarding intimidation, taken to the court's ruling on motion for new trial, is not sustained by the narrative of the trial judge, made part of the bill of exception, nor is it sustained by any evidence whatever.

The record does not show that there was any threat of harm, or any promise whatever. It does not appear that anything at all was said to the defendant to induce him to confess. The fact that he was at the store where he had been employed, and under some surveillance, as we infer, was not a threat and intimidation, of itself. Detaining him at this store does not have the appearance of having been entirely proper, and yet it is not cause to exclude the confession which he chose to make, and which was permitted by him to go to the jury without objection, and without reserving a bill of exceptions.

A confession without threat or promise is admissible in evidence, although the defendant was in custody. State v. Alphonse, 34 La. Ann. 9; State v. Perkins, 31 La. Ann. 192; State v. Hash, 12 La. Ann. 895.

If, as defendant asserts, his mere detention at the store he is charged with having burglarized was enough to cause him to apprehend bodily harm, he has failed to prove that fact, and therefore it cannot be considered as ground that his confession was not free and voluntary.

We pass to the consideration of the next bill of exception, which shows that the district attorney had closed the case in chief; the defendant, then opening his case, offered himself as a witness, and testified; and, after full examination, he was cross-questioned by the district attorney, and asked, "Did you not tell Mr. Arantial Segura that you had taken the money to buy a bed?" which defendant denied.

Arantial Segura, the last witness for the state, was called, and testified that the accused had said to him in his presence that he had taken the money to buy a bed, but that he did not need the money, as he would have a free bed. The witness Segura (to copy from the bill of exceptions) said "that, just before leaving with the accused in the buggy, the accused was tied, and was brought to town tied up."

Defendant's counsel cross-questioned this witness as to "how the accused was tied, and what limbs were tied."

The witness then retired from the stand, with the consent of counsel for the state and defendant; both having stated that they had no further questions to ask.

"The state announced its case closed, and defendant did the same. The state waived opening. Counsel for defendant then offered to introduce accused as a witness in rebuttal." On objection the court ruled that the case should not be reopened.

The facts were brought before the jury— the affirmation of the one, and the denial of the other-and it does not appear that there was necessity for re-examination of the wit

ness.

Moreover, the examination had been closed. Under the circumstances, the ruling was correct. From the text of Law of Witnesses by Rapalje, p. 420: "Here, also, the rule is that the re-examination of a witness is within the discretion of the primary court, and cannot be reviewed by an appellate court."

No point seems to have been made regarding the fact that the defendant was tied. We must assume, without evidence to the contrary, that there was necessity for the officer's action in thus tying the defendant.

The defendant should not be subjected to unnecessary restraint. Restraint is not an illegal act when there is cause.

This brings us to another bill of exceptions,

to sue for any further expenses incurred in the keeping of said outfit; allowing to the plaintiffs a credit of $100 as of date September 30, 1902; and condemning plaintiffs to pay the costs of both courts.

(35 South. 375.)
No. 14,938.

STATE v. ROBERTSON.

(Nov. 16, 1903.)

CRIMINAL LAW - EVIDENCE

CONFESSIONSOBJECTIONS-EXAMINATION OF WIT

NESSES.

1. The evidence does not prove that defendant was intimidated, or that his confession was not free and voluntary. There was no inducement held out to defendant to confess. The confession was properly admitted in evidence.

2. Objection to the admissibility should be made at the time that the witness testifies and a bill of exception is reserved. It is not timely to urge the objection on motion for new trial, and then to take a bill of exception.

3. The examination of witnesses had been closed. It was a matter of discretion with the district judge to reopen it at that stage. It does not appear that his discretion was improperly exercised.

4. In ordinary cases the witness ought to be examined as to facts only, and not as to any opinion or conclusion. A witness must not be examined in chief as to his belief or persuasion. Starkie on Evidence, p. 172.

a

The testimony was not admissible, as it was mere opinion or a suspicion of defendant's guilt. The fact that there was a greasy spot on defendant's coat was admissible as part of the res gestæ, if germane, but not the inference of guilt, or suspicion of guilt, or belief of guilt of the defendant.

5. Admissible and inadmissible evidence were embraced in one sentence (and generally sentences are not broken or interrupted) when admitted. Here, because of an opposing rule, part of the sentence was not admissible-that part which begins with the words "I believe."

The other point raised about taking down all the testimony has no merit. The point with reference to dates as fixed, regarding the jury, presents no ground requiring decision, as the defendant will have to appear before another jury drawn for another term.

(Syllabus by the Court.)

Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.

Dudley Robertson was convicted of burglary, and appeals. Reversed.

J. R. Davis, for appellant. Walter Guion, Atty. Gen., and Edward Broussard, Dist. Atty. (Lewis Guion, of counsel), for the State.

BREAUX, J. The defendant, Dudley Robertson, was indicted by the grand jury of Iberia on the 2d day of June, 1903, for feloniously and burglariously breaking and entering in the nighttime the building in which J. J. Chiasson has his store. He was put on trial on the 12th of June, 1903. After hearing had he was found guilty of "breaking and entering," under section 850 of the Revised Statutes of 1876. His punishment was assessed by the trial judge at four years in the penitentiary. From the verdict and sentence he appeals.

The first bill of exception had been reserved after the verdict had been rendered, and contains the complaint that his confession of guilt used against him at the trial was extorted by fear and violence while be was in custody some eight miles distant from the jail, where he was held in custody about a day and a half; it appearing to him that he would never be taken to jail unless he confessed guilt, and that his confession was forced upon him as a matter of self-preservation.

The substance of the narrative of the trial judge on this point is that the accused was taken to the store it was suspected he had burglarized, and where he had worked for some time. He was kept there, although not under physical force, and, just before starting for the jail in a buggy with a deputy sheriff, he confessed that he had committed the crime.

The trial judge further, in substance, states that due foundation was laid, and that no objection or bill of exception was made or reserved; that, in his charge to the jury, he stated that the law was cautious and exacting in permitting confessions; and that, if they believed the confession was the result of threats and consequent fear, it was within their province not to give it consideration in finding their verdict.

We are informed by the record that the defendant failed to take a bill of exceptions to the ruling of the trial judge admitting the confession. We are further informed that no objection was made at all, and that the evidence of the confession was admitted with

123

37 out objection. It is well settled by repeated decisions that errors in ruling on criminal matters are available on appeal only by exceptions. A defendant cannot, as in this case, take the chances of an acquittal, by permitting the evidence to go to the jury without objection, by directing the jury's attention arguendo to the illegality of its admission, and, if the jury find a verdict of guilty, then bring up the point by appeal by exception taken to the ruling on the motion for new trial. This view is clearly laid down in the books. None the less, ex gratia, we have gone a step further, and have given due consideration to defendant's contention that he was influenced by threats and violence to make the confession. The record of the facts does not sustain that contention.

We have not before us any evidence of any actual duress under which the defendant was placed at any time prior to his making the confession. We have seen that his assertion in the bill of exception, regarding intimidation, taken to the court's ruling on motion for new trial, is not sustained by the narrative of the trial judge, made part of the bill of exception, nor is it sustained by any evidence whatever.

The record does not show that there was any threat of harm, or any promise whatever. It does not appear that anything at all was said to the defendant to induce him to confess. The fact that he was at the store where he had been employed, and under some surveillance, as we infer, was not a threat and intimidation, of itself. Detaining him at this store does not have the appearance of having been entirely proper, and yet it is not cause to exclude the confession which he chose to make, and which was permitted by him to go to the jury without objection, and without reserving a bill of exceptions.

A confession without threat or promise is admissible in evidence, although the defendant was in custody. State v. Alphonse, 34 La. Ann. 9; State v. Perkins, 31 La. Ann. 192; State v. Hash, 12 La. Ann. 895.

If, as defendant asserts, his mere detention at the store he is charged with having burglarized was enough to cause him to apprehend bodily harm, he has failed to prove that fact, and therefore it cannot be considered as ground that his confession was not free and voluntary.

We pass to the consideration of the next bill of exception, which shows that the district attorney had closed the case in chief; the defendant, then opening his case, offered himself as a witness, and testified; and, after full examination, he was cross-questioned by the district attorney, and asked, "Did you not tell Mr. Arantial Segura that you had taken the money to buy a bed?" which defendant denied.

Arantial Segura, the last witness for the state, was called, and testified that the accused had said to him in his presence that he had taken the money to buy a bed, but that he did not need the money, as he would have a free bed. The witness Segura (to copy from the bill of exceptions) said "that, just before leaving with the accused in the buggy, the accused was tied, and was brought to town tied up."

Defendant's counsel cross-questioned this witness as to "how the accused was tied, and what limbs were tied."

The witness then retired from the stand, with the consent of counsel for the state and defendant; both having stated that they had no further questions to ask.

"The state announced its case closed, and defendant did the same. The state waived opening. Counsel for defendant then offered to introduce accused as a witness in rebuttal." On objection the court ruled that the case should not be reopened.

The facts were brought before the jury— the affirmation of the one, and the denial of the other and it does not appear that there was necessity for re-examination of the wit

ness.

Moreover, the examination had been closed. Under the circumstances, the ruling was correct. From the text of Law of Witnesses by Rapalje, p. 420: "Here, also, the rule is that the re-examination of a witness is within the discretion of the primary court, and cannot be reviewed by an appellate court."

No point seems to have been made regarding the fact that the defendant was tied. We must assume, without evidence to the contrary, that there was necessity for the officer's action in thus tying the defendant.

The defendant should not be subjected to unnecessary restraint. Restraint is not an illegal act when there is cause.

This brings us to another bill of exceptions,