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ing tenor, to wit: *T.t the jury has a reasonable doubt whether
the defendant was intoxicated to such a degree as to create a state
of mental confusion, excluding the possibility of a ipecifio intoit


Digitized by


Jan. 1894.] Stats v. Hill. 817

to take lif e^ or positive premeditation, then the yerdict should be
gnilty of manelaughter.*'

The argament of defendants counsel npon this proposition is
that inasmuch as evidence had gone to the jury as to the defend-
ant's '^ state of intoxication at the time of the homicide, it was
the province of the jury to determine the degree of intoxication,
and whether it was sufficient to reduce the grade of the crime
committed from murder to manslaughter; and from that premise
his contention is that, as the state must prove, beyond a reasonable
doubt, every essential element of the crime charged, and as mali-
cious intent or motive is an essential element of the crime of
murder, the state was bound to prove that the accused was not so
intoxicated as to render him incapable of entertaining malice
toward the deceased, and hence the defendant was entitied to the
charge requested. Or, in other words, that the defendant does
not rely upon a special defense, but on the want of sufficient evi-
dence to esteblisb the existence of malice on the part of the de-
fendant, on account of his drunkenness at the time of the homi-
cide. Hence, if the evidence raised a reasonable doubt of such a
degree of intoxication as to create an impossibility of the exist-
ence of malicious intent on part of the accused, the grade of the
crime is reduced to manslaughter.

On the part of the state, the argument is that the intoxica-
tion of the accused is resorted to a special defense, like a plea of
insanity, and that the rules of law provided to test the latter
should be applied in this case to test the degree of the defendant's
intoxication. He cites State v. De Bance, 34 La. Ann. 190, 44,
Am. Bep. 426, wherein the court had under consideration the
special defense of insanity, and in their opinion said, viz: '^he
prosecution must prove all the essential, affirmative allegations
[of the indictment] beyond a reasonable doubt, [but] the burden
of proof on the plea [of insanity] rests upon the party urging it,
and its truth must also be esteblished beyond a reasonable
drabf He also cites Stete v. Coleman, 27 La. Ann. 69i. We
an of the opinion that the plea of drunkenness is a special defense,
and, like any other, must be proved by the party urging it to the
satisfaction of the jury.

It was the duty of the stete to esteblish the malicious homi*
dde of the deceased, at the hands of the accused, beyond a rea-
sonable doubt; and if, in making that proof, the drunkenness of
the defendant was developed, it was a circumstance for the con*
sideration of the jury, along with other proven facte of the case,
ia determining the felonious intent of the homicide. But it does

Digitized by


818 Stats «. Boabo <ur AsssBBOBa [Lomaan^

not follow that it was the duty of the state to make proof of a
negative, by showing, beyond '^ a reasonable doubt, that the de-
fendant's state of intoxication was of a degree not to interfere
with his judgment and intelligence, or preclude the possibility of
his entertaining malice toward the deceased. The trial judge
properly declined to give the requested special charge, and the
accused is without grounds of complaint
Judgment afiSrmed.

lir. Justice McEnery absent, sick.

PBOOF.— In People v. Ferris. 55 Oal. 588, the trial coart instructed ihe
jury tb&t when drunkenness was relied upon as a defense as an excuse
for crime, the burden of proof is upon the defendant to establish the
faot of drunkenness to such an extent as that be was not conscluas be
iras doing wrong, and this must be established on his part by satisfac-
tory proof. The court held that the instruction was erroneous. This
case IS cited in the extended note to Fianigan t« People, 40 Am, Bef.
666^ where the subject la further discussed.

State v. Board of Assessors.

[46 LoTTisiAirA All]nUL»14B.] *


AOBS.—Imported goods In the hands of the Importer in original pack-
■ agea stored by him and kept for sale cannot be subjected to taxatioo
bj the state until the packages are broken or the goods sold.

ORIGINAL PACKAGES ARE BUNDLES put up for transporta-
tion or commercial handling, and usually consist of a number of
things bound together convenient for handling and conTeyanoe.

G. W. Flynn^ assistant district attorney, and E. A. O'SolliTUi,
city attorney, for the appellanta.

H. n. Hall, for the appellee.

^« BEEATJX, J. The admitted facts are, that the relatow
conduct a commercial partnership as importers of fordgn gooda
in New Orleans; that they (the goods) are foreign imports; that
at the date of the assessment they had in stock fifteen thousand
dollars' worth of imported goods, of which one thousand dollars
were in broken packages and fourteen thousand dollais in original
packages; that at no time during the year the quantity or yalue
of imported goods in broken packages exceed one thousand dol-
lars; that during the course of the year they sell the entire four-
teen thousand dollars in the original packages imported^ and they

Digitized by


Feb. 1894.] State v. Board of Assessorb. 819

are in their store subject to such sales as can be made during the
year. It is also admitted that the import or impost taxes haTt
been paid.

Application was made to the board of assessors for the cancella-
tion ^*® of the fourteen thousand dollars assessed upon goods
in original packages, also to the committee on revision for the
taxes for the year 1893.

The relators claim that the assessment is illegal; that the duty
on the goods imposed by the act of Congress had been paid to the
United States; that the tax assessed was, in effect, an additional
import duty which could not be constitutionally imposed by state

The respondent, the city of New Orleans, defends on the ground
that the relators had, by their disposition of the property, incorpo-
rated it in the mass of the property of the state; that by their act
the importers have mixed the property with the other values in the
state subject to assessment.

Tbat a state law including original packages as property to be
taxed would be repugnant to the prohibition of the constitution
upon the states not to lay any imposts or duties on imports is con-
ceded by respondent.

1. The respondent argues that it is not essential to break every
package in the stock of merchandise in order to commingle them
with the other property of the importer; 2. That by the admis-
sion that the goods are in relators' store, subject to sale, they have
become taxable property.

Commencing with the case of Brown v. Maryland, 12 Wheat.
447, the supreme court of the United States, in a mmiber of deci-
sions, has invariably held that imported goods from foreign coun-
tries are not subject to taxation imder state laws until the packages
are broken, or they have been sold by the importer.

Belative to broken packages: When the imported goods are
broken up they become subject to taxation as part of the bulk of
the property in the state: 1 Desty on Taxation, 234.

Belative to sales: At all times between the arrival of the goods
imported and the sale by the importer, if the packages are not
broken from the original cases, they are not subject to state taxa-
tion: Low V. Austin, 13 Wall. 34.

With reference to imports the United States supreme court in
another case holds: '^e have held property in one stage of its
ownciship,'' prior to its sale, *'not to be taxable,*' and in a suc-
ceeding stage "to be taxable'* after the sale by the importer in
original packages: Murray t. Charleston, 96 IT. S. 44d»

Digitized by


820 State v. Board of Abbbssobb. [LouisianA,

Brealdng packages as applied to imported goods has a defined
meaning. ^^^ The package consists of a number of things
bound together convenient for handling and conveyance, A
package means a bundle put up for trausportation or com-
mercial handling. It is a thing in form to become as such an
article of merchandise, or transportation or delivery from hand to
hand: United States v. Goldback, 1 Hughes C. C. 529. The
breaking or destroying the entirety of the package is a clear
definition which does not admit of comment.

Applying these principles to the case at bar, it is obvious that
the packages were not broken and that the importers had not
sold the goods. The evidence shows that at no time during the
year the quantity or value of the imported goods in broken pack-
ages exceeded one thousand dollars, and that during the year the
relators sell the entire fourteen thousand dollars remaining in the
original packages in which they are imported, and that they are
in their store subject to such sales as can be made during the

Any argument that there was a breaking of the packages or a
mixing of part of the goods claimed as exempt from taxation ia
not sustained by the evidence. The sale during the year of the
goods valued at fourteen thousand dollars is made in the originaL

The facts that these goods are for sale in the store does not
change their ownership nor necessarily have the effect of ming-
ling them with other goods that are not in packages. The im-
munity from payment of the taxes follows the goods without ref-
erence to the place in which they are stored. That they are
offered for sale in unbroken packages in the importers' store is
not, in e^ect, the breaking of the packages, or such a disposi-
tion of the goods as causes the immunity from the tax to end.

The writs were made peremptory by the judgment of the dia*
trict court

We affirm the judgment

Mr. Justice Parlange takes no part.

not impose taxes upon property imported into the state from abroad^
or from another state which has not yet become a part of the common
mass of property therein : Extended note to People v. Wemple, 27 Am,
St. Rep. 661. A tax on the sale of articles in the original package,
brought from another state, is unlawful : State v. French, 109 N. 0.
722; 26 Am. St. Rep. 690. See, also^ State ▼. Gorham, 116 N. C. 721;
44 Am. St. Rep. 494.

"ORIGINAL PACKAGE" DEFINED.— The ••original ptuxkage**
la the package of the importer aa it existed at the time of its tranq^r-

Digitized by


Feb. 1894.] Scheznadryb v. Texas etc. By. Ca 821

tation from one state into another: Extended note to People t. Went-
pie, 27 Am. St. Bep. 653. The case or box or bale in which iei>arat«
mriicles are placed together for transportation constitutes the ''original
package" in the commercial sense. No single article therein, thonsh
«eparate)7 wrapped, is an original package: btate T« ParsonSi 124 Mo.
436; 46 Am. tit. Hep. 457, and note.


[4A LoinilAMA ANNUAL. 248.]

RAIIiROADS— NUMBER OF TRAINS.— In the absence of statu-
tory regulations, a railroad company may run as many trains, regular
«nd special, as its Interests demand.

of statutory regulations as to the rate of speed of trains, greater cau-
tion Is required of a railroad company in running Its trains in the
country while passing places where It is known that persons are In the
habit of crossing the track in necessarily going from one place to an-
other, than is required while running in unfrequented and scantily
populated sections.

LICENCE.— Persons whose business or pleasure takes them across a
railroad track must, before attempting to cross, exercise prudence and
care, and look and listen for approaching trains. If they do this, it is
not negligence on their part to go upon the track when no approach*
Ing train is in sight

LIGENCB.— A person who goes upon a railroad track for the purpose
<of using It as a highway to a certain extent assumes all risks, and it re*
quires gross negligence, amounting to malice, to make the railroad
company liable for an Injury to him, especially when he has a safer
mode of travel by a public highway.

Greater care, caution, and prudence are required of a deaf mute who
goes upon or uses a railway track as a highway than is required from
one in the full possession of all his senses. It Is negligence on the part
of such mute to so use the track and fall to use his sense of sight to
detect the approach of a train, and the railroad company, If exercising
due diligence, is not liable for an Injury to him.

M. Marks, H. N. Gautier, and J. L. Gaudet, for the appellant.
Howe & Prentiss and L. De Poorter, for the appellee.

■•• McENEEY, J. The plaintiff sued the defendant company
for twenty-eight thousand three hundred dollars' damages for the
death of his son, who was killed on the track of said company by
one of its trains on the 15th of December, 1890. The case was
put at issue by a general denial. There was judgment for plain-
tiff for twenty thousand dollars, and the defendant appealed.

In this case the facts are few, and the law well settled appli*
cable to the same. The plaintiff's son was a deaf mute, and was
walking on the railroad track, his back toward an approaching

AM. St. Kef., VOii. LXiX.-ai

Digitized by


322 ScHSXNAD&YS V. TsxAS STc. Rt. Ca [Louisianfty

train, which was a special train, running at a high rate of speed.
The engineer of the train gave the usual signal for the crossing,
about one-half mile above Duke station, near which the plaintiff's
son was killed.

When about a quarter of a mile from Duke station another sig-
nal of four whistles was sounded. These signals could be heard
two miles on a still day. The day was clear and bright. When
the last crossing signal was sounded, the engineer saw a man walk-
ing on the track. This man was the deceased son of plaintiff. The
engineer did not know of his infirmity. The man paid no atten-
tion to the signal, and when within one hundred yards the engi-
neer blew the danger signal rapidly, **very vicious and quick for a
number of times." When within thirty or forty feet of the man,
the engineer reversed the engine and applied the air brakes. But
this last effort to avert the accident was too late, and the deceased
was run over.

The plaintiff^s contention from these facts is that the company
was guilty of negligence in running a special train at a furious
speed; that proper signals had not been given before reaching
Duke station, and that he failed to give notice to the deceased
■on of plaintiff of the proximity of the train.

The defendant company has the exclusive use and control of its
tracks and roadbed, and it is within its discretion to run on said
**^ tracks as many trains, regular or special, as its interests de-
mand. There is no law regulating the speed of trains, except
in cities whose crowded thoroughfares render this necessary. In
the country, passing places where it is known that persons are in
the habit of crossing the track in necessarily going from one
place to another, greater caution is required of a railroad company
in running its trains than in unfrequented and scantily popu-
lated sections. In the absence of statutory reguktions, common
prudence requires this. It is a necessity in many places, in fact,
along the entire road, for it to be crossed at certain points by
persons whose business or pleasure takes them across it. In these
instances the party attempting to cross the road, before going on
the tracks, has to exercise prudence and care, and to look and
listen for an approaching train. If he does this, it is not negli-
gence on his part to go on the track when no train is seen ap-
proaching. But where the party goes on the track for the pur-
pose of using it as a highway, he, to a certain extent, assumes all
risks, and it would require very gross negligence, amounting to
malice, to make the railroad company liable for an injury to him.
And this rule is particularly applicable when the deceased or party

Digitized by


Feb. 1894.] Bchexnadbye v. Texas etc. Ry. Co. 828

injured hafi a safer mode of travel by a public highway^ as in the
instant case.

The deceased was a deaf mute. Greater care, caution, and pru-
dence were required from him than from one in full possession of
all his senses. Knowing his infirmity, his use of the road as a
highway, upon which trains at any time must pass^ was in itself

The defendant company exercised all due diligence in running
the train which killed the deceased. The usual and customary
signals were given at the crossing, within the hearing of one not
afflicted with deafness, and, on the approach of the train to de-
ceased, he was given ample time, by signals, to get off the track.
It was his unfortunate infirmity which caused the accident, and
he was to blame for placing himself in a situation where hearing
was one of the essentials of his safety.

It is therefore ordered, adjudged, and decreed that the judg-
ment appealed from be annulled, avoided, and reversed, and it is
now ordered that there be judgment for the defendant and plain-
tiff's suit dismissed^ with all costs.

II a railroad compaDy running an exclusive passenger train, as well as
a freight train, each way every day over one of its branches, finds the
revenaes from the service insufficient to meet the expense of mainte-
nance and operation, and withdraws the passenger train, thereafter run-
ning only a daily train each way, carrying both freight and passengers,
A court has no authority by mandamus to enforce an order of the Ixiard
of railroad commissioners directing the company to restore and operate
the passenger train: State v. Missouri Pac. Ry. Co., 55 Kan. 708. ante,
p. 278, and note. See, also, the note to Potwin Place v. Topeka By*
Co., 87 Am. St. fiep. 322.

does not impose any rule as to the rate of speed of passenger trains.
Hence the fact that in passing a small station such train was run at a
high rate of speed cannot be regarded as negligence per se: McDonald
V. International etc. Ry. Co, 86 Tex. 1 : 40 Am. St. Rep. 803, and note.
This question will be found discussed in the notes to the following
cases: Dyson v. New York etc. R. R. Co., 14 Am. St. Rep. 87; Mc-
Marshall y. Chicago etc. Rv. Co., 20 Am. St. Rep. 453; Peyton t.
Texas etc. Ry. Co., 17 Am. St. Rep. 435.

AND LISTEN. — A person walking on a railroad track must look and
listen for approaching trains, and his failure to do so is gross negligence
and defeats Iiis right to recover for injuries sustained, unless there is a
want of reasonable care on the part of the employees of the company
after becoming aware of the perilous situation of the party injured :
State v. Baltimore etc. R. R. Co., 69 Md. 494; 9 Am. St. Rep. 436, and
note. A person on a highway approaching a railway track is bound to
exercise ordinary care and due diligence to ascertain whether a train
is approaching, and if, before attempting to cross, and being in posses,
sion of his senses, he fails to look and listen, he is guilty of such negli.
gence as will preclude his recovery for an injury sustained from i^

Digitized by


821 BuccEssioN OF Gaines. [Louisiana,

collision with the train: Brown t. Texas etc. By. Co., 42 La. Ann. 860;
21 Am. St. Rep. 374, and note; to the same effect, see Liermann t.
Chicaso etc. By. Go.» 82 Wis. 286; 88 Am. St. Bep. 87, and note. See»
also, toe note to Atchison eto* B. B. Co. v. Hogae, 46 Am. St. Bep.

WAY.— Persons traveling upon railroad tracks as highways are guilty
of gross negligence, and the railroad company is responsible only for
willful or wanton injuries to them, or for injuries resulting from a
degree of negligence equivalent thereto: Boden v. Ohicaeo etc. By.
Co., 133 111. 72; 23 Am. bt. Bep. 685, and note; Blanchard v. Lake Shore
etc. Ry. Co., 126 111. 416; 9 Am. St. Bep. 630, and note; Lake tihore
etc. By. Co. v. Bademer, 139 Hi. 696; 82 Am. St. Bep. 218, and note.'
A person walking on a railroad track is a trespasser, and the company's
servants are under no obligation to keep a lookout for his protection:
State V. Baltimore etc. B. B. Co., 69 Md. 494; 9 Am. St. Bep. 436, and
note. See, also, the nota to McMarshali v* Chicago eto. Ry. Co., 20
Am. St. Bep. 452.



SION— REMISSION OF FUNDS.— The courts of one state have Juris-
diction, whenever the rights of her citizens are not affected, to order
the remission of funds belon^ng to a foreign succession to the repre-
sentatives of such 8UCcession;authorized to receive them by the courts
of the domicile of the deceased. The exercise of such jurisdiction is
a matter of discretion, depending on the circumstances, and is a con-
sequence of comity prevailing between states in amity with each

SION—REMISSION OF FUNDS.— The courts of one state have juria-
diction, provided her citizens are not affected, to order surplus funds
in the hands of an administrator there to be remitted to the adminis-
trator at the foreign decedent's domicile, but if the legatees, creditors,
and all other interested parties are before the domestic court request-
ing it to distribute such funds, the court may order them distributed

R. DeQray and Brown & Choate, for the appellants and legatees.

T. J. Semmes and Bouse & Grant, for the appellees and heirs.

Farrar, Jonas & Kruttschnitt, for the New York administrator.

254 WATKINS, J. The object of this suit is the recovery, by
the New York administrator of the primary succession of the de-
ceased in that state, of the residuum of assets of the ancillary
succossion in the state of Louisiana, from the administrator ap-
pointed under the laws thereof, and for their removal to the pro-
bate court of Kings county, New York, for the purposes of admin-
istration and distribution under and in pursuance of the laws of
that state, and of the provisions of the will of the deceased therein
admitted to probate.

Digitized by


Feb. 1894.] Succession of Gaines. 826

The demand of the New York administrator, as well as that of
certain legatees under the probated will, is resisted mainly on two
grounds, viz: 1. That the allowance of such an application is
within the discretion of the courts of this state, and this is not a
proper case for its exercise; 2. That our Civil Code requires a
complete administration, within this state, of the successions of
nonresidents, and that the courts of this state should deal with
them as if they were domestic estates.

The facts necessary to be stated as pertinent to the issues in-
volved, and in order to a clear understanding of same, are as fol-
lows, viz: ^^ On the 6th of January, 1885, Mrs. Gaines made
her will in the city of New Orlears, and died in this city on the 9th
of that month, though she was at that time a citizen and resideiu
of the state of New York, and temporarily absent therefrom.
Soon afterward the persons named in said will as joint testamen-
tary executors thereof presented same to the civil district court for
the parish of Orleans (in Louisiana) for probate, but its probate
was refused, on the ground that it was informal and not entitled
to probate under the laws of Louisiana, though reserving propon-
ents' right to present said will in Washington, D. C, the supposed
residence of the deceased at the tim^of her demise.

On appeal to this court of anotherbranch of the case, the judg-
ment of the lower court was affirmed (38 La. Ann. 123), the pro-
ponents of this particular will having acquiesced in the judgment
rendered in the court below. There subsequently arose a contro-
versy in the courts of this state, in 1889, between one of the Christ-
mas grandchildren and one of the Whitney grandchildren, over
the administratioi; of the Louisiana succession of deceased, and it
was decided in favor of the latter, who was duly qualified (42 La.
Ann. 699) — ^the sole asset thereof being a judgment against the

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