The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-03-16
Ghe 8sG ORLEANS qlestsrI.
TUESDAY MORNING, MARCH ls. 1869.
Supreme Court Decisions.

The following decisions were delivered by this
court yesterday; Chief Justice Ludeling absent;
present, Associate Justices Tsliaferro, Howell,
Howe and Wyley.
BY ASSOCIATE JUSTICE HOWE.
No. 20S3-State o Louisiana VS.. E. Elder. APP
peal from the Fifth Judicial District Court, parish
of East Baton Rouge. District Attorney for ap-
pellee and J. W. Burgess for appellant
This case comes before us on three bills Of ex-
ceptions, reserved by defendant, who was indict-
ed for feloniously, wfuly, and msliciously setting
fire 70 and burning ''the barn and stable, not ad-
Joining TO dwelling house, the property of W. j.
sharp" and was convicted and sentenced to i'm
prisonment at hard labor.
I. On the trial, after the jury had been impan-
eled, the district attorney was permitted by the
court to amend the indictment so as to make the
cause quoted above read follows: the barn
and stable not adjoining IN a dwelling house,
the aforesaid barn and stable being the property
of w. J. Sharp" To this permission the defend.
ant reserved an exception.
2. On the trial the State "ofered parol evil
dence TO prove title to the barn and stable at
tached to and partaking of the reality to be in W.
J. Sharp" and the court overruled the objection
of defendant thereto the ground that it was
only necessary to prove Possession suo tare In W.
j. Sharp at the time OF the burning, which could
be done by parol; and 70 this defendant ex.
cepted. . 1919
5. The State further offered evidence to prove
that the property burned was the property OF Mrs.
ruled the objection of defendant thereto on the
ground that the witness, w. ]. Sharp, had stated
in his testimony that he resided with his wife on
the plantation upon which the property burned
vas situated and that he was in possession of said
plantation, and that twas controlled and managed
by him, and to this the defendant excepted.
The prosecution seems TO have been exc cuted
under the 49th section Of the act Of March 18th,
1858, bat as this was amended and re-enscted by
the act of March 18th, 1858, the case is governed
by the Sd section of the latter statute.
IA to the amendment we see no error in the
ruling of the court. The indictment was good by
a reasonable construction. Before the amend
ment no such charge was made, and it seems i'm.
possible that the defendant could have been in
sny way affected by an addition of words which
the State, through abundant caution, was per-
mitted to make.
The questions presented by the second and
third exceptions are somewhat complicated by
the manner in which the bills are drawn, but TAX
ing the two together we suppose that on the trial
the State proved by parole that W. ]. Sharp was
in the possession, occupancy and control OF the
buildings destroyed, and further proved by show
ing the legal title Mrs. Sharp that the possession
occupancy and control by Mrs. Sharp were law.
fol.
Under our statute II was not necessary to r
and prove the ownership of the property as :
common law TO be In some person other than
accused; Is An. ia; IL An. 3S2,) and the ~
object of the allegation of properly ia Sharp vas
10 describe and identify the object Of the crime.
The possession, occupancy and control by Sharp
could be proved by parOl, and when proved, fully
supported by allegation of property in him.
Greenleaf on Evidence, vol. 5, D. 40. State vs..
Lyon, IL Conn. 4sS. Glaueeld's case, cited in
Russell, vol. 2. p. SOS.
The evidence that the legal title was in bis wife
seems to us in this case TO have had no other OBJ
iect or effect than TO show his possession occu-
pancy and control to have been rightful, and the
defendant has no cause to complain If the State
introduced more evidence ON this point than was
absolutely necessary.
We csnnct perceive that the court erred in its
ruling, and it is therefore ordered and adjudged
that the judgment appealed from be affirmed.
BY ASSOCIATE JUSTICE HOWELL.
No. I5l2-wm. Gogreve vs.. John windhurst
VIM. Shredder. third opposition. Saucer 4 Michi-
nard for plaintiff; II. Commandeur for defend.
ants, and Hawkins & Fish for third opponent.
Appeal from the District Court parish of Jeffer-
motion to dismiss the appeal, on the ground
that there is nothing in the record showing that
the matter in controversy exceeds $500.
By reference to the record we fad that 10 OBJ
tanning an Injunction against the sale OF the
schooner claimed by him, the third opposition
gave bond for $1,000.
From these and other facts and figures it was
shown that the matter in dispute exceeded $500.
The motion to dismiss was therefore overruled.
BY ASSOCIATE JUSTICE HOWE.
No. 2l07-Dranghon, administrator, vs. White
and Collins. Appeal from the Fifth District
Court of East Fslciana. McVea s. Hunter for
appellee, and W. +. Herman for defendants.
This sut was brought on two promissory notes
given at probate sale made in the succession of
Evander White, OF which the plaintiff was admin
istTator. The court below gave Judgment in favor
OF the plaintiff for the amount Of the note for s445
so, the consideration of which appears to have
been lawful, rejecting the claim upon the other
note, which had been given as the price Of slave.
and the defendant Mr.. White. has appealed.
Iii xr-tte
the court affirmed the judgment appealed from
with costs.
BY ASSOCIATE JUSTICE HOWE.
No. 2Os6-Jefierson Thomas vs.. 0ran Hscket,
administrator. Appeal from the Fifth District
Court, parish of East Baton Rouge. Favrot Il
Lamon for plaintiff and appellee, aud Burgess *
CLANCY and Fuqua Callihan for defendant and
appellant.
on the 26th of March, 1861, Andrew Malta re-.
covered Judgment in the Sixth (now Filthy Dis.
trict Court, parish Of East Baton Rouge, against
William Thomas and Richard Thomas an solido.
writ of feIri fdcidS was issued, and the defend
ants surrendered their slaves, which, after an
Intellectual attempt 10 sell for cash. were on the
Sd of August, 1861 sold on twelve months credit
and adjudicaied 10 one Of the defendants, VIM.
Thomas who, with the other defendant as CO.
principal aud the plaintiff in this security,
executed a twelve months bond for the judgment
debt On the 9th of October, 1865, ii writ of
fe1i tdcids was issued on this bond. and by pro.
GEES VI garDshment the sum OF S940 30, due the
surety plaintiff ia the case at bar, was collected.
On the 18th of June, 1861 the plaintiff herein
fled the petition now before us, against the de
fendsnt as administrator OF the succession of Au-
drew Malta, praying that the bond be cancelled
and the mortgage resulting from it erased. and
demanding also the recovery of the sum col
lected from gsrnishees, for the reason snbstsn-
TALLY that the consideration Of the bond was the
sale Of slaves.
the defendant pleaded the general denial, a
special denial that the sale OF slaves formed the
considerations or the debt on which the judgment
was rendered and for which the bond was exc
cuted and the prescription OF one year.
The court quo gave judgment that the bond
be cancelled and annulled so far as the plaintiff,
the surety, is concerned, rejecting the Claim for
the recovery Of the sum already collected and
the defendant appealed. We find in the record
no answer TO the appeal or prayer by appellee
for an amendment of the judgment, and it is
therefore unnecessary 10 consider the suggestion
in the brief of appellee that the Judgment should
be amended so 10 permit the plaintiff To re-
cover the sum collected by punishment. The
consideration of the bond in question was clearly
the sale OF slaves of VIM. Thomas and Richard
Thomas TO the former, under the first writ of
feTi fdcids. under the authority of Wainwright vs.
Bridges, % Ann, p. y and the numerous cases