New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-01-11
ct ais, va. John S. Walton, Administrator of
NOTION TO DISMISS ovERRULED.

MOTION TO DISMISS OvERRULED.
Ines Peyroux ct al. vs. Michael Peyroux.
In the case of the State of Louisiana VS.;
Charles Earle and John Garvey, convicted
of murder. Justice Howe rendered the FOL
lowing decision:
The defendants having been found guilty
of murder, and sentenced accordingly, nave
appealed to this court. They make five
points here, of which, however, it will be
necessary to examine but one.
1t appears, from an inspection OF the frat
bill OF exception taken during the trial,
that the State was allowed to challenge
peremptOrily more than six jurors, the court
below deciding that each prisoner was en-
titled to twelve peremptOry challenges, aud
the State to six for each accused.
1t is true that each defendant was en-
titled to twelve peremptOry challenges; but
it by no means follows that the State is
entitled to six for each defendant. The
State has no right in the matter beyond
those conferred by the statute, and the
statute declares that in all criminal prose
cutiOns wherein the defendant is allowed
peremptory challenges, the State shall also
be allowed to challenge, without cause. any
number not exceeding six. tRevlsed
Statutes, 1870, section $685. This means
clearly six in single prosecutiOn-in the
trial of q single indictment, without any
reference to the number of defendants IN
cluueu III tut pIOScCutAou- VI Aoht'ohCo ~
the indictment.
The language is plain. The case at bar
is within its provisions, and we are, there
fore, constrained to think the court erred IN
allowing the number of pereInptOry chai-
lenges by the State to exceed six.
The precise question in this case was de-
cided by the Supreme Court OF Ohio IN the
year lS40 in the same way, under statute
which we think practically Identical IN TINS
respect with our own. In the law OF OHIO
the phrase "trial of an indictment" was
used instead of criminal prosecution" and
the right to challenge peremptOrlly two OF
the panel was given to every prosecuting
attorney and every defendant. The lower
court, in a case where there were three de-
PENDANTS, having allowed the State six per
emptOry challenges, the Supreme Court, III
reversing the judgment, said:
There was but one indictment, and on the
part of the State the right of perenptory
challenge should have been confined to two,
while each of the defendants could. III like
manner, legally object to the same number.
Had the defendants been separately tired,
the Indictment would have been separate
as to each, and in every trial the States
right to such challenge of two of the jurors
would have been legal; but upon JOINT
trial it is otherwise.
We are constrained to order a new trial.
1t is therefore ordered that the Judgment
appealed from be reversed and that the
cause be remanded for a new trial.
In the Hillman suit Judge Dibble dismissed
the Injunction, in conformity with de-
cision of the Supreme Court, which decreed
the nullity of all proceedings in regard TO
legislative warrants. Inc 1oiio"lhS Is tne
opinion referred to-
John w. Hillman vs. Antoine Dubuclet-
T.W. Colens, c. M. Emerson, P. +. Theard,
Henry Train. S. P. Blanc, James Buckley,
J. Hawkins, w. II. Cooley, Joseph Herman
dez and Gustave Lewis, intervenors-ln
this case the plaintiff applied for an ln]unc-
| ton to restrain the State Treasurer from
| signing any State warrants until those held
| bv him could be satisfied. He charged that
| tie Treasurer made illegal payments by
! preference to others, but that he has refused
| several persons interested, holding war
| rants amounting to over 100000. For the
| reasons given in writing and in the record
| the Injunction was refused. The plaintiff
| filed a supplemental petition alleging that
| the Treasurer was registering warrants lot
payment. but that he was giving preference
| to particular warrants issued in favor OF
persons receiving compensation FROM the
| Legislature.
| 1t seems that the Legislature enacted
bill, which was approved February %, lSl /,
| appropriating $250,0OO for expenses OF the
assembly, and directed that the warrants
! should be registered IN the office OF the
| Treasurer and paid according to the date OF
registration. In the general appropriation
bill is another appropriation OF sl2o,oOO
with the same provision for registration.
| The plaintiff in this case, the intervenors
| and plaintiffs in one or two other suits III
| stituted at the same time, complained that
this attempt of the Legislature to give
preference to particular warrants was an
act imparing the obligation of contract,
and void. 1t was urged, and atfidavlts were
| filed to show that the registration OF legisiii-
tive warrants in the office of the Treasurer
was used to prevent fair and equitaole
| payment of other warrants; persons holding
| registered warrants would waive their
| right to first payment tor certain per
cent, but still retain the position OF prefer
ence and privilege.
| | formed the opinion that the attempt OF
| the General Assembly to give priority ana
preference to the warrants issued to the
| members thereof was unconstitutional.
thought that when person became cred
| itor of the State, and received warrant Tor
| payment of his claim, there subsisted an in
| piled contract that he should be paid III the
| ordinary course of the receipt OF money ii
the treasury. / thought that an act setting
his claims aside and giving preference to
another was in the nature OF an act impair
ing the obligations of such a contract.
Accordingly, upon INC SuPPiOh .e'A p
ton an injunction was issued torblddlng the
Treasurer to make any distinction or give
any preference in the registration OF war
rants for payment.
Immediately several warrant holders ap
piled to the Treasurer to have their war
rants registered. The Treasurer refused
and several applications were made toI
writs of mandamus. which were granted.
Upon application of both parties to the
suit, the order of in junction was subse
auentlv extended. so as to provide for the
registration of all warrants in the order d
their presentation.
One of the 1nandamus cases, when thu
plaintiff in this suit was relator, was ap
healed to the Supreme Court. The judg
ment was reversed. The court took occa
sion to say that the order of injunction Il
this Gaze was improperly made.
The case has been submitted upon TN
proof offered when the injunction Wa
issued.
In obedience to the opinion OF the Sr'
preme Court, l will set aside the inIuncuo'
issued herein and will render judgment 10
the defendant, with costs.
The suit waged by the Crescent Cltl
Waterworks Company against the city b.
Injunction was Yesterday decided IN 1aVo
of the city, and the I'M junction dismissed.
Judge Dibble decided on the twelfth
July. 1871. the suit Of Mcclellan agains
| the New Orleans Sugar Shed COMPANY, an.