The Opelousas courier., 1901-11-23
COURT,
LOUISIANA.
HART II. sANDoz VS.. E. P. vEAzIE.
Brief Of Plaintiff and Appellee on Application for Rehearins.
MAY it please the Court:

May it please the Court:
The plaintiff respectfully but earnestly contends
that the decree rendered by this Honorable Court
on June Sd, 1901, which reverses and annuls the
verdict of the jury and the judgment based thereon,
is incorrect and does him grave and far-reachlng
injury and injustice. Therefore, being aggrieved at
the decree herein pronounced, and with full con-
seriousness of the labor and consideration which
this Court has bestowed upon this case, he respect
fully prays that a rehearing be ordered therein to
the end that he may, if possible, convince your
Honors of the error which he earnestly believes has
been committed.
And in this application we beg to assure this
Honorable Court, that we will attempt to deal
exclusively with the issues as presented in the
opinion, and in support of our prayer for rehearlng
we beg to direct the attention Of your Honors to
what we consider of vital Importance and bearing.
We may be pardoned should we advert to the
fact at the outset, that the opinion as rendered is
based almost entirely upon the evidence given by
the defendant and the members of his family, and
with the utmost respect we affirm, that their evil
denee has been almost completely discredited by
their own contradictory statements, leaving out OF
consideration the positive, unequivocal and uncon-
tradicted testimony of the witnesses for the
plaintiff. And We here beg to say, that while we
agree with the law as stated by the Court in almost
every particular, we most respectfully but earnestly
aver that in our humble opinion this same law when
applied to the facts as were established by a pre-
ponderance of testimony entities the plaintiff to
afhrmance of the judgment herein rendered. For
WITHOUT adopting LQ6 Q6I6lQanL s evidence as the
facts of this case, and rejecting the testimony of
the plaintiff witnesses, this Court is powerless to
change the judgment from one in favor of the
plaintiff to one in favor Of the defendant; and
therefore we believe, and SO believing earnestly but
respectfully assert, that the opinion as rendered
trenches upon the province of the jury and of the
lower Court. There can be no doubt but that the
jury would have rejected plaintiffs demands had
they believed the evidence of the defendant; it is
equally evident that having unanimously declared
for the plaintiff they believed his witnesses. It
follows, as a matter of course, that the question
thus presented for their determination was a matter
Of fact, and this Court has repeatedly held that it
"WILL NOT SET ASIDE A JUDGMENT PRE-
Dictated UPON THE VERDICT OF A JURY
WHICH DEPENDS UPON THE SOLUTION OF
CLOSE OR DOUBTFUL STATE OF FACTS"
See Lazarus v. Newman, So A., 2015, and Hen.
dig. vol. l, p. ", No. /, quoting many cases.
True, the determination of whether the facts as
established on the trial make up a case of want of
probable cause is also referred to the jury; but we
submit, that the jury once having made up their
minds as to who is entitled to the judgment on the
question of fact, the application of the law to those
facts is comparatively easy and unlikely to be con-
fused IN the minds OF a jury of representative mem
and the jury that tried this case was an exceptionally
intelligent one. In this connection we beg to say that
the charge of the Court to be found in the record, Tr.
p. 1854, shows how comprehensively and clearly was
the law explained to the jury; and the assertion of the
counsel for the defendant to the effect that the jury
confused the issue of probable cause with the guilt
or innocence of the plaintiff of the criminal charge,
is one of the many bald and unsupported state
rnents contained in their briefs.
AS q further reason why the verdict of the jury
should not be disturbed by this Court, we point to
the fact that the authorities are unanimous, that
The credibility of a witness is q question exclusive
Iy Tor the jury; and where a number of witnesses
testify directly opposite to each other, the jury are
not bound to regard the weight of evidence as evenly
balanced. They have a right to determine from the
appearance OF the witnesses on the stand, their man
ner OF testlfylng, their apparent candor and fairness,
their apparent intelligence or lack of intelligence,
and from all the other surrounding circumstances
appearing on the trial, which witness is the more
worthy OF credit, and to give credit accordingly.
Newell, Nal. Pros, ?. $50. See also 20 A. 338.
We beg to say in this connection that this is a case
where the standing of the parties, their credibility,
their general reputation for truthfulness and relia-
blLity IN all particulars, are all-important factors.
The remarkably bright and intelligent jury were fully
acquainted with all these matters, and the members
or this Court, being unacquainted with the wit
nessess or with the parties to the suit in any of these
respects, cannot Judge more correctly thereof than
did the jury that tried the case.
We earnestly believe that this is a case where the
verdict OF The jury should not be disturbed by the
appellate Court.
However, we desire to show to the satisfaction of
the Court, ii we can, that in considering the merits
Of this case, much of the evidence adduced upon the
trial by the plaintiff going TO show a total want of
probable cause for the prosecution has been over
looked. And we would state here that we agree
With the Court that if defendant had probable cause
Tor making the affidavit, conceding al does the Court
the innocence of the plaintiff, yet, in that event, he
~ not entitled to damages for the injury sustained by
MN because OF the prosecution. But we earnestly
declare that the evidence shows want of sufficient in
formation in the hands of the defendant to,warrant
the heinous charge which he made against the plant
m. And though we contend that he neger did have
within his knowledge sssuch d state Of facts, known
70 and influencing the prosecutor. as would lead .
man Of ordinary c~autiola and prudence. acting con-
scsemesoNsLy, impartially, reasonably and without pre-
9ndlce, = to believe, or entertain an honest or strong