[819] The opinion of the Court was delivered by
Watkins, J.
The accused was indicted for the murder of John Baptiste Allen, tried and convicted, and on appeal to this Court in New Orleans, the verdict and judgment were set aside and he was granted a new trial.
When the cause was, thereafter, called for trial in the, court below, the district attorney announced that he should proceed against the accused, on said indictment, for manslaughter only; and, the trial being proceeded with, he was convicted of that crime and sentenced to fifteen years at hard labor in the penitentiary, and from that judgment and sentence he prosecutes this present appeal.
His demands for relief are based on several bills of exception taken to rulings of the trial judge rejecting proffered evidence aud declining to give to the jury certain special charges, to be found in the transcript.
I.
The record discloses that the fatal rencontre was brough t about by certain judicial proceedings had in the court of L. H. Holmes, justice of the peace, in the suit of C. Marrero vs. Louis Brooks (the accused), in which a writ of provisional seizure was issued, directing the seizure of the defendant’s rice on the Sarah plantation, in satisfaction of the plaintiff’s lien and privilege for the irrigation of defendant's land.
This writ was placed in the hands of the deceased, as the constable of his court, for execution ; and he was proceeding to execute same by seizing the defendant’s rice when met by his resistance, and from which the homicide resulted.
II.
The first bill was taken to the rejection of certain evidence to prove that the deceased did not reside in the same wTard of the parish in which the justice of the peace exercised his official functions, and the consequent illegality of his appointment as special constable, vice E. Perez, who had resigned the office of constable, as a justification of his resistance of his attempted seizure of his rice.
This testimony was objected to upon the ground that the legality of his appointment could not be questioned, or attached collateral]).
This objection was correctly sustained by the trial judge. It has so frequently passed under judicial investigation, and has been so often decided adversely to the pretentions of the accused, that it cannot be considered an open one. The deceased was regularly appointed, and was at the time, and had been for twenty days preceding, in the active discharge of the duties of that office. He was constable de facto, if not [820] de jure, and acting under color of title. I-Iis official acts were not absolute nullities, but entitled to the respect of and obedience from third persons. State vs. Gilbert, 10 Ann. 526; Citizens’ Bank vs. Bey, 3 Ann. 633; State vs. Judge, 22 Ann. 33.
A strong presentation of this doctrine is found in State vs. Fenderson, 28 Ann. 82. The accused was indicted, tried and convicted of murder, and was sentenced to be hung. He complained that the persons styling themselves as grand jurors, and by whom said bill of indictment was found, were not grand jurors, and had no right or authority to indict him as they did, because the person by whom they had been organized and charged was not judge of the court, and that all proceedings had under said indictment were null and void. In that case the judge acted under an appointment before he had received a commission. The court declined to entertain the complaint.of the •accused.
In State vs. O’Grady, 31 Ann. 379, the court employed this forcible language:
“ We do not desire to be understood, however, as intimating that a party charged with crime can be heard to raise an issue that the ministerial and other officers of court, actually and de facto acting as such, have no right to such offices. We should never get a criminal tried at that rate. He would commence with a kind of collateral giio warranto as to the judge and then go on down through the official roster of the court.”
But the accused urges us to alio whim to go to a much greater extreme, and sanction his resort to violence on, and the homicide of a person ,acting as constable, under the color of an appointment, and armed with a writ of provisional seizure, on the theory that such person was a naked trespasser, and his act in self-defense, or the defense of his property from spoliation. Though it was the act of a justice of the peace, and the legality of his appointment somewhat questionable, it was the duty of the accused to have respected the apparent authority •of the appointee, and to have sought redress for his grievances in the ■constituted judicial tribunals. It was not proper that he should have taken the law into his own hands, or the risk of himself deciding the ■capacity of an officer.
III.
The second bill was taken to the judge’s refusal to permit him to introduce parol evidence of the contents and purport of the judicial record of the suit and proceedings of Marrero vs. Brooks, in which the ■writ of provisional seizure was issued, and for the purpose of showing [821] the want of territorial jurisdiction of the justice of the peace. We are of the opinion that the judge correctly held that the records themselves were the best evidence and should have been introduced ; and, further, that it was not competent on a trial of the accused for manslaughter to inquire into the particular facts of the civil suit between Marrero and the accused, and which could have no material bearing on the homicide of the deceased.
VI.
The third bill was taken to the judge’s refusal to permit him to prove by the justice of the peace the character of the claim on which he issued the writ of provisional seizure. It was objected on like grounds as the evidence discussed in last bill, and the same ruling is applicable.
V.
The fourth bill was taken to the judge’s refusal to permit him to ask and have answered by a witness the following question, viz:
“ What was the impression produced upon your mind as to his action and intention when the deceased threw up his right hand to his hip pocket ?”
The judge sustained the objection on the ground that a witness must state facts, and not the impressions they create on his mind; that it was the province of the jury to draw inferences from proven facts.
His ruling was strictly in conformity with that made by this court in the case of State vs. Parce, 37 Ann. 270, and in which there are cited various adjudicated cases.
VI.
The fifth bill was reserved to the judge’s refusal to permit him to make proof of previous threats made by the deceased, and subsequently communicated to the defendant.
The judge assigns the following reasons, viz: “ That from the evidence, so far, there has been no proof of any overt act of violence on the part of the deceased against the accused, immediately preceding the act” (of the latter).
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[819] The opinion of the Court was delivered by
Watkins, J.
The accused was indicted for the murder of John Baptiste Allen, tried and convicted, and on appeal to this Court in New Orleans, the verdict and judgment were set aside and he was granted a new trial.
When the cause was, thereafter, called for trial in the, court below, the district attorney announced that he should proceed against the accused, on said indictment, for manslaughter only; and, the trial being proceeded with, he was convicted of that crime and sentenced to fifteen years at hard labor in the penitentiary, and from that judgment and sentence he prosecutes this present appeal.
His demands for relief are based on several bills of exception taken to rulings of the trial judge rejecting proffered evidence aud declining to give to the jury certain special charges, to be found in the transcript.
I.
The record discloses that the fatal rencontre was brough t about by certain judicial proceedings had in the court of L. H. Holmes, justice of the peace, in the suit of C. Marrero vs. Louis Brooks (the accused), in which a writ of provisional seizure was issued, directing the seizure of the defendant’s rice on the Sarah plantation, in satisfaction of the plaintiff’s lien and privilege for the irrigation of defendant's land.
This writ was placed in the hands of the deceased, as the constable of his court, for execution ; and he was proceeding to execute same by seizing the defendant’s rice when met by his resistance, and from which the homicide resulted.
II.
The first bill was taken to the rejection of certain evidence to prove that the deceased did not reside in the same wTard of the parish in which the justice of the peace exercised his official functions, and the consequent illegality of his appointment as special constable, vice E. Perez, who had resigned the office of constable, as a justification of his resistance of his attempted seizure of his rice.
This testimony was objected to upon the ground that the legality of his appointment could not be questioned, or attached collateral]).
This objection was correctly sustained by the trial judge. It has so frequently passed under judicial investigation, and has been so often decided adversely to the pretentions of the accused, that it cannot be considered an open one. The deceased was regularly appointed, and was at the time, and had been for twenty days preceding, in the active discharge of the duties of that office. He was constable de facto, if not [820] de jure, and acting under color of title. I-Iis official acts were not absolute nullities, but entitled to the respect of and obedience from third persons. State vs. Gilbert, 10 Ann. 526; Citizens’ Bank vs. Bey, 3 Ann. 633; State vs. Judge, 22 Ann. 33.
A strong presentation of this doctrine is found in State vs. Fenderson, 28 Ann. 82. The accused was indicted, tried and convicted of murder, and was sentenced to be hung. He complained that the persons styling themselves as grand jurors, and by whom said bill of indictment was found, were not grand jurors, and had no right or authority to indict him as they did, because the person by whom they had been organized and charged was not judge of the court, and that all proceedings had under said indictment were null and void. In that case the judge acted under an appointment before he had received a commission. The court declined to entertain the complaint.of the •accused.
In State vs. O’Grady, 31 Ann. 379, the court employed this forcible language:
“ We do not desire to be understood, however, as intimating that a party charged with crime can be heard to raise an issue that the ministerial and other officers of court, actually and de facto acting as such, have no right to such offices. We should never get a criminal tried at that rate. He would commence with a kind of collateral giio warranto as to the judge and then go on down through the official roster of the court.”
But the accused urges us to alio whim to go to a much greater extreme, and sanction his resort to violence on, and the homicide of a person ,acting as constable, under the color of an appointment, and armed with a writ of provisional seizure, on the theory that such person was a naked trespasser, and his act in self-defense, or the defense of his property from spoliation. Though it was the act of a justice of the peace, and the legality of his appointment somewhat questionable, it was the duty of the accused to have respected the apparent authority •of the appointee, and to have sought redress for his grievances in the ■constituted judicial tribunals. It was not proper that he should have taken the law into his own hands, or the risk of himself deciding the ■capacity of an officer.
III.
The second bill was taken to the judge’s refusal to permit him to introduce parol evidence of the contents and purport of the judicial record of the suit and proceedings of Marrero vs. Brooks, in which the ■writ of provisional seizure was issued, and for the purpose of showing [821] the want of territorial jurisdiction of the justice of the peace. We are of the opinion that the judge correctly held that the records themselves were the best evidence and should have been introduced ; and, further, that it was not competent on a trial of the accused for manslaughter to inquire into the particular facts of the civil suit between Marrero and the accused, and which could have no material bearing on the homicide of the deceased.
VI.
The third bill was taken to the judge’s refusal to permit him to prove by the justice of the peace the character of the claim on which he issued the writ of provisional seizure. It was objected on like grounds as the evidence discussed in last bill, and the same ruling is applicable.
V.
The fourth bill was taken to the judge’s refusal to permit him to ask and have answered by a witness the following question, viz:
“ What was the impression produced upon your mind as to his action and intention when the deceased threw up his right hand to his hip pocket ?”
The judge sustained the objection on the ground that a witness must state facts, and not the impressions they create on his mind; that it was the province of the jury to draw inferences from proven facts.
His ruling was strictly in conformity with that made by this court in the case of State vs. Parce, 37 Ann. 270, and in which there are cited various adjudicated cases.
VI.
The fifth bill was reserved to the judge’s refusal to permit him to make proof of previous threats made by the deceased, and subsequently communicated to the defendant.
The judge assigns the following reasons, viz: “ That from the evidence, so far, there has been no proof of any overt act of violence on the part of the deceased against the accused, immediately preceding the act” (of the latter).
He then quoted the purport of, and extracts from the testimony of the witnesses relied upon by the defendant as justifying the introduction of the rejected evidence. It clearly shows that the slight demonstration made by the deceased was subsequent to defendant's first shot, and while the deceased was retreating from the fray as rapidly as possible.
To entitle an accused person to introduce proof of previous threats made by the deceased against him, it must affirmatively appear that [822] immediately before, or at the time of the killing, the deceased had indicated his intention to execute same by some hostile demonstration State vs. Saunders, 37 Ann. 389; State vs. Labuzan, 37 Ann. 489; State vs. Janvier, 37 Ann. 644; State vs. Kerwin, 37 Ann. 782; State vs. Jackson, 37 Ann. 896; State vs. Spell, 38 Ann. 22.
YII.
The sixth bill was reserved to the refusal of the trial judge to give certain special instructions in charge to the jury. They were:
1. That a justice of th<* peace is without jurisdiction to issue a writ of provisional seizure on aricecrop on anotlierpiece of land than that on which the rice flume is located ; and he cannot, in such case, entertain a suit against a person who does not reside within his jurisdiction.
2. A justice of the peace has no right to appoint a constable pro tempore to fill a vacancy caused by a resignation of a prior incumbent.
3. No one can be appointed constable other than a resident of the ward in which it is made.
4. Before acting as constable an appointee must give bond.
5. “If one thus appointed presumes to act, he is a trespasser; and, if he goes armed to meet resistance to the trespass, he commits a felony.”
6. A person who has not giveu bond, nor complied with the law in other respects, has no color of title.
The judge declined to give in charge to the jury these instructions, principally on the grounds that are assigned in the first bill of exceptions. and on the further ground that if a justice of the peace has jurisdiction to cause the seizure of property situated within his ward, although the defendant and owner reside out of it, he has authority to appoint a constable pro tempore to serve the process of his court, when there shall be no such officer elected or appointed.
This ruling is supported by good authority. The law authorizes a writ of provisional seizure or sequestration to issue against a property that is affected with a privilege, or right of pledge, either within the jurisdiction where the property is situated or where the debtor resides. Voorhies, Rev. C. P. 163; Act 64 of 1876.
The Code of Practice distinctly provides that (the) “justices of the State, without the limits of New Orleans, shall have power to appoint constables pro tempore whenever there shall be no such officer elected for their respective districts in the manner directed by law.” C. P. 1158; R. S. 637.
Prom the evidence it appears that the incumbent had resigned, and no successor had been elected or appointed by the Governor in his place. [823] This seems to have been just suoh a situation of affairs as was in the, contemplation of the framers of the code, and the act of the justice of the peace, in making the appointment of the deceased, was apparently justifiable, and binding on all third persons, including the accused, until set aside in the manner provided by law.
The proof shows that the appointment was evidenced in writing, and made some days antecedent to the homicide. The judge’s ruling was undoubtedly correct.
VIII.
The defendant applied for a new trial on the ground that one of the jpetit jurors had been guilty of misconduct. But inasmuch as no bill was reserved to its refusal by the trial judge, it cannot receive any ■consideration by us. State vs. Redwine, 37 Ann. 780, and. authorities ' •cited.
The objections made are not sustained.
Judgment affirmed.