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dependent contractor. The circumstance of an employee furnishing his own team or tools could be of significance or weight at most, in fixing the average weekly wages.

court in Bell v. Albert Hanson Lbr. Co., 151 La. 824, 92 So. 350; and the case of Dick v. Gravel Logging Co., 152 La. 998, 95 So. 99. In the first-noted case (Bell v. Albert Hanson Lbr. Co.), the court, in discussing the Of course, if the employee had engaged to nature and character of the employment and haul the output of the mill at so much per the duties of the employee, had this to say: thousand, furnishing sufficient teams and "In the case at bar the most salient feature wagons, and employing assistants and drivis that the decedent was a mere swamp labor-ers to do the hauling, a different case might er, earning his livelihood as one of a gang of be presented. In such a case it might well men constituting part of the logging outfit of be said that the compensation was to cover the defendant company's sawmill. To charac- profit on the investment in the teams and terize such a laborer as an independent contractor would be simply to ignore the realities wagons, and not compensation for personal of the situation."

In the Dick Case, supra, the deceased was employed to cut and saw the logs in the woods, which were to be placed on log cars to be delivered to the lumber company's mill. He was paid at the rate of 45 and 50 cents per thousand feet, board measure, according to whether he furnished his own tools or was supplied by the company with them. The court held that he was a mere laborer, and in no sense an independent contractor. We may here appropriately repeat, and we do so with emphasis, what the court said in the last above mentioned case.

"Under the narrow and restricted construction sought to be placed upon the statute by defendant's counsel, every workman employed to do piece work in shop, factory, home, or elsewhere would be classed as an independent contractor, although he is not more free from the control and direction of his employer than the most ordinary day laborer."

It would be inconsistent and illogical to say that laborers who cut saw logs and haul them to a sawmill, to be sawed into lumber at so much per thousand feet, come within the terms of the statute, while those who haul the manufactured product away from the mill to the market upon a like scale of compensation are independent contractors, and not within the provisions of the statute. It would seem as necessary to the successful operation of a sawmill to get its output to the market as it is to supply the mill with logs to be sawed into lumber.

We think the case of this plaintiff comes within the principles of the two cases noted above, rather than that of Helton v. Tall Timber Lbr. Co., 148 La. 180, 86 So, 729.

Nor does the fact that the employee furnished his wagon and team alter his relations with his employer; nor does such fact put the employee in the character of an in

services,

The wage-earners could be the laborers who were employed by the owner of the teams to do the hauling. But we have not such a case presented here. On the contrary, Burt was a mere laborer, driving his own team and loading and unloading his own wagon, and his wages could, in no legal sense, be regarded as a profit on his investment in the team and wagon.

An examination of the evidence on the question of the amount of the average weekly wages has not enabled us to say that the district judge committed an error in fixing the amount at $15 per week. The evidence certainly would not have justified fixing a less sum. It was within the power of the defendant to show the amount paid to Burt, for his services in hauling, and the average weekly earnings. However, we think the amount allowed is not in excess of the average weekly wages, independent of any sums that might be allotted for the team and wagon.

[2, 3] The evidence shows that one of the minors, John C. Burt, Jr., was 18 years of age, and therefore the judgment awarding him compensation was error. This is admitted by counsel for plaintiff in their brief. The court also committed an error in rejecting the claim of $100 for funeral and burial expenses. The evidence shows that this amount, and even more, was paid by the plaintiff. The amount is allowable by Act 247 of 1920.

It is therefore ordered and decreed that the judgment of the Court of Appeal be and the same is annulled and set aside, and that the judgment of the district court be amended by reducing the payments to the sum of $6 per week, and by allowing the plaintiff $100 for burial and funeral expenses, and, as thus amended, that the said judgment be affirmed, at the costs of the defendant.

(157 La.)

No. 26658.

STATE v. GARDNER.

(102 So.)

9. Criminal law 982-Application for suspension of sentence for good character after conviction held too late.

Where defendant during trial for felony in

(Supreme Court of Louisiana. Nov. 3, 1924.) troduced no evidence as to his general reputa

(Syllabus by Editorial Staff.)

1. Criminal law 1065-Ground that verdict is contrary to law and evidence presents no question of law for review.

Ground that jury's verdict is contrary to law and evidence presents no question of law for review.

2. Criminal law 915-Defendant prosecuted under wrong name cannot urge objection first time on motion for new trial.

Where defendant was arraigned and pleaded to information without objection to name by which he was designated, and he was identified on trial as party committing the offense, he cannot urge on motion for new trial that he was prosecuted under wrong name.

3. Criminal law 942(1)-Verdict not set aside to enable defendant to impeach testimony admitted on trial.

Verdict will not be set aside and new trial granted to enable defendant to impeach testimony admitted on trial. 4. Criminal law 944-Trial judge held justified in disbelieving testimony of newly discovered witness.

Trial judge was justified in disbelieving testimony of newly discovered witness, where such testimony was suspicious and incredible.

5. Criminal law 1159(5)-Whether difficulty in assault originated in one way or another held immaterial, where both versions as to its beginning went to jury.

In prosecution for assault, it was immaterial whether difficulty originated as claimed by defendant or otherwise, where both versions as to its beginning went to jury.

6. Witnesses 344 (2)-Details of evidence in civil case against prosecuting witness and son held inadmissible in prosecution for assault.

In prosecution for assault, details of evidence in civil case prosecuted by defendant's helper against prosecuting witness and his son were inadmissible; it being immaterial wheth

tion and made no effort to obtain suspension of sentence under Act 74 of 1914, an application for suspension in a motion for new trial after conviction comes too late.

10. Criminal law 942 (1)-Evidence of pending criminal charge against prosecuting witness held no basis for motion for new trial by defendant.

Evidence that there was pending against prosecuting witness a criminal charge for attack on defendant's helper is no basis for motion for new trial by defendant.

Appeal from Criminal District Court, Parish of Orleans; N. E. Humphrey, Judge. Arthur Gardner was convicted of assault, and he appeals. Affirmed.

Thomas G. Moran, of New Orleans (Loys Charbonnet, of New Orleans, of counsel), for appellant.

Percy Saint, Atty. Gen., and Robert H. Marr, Dist. Atty., of New Orleans (Percy T. Ogden, of Crowley, and M. M. Irwin, of New Orleans, of counsel), for the State.

By the WHOLE COURT.

LAND, J. Defendant was tried and convicted of the crime of assault by willfully shooting at Louis Lapuyade, and was sentenced to imprisonment in the state penitentiary at hard labor for a term of not less than one nor more than three years.

He relies for the reversal of the conviction and sentence upon the following grounds set out in a motion for a new trial:

[1] 1. The verdict of the jury is contrary to the law and the evidence. This ground presents no question of law to be reviewed. 2. Defendant was prosecuted under an information against Arthur Gardner, when in fact defendant's name is Arthur Gordon.

[2] Defendant was arraigned under the name of Arthur Gardner, and pleaded not

er such parties unlawfully assaulted defend-guilty to the information, without objection ant's helper, and purpose of such testimony being to show their bad reputation for peace and quiet by proof of a specific act.

7. Witnesses 344 (1)-General bad character must be established by testimony as to general reputation.

General bad character must be established by testimony as to general reputation, not by proof of specific acts.

8. Criminal law 945 (2)-Testimony of good character useless against clear evidence of guilt and is not in itself sufficient basis for new trial.

to the name by which he was designated. He was identified on the trial as the party committing the offense. It is too late on a motion for a new trial for a defendant to

set up that he was prosecuted under a wrong name. State v. Turner, 25 La. Ann. 573; State v. Hogg, 126 La. 1053, 53 So. 225, 29 L. R. A. (N. S.) 830, 21 Ann. Cas.

124.

3. That Louis Lapuyade, prosecuting witness, did not give true and impartial testimony, as defendant proposed to prove by Jules Alexander, the newly discovered wit

Testimony as to good character is uselessness. as against clear evidence of guilt and is not of [3] It is well settled that a verdict will itself sufficient basis for new trial. not be set aside and a new trial granted to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[4] It is alleged in the motion for the new trial that the newly discovered witness would testify that the prosecuting witness and his father, a state witness, were the aggressors; that defendant acted in self-defense; that he was attacked by the Lapuyades, who were then and there armed with heavy meat cleavers; and that defendant fired up in the air and not at Louis Lapuyade.

The testimony of all the state witnesses and of all the witnesses of the defendant taken on the trial, as well as that of the newly discovered witness, is in the record. It is clear from a review of this testimony, in connection with the newly discovered evidence, that the testimony of the newly discovered witness is impeaching as to the state witnesses and cumulative in part as to the witnesses of the defendant, as to firing the shot in the air. As to self-defense, the prosecuting witness and three state witnesses testify that at the time the defendant fired the shot at Louis Lapuyade, Sr., no hostile demonstration of any kind was made by the latter. The elder Lapuyade had walked out of his butcher shop on the sidewalk, unarmed, when he was assaulted. The defendant himself testified on cross-examination:

enable defendant to impeach the testimony | any weapon in his hand, when defendant admitted on the trial. State v. Johnson, fired the first shot. They state that during 149 La. 922, 90 So. 257; State v. Preuett, the first and the second encounters Eugene 142 La. 720, 77 So. 514; State v. Bordelon, Lapuyade, the son, had a cleaver, and that 141 La. 611, 75 So. 429. after the shot was fired, Eugene went into the butcher shop and returned with a shotgun. The defendant was evidently the aggressor in the second difficulty. He had left, after the first quarrel, and had returned with a pistol in his hand, and had stationed himself in the street in front of the shop, and had fired at Lapuyade, Sr., as soon as he walked out of the butcher shop onto the sidewalk. The testimony of defendant and one witness that he fired the shot in the air is incredible and suspicious, for these witnesses testify that the younger Lapuyade, armed with a cleaver, at the time, was advancing upon defendant, and was within a few feet of him. The elder Lapuyade testifies that the bullet whizzed by his head, and the state witnesses also testify that defendant attempted to fire a second time, but that his pistol snapped. It is also unreasonable to believe that any reasonable man would return to the scene of the conflict with a pistol in his hand, if he did not intend to provoke a second difficulty, especially after he had been assaulted and beaten, as testified by his witnesses. As testimony to impeach the state witnesses, the newly discovered evidence is not admissible. As cumulative evidence, it is not available, for the reason that the evidence on the trial showed that there was no overt act at all on the part of the party assaulted, and that the defendant provoked the second difficulty. It was completely shown by the testimony that there was no element of self-defense in the case. Not a single witness for either the state or the defense testified that Lapuyade, Sr., was armed, or had a meat cleaver, at the time of the shooting. On the contrary, all of the witnesses testified that he did not. The testimony of the newly discovered witness that the young man and the old man came out of the butcher shop, and that each had a cleaver, is therefore suspicious and incredible, and fully justified the trial judge in disbelieving the testimony of the newly

"Me and old man Lapuyade didn't have any trouble; I shot in the air to keep them from killing me." Tr. p. 43.

The shooting at Lapuyade, Sr., was preceded by a difficulty between defendant and Eugene Lapuyade, the son of Louis Lapuyade. The defendant on direct examination had testified as follows:

"He (Ernest Lapuyade) then ran in the shop and came out and struck me in the back with a cleaver. I caught his arm, and his father (Louis Lapuyade) and mother rushed out and caught me in the back, and I broke loose and ran around to Millaudon street, where I lived, and got a pistol and came back and passed in front of his shop and the old man said, 'You back here again?' and the young man came out with a cleaver again and I shot. Q. How did you fire that shot? A. I don't know. I was excited. I don't know what became of the gun." Tr. 42.

After the first difficulty, the defendant returned in 20 or 30 minutes with the pistol in his hand, as testified by his own witnesses, and was cautioned by one of his witnesses to come away from the vicinity of the butcher shop of the Lapuyades and not to have any trouble. Defendant did not heed this advice, but remained standing in the street and fired the shot. Tr. 31.

Neither the defendant nor any of his witnesses testified that the elder Lapuyade had

discovered witness.

"The trial judge should consider whether false swearing has been resorted to to set aside the verdict and obtain a new trial. His discretion in that regard is, of course, not unlimited or arbitrary, but refers particularly to his determining whether the defendant has used due diligence to procure the evidence before the trial, and whether it was in fact newly discovered or seems suspicious." State v. Glover, 140 La. 732, 73 So. 845.

The Lapuyades were sued in the civil district court by one Coleman for damages for assault and battery. It seems that Coleman was a helper on the truck driven by defendant, and, according to the testimony of Ern

(102 So.)

ia

est Lapuyade, the difficulty arose because such belated procedure in felony cases. the defendant approached the butcher shop section 1 of said act it is declared that— while driving his truck at a rate of 25 miles "The court may suspend the sentence when an hour, and tried to run over his son. Tr. the jury shall find in their verdict that the de24. According to the testimony of the de- fendant has never before been convicted of a fendant, the difficulty originated from Eu- felony in this state or any other state and shall gene Lapuyade's kicking a colored boy, who, recommend that the sentence be suspended." while swinging a white boy around on the sidewalk, struck the little son of Eugene Lapuyade. Defendant interfered and the encounter ensued.

plates that an accused in a felony case shall This provision of the act clearly contem

present the evidence justifying a suspension

[5-7] It is immaterial whether the diffi- of sentence to the jury at the time of the trial and before verdict, and not after a conculty originated in the one way or the oth-viction in a motion for a new trial. It would er, as both versions as to its beginning went be a proceeding unprecedented if a defendto the jury. Whether the Lapuyades unlaw- ant could take advantage of his own laches fully assaulted Coleman is a matter wholly in felony cases, and then obtain a new trial irrelevant, as far as the present case is con- in a case, where the verdict was sustained cerned. The details of the evidence in the by the evidence, for the sole purpose of precivil case were not admissible in the present senting a claim for a suspension of sentence case, for the further reason that the clear to a new jury. Such application necessarily purpose of such testimony was to show the bad reputation of the Lapuyades for peace and quiet by proof of a specific act. This is not permissible, as general bad character must be established by testimony as to general reputation. State v. Guy et al., 106 La. 8, 30 So. 268; State v. Jackson, 44 La. Ann. 160, 10 So. 600; State v. Hobgood, 46 La. Ann. 855, 15 So. 406.

comes too late.

[10] 5. That there is pending in the criminal district court of the parish of Orleans the said Coleman. a charge against Lapuyade for the attack on

would be to discredit the testimony of LaThe sole purpose of proving such charge puyade as a state witness. Such evidence cannot be made the basis of a motion for [8] 4. That defendant is of good reputanew trial. A defendant has ample opportution for peace and quiet, and that he is en-nity on the trial of the case to cross-examine titled to and desires to present to a jury, in any event, the matter of recommending a suspension of sentence.

state witnesses as to charges and convictions against them, and to prove their general reputation for truth and veracity.

The conviction and sentence appealed from are therefore affirmed.

The trial judge states that the defendant had a fair trial and that the evidence sustained the verdict. Aside from the question as to whether testimony as to good character is newly discovered evidence, such testimony is useless against clear evidence of guilt, and is not, in itself, sufficient basis for a new trial. State v. Nicholls, 50 La. Ann. 707, 23 So. 980; State v. Riculfi, 35 LOQUE V. BAPTIST-GOLDING MOTOR CO. La. Ann. 770; State v. Simon, 131 La. 528, 529, 59 So. 975.

[9] The defendant made no effort to ob

(157 La.)

No. 26634.

In re DENNIS J. HAYDEL & CO.

tain a suspension of sentence during the (Supreme Court of Louisiana. Nov. 3, 1924.

If a

Rehearing Denied Dec. 1, 1924.)

(Syllabus by Editorial Staff.) Landlord and tenant 246 (3)—Goods placed in leased store of general dealer for sale are subject to lessor's pledge; "transiently."

Goods placed by owner, who is not undertenant, in leased store of general dealer therein for sale at fixed price for owner's account,

are

trial. He introduced no evidence as to his general reputation, and made no request that the jury be charged as to their right to recommend a suspended sentence. defendant can neglect to take action as to a suspension of sentence in a felony case under Act 74 of 1914, until after conviction, and can make application thereafter for such suspension in a motion for a new trial, on the ground that he desires to introduce before the jury the necessary evidence as to his general reputation and nonconviction before of any felony, it is self-evident that he can obtain a new trial in every case of conviction, by willfully neglecting to pre- Action by Mrs. George A. Loque against sent, on the trial, the proof upon which he the Baptist-Golding Motor Company, in bases his claim to a suspended sentence. which Dennis J. Haydel & Co. intervened. Act 74 of 1914 clearly does not authorize Intervention dismissed by Court of Appeal,

not "transiently" in dealer's premises, within Rev. Civ. Code, art. 2708, and hence are subject to lessor's pledge.

Certiorari to Court of Appeal, Parish of Orleans.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and intervener applies for certiorari or writ of review. Judgment affirmed.

The errors assigned are as follows:
First. In holding that the case at bar is

Sol Weiss and Wiener & Yarrut, all of controlled by the decision in Goodrich v. New Orleans, for applicant.

Emile Pomes, of New Orleans, for Mrs. Geo. A. Loque.

BRUNOT, J. The defendant was a dealer in new and second-hand automobiles. Its business was conducted in premises held under a lease from the plaintiff. Defendant defaulted in the payment of three months' rent. Plaintiff sued therefor, and provisionally seized a second-hand automobile truck and other property found on the leased premises. Dennis J. Haydel & Co., the owner of the truck, appeared in the suit as intervener and third opponent, alleging that the truck was left on the premises of defendant to be sold for intervener's account, and therefore it was only transiently or accidentally on the leased premises within the meaning and intent of article 2708, R. C. C.

Plaintiff excepted to the petition of intervention and third opposition as not disclosing a cause of action, and, after a hearing thereon, the exception was referred to the merits. Plaintiff answered intervener's petition, asserted a lessor's lien and privilege on the truck, and prayed for the dismissal of the intervention. Defendant answered both plaintiff's and intervener's petitions. It denied all of the allegations in the former and admitted all of the allegations in the latter. The case was heard, and, during the trial, intervener offered testimony to establish the relation of subtenant. Plaintiff objected to the testimony as being ultra petitionem and not admissible. The objection was referred to the merits. Judgment was rendered, as between plaintiff and defendant, in favor of the plaintiff and against the defendant, as prayed for in the petition and, as between plaintiff and intervener, in favor of intervener and against plaintiff, as prayed for in intervener's petition, except as to the reservation of intervener's right to sue the plaintiff for damages.

Bodley, 35 La. Ann. 525.

Second. Failure of the court to hold that article 2708, R. C. C., is illustrative and not exclusive, and that an automobile lodged in the store of an automobile dealer is analogous to the example given in the article of effects lodged in the store of an auctioneer to be sold.

Third. Failure of the court to differentiate between the facts found in the Goodrich v. Bodley Case and the facts found in the instant case.

The controlling facts of this case are that defendant deals in new and second-hand automobiles. Intervener sent its automobile truck to defendant's garage to be sold. Intervener fixed $1,700 as the price it was to receive for the truck, and stipulated that any sum in excess of that amount which defendant might obtain for the truck should be retained by it as commission for making the sale. Intervener also reserved the right to withdraw the truck in the event it found a purchaser and consummated the sale itself.

Intervener relies upon article 2708, Revised Civil Code. The article is as follows:

"Movables are not subject to this right, when they are only transiently or accidentally in the house, store, or shop, such as the baggage of a traveller in an inn, merchandise sent to a workman to be made up or repaired, and effects lodged in the store of an auctioneer to be sold."

There is no pretense that intervener's truck was accidentally in the leased premises. The contention is that it was transiently there within the meaning and intent of the foregoing article of the Civil Code.

We will say here that a search of the authorities has failed to disclose a case wherein it is held that goods, placed by the owner, in the store of a general dealer for sale at a fixed price for the account of the owner, are transiently in the premises of such dealer.

The Court of Appeal amended the judg- It has been held that "transient," as an ment of the district court by rejecting inter-adjective, means passing across, as from one vener's demands and dismissing the intervention at intervener's cost. A rehearing was denied, and intervener applied to this court for certiorari or writ of review. The writ issued, and the case is now before us.

The Court of Appeal did not pass upon plaintiff's objection to testimony offered in the trial court to prove an agreement for the payment, by intervener, of a fixed monthly rental for storage of the truck. We must assume that the objection was not considered because the testimony offered to establish that fact was reviewed by both courts and was found to be unsatisfactory. We have reached a similar conclusion, and, as this finding disposes of the attempted enlargement

thing or person to another; passing with time of short duration; not permanent; not lasting. As a noun, one who or that which is temporary. Com. v. Townley 7 Pa. Dist. R. 413, 416; Twining v. Elgin, 38 Ill. App. 356, 360. In defining the word "transient," Mr. Webster gives the following as synonyms: "Transitory, fugitive, fleeting, momentary.” In Waukon v. Fisk, 124 Iowa, 464, 468, 100 N. W. 475, 477, the court say: It "is a relative term, which, in the absence of an inflexible statutory or legislative definition may be the source of much vexation and uncertainty."

There is no statutory or legislative definition of the term in this state, but the general rule here is that, if a third person is

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