ified number, the attendant circumstances connected with the transaction must be examined to see which party has probably been mistaken in the matter, and in this case defendant would seem to have made a mistake. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*] 2. ESTOPPEL (§ 92*)-TREES ILLEGALLY TAKEN-ACTION FOR PRICE. The receipt of a sum of money by one who believes it is being paid for a specified number of trees cannot stop him from claiming the price for other trees illegally taken from his land. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 260-263; Dec. Dig. § 92.*] Defendant specially avers that some time prior to April 11, 1911, it bought all of the timber on the small tract of land in question belonging to plaintiff, and that at this date it had all been removed from the land. Defendant also alleges: "That all of the ne gotiations in regard to the timber were ver bal and that there was nothing in writing. That it bought the trees in good faith from the president of the plaintiff company, who was fully authorized to sell, and that, as the president afterward accepted the $2,200, he is now estopped. Defendant specially denies that it had trees removed after the 11th Appeal from Civil District Court, Parish of day of April, 1911. That plaintiff cannot under the allegations of its petition recover for Assumption; Paul Leche, Judge. any timber taken prior to April 11, 1911, for it distinctly avers that the timber was cut down after that date. Defendant also urges that plaintiff cannot be heard to repudiate its contract and at the same time retain the consideration received. That it should at least be credited with the $2,200, received as before mentioned. That all of the timber removed by it was not worth that price. Action by the Alleman Planting & Manufacturing Company, Limited, against the Baker-Wakefield Cypress Company, Limited. From judgment for plaintiff, defendant appeals. Affirmed. Marks & Le Blanc, of Napoleonville, for appellant. Gilbert & Pugh, of Napoleonville, and R. J. Chauvin, of Donaldsonville, for appellee. BREAUX, C. J. The Alleman Planting & Manufacturing Company, Limited (hereafter, for brevity, the "Alleman Company") and Baker-Wakefield Cypress Company, Limited (hereafter the "Baker Company") are respectively plaintiff and defendant in this suit. The Alleman Company claims of the Baker Company the sum of $9,544.10; $2,544.10 of the amount being the alleged value of timber cut down on the land of plaintiff, each tree measuring 12 inches and over in diameter. The Alleman Company charges that the Baker Company also took from its land $2,000 of the $9,544.10, the value of 100 cypress trees, measuring from 8 to 12 inches in diameter, and that $5,000 of the amount is for damages for the wanton destruction of small trees. The Alleman Company avers that on April 11, 1911, it sold to defendant 178 trees standing on a small tract of its land, and that according to representation of the defendant company at the date of its purchase 77 trees were on the ground (trees known among swampers as choctaw from the fact that they are dead trees lying on the ground) and 101 trees standing. These last-mentioned trees, we are informed by the pleadings, were sold to the defendant for the price of $2,200. The contention is that defendant without regard to its agree ment cut down and moved away from plaintiff's land 206 standing trees of over 12 inches in diameter; also, removed and appropriated cypress and hardwood trees. This was in addition to the 101 standing trees to which we have just referred above and the 77 choctaws. That defendant took away all that it was possible to take of the smaller growth, which were not, according to plaintiff, included in the sale. | The judgment appealed from condemned the defendant to pay $1,600 and interest. From that judgment, it appealed. [1] The land measured 18 acres in all. Its title is not at all involved in this case; only the trees thereon. The president of plaintiff company testified that negotiations for the sale of 178 trees began early in the year 1910; that about that time the president of the defendant company made an offer to him to buy the land for a small amount, which he declined to ac cept because he did not consider it sufficient. The negotiations between the parties, however, continued, and after a few months it was finally agreed that the Baker Company Whether this price was would pay $2,200. for the 178 trees or for all the trees on the land was not, as we take it, expressly menPlaintiff's contention tioned at any time. is that defendant at no time offered to buy other than the 178 cypress trees. The defendant, on the other hand, is equally as positive that it bought all the trees on the land. The president of the plaintiff company testified that on the 11th day of April, 1911. he tendered a contract to the president of the defendant company to be signed, but that the president of the Baker Company re fused to sign, at the same time he paid the $2,200, mentioned as the price of the timber. He did not mention at the time that he paid this amount that it was in full satisfaction of all the timber, nor did the president of the plaintiff company mention that it was in payment of the 178 trees. The president of the plaintiff company testified that his company did not sell other than the 178 trees, because, as he stated. they were needed for the use of the plantstion. He said that at the time he offered the deed to be signed by the president of the defendant company, and at the time he received the $2,200 he had heard that defendant had cut down all the trees on the land. But he insists that even at that time he received only the price of the 178 trees. As to the deed which he handed to the president of the defendant company to be signed, the latter replying said that it was not necessary to sign a deed, as the property was movable; but here again nothing was said about the number of trees further than the 178. Another witness for plaintiff, a member of the board of directors, testified that he also called on the president of the defendant company to sign the deed. At this time, the president of the said company said that the description in the deed offered to him to be signed was not correct for the reason that it limited the number to 178 trees, while he was entitled to all the trees on the tract, which he had cut down and removed and paid for. The secretary of the plaintiff board of directors testified: That the president of the defendant company opened negotiations with the plaintiff company by calling on the president of the plaintiff just before a meeting of his board. That he, the secretary (Mr. Carmouche and Mr. Ganel were present) asked defendant's president what it was he desired to buy. That the defendant then handed him slips of paper on which there were many figures. This president said that there were 178 trees on the land for which he offered a price. The diameter of these 178 trees was written on these slips under a different heading. It included all trees on the land over 12 inches. It was from this time that they discussed this matter, which finally resulted in the president of the defendant buying the trees as before stated; whether the 178 trees, or all the trees, does not seem to have been positively settled at the time. The secretary stated that at the time the president of the defendant company called he did not know that this officer had not signed the deed that had been handed to him by the president of the plaintiff company for his signature. He also stated that the slips before mentioned, handed to him by the president of the defendant company, contained the length and the number of cypress trees, and that this president made no mention at all of other trees. Having heard that all the trees had been cut down, he went to the 18-acre tract of plaintiff in question and found that all the trees had been cut down. He then counted the hard wood trees on the land and measured them. He counted 169 cypress stumps from which trees had recently been cut down; 140-odd hard wood trees. The average diameter of the cypress was 36 inches he found by measuring the stumps. That there was no timber left on the land. That in his measurement there were a larger number of diameters less than 12 inches than the swamps had been cleared of all trees of over 4, 6, or 8 inches in diameter as well as of all trees of sizes over 12 inches in diameter. He stated that for the use of the plantation the trees measuring less than 12 inches were worth in a round sum from $1,600 to $1,800. There was corroboration of the testimony of this witness in part at least by the testimony of another member of the board of directors, who settled upon a lump sum of $1,800, as the value of the trees of diameter less than 12 inches. The surveyor who testified in this case swore that ash trees are worth in the locality $4 per 1,000, and gum, $2 per 1,000. This is, in substance, all the testimony of plaintiff. The president of the defendant was then called to the witness stand. He stated that his intention in buying was to buy all the timber on the land; that nothing was ever said which led him to understand differently. He had had the timber examined, and the one by whom this work was done reported the number of cypress trees on the land; that the other trees had no value. To quote him literally: "If we own the hard wood, we will cut it, because in cutting the cypress probably we will destroy a large part of the hard wood, and we take it that the ash is the only hard wood that we would pay anything for." "If I mentioned anything in regard to the 178 trees to Mr. Truxillo, it was just a matter of information, but that had nothing to do with the transaction. estimate." We were buying the timber, and that was our In buying trees, 12 inches and over are estimated as having value. This Mr. Truxillo was the president of the plaintiff company before mentioned. There was decided conflict of testimony between plaintiff and defendant as to whether defendant had bought 178 trees or all of the trees on the land. The motive of the Baker Company must have been to buy all of the timber on the land. If it was, it was not expressed clearly, for no reference, according to plaintiff's witnesses, was ever made to any trees save the 178 trees. Only these trees, and not one more. It was the intention to reduce the contract to writing. This was not done. Late in the negotiations a contract was prepared. The defendant did not sign it, and at first did not urge that it did not contain a correct description of the property sold, although it contained mention only of the 178 trees. The plaintiff company industriously wrote everything down, to wit, resolutions, minutes, notice to each shareholder in addition to the notice that the members of the board of directors had kept letters received relating to the number of trees. These are all. They referred to the 178 trees. They were not sold sale after the resolution had been passed ant's witnesses as to these small trees, as upon by the board of directors; all referring well as the oak and gum. to the 178 trees and agreeing with the testimony of plaintiff's witnesses. The defendant company was not as minute in the negotiations, and the information did not go to different persons, as it was with the plaintiff. In the pleadings, defendant urged that before instituting suit plaintiff should have made tender of the amount received; also, that it was estopped. As to the tender, from the point of view of the plaintiff, sustained by the weight of the testimony, it had a right to the amount paid for the trees which it contended it had sold and which defendant acknowledged to have received. It seems that plaintiff had a plantation adjacent. They have given figures fixing the amount at a minimum of $1,600. Justice has been done. When parties are not careful in making their contracts or hastily execute an agreement without positive understanding, it frequently is difficult to reach an entirely satisfactory conclusion. We do not see our way clear to any other judgment than that heretofore rendered in the district court. For reasons assigned, the judgment of the district court is therefore affirmed. No. 20,016. (134 La. 690) STATE v. GAUTHREAUX. (Supreme Court of Louisiana. Dec. 1, 1913. Rehearing Denied March 16, 1914.) [2] As to estoppel: it also is without foundation, for the amount received on the theory before mentioned was in payment of the trees delivered and in satisfaction of all the trees on plaintiff's property which defendant thought it had bought, but in regard to which 1. JURY (§ 136*)—PEREMPTORY CHALLENGES there was evident mistake according to all of the witnesses for plaintiff and the written testimony. Having arrived at the conclusion that the weight of the testimony is with the plaintiff in regard to the number of trees sold, we now have to consider the amount to be allowed to the plaintiff for the trees cut down and re moved other than the 178 trees. It sometimes appears as if the plaintiff had made the most of the timber on its 17 and a fraction acres, and that it had recovered about all that was of value in the swamp. But as we are to be governed by the testimony, and as we must allow for the number of trees taken in addition to those before mentioned, we have gone into the details and found that there were 140 ash wood trees cut down and removed, worth from $3 to $4 a thousand stumpage, and that the trees measured according to defendant 250 feet each. Defendant through its witnesses insists that this is the only timber that had any value other than the cypress on the place. There was oak and gum. It is said that these oak and gum are of no value to a sawmill. Other witnesses have stated that it was worth about $1.50 a thousand. At first we sought to include this hard wood in making up account. After consideration we have concluded to consider these trees as covered sufficiently by the amount allowed in the judgment of the district court. We have not found an estimate made with any degree of care as to the oak and gum. Matters are in a state of uncertainty as to the number of these trees. There were small trees destroyed and taken away according to plaintiff's witnesses, who represented that the land was entirely denuded. STATUTES. (Syllabus by the Court.) Sections 997 and 998 of the Revised Statutes (relating to peremptory challenges) were 1878, Extra Sess., and hence were subject to not repealed, by implication, by Act No. 24 of amendment, and section 997 was amended and re-enacted by Act No. 36 of 1880 so as to give defendant on trial, and such has been the law the state six peremptory challenges for each since that time; the amended and re-enacted section not having been abrogated or repealed by Act No. 135 of 1898. Dig. 88 607-618; Dec. Dig. § 136.*] [Ed. Note.-For other cases, see Jury, Cent. 2. WITNESSES (§ 246*) COURT-EXTENT. EXAMINATION BY It is the right and duty of the trial judge, in a criminal case, to understand what goes on decide intelligently complicated questions of before him, since he must be in a position to mixed law and fact which may arise in the course of the trial, and to determine, when a verdict has been reached, whether it is based dence. Hence it may be necessary for him at upon, or is contrary to, the law and the evitimes to question the witnesses, but, as he is not permitted to comment upon the facts of the case, either during the trial or in his charge to the jury, a fortiori is he is not permitted to participate in the development of facts which he may think will be of advantage, either to for his interference, might remain undevelopthe prosecution or the defense, and which, but ed; that duty, so far as the interest of the state is concerned, being imposed upon the prosecuting officer, and it being essential to the enjoyment by defendant of his right to a fair trial that the jury should not be affected by any impression as to the judge's opinion concerning the facts. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.*] 3. CRIMINAL Law (§§ 368, 1120*)—HOMICIDE APPEAL-PRESENTATION FOR REVIEW - RES GESTA STATEMENT BY THIRD PERSON. In a prosecution for murder, what a third person said, at or about the time of the killing. to the party charged with the killing may be part of the res gestæ, and may, if relevant, be proved by him who said or another who heard it, and the ruling of the trial judge on those We have no positive estimate by defend-questions cannot be reviewed here without all [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821, 2931-2937; Dec. Dig. §§ 368, 1120.*] the pertinent evidence or a complete state- | R. S. § 997, was repealed by Act No. 24 of ment of the facts. 1878, and hence Act No. 36 of 1880, purporting to amend and re-enact it, had nothing to operate on. But, as we have seen, the act of 1878 did not repeal R. S. § 997; therefore the act of 1880 operated to amend and re-enact it. Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge. Clemile Gauthreaux was convicted of manslaughter, and appeals. Affirmed. Philip S. Pugh and Percy T. Ogden, both of Crowley, for appellant. R. G. Pleasant, Atty. Gen., and C. B. De Bellevue, Dist. Atty., of Crowley (G. A. Gondran, of New Orleans, of counsel), for the State. MONROE, J. Clemile Gauthreaux and his two brothers were prosecuted for murder; the brothers were acquitted; Clemile was convicted of manslaughter, and he has appealed. Bills 1, 2, and 3 present the point that the state was allowed six peremptory challenges to each twelve that were allowed to the defendants, to which they objected and excepted. [1] Under the law as it stood prior to the adoption of the Revised Statutes of 1870, and as therein incorporated, the “defendant," in a prosecution involving imprisonment at hard labor "or more," was entitled to twelve peremptory challenges, and the state to six. R. S. § 997, 998. By Act No. 24 of 1878 (Extra Sess. p. 282, § 4), it was provided that in The only question, then, is whether, with respect to the matter at issue, Act No. 135 of 1898 and section 997, R. S., as amended and re-enacted by Act No. 36 of 1880, can stand together; and that question, we think, may be answered in the affirmative, since if, as contended by defendant's counsel, the word "accused" is used in the act of 1898 in the singular, then it has no greater effect upon R. S. § 997, than did Act No. 24 of 1878. On the other hand, if the word is to be considered as used in the plural, then, though the meaning is not so clear as it might be, we should think that it was the intention to allow each of the accused twelve peremptory challenges, and, by the same token, allow the state six for each twelve so allowed the accused. We have had occasion heretofore to hold, in cases where juries of twelve were required, that the state was entitled to six peremptory challenges for each defendant on trial (State v. Caron, 118 La. 349, 42 South. 960; State v. West, 120 La. 747, 45 South. 594), and our re-examination of the question has confirmed us in that view. [2] Bills 4 and 5 disclose objections by de"all criminal trials, where two or more defend- fendant to certain questions propounded to ants are jointly on trial, each defendant shall the coroner (who was on the stand as a state be entitled to twelve peremptory challenges, and that the state shall be entitled to six peremp-witness), on the ground that they were leadtory challenges for each twelve challenges to ing. The bills show no reversible error. which such defendants may be entitled," etc. Section 5 of the act repealed all conflicting laws, and it is said that it repealed sections 997 and 998 of the Revised Statutes; but we think not. Those sections dealt only with cases between the state and "the defendant"; whereas, the act of 1878, in terms, dealt with cases where "two or more defendants" were jointly on trial. Act No. 36 of 1880 (p. 35) amended and re-enacted R. S. 997, so as to make it read (quoting in part): Bill 6 shows that the coroner was asked by the judge whether the skull of a man is not formed of different parts, to which objection was made, as follows: "That the judge had previously asked the coroner several questions before this objection ant objected to this question by the judge on was made, and thereupon counsel for defendthe grounds: That the judge of the court has no right, under the law, to ask questions for the purpose of assisting the state in its prosecution of the case, nor has the court any right to put leading questions to the witness; that the previous evidence of the coroner was to the effect that the deceased had come to his death by a wound inflicted by a knife in the back part of the head; that the purpose of said question by the court was to show that, at the point where the skull was penetrated by the knife aforesaid, there was where the sections or parts of the skull were joined, which could evidently be more easily penetrated; that the witness had previously tesBy Act No. 135 of 1898, § 14, p. 223, it was tified, under cross-examination, that the knife provided that: "In all criminal trials * for any crime, the punishment of which may be death or imprisonment at hard labor for a term of twelve months or more, the defendant in such case shall be entitled to challenge, peremptorily, any number of jurors not exceeding twelve. • * In all such cases the state shall be allowed six peremptory challenges for each defendant on trial." * "In cases in which the punishment may be capital and tried by a jury of twelve, the accused shall be entitled to twelve peremptory challenges and the state to six." Counsel for defendant contends that the law thus quoted controls because (as he argues) a suture or seam had entered the skull at its thickest part, and, court, no mention was made of any sutures or up to the time this question was asked by the in answer to any questions from either the disseams in the skull at that point by the witness trict attorney or the counsel for the defense; had a suture or seam at or near the point that the witness then answered that the skull where the knife was driven into it." The statement per curiam is: "The question as propounded by the court is not for the purpose of either assisting the district attorney or the firm associated with him in the prosecution, but merely for the coroner to give a correct explanation of the formation of the human skull, and for the further reason to allow the coroner to show that, if the knife entered the skull at the point where the two parts of the skull formed a suture, that the skull, at that point, is much easier entered than at any other point." It is not only the right but the duty of the trial judge, in a criminal case, to understand what goes on before him, since he must be in a position to decide intelligently many complicated questions of mixed law and fact which arise in the course of the trial, and to determine, when a verdict has been reached, whether it is based upon, or contrary to, the law and the evidence. Hence it may be necessary for him at times to question the witnesses. But, as he is not permitted to comment upon the facts which may be developed, either in the course of the trial or in his charge to the jury, a fortiori is he not permitted to participate in the development of facts which he may think will be of advantage to one side or the other, and which, but for his interference, might remain undeveloped. In State v. Brannon, 34 La. Ann. 944, it was said by this court: "That the judge has the right to join in the prosecution of one on trial before him, or assist in his defense, is not asserted in this case, and we presume will never be contended for in any case, nor is it the least probable that the assumption of such authority by any judge, under any circumstances, would ever be countenanced by any court; but that the judge presiding at the trial of a criminal case has the right to know what is going on before him, and what are the facts proved by the witnesses, we have no doubt. It is not only his right but it is his duty to be thus informed." tered the skull at the point where the two parts of the skull formed a suture, the skull, at that point, is much easier entered than at any other point." The duty of developing facts material to the prosecution devolves, however, upon the prosecuting officer, and not upon the judge, and it is immaterial whether the witness on the stand be an expert or a layman; and, whilst the judge, no doubt, has the right to satisfy himself as to what a witness may have said, it is going rather far, we think, for him to undertake to elicit from the witness other facts than those testified to, or explanations of the testimony given, which are favorable to the one side or the other. Upon the whole, we are of opinion that the questions objected to would better have been left unasked; but we are not persuaded that we should therefore set aside the verdict, since it does not appear to us that the error of the judge was sufficiently serious or developed any facts likely to have influenced the jury to the prejudice of the defendant. [3] Bill 7 shows that a state witness was asked, "What did you hear?" to which he replied, "I heard Harmon order the Gauthreauxs outside, and they went outside and stayed a while, and came back whenever they wanted to," and that both question and answer were objected to on the ground that the witness "could not testify as to what he heard another person say at that time and place." It otherwise appears from the bill that a ball was going on at Harmon's house, that the three Gauthreauxs were present, and that the witness was testifying to what was said to them by Harmon at or about the time of the fight which resulted in the killing; the statement per curiam being that it formed part of the res gesta. What was said to the party thereafter In State v. Haab, 105 La. 233, 29 South. charged with the killing, if relevant, was 726, it was said: "Bill No. 10 is to a question propounded by the judge to examine, in presence of the jury, Dr. Maylie, a medical expert, witness for the defense, touching his testimony. It is claimed that through this questioning the judge communicated to the jury his impressions or opinion of the case. It is the right and duty of the judge to keep advised of the testimony given in a case, and to understand its scope, so as to be able to deal with it in his charge to the jury, and on the application for a rehearing, should a verdict be given against the prisoner. If he does not understand it fully, he has the right to have it made explicit. It is well, however, for the trial judge to leave, generally, as far as possible, the conduct of criminal cases to the state officers intrusted with that duty, as the jury is very apt to form, from the acts and questions of the trial judge, an impression as to his views of the case." In the instant case the judge states that the questions objected to were not asked by admissible, whether testified to by him who said it or by another who heard it, and it may have been part of the res gesta; but the ruling of the court on those points cannot be reviewed here in the absence of all the evidence or a more complete statement of the facts. Bills 8 and 9 concerned the two defendants who were acquitted, and need not be considered. Judgment affirmed. (134 La. 696) No. 19,580. (Supreme Court of Louisiana. Jan. 19, 1914. (Syllabus by Editorial Staff.) TION-PETITION. him for the purpose of aiding the prosecu- 1. BROKERS (§ 82*)-ACTIONS FOR COMPENSAtion, but merely to elicit from the coroner"a correct explanation of the formation of the human skull, and for the further reason to allow the coroner to show that, if the knife en In an action by a real estate broker for commissions, the petition alleged that plaintiff contracted orally with one defendant, who was |