On Rehearing. The case is fully stated in the original opinion. Briefly restated, it is a proceeding by habeas corpus in which a widowed father seeks to regain the custody of his five year old daughter from her grandparents, the father and mother of relator's deceased wife.
I. Up to the time of the wife's death the young couple had lived at the home of the wife's parents, and there is not even a suggestion that relator was not a good husband and father. His occupation was that of farmer, and he earned his own livelihood, and that of his wife and child, as a tenant farmer on his own father's place in the neighborhood. Again there is no suggestion whatever that he did not provide adequately for their needs; considering that all parties concerned are people in very modest circumstances, though it seems that the wife's parents are slightly better off — or, more correctly speaking, a little less bad off — in this world's goods than relator's own parents.
All parties are, or were, respected by each other and by all their neighbors until this proceeding had to be taken and they began herein to fling at each other mutual charges of moralturpitude anent alleged violations of the prohibition laws, state and federal; which violations, the parties confess, had not occurred to them as involving moral turpitude until their eyes were opened to the enormity thereof by the exigencies of this case. *Page 137
II. When the mother died the child was about three years old. The relator continued to reside at the home of his deceased wife's parents, and to work on his father's farm.
Some time afterwards he decided to remove his abode to his own father's home, on whose farm he was working; and, of course, to take his child with him. But the grandmother protested that her deceased daughter had promised on her death-bed to give her the child to rear. Well, to make a long story short, there was eventually a pitched battle, as it were, over who should have possession of the child; between the grandmother and the maternal relations on one side, and the father and the paternal relations on the other; which was abated only when the sheriff and district judge unofficially intervened as moderators, with the result that the child was given to her father — and still nothing was said,up to this time, about bootlegging and blind tiger.
However, notwithstanding this ominous occurrence, which might have served as a warning to a more cautious man, the father permitted the child to go to her grandparents' home as often as they sent for her. And, again to cut short the story, on the last occasion, after exhausting one pretext and another, the grandparents finally refused flatly to restore the child to her father.
Whereupon, these proceedings were taken.
III. As a defense to the proceedings the grandparents have advanced a number of reasons why the father should be denied the custody *Page 138 of his child; reasons for the most part so frivolous that they will not even be mentioned. And now for the first time, post litem motam, it is charged, in effect, that relator is a notorious "boot-legger" and his father's house, where he means to take the child, a "blind-tiger."
Upon this subject the organ of the court on the first hearing said, inter alia (three justices concurring and three dissenting):
"* * * It is not questioned by him [the relator] in the main, * * * that, in the late summer and early autumn of 1930, he sold whisky, in violation of the prohibition laws, state and federal, at dances, in two neighboring parishes, and occasionally in his own settlement of Coulee Croche — once, it is testified to, in the public road, in front of his home, but there is no evidencethat he sold whisky from his home." (Italics by this writer.)
On the other hand it is said in the opinion of the district judge, quoted extensively in the dissenting opinion on the first hearing, that "* * * He (the relator) has become a well-known boot-legger since August 1930, and during last Fall (1930) liquor was being sold by him at the home of his father, where he proposes that the little child shall have its residence. * * *" And the dissenting opinion then continues: "According to what the trial judge says, this child, a girl, if allowed to remain in the care and custody of its father will be reared by a well-known bootlegger in a house used as blind tiger. The majority opinion concedes that relator is a bootlegger. But it is held that even though this be true, that is no reason for depriving *Page 139 this father of the custody of his female child of tender years."
IV. As to the moral turpitude, vel non, involved in the mere sale of whisky in violation of a prohibitory law, that was discussed in the original opinion and will not be gone into again. Suffice it here to say that this was not the first time this court had expressed itself on that subject. In Saint v. Irion,165 La. 1038, 116 So. 549, 553, this court said: "Conviction for violation of the prohibition Law is not such conviction of crime as involves moral turpitude" — citing Bartos v. United States District Court (C.C.A.) 19 F.2d 722; Coykendall v. Skrmetta,22 F.2d 120 (C.C.A. Fifth, Oct. 22, 1927); People v. Leslie,239 Mich. 334, 214 N.W. 128. See, also, Fort v. City of Brinkley,87 Ark. 400, 112 S.W. 1084, cited in the original opinion.
And (as this writer appreciates it) if that were the only matter involved no rehearing would have been granted.
V. But there is a sharp conflict between the trial judge's appreciation of what this record shows anent sales of liquor fromthe home of defendant's father, and that of the justices who subscribed to the majority opinion. And even they are not willing to concede that the surroundings of a blind tiger afford the proper atmosphere for the rearing of a child; not simply because whisky is sold there, but because the quiet, retired blind tigers of bygone days, have developed into the glaring notorious "speakeasies," road houses and night clubs which flourish so plentifully now; and of which no more need be said. *Page 140
VI. The conflict above mentioned must be settled by recourse to the record itself. And here is the whole evidence on the subject.
Gerasin Smith, on direct examination:
"Q. Had you occasion, during the past Fall, up until the first of the year (1931), to go to the house of Ignace Burleigh for any purpose? A. Yes.
"Q. About how many times did you go there? A. Two or three times.
"Q. On those different occasions did you buy whisky from anyone at the time? A. Yes.
"Q. How much whisky did you buy? A. Half a bottle at the time.
"Q. Did you buy whisky on different occasions or upon one occasion? A. On different occasions.
"Q. Was that since Antoine moved from O'Neill Savoie's? A. Yes.
"Q. About how many times do you estimate you bought whisky there since the first of September? A. Two or three times.
"Q. You would buy a half bottle on each occasion? A. Yes.
"Q. How would you buy the whisky, from someone in the house? A. I bought it from Antoine.
"Q. Was it in the house you bought it?
A. Sometime it was in the house, sometime it was out doors.
"Q. Would you pay him for the whisky?
A. Yes, fifty five cents a half bottle." *Page 141
Emile Venable, on direct examination:
"Q. Have you ever had occasion to visit the home of either one, Antoine or Ignace Burleigh? A. Yes.
"Q. You have gone there on several occasions? A. No.
"Q. Do you frequent the dances that are given in that neighborhood? A. Yes.
"Q. At what hall? A. Esther Hebert's.
"Q. Did you ever have occasion to meet Antoine Burleigh at the hall? A. Yes, I have met him.
"Q. That is since his wife's death? A. Yes.
"Q. You saw him around there? A. Yes.
"Q. Do you know whether or not he was selling whisky? A. Yes, he was selling and I bought some from him.
"Q. That was while the dance was going on? A. Yes."
On cross-examination:
"Q. You never did buy any whisky from Antoine Burleigh except on that occasion? A. I went to their house on Sunday morning to buy some whisky and they told me they had sold out Saturday night. The stock was gone.
"Q. Isn't it a fact you didn't even get down and go in the house when you went there? A. I didn't go in.
"Q. You never did see any whisky around in that house, did you? A. No.
"Q. And you say he told you he didn't have any whisky? A. He said he was out of whisky. *Page 142
"Q. Didn't have any? A. No.
"Q. How long ago was that? A. About two or three months ago."
VII. This is the whole testimony on which defendants rely to establish that Ignace Burleigh's home, to which relator purposes to take his child, is a blind tiger.
Of course the testimony of Emile Venable does not prove that Antoine Burleigh sold whisky from his father's house; for, as we read his evidence, the witness swears that he did not buy any whisky there. Even were several hundred other witnesses to swear just as Venable swore, it would still not suffice to prove that even a thimbleful of whisky was sold from Ignace Burleigh's home — or, at least, so it seems to us.
Gerasin Smith swears that he went to the house of Ignace Burleigh "two or three times"; that when he went there he bought whisky from the relator, "sometime it was in the house, sometime it was out doors."
When a witness swears that he did a thing "two or three times," it means that he is morally certain of having done it twice, but not certain that he did it three times. If the witness be not morally certain of having done the thing more than twice, it would seem that a court should not feel legally certain that he did it more often; for if the witness himself be uncertain, how then can the court itself be certain; and "In dubio, sequendum quod tutius est."
We take it therefore that the testimony of Gerasin Smith, even if taken at par, establishes as certain no more than this; that he *Page 143 bought whisky of Antoine Burleigh twice, "sometime in the house, sometime out doors." But if he bought the whisky only twice, of which "sometime" (therefore, at least one time) was "outdoors," it follows necessarily that he bought it "in the house" only once.
Our statement that "there is no evidence that he sold whisky from his house" is therefore too broad; it should be, "there is no evidence that he sold whisky from his house, except on oneoccasion." And that, in our opinion, is not sufficient ground to deprive this father of the custody of his child.
The Legislature has never seen fit to authorize the inflicting of an infamous punishment for such an offense, and hence even a conviction for such offense would never afford ground for a divorce. Hull v. Donze, 164 La. 199, 113 So. 816. And if the lawmaker has not thought proper to authorize even the mother herself to displace and supersede the father's paternal authority over the child under such circumstances, it does not belong to the judiciary to do so at the instance of some outsider who conceives the idea that he or she is better qualified to rear the child properly than is the one to whom nature has confided it.
Decree. For the reasons assigned, our former decree is now reinstated and made the final judgment of the court.
LAND, ROGERS and ODOM, JJ., dissent.