¶1The opinion of the court was delivered by
¶2The defendants were indicted for murder. Octave Thibodeaux was found guilty of murder and Auguste Thibodeaux of manslaughter. They appealed from the verdict and judgment.
¶3It will be only necessary to notice the first and second defences as paragraphed in the brief of defendants and the motion to sever filed by Auguste Thibodeaux, and the admissions and confessions of the defendant Octave Thibodeaux, which it is alleged were made out of his presence and after the railroad wreck, which, it is asserted, implicated him. The defence in the brief says that the first and most important point urged is that one of the grand jurors who participated in the indictment was an incompetent juror.
¶4The motion to quash the indictment was filed before pleading to it and was therefore in time.
¶5If it be a fact that the grand juror was incompetent the finding of the grand jury of the indictment is null and void. State vs. Rowland, 36 An. 193; State vs. Nolan, 8 Rob. 513; State vs. Jones, Id. 616; State vs. Parks, 21 An. 251.
¶6*602It is not denied that the grand juror Daughenbaugh at the time he served on the grand jury that found the bill was under indictment under Sec. 3381, Revised Statutes. This section provides “ in case of failure or neglect of any overseer of roads to discharge faithfully the duties herein imposed, it shall be lawful for the different grand juries of this State to present the said overseers to their respective District Courts for neglect or refusal to perform their duties, and upon such presentment it shall be the duty of the District Attorneys to prosecute.the said overseers, and upon trial and conviction, they shall be fined by the court in a sum not less than one hundred dollars nor more than five hundred dollars.”
¶7Section 3383 imposes the duty upon the District Judges to charge the grand juries to inquire into the state of roads in their respective parishes and lay before the said grand juries the list of the overseers in order that the grand juries may know which of said overseers may be liable to prosecution for a failure to perform the duties imposed upon them.
¶8The section 3381 is not a forfeiture to be recovered in a civil suit for the failure to perform a duty. There is a clear distinction in the road laws between the forfeiture and the prosecution provided for by this section.
¶9Sections 3375, 3377, 3378 define particular duties, which, if' neglected, subject the overseer of the road to a penalty to be recovered by suit. Sec. 3371 is for failure in general to perform the duties required of road overseers.
¶10The qualifications of both grand and petit jurors are fixed and defined by Act 89 of 1894, and among these qualifications it provides that the juror shall not be “charged with any crime or offence.”
¶11A crime, is a wrong directly or indirectly affecting the public, to the commission of which the State has annexed certain pains and penalties, and which it prosecutes and punishes in its own name in what is called a criminal proceeding. 4 Am and Eng. Eney. of Law, p. 643.
¶12Crime is often used as comprehending a misdemeanor and as synonymous with it, and also of offence, in short as embracing every indictable offence.
¶13The offence charged against the grand juror was malum, prohibitum. The criminality to perform the public duty imposed upon him springs from its being a violation of public law. It is a wrong which the *603State notices as injurious to the public, and punishes it by a criminal proceeding in its own name.
¶14The statute does not provide for the punishment of a violation of a municipal regulation, nor are the violations of the statute in the failure to perform public duties of such- character as to distinguish them from municipal offences and those denounced in the general criminal statutes of the State. The law is operative throughout the State, and is in the furtherance of a public policy of the State. It is a statutory offence of a public nature and is a crime.
¶15In the case of People vs. New York Police Commissioners, 30 Hun. (N. Y.) 507, the relator was appointed a patrolmen. Before his appointment he had been convicted of intoxication in violation of a statute of the State of New York. A resolution was adopted by the Police Commissioners requiring him to appear before them in order that they might inquire into his eligibility. It was urged that simple intoxication is not included in the meaning of the word “crime” which would make the relator ineligible. By the statute a person found intoxicated in any public place was declared guilty of an offence. The court, in the opinion, said: “ We are forced, therefore, to the conclusion that the relator, at the time of his appointment, was ineligible to the office, because he had been convicted of a crime, and by the express terms of the statute no person who has been so convicted can continue .to hold membership in the police force.”
¶16This case was affirmed on appeal to the Court of Appeals. 102 N. Y. 583.
¶17The Revised Statutes of New York declare that the words “crime” and “offence” when used in the statute “shall be construed to mean any offence for which any punishment may, by law, be inflicted.” This statutory definition does not change the general definition of a crime,- and it is practically the same as given in the text-books. If in the Act 98 of 1894 the words “crime” and “offence” are used synonymously, the same principle will apply in determining the fact that the statute violated is of a public nature, and a penalty is affixed for its violation, and its violation is a crime..
¶18If not used in the sense indicated, its violation assuredly was an offence of a public nature, and the juror is disqualified under the express terms of the statute. There is no force in the argument of the prosecution that Sec. 4 and Sec. 1 of the act defines the qualification of grand jurors. A casual reading of the act will show that Sec. 1 defines the qualification of both grand and petit jurors.
¶19*604The defendants complain of evidence against them as to the wrecking of a train, the instrumentality of which caused the death of the persons whom the accused áre charged as having murdered.
¶20Act 77 of 1886 provided a penalty of twenty years at hard labor, and a fine at the discretion of the court, for placing obstructions on a railroad track, with the design to injure the railway, passengers or engines, or cars, or who shall take up the rails, etc., for the same prupose.
¶21It was not essential that the defendants should have been convicted of this crime before an indictment for murder of the party who met his death by the unlawful interference with the railroad. It was competent to prove the wrecking of the train by defendants, as the means which produced death.
¶22This is illustrated by Mr. Bishop, No. 334, in his work on Criminal Law. “ Thus we have seen to shoot unlawfully, but not feloniously, at the poultry of another, and thereby accidentally to kill a human being, is manslaughter; to do the same thing with the felonious intent to steal the poultry, is murder.”
¶23The defendant did an unlawful criminal act in wrecking the train, and it was competent to prove this fact in order to establish the guilt of the defendants in the higher or lower degree of homicide. Ibid.
¶24The State offered to prove certain statements of the defendant Octave Thibodaux, which implicated the other defendant, Auguste. This was objected to by the defendant Auguste, because he was not present when it was made; that no conspiracy had been proven to exist between Octave and Auguste, and that the statement of Octave could not be admitted in evidence to the prejudice of Auguste. The court admitted the evidence because the statement was limited to Octave, the party making it, and the jury instructed not to give any effect to it as it regarded the defendant Auguste.
¶25The question submitted was elaborately discussed in State vs. Donelon, 45 An. 744. That part of the admission referring to the defendent Auguste was eliminated.
¶26The ruling of the trial judge was in strict conformity to the ruling in the case cited.
¶27There is a motion filed to dismiss the appeal of Octave Thibodeaux because he has broken jail pending the appeal. The motion is sup - ported by the affidavit of the sheriff. The appeal of Octave Thibo-deaux will therefore be dismissed, and it is so ordered.
¶28*605It is ordered, adjudged and decreed that the verdict and sentence against the defendant Auguste Thibodeaux be annulled, avoided and reversed, and it is now ordered that this case, as to him, be remanded, to be proceeded with according to law.