Jeter v. Penn. JETER V. PENN. (28 La. Ann. 230.) Agreement to work land on shares — discharge of tenant. An agreement to work land on shares does not constitute a partnership; the tenant is a mere employee, liable to be discharged for cause. A tenant working land on shares has no right to delegate his employment; but where he does so, being sick, he is liable to be discharged, subject to his right to recover such an amount of the proceeds of the crops as is proportioned to the time which he worked. THE opinion states the facts. Labett & Aroni, for plaintiff and appellee. Finney & Miller, for defendant and appellant. MORGAN, J. In January, 1871, defendant employed the plaintiff to manage two plantations in the parish of Tensas. The terms of the plaintiff's employment were that he was to receive one-thirteenth of the product of the two places, besides being furnished with provisions for himself and family, a cook, washerwoman, and fuel. On the second of May following he was discharged, and on the 14th of November, 1871, he instituted this suit claiming from the defendant $2,484.33 as his share of the crops which would come into the defendant's possession, including expenses which he was put to, and which he claims that the defendant owes him. He had judgment for $1,453.73, and the defendant appealed. Defendant justifies his action in the premises on the ground that plaintiff's health was such as to prevent him from properly discharging his duties. He also alleges want of attention on the plaintiff's part to his duties, and serious loss as the consequence thereof. Plaintiff admits (indeed, he alleges it in his petition), that he was ill, but says that the work which he had undertaken to do had been performed by his son and an assistant, under his directions. Defendant contends that the work on the plantations was Lot properly carried on, and that he suffered serious loss by reason of his incapacity and inattention to the business confided to him, and Jeter v. Penn. that when he was discharged his physical maladies and disabilities were such as unfitted and disabled him from performing any service whatever on the plantations. Plaintiff claims that he was a sort of partner of the defendant and that he could not be discharged. He cannot be maintained in this position, for there were none of the elements of a partnership in their agreement. He was neither to receive any of the profits nor share in any of the losses of the enterprise. He was merely to receive a certain portion of whatever crops might be made on the plantations, irrespective of any profits which the crops might result in. He was, therefore, a mere employee, to be paid in a portion of the crops instead of a certain sum of money. Being an employee, he could be discharged for cause. Did the defendant have cause to discharge him? He contends not. First, he says that the business of the plantations was conducted by his son, assisted by another person, under his direction. But it seems to us evident that in this position he cannot be maintained. Defendant contracted with him, and not with his son. He was employed by reason of his knowledge and skill, and he certainly had no right to delegate his trust to another without the consent of his employer. He says that the work was done under his directions, but we do not believe that a man confined to his house by sickness can carry on the business of a plantation. Next, he says that his sickness was only temporary, and the testimony does show that he recovered. But it is also established that from January, when he took charge of the plantations, up to the time when he was discharged, he was ill, and unable to attend to his duties. The defendant, under these circumstances, was, we think, justified in discharging him. He says that this was adding cruelty to misfortune. But we think his bes ing unable to attend properly to the business for which he was employed justified his discharge. The physicians who were in attendance upon him were of the opinion that he would soon be restored to health, and the evidence is that he was restored to health. But the necessity for active exertions in order to secure the crop which was then under way was urgent, and we do not think that the defendant was called upon to wait for an event which might or might not happen, and which, if it did not happen, would result to the detriment of his interests. We must judge of his rights at the time he exercised them, and upon this point we are clear that he had the right to discharge him when he did. The State v. Richie. The defendant claims that plaintiff is entitled to nothing, but we think that, as he retained him in his employ, he must pay him for the time of his employment in proportion to the value of the crop, under their agreement. This proportion is to be established by the amount which the crops sold for, his demand having been instituted before the crops were gathered, and when the results thereof were conjectural. One plantation produced $10,759.19; the other $8,103.40; total, $18,898.59. If he had remained in charge of the plantations his share would have been $1,453.73, and this is what the district judge allowed him. But we think he is only entitled to his proportion up to the time when he was discharged, and we think that the proper method of ascertaining his rights is to divide the sum total of the crops by the number of days in the year, and to allow him for the number of days he was in the defendant's employ. His service commenced on the first of January and ended on the second of May, which would make one hundred and twenty-two days. This would entitle him to $485.90. It is therefore ordered, adjudged, and decreed that the judgment of the District Court be amended by reducing the amount thereof from $1,457.75 to $485.90. As thus amended, the judgment is affirmed, appellant to pay the costs in the lower court, those of this court to be paid by appellee. Judgment affirmed. Although a child under fourteen years of age will not be presumed to have suf ficient understanding to testify, yet the law fixes no precise age when a wit ness shall be excluded. The admission or rejection of a witness under fourteen is discretionary, and a conviction will not be reversed because a witness six years of age was permitted to testify against the prisoner.* *In Willett v. Commonwealth, 13 Bush, 230, the doctrine was laid down that at com. mon law infants under fourteen are presumed incapable of committing crime; that as to infants under seven years of age this presumption is conclusive; and as to infants between seven and fourteen, the presumption may be rebutted. The State v. Richie. JONVICTION of manslaughter. The opinion states the facts. CONVICTION W. M. Potts, district attorney, pro tem., and A. P. Field, attorneygeneral, for plaintiff and appellee. Thos. H. Clark, for defendant and appellant. LUDELING, C. J. The defendant was indicted for the crime of manslaughter and was convicted and sentenced to imprisonment at hard labor in the penitentiary. He has appealed. A bill of exception was taken to the ruling of the judge a quo admitting a child six years old to testify against the prisoner. Two reasons are given why the evidence should not have been received-because it was impossible for a child so young to understand the nature of an oath; and because in consequence of the youth of the witness defendant was deprived of the opportunity to cross-examine him. It is not a fact that no child six years of age can understand the nature of an oath. Greenleaf on Evidence, vol. 1, § 267, says: "On the other hand, it is not unusual to receive the testimony of chil dren under nine, and sometimes even under seven years of age, if they appear to be of sufficient understanding; and it has been admitted even at the age of five." See, also, Roscoe's Crim. Ev. 94. Under the age of fourteen a child will not be presumed to have a sufficient understanding to be a witness, and inquiry is made by the judge to ascertain his capacity to be sworn, and his admission or rejection must depend upon the sound discretion of the judge. The law fixes no precise age when the witness shall be excluded. In the present case the district attorney examined the child and considered him of sufficient understanding to be sworn. We cannot imagine why the witness could not be cross-examined by the defendant; in fact, it appears he was cross-examined by the judge. It is therefore ordered that the judgment of the lower court be affirmed, with costs. Judgment affirmed. Joseph v. Bidwell. JOSEPH V. BIDWELL. (28 La. Ann. 382.) Constitutional law-right of persons of color to admission to public places — jury trial. The thirteenth article of the Constitution of Louisiana, forbidding the exclu sion of any person, on account of race or color, from any public place, does not enunciate a mere abstraction, but guarantees substantial rights. So, a colored man, excluded from a theater, solely on account of his color, may maintain an action of damages therefor. The provision of the Federal Constitution for jury trial has no application to State courts. THE opinion states the facts: S. Belden and J. Foley, for plaintiff and appellee. R. Shackelford and A. P. Field, for defendant and appellant. LUDELING, C. J. The plaintiff, a colored man, sued the defendant, the proprietor of the Academy of Music, a public theater in the city of New Orleans, for five thousand dollars damages for refusing to admit him into the theater after he had purchased a ticket which entitled him to a seat in the parquette of said theater. The case was tried by a jury, who disagreed, and under the statute of this State, the court discharged the jury and rendered a judgment in favor of the plaintiff. We have been unable to discover any thing unconstitutional in the acts of 1870 or 1871 referred to by counsel. The provision of the Constitution of the United States which guarantees trials by jury has no application to trials in State courts. This has been repeatedly decided, and is not an open question. Article thirteen of the Constitution declares that "all persons shall enjoy equal rights and privileges upon any conveyance of a public character; and all places of business, or of public resort, or for which a license is required by either State, parish, or municipal authority, shall be deemed places of public character, and shall be |