It grants no rights to the people; but is the creature of their power, the instrument of their convenience. Designed for their protection in the rights and powers which they possessed before the constitution was made, it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought."

Referring again to section 2 of the schedule, we remark that it preserved the law concerning murder as it existed before the adoption of the constitution, so as to enable the courts to punish crimes of this character committed under the territorial organization. This effect continued until the sections of the former statute prescribing the punishment were repealed by the state legislature. In the present case this occurred before the trial of the accused. There was an exception in the constitutional saving clauses, but it in no way invalidated the prosecutions referred to. It simply required all process to run in the name of "the people of the state of Colorado," and all prosecutions to be carried on in the name and by the authority of "the people of the state of Colorado;" and to conclude against the peace and dignity of the same.

This was a proper and legitimate constitutional provision, and in no manner infringed the rights of those accused of having committed offenses prior to the adoption of the constitution. It was but a simple requirement that the form of process and proceedings in the courts should run in the name of the state, whether the subject-matter of litigation arose prior or subsequent to the change in the form of the government. Such objections to the indictment in this case are without force, since the form complained of in no way prejudices the rights of the plaintiff in error.

The prisoner's counsel contend that he has been once in jeopardy, and that he cannot now be remanded for trial upon the included offense of manslaughter contained in the indictment, but that the judgment must be reversed and the prisoner unconditionally dicharged. This proposition cannot be maintained. A similar application was made in Garvey's Case after the judgment of reversal. It was contended, upon the hearing of a writ of habeas corpus, that the condition of the law was such at and since his trial for murder, that he could not lawfully be tried for any offense charged in the indictment. We denied this application for a discharge for reasons given in the opinion. See Garvey's Case, 7 Colo. 384; S. C. 3 Pac. Rep. 903.

We still entertain the views there expressed. The basis of the application here is former jeopardy. But Packer has never been in legal jeopardy on account of his crime. The proceedings attending his trial and sentence were clearly illegal, and on account of the errors committed we reverse the judgment. Under the changed condition of the statute the court erred in putting Packer upon trial for murder, for the reason that no law was then in existence to punish him for that offense. It erred in charging the jury that if certain allegations were found to be true, they must return a verdict of guilty of

murder. It also erred in overruling the motions for new trial, and in arrest of judgment, and in pronouncing, upon the verdict of the jury, the death sentence. Section 18 of article 2 of the constitution provides: "If the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy." Manslaughter has always been recognized as an included offense in the crime and charge of murder, and to be sufficiently charged and covered by a good indictment for murder. The legislature of 1881 repealed only two sections of the law of homicide; being those which related wholly to the punishment for murder. Neither the law, practice, nor proceedings concerning this class of offenses were interfered with by that body. Subsequently the legislature of 1883 amended the law of manslaughter, but with a saving clause that when such crime was committed before that revision, it should be inquired of, prosecuted, and punished in accordance with the law in force at the time of its perpetration. Laws 1883, p. 151, § 5.

We have seen that there was no force in the objections to the form of the indictment in this case. No such change has been made in the law as would render the indictment in this case wholly void. The crime of murder has always existed in the territory and state of Colorado, without change as to the elements of crime necessary to constitute the statutory offense. It has consequently always been an indictable offense. The form of the indictment, as well as the proceedings for its trial and punishment, have always been substantially the same as at common law.

The district court, as stated, committed errors of law in the judgment and proceedings below; but there appearing to be no substantial objection to the indictment, we preceive no reason why the prisoner may not be put upon his trial thereon for the crime of manslaughter.

Another claim made by the plaintiff in error, or counsel for him, is that he is the recipient of a legislative pardon, and entitled to be discharged from custody on that ground. It is argued that the act of the legislature of March, 1881, upon its approval by the governor, operated and was a legislative pardon as to all past crimes of the grade of murder, and by virtue of that act the crime itself was wiped out so effectually that the prisoner cannot be tried or punished for any offense arising out of the same transaction.

We cannot indorse this proposition. Manslaughter, as well as murder, is a clearly defined statutory offense, indictable as such, and with statutory penalties attached. It has always been punishable according to the law in force at the time of the commission of the offense. We have recognized the rule that under our statute an indictment for murder includes the minor offense of manslaughter, and the accused may be found guilty of manslaughter under such an indictment, if the proof warrants such a verdict. It may also be conceded that if a prisoner be indicted for murder, and the jury return a verdict of

"not guilty," that he cannot thereafter be convicted of manslaughter. In the present case, however, the finding was guilty of murder, whereas the court was without jurisdiction to try the prisoner for that crime. The whole proceedings subsequent to the indictment, therefore, being null and void, and it being necessary to reverse and set aside the judgment for this cause, he cannot be said to have been tried upon the charge of manslaughter, much less to have been either pardoned or acquitted of the offense.

The judgment of the district court is reversed, the motion to discharge the prisoner denied, and the cause remanded for further procedings according to law.

THORNE V. ORNAUER.

October Term, 1885.

APPEAL FROM JUSTICE OF THE PEACE-APPLICATION IN COUNTY COURT FOR ORDER.

On an appeal from a justice of the peace an application in the county court for a rule commanding plaintiff to refund the docket fee, or, in default thereof, submit to a dismissal of the appeal, must be considered as a motion, and it is error not to give notice thereof to the opposite party, and to make entry thereof in the motion-book.

Error to county court, Lake county.

Haynes & Parks, for plaintiff in error.

H. C. Dillon, for defendant in error.

PER CURIAM. Upon perfection of the appeal from the judgment rendered by the justice, this cause was pending before the county court for a trial de novo. Thereafter the procedure was governed by the practice prescribed for the trial of causes in that court. As the law then stood, by section 389 of the Civil Code, notice of all motions set for hearing in that court, except those made during the progress of a trial, was required to be given the opposite party. This notice of motion was made in term time, was served by entering the same in a book kept for the purpose, called the "motion-book;" the motion to be for hearing at the end of 24 hours after the record of such notice. This statutory requirement was not complied with in the case at bar. The application for a rule commanding plaintiff to refund the docket fee, or, in default thereof, submit to a dismissal of his appeal, was an application for an order, and hence it was a motion. Code, § 397, formerly 388. No notice of this motion, either actual, or constructive by entry in the motion-book according to law, was ever given. We must therefore hold that the court's action in dismissing the appeal and rendering a judgment for costs was erroneous.

Counsel's argument concerning the filing of written pleadings in such case is inapplicable. Written pleadings are only required to be filed in causes originally begun in courts of record; and while cases appealed from justices of the peace are pending for trial de novo they are not governed by the Code provisions relating to written pleadings;

moreover, such pleadings are expressly dispensed with by statute. Section 1987, Gen. St. There is, in our judgment, no repeal, either expressed or implied, of the latter statutory provision.

It is not necessary for us to pass upon the other questions argued by counsel. It appears that the transcript from the justice does affirmatively show the amount sued for. And the defect from a failure to record in his docket the nature of the cause of action may be cured in the future proceedings by proofs aliunde establishing the justice's jurisdiction. Liss v. Wilcoxen, 2 Colo. 85.

The judgment will be reversed, and the cause remanded for further proceedings.

BLAIR and others v. Bruns.

October Term, 1885.

1. VENDOR AND VENDEE-DEED-UNCERTAINTY IN DESCRIPTION-NOTICE TO SUBSEQUENT GRANTEE.

The description in a quitclaim deed of the land conveyed as "all the right, title, interest, and demand which the said party of the first part has, or ought to have, in and to all those lots and parcels of land lying in the town of Silverton, in said venue, which remained undivided among the proprietors of said town-site upon delivery of deeds by the trustee, S. E. Jones, of the said town-site to the said proprietors, the same being one-twelfth undivided interest in said undivided lots," is not so uncertain as to render the deed void, and a subsequent grantee will take with notice of the equities of the grantee named in the first deed.

2. SAME-PAROL EVIDENCE.

Parol evidence may be admitted to identify the lots intended to be conveyed by such a deed.

Appeal from the district court, San Juan county.

John G. Taylor and S. P. Rose, for appellants.

H. O. Montague, for appellee.

HELM, J. On October 22, 1877, Caulder, being the equitable owner, through a town-site entry, of an undivided one-twelfth interest in certain lots within the town of Silverton, executed a quitclaim deed attempting to convey the same to one Rowland. On July 18, 1881, said Rowland attempted by quitclaim deed to convey the property to appellee, Bruns. Both of said deeds were duly recorded in the office of the clerk and recorder of the proper county. On the fifth of May, 1882, Caulder executed another quitclaim deed conveying the property mentioned in the complaint to one Alexander, and, on May 12th following, Alexander in like manner conveyed to appellant Blair.

The purpose of this action is to determine which of these grantees is entitled in law to the interest of Caulder; i. e., to whom the trustee, who is made a nominal party, and disclaims all personal interest, shall convey the legal title. Appellant challenges the sufficiency of the conveyance from Caulder to Rowland, and from the latter to Bruns. Some question is made as to the bona fides of the transactions be tween Caulder, Rowland, and Bruns, but this issue was not sustained, and is practically abandoned on the appeal.

A defective description is the ground of attack here urged. In this respect these deeds are exactly alike. Omitting the first clause, which locates the property in the county of San Juan and state of Colorado, the description is as follows:

"All the right, title, interest, and demand which the said party of the first part has, or ought to have, in and to all those lots and parcels of land lying in the town of Silverton, in said venue, which remained undivided among the proprietors of said town-site upon delivery of deeds by the trustee, S. E. Jones, of the said town-site to the said proprietors; the same being one-twelfth undivided interest in said undivided lots."

The complaint, and also the deeds through which Blair claims title, specifically describe five certain lots within the town named. If the deed to Bruns operated to convey title, Caulder's interest in these lots passed to Bruns by virtue of his prior conveyance. Is the foregoing description so uncertain as that the attempted conveyance to Rowland must be held to have failed of its purpose? We think not. In the first place, it shows that the parties contracted concerning a definite portion, one-twelfth, of certain lots or parcels of land in the town of Silverton, county of San Juan and state of Colorado; and, secondly, it described the same as the lots or parcels of land which remained undivided among the proprietors of the town-site of said town upon a prior delivery of deeds by the trustee to such proprietors. It covered all of Caulder's interest in the undeeded portion of the town-site of Silverton. The description contains no patent ambiguity; the language used is certain and plain. The oniy doubtful thing about it is that it omits to specifically enumerate the lots or parcels of land which had not been conveyed by the trustee of the town-site. This is, in our judgment, such an omission as may be supplied by extrinsic proofs. Such proofs would in no way tend to vary or contradict the terms of the written instrument; on the contrary, by extinguishing a latent ambiguity, they would make it impossible to effectuate the intent of the contracting parties. "For this purpose [to apply the terms of the instrument to the subject-matter] extrinsic evidence must be admissible in the interpretation of every instrument, and the law will not declare the instrument void for uncertainty until it has been examined with all the light which contemporaneous facts may furnish." Mr. Justice FIELD, in Stanley v. Green, 12 Cal. 148. See, also, authorities there cited. See notes 487 and 510, Cow. & H.'s notes to Phil. Ev.

Holding, as we do, that the deeds under consideration were not void for uncertainty, it follows that the judgment must be affirmed; for the application of the rule calling for the "best evidence of which the case in its nature is susceptible" is here obviated by the pleadings. The answer admits Caulder's interest in the particular lots in controversy at the time he executed the Rowland conveyance; it also admits that these lots then constituted a part of the undeeded lands embraced in the town-site of Silverton. Hence there existed no neces