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(28 Or. 596) bank commissioners' act, the court said:
CRAWFORD . WIST. "The attorney general is authorized to proceed against the corporation alone, and for
(Supreme Court of Oregon. Feb. 18, 1895.) the sole purpose, in effect, of winding up
NOTICE OF APPEAL. its business. In other words, he represents
A notice of appeal which contains no oth
er description of the judgment appealed from the interests of the people in a matter of than that it was rendered for costs and dispublic concern."
bursements in an action between certain parties Appellant's exceptions to the complaint,
at a specified term of the circuit court, and
which does not even state the nature of the acanswer, and decree in the case of Peo
tion, or contain any references by the aid of ple v. Pacific Bank cannot be sustained. As which the particular judgment may be identi. the suit was by the people under a statute fied, is too indefinite and uncertain, and the ap
peal will be dismissed. authorizing it, and for the purposes hereinbefore stated, the judgment declaring the Appeal from circuit court, Tillamook counbank insolvent is conclusive for all the pur- ty; George H. Burpett, Judge. poses of the act, and binding upon appel- Action by Robert Crawford against E. G. lant, so far at least as concerns his right to E. Wist for slander. From a judgment for maintain his attachment; and the pleadings defendant, plaintiff appeals. Dismissed. were properly read, for the purpose of show- T. B. Handley, for appellant. C. W. Fuling that the judgment of insolvency was ton, for respondent. rendered in a case within the statute. If it were otherwise, since the affidavit of Mr.
PER CURIAM. This is an appeal from a Gerberding that the bank was in fact insol. judgment of the circuit court of the state of vent on June 23d, and ever since remained
Oregon for Tillamook county. The notice 80, was not controverted, the order dissolv
thereof is as follows: "In the Circuit Court ing the attachment might have been prop
of the State of Oregon for Tillamook County. erly sustained without the evidence except
Robert Crawford, Plaintiff and Appellant, ed to, and, if so, appellant was not prejudiced
VS. E. G. E. Wist, Defendant and Responby its admission. As our conclusion is based
dent. To E. G. E. Wist, the Above-Named upon the force and effect of the bank com
Defendant: Take notice that the abovemissioners' act, and proceedings thereunder, named plaintiff hereby appeals from the a review of the numerous cases cited by ap
judgment of the above-entitled court, renpellant which do not refer to this statute
dered at the August term thereof for 1893, could not be profitable. The order appealed
in the above-entitled cause, in favor of defrom should be affirmed, but without costs fendant, and against plaintiff, for the costs to either party, the parties having so stipu
and disbursements of said action; and on lated.
said appeal plaintiff will rely on tue followWe concur: VANCLIEF, C.; SEARLS, C. ing grounds, to wit." Here follow the as
signments of error. The respondent moves PER CURIAM. For the reasons given in to dismiss the appeal because the judgment the foregoing opinion, the order appealed mentioned in the notice is not sufficiently from is affirmed, without costs to either described therein for identification. The party.
tendency of the court, as indicated by recept decisions, is to construe notices of appeal liberally, and hold them sufficient if, by fair
construction or reasonable intendment, the MURPHY ». PACIFIC BANK. (No. 15,867.)
court can say that the appeal is taken from CATOR v. SAME. (No. 15,866.) WAL
the judgment in a particular case. But a DRON v. SAME. (No. 15,864.) PAYNE v.
notice of appeal like the one in question. SAME. (No. 15,865.)
which contains no other description of the (Supreme Court of California. Feb. 5, 1895.)
judgment than that it was rendered for Department 2. Appeals from superior court, costs and disbursements in an action becity and county of San Francisco; J. C. B. Hebbard, Judge.
tween certain parties, at a specified term of Separate actions by F. D. Murphy, Thomas
the circuit court, and which does not even V. Cator, and others against the Pacific Bank. state the nature of the action, or contain Plaintiff in each case sued out a writ of attachment. From an order dissolving the writ in
any references by the aid of which the pareach case, the several plaintiffs appeal. Af
ticular judgment can be identified, is mani. firmed.
festly so indefinite and uncertain that the A. Barnard, Thos. V. Cator, and W. H.
court cannot say that the appeal was taken Hutton, for appellants. Sawyer & Burnett, for in any particular case; for a judgment in respondent.
any case between the same parties for costs
and disbursements, rendered at any time PER CURIAM. The appeals in these cases are from an order dissolving an attachment,
during the term, would satisfy the descripand are submitted upon the same record and tion in the notice. If, therefore, it be conbriefs as the case of Crane v. Bank (No. 15,- ceded that a judgment rendered on the 6th 863; this day filed) 39 Pac. 215; and upon the authority of that case, the facts in each be
day of September, 1893, was rendered at the ing the same, the orders appealed from are af
August term of the court,--a fact wbich does firmed, without costs.
not appear from the trauscript,-the other defects above mentioned render the notice such a motion authorized or necessary to a ineffectual for the purpose intended. How- review? A new trial is only authorized at ever liberal a rule we may be inclined to the end of a trial for the purpose of re-ex adopt in the construction of notices of ap- amining an issue of fact in the same court. peal, we cannot dispense with such a notice Civ. Code, $ 306. The objection to the inas will distinctly make known the judgment troduction of any evidence raised no issue appealed from. It follows that the appeal of fact, and is not an uncommon method of must be dismissed, and it is so ordered. challenging the sufficiency of a petition.
When the objection was made, the trial court
was simply called upon to determine whether (55 Kan. 60)
the petition contained facts sufficient to conDODGE CITY WATER-SUPPLY CO. V. stitute a cause of action. The objection to CITY OF DODGE CITY.
the sufficiency of a petition upon that ground (Supreme Court of Kansas. Feb. 9, 1895.) may be taken advantage of by demurrer, or REVIEW ON APPEAL-OBJECTIONS TO EVIDENCE.
by an objection to the introduction of eviAn objection to the introduction of any
dence on the trial. Civ. Code, $ 91; Brown evidence on the trial, upon the ground that the V. Smelting Co., 32 Kan. 528, 4 Pac. 1013. petition does not state facts sufficient to consti
The issue raised by the objection was one of tute a cause of action, raises only an issue of law; and, where such an objection is sustained,
law, and in the case of Ritchie v. Railroad a motion for a new trial is not necessary to re- Co. (Kan.) 39 Pac. 718, it was held that a view such decision.
motion for a new trial is not necessary (Syllabus by the Court.)
to the review of a decision determining an Error from district court, Ford county; A.
issue of law. Following the rule there laid J. Abbott, Judge.
down, no error was committed by the court Action by the Dodge City Water-Supply
in declining to consider the motion for a new Company against the city of Dodge City.
trial, and in striking the same from the files. There was a judgment for defendant, and The judgment of the district court will be from an order denying a new trial plaintiff
affirmed. All the justices concurring. brings error. Affirmed. M. W. Sutton, for plaintiff in error. W. E.
(54 Kan. 683) Hendricks, for defendant in error.
STATE y. ROGERS. JOHNSTON, J. The Dodge City Water- (Supreme Court of Kansas. Feb. 9, 1895.) Supply Company brought an action against BURGLARY-BREAKING INTO COURTHOUSE-COMPEthe city of Dodge City to recover for water TENCY OF JURORS-CHANGE OF VENUEsupplied to the city, and also for the costs
ADMISSIONS AS EVIDENCE, of relaying water mains alleged to have been 1. A building occupied as a courthouse, in
which valuable records and papers belonging made necessary by the action of the city in
to the county are kept and deposited, may be grading the streets. The petition was in two the subject of the crime of burglary in the seccounts, to which answer was made by the ond degree, and is included within the term city, after which a reply was filed by the
"other building" in paragraph 2195 of the
General Statutes of 1889. company. Upon the issues thus joined, the
2. Under the facts disclosed by their examCause came on for trial; and when the jury inations, this court finds no error in the action was impaneled and sworn, and the plaintiff
of the trial court in overruling the challenges
to jurors. had called its first witness, the defendant
3. An application for a change of venue objected to the introduction of any testimony having been made, and a very large number of by plaintiff under the petition, for the rea
affidavits having been introduced on each side son that it did not in either of the counts
with reference to the existence of prejudice in
the minds of the people of the county against state facts sufficient to constitute a cause of the defendant, and the finding of the court ou iction. This objection was sustained by the such application denying the change of venue court, and the plaintiff then, in open court,
being supported by ample evidence, this court
will not reverse its ruling merely because there announced that it declined to further prose
is evidence tending to prove the grounds of the cute the action. Thereupon the court dis- defendant's application. charged the jury, and rendered judgment dis
4. The admissions or confessions of an almissing the action, at the costs of the plaintiff.
leged co-conspirator with the defendant in the
coin mission of crime, made after the offense had Within three days thereafter, the plaintiff been fully consummated, and the criminal de filed its written motion for a new trial, alleg- sign fully carried out, are inadmissible on the ing, as a reason, that the ruling of the court
separate trial of the defendant for any purpose.
Johnston, J., dissenting. in rejecting all testimony was contrary to
(Syllabus by the Court.) law. The motion for a new trial was not beard until the succeeding term of court,
Appeal from district court, Harvey coun. when, on motion of the defendant, it was
ty; F. L. Martin, Judge. stricken from the files, upon the ground that
George W. Rogers, convicted of burglary, the motion was improper and unauthorized. appeals. Reversed.
The only question presented for review O'Bryan & Gordon, T. B. Wall, and WIlarises upon the ruling of the court refusing lard Kline, for appellant. John T. Little, to entertain the motion for a new trial. Was | Atty. Gen., and C. E. Branine, for the State. ALLEN, J. The defendant, George W. case, the decision, after all, is to the Rogers, and George H. Shirley, were jointly effect that a place of burial for the charged in two counts with the crime of dead, even though built above the ground, burglary. The first count charged the fe- and costly, is not included within the statlonious breaking and entering a building be
The fact is commented on that it was longing to Philip Bretch and others, Oc- “really nothing more than a grave above cupied by Harvey county as a courthouse, ground," and the court expressly restricted in which were kept and deposited the books the decision to the case presented. While and records of Harvey county, with the in- we are satisfied with the reasoning of the tent to steal said books and records. The court as applied to that case, we do not second count differs from the first only in regard it as decisive of the one now prethat it charges that the breaking was with sented. To constitute burglary under the the intent to set fire to, burn, and destroy second clause of the paragraph under consaid books and records. The defendant was sideration, there must be a breaking and convicted on the second count, and sen- entering in the nighttime of a building, tenced to confinement in the penitentiary for booth, or tent; there must be a human bethe term of five years. From this convic- ing therein, or goods, wares, or merchantion and sentence he appeals. Various er- dise, or other valuable thing, must be kept rors are assigned, which will be considered or deposited therein; and the breaking must in the order of their statement in the ap- have been with the intent to steal or compellant's brief.
mit a felony. The crime of burglary in the A motion was made to quash the informa- first degree can only be committed in a tion, on the ground, among others, that it dwelling house. By another section of the does not state a public offense. The par- statute, station houses, depots, ticket ofticular objection is that a courthouse, in fices, passenger coaches, baggage, freight, which public records are kept, is not such a and express cars, cabooses, and other railbuilding as is meant by the statute defining way carriages, are also declared subjects of the crime of burglary in the second de- burglary. The building entered in this case gree. The information is based on the pro- was the property of private individuals, visions of paragraph 2195 of the General though occupied by the public. That it was Statutes of 1889, which reads as follows: a “building," within the usual and ordinary “Every person who shall be convicted of meaning of the word, is perfectly clear. Are breaking and entering in the night time: the books and records kept and deposited in First, any building within the curtilage of a it things of value? They are certainly so, dwelling house, but not forming a part and of very great value. The place where thereof; or, second, any shop, store, booth, the crime is alleged to have been committed, tent, warehouse or other building, or any then, falls clearly within the terms of the boat or vessel, in which there shall be at the statute. If excluded, it must be by contime some human being, or any goods, struction, only perinissible where the spirit wares or merchandise, or other valuable of the enactment is such that it can safely thing, kept or deposited, with intent to steal be said that it was not intended to be inor commit any felony therein, shall, on con- cluded by the legislature. We think the viction, be adjudged guilty of burglary in legislature intended to include buildings of the second degree.” It is said that the other classes than those specifically menterm "other buildings" must be held to re- tioned. We are very clear that banks, offer to buildings of the same general char- fices, and buildings used for many other acter as those specifically mentioned, and purposes are within the protection of the that the phrase “or other valuable thing" statute, if valuable things are kept in them. really means no more than goods, wares, or Churches were subject to burglary, even at merchandise. It is argued that a courthouse common law. We perceive no good reason and the records therein are public property, why the legislature should not and has not of a character altogether dissimilar from extended the same protection to public as private stores, warehouses, and their con- to private property. The term “other buildtents; that in another section of the statute, ings" has been held to include a saloon defining the crime of arson, public buildings building (State v. Comstock, 20 Kan. 630); are specifically mentioned; and that their a granary (State v. Groning, 33 Kan. 18, 5 omission from this section indicates that the Pac. 446); a buggy house (State v. Garrison, legislature did not intend that they should 52 Kan. 180, 34 Pac. 751); a stable (Orrell be included under the general term "other v. People, 94 III. 456); a railroad ticket ofbuildings." Numerous cases are cited in fice (People v. Young, 65 Cal. 225, 3 Pac. support of this contention; among others, 813); a railroad depot, under a statute passthat of People v. Richards, 108 N. Y. 137, 15 ed before such a thing was known in the N. E. 371. That was a prosecution for break- state (State v. Bishop, 51 Vt. 287). We ing and entering a structure for the per- think the objection to the information not manent interment of the dead, built above well taken. ground. While there is some language used 2. The challenges to jurors were properly in the opinion of the court which gives sup- overruled. While the very adroit examinaport to the appellant's position in this tion of jurors by the counsel for defendant
elicited answers to the effect that the jurors had formed opinions based on the action of the justice of the peace in holding the defendant for trial, and the information sworn to by the prosecuting attorney, on further examination by the court it was made clear that the jurors had no settled opinions disquali. fying them to sit in the case.
3. An application was made for a change of venue, on the ground of prejudice of the inhabitants of Harvey county against the de. fendant. In support of this application, a large number of affidavits were offered on the part of the defendant tending to show many expressions of opinion against the defendant. On the other hand, a very large number of affidavits was offered by the state tending to show that expressions of belief in the guilt of the defendant were not general. The case, as presented to us, is one of a disputed fact; namely, whether or not the people of Harvey county were generally prejudiced against the defendant. On the evidence before us, perhaps the trial court might with propriety have granted a change of venue. Possibly the expense to the county might not have been greatly increased by so doing, and a trial in another county might possibly have been preferable. We cannot say, however, that the court erred in its conclusions. The commission of any grave crime invariably attracts the attention of, and excites comments from, the citizens. Crimes are prosecuted by the state because they are offenses against the whole public, and the whole public is always interested in the punishment of violators of the Criminal Code. It does not follow, however, that there is any cendency or disposition to punish the innocent. The fact that the crime was charged to have been committed against public property does not necessarily prejudice the defendant, and is not of itself ground for a change of venue. State v. Read, 49 Iowa, 85; Phillips v. State, 29 Ga. 105; Com. v. Delamater, 145 Pa. St, 210, 22 Atl. 1098.
4. The fourth assignment of error is with reference to the introduction and rejection of testimony. In order to understand the questions presented, it is necessary to give a summary of the principal evidence offered at the trial. It was not claimed that Rogers was personally present at the time the register's office was broken into and the records burned. The theory of the prosecution was that Rogers, who owned a set of abstracts of the records in the register's office, procured his codefendant, George H. Shirley, to employ others to do the deed. Rogers alone was on trial in this case. The state first offered evidence showing that a burglary had been committed by breaking into the building occupied as a courthouse; that a hole had been made through the wall into the vault in which the records were kept; that the record books were pulled down, and piled on the floor of the vault, saturated with kerosene oil, set on
fire, some of the books wholly consumed, and others more or less injured.
J. B. Smith, called by the state, testified that he was a barkeeper for Clark Fierce, who kept a joint in the second story of a building belonging to the defendant, Rogers. On same floor of this building was a bedroom occupied by Shirley. The regular hours of work of the witness were from 3 o'clock in the afternoon till 12 o'clock at night. The records were burned on the night of March 23, 1893. The witness testified that, by direction of Shirley, he quit work at 11 o'clock on the nights of the 22d and 23d of March, leaving the room in charge of Shirley; that he had never before or after that time been discharged from his duties before the regular hour; that he returned to the joint about 7 or half past 7 in the morning; that he went upstairs, and found the door locked, then went to Tyson's restaurant, got the key from Clark Fierce, and went up into the joint; that he there found on the table some hop-tea bottles, scraps of bologna, and a sack of sandwiches in a sitting room, in front of and connected with the room in which the joint was kept. The witness further testified that during the few days prior to the 23d he had noticed three strange men around there, whom he described. The bedroom occupied by Shirley had a door opening into the sitting room. One Thomas E. Carroll was then called as a witness, and testified that he came to Newton about the 10th or 12th of March, in company with one James Martin; that he went to the house of Joe Miller, where he found Mrs. Miller and Shirley; that he asked for Mr. Miller, and was told by Shirley that he was not at home; that, as they started away, Shirley came out, and they made an appointment to meet at the Clark Hotel that evening; that they did meet, and had a conversation, which ended by making an appointment to meet the next evening; that they then met according to appointment, and that the witness Martin and Shirley went tọ Shirley's office; that Shirley there told them that he wanted them to go to the courthouse, break into the register's office, take the books off the shelves, pite them on the floor, pour coal oil on them, turn the gas on, and touch it off with a match; that he was authorized to pay $500 for the job; that Shirley then gave them $5 each. He states that on Sunday evening they again met in front of Tyson's restaurant, and agreed to go from there to the joint, Shirley saying that, if the bartender was there, he would send him home; that they went into the joint, had'a bottle of whisky, and talked the matter over; that Martin had been up to the place, looked it over, and discovered some one living in the adjoining building, and said the job was worth $1,000 or $1,500; that Shirley would not consent to pay any more, and said, “You don't want to let the lives of two or three people stand in the way of four or five hun
dred dollars;" that Shirley provided a bot- named Edwards with a little paper star, by tle of coal oil and a gun, and wanted them which he was told Shirley would recognize to wait until 2 o'clock; . that they then went him; went into a joint over a restaurant, around in front of Stager's restaurant, where where he found several people, Shirley among he met a fellow he knew, whom he let into them; that he introduced himself to Shirley the secret; that this fellow was a friend of through the star; that they had a talk in himself and Martin, and wanted to make the room in front of the barroom after the some money, and he thought he would let him saloon was closed, about 12 o'clock; that in on the job; that, after parleying between Shirley then told him and Edwards that he the three of them, Martin decided not to have wanted them to burn the county records. anything to do with it that night; that they This witness then details at length the negotook the coal oil down the railroad track to- tiations between himself and two other men, wards the roundhouse, and hid it under some whom he names as English and Ripple, with ties; that he left Newton on the following Shirley, with reference to the destruction of day, about 3 or 4 o'clock in the afternoon. the records, their final agreement, and the On cross-examination, this witness testified manner in which the work was accomplished. that his business was that of a gambler; that The witness testified that he stood guard at he had also done a little “boosting" (stealing); the corner of the building while the other that he was a thief; that Martin (also called two men did the work; that, after it was ac“Riley" by the witness) was a shoplifter; complished, they went back to Shirley's; that that the witness had done some "plugging" he then gave them $50 a piece, and agreed to for Martin. In explanation, he said that meet them behind Fahy's saloon in Wichita, Martin was a shoplifter, and he had disposed and pay them $150 more, the balance of the of some of his goods. For the purpose of agreed price for the work; that, when they corroborating this witness, it was shown by went back to Shirley's, they had a kind of two boys that they found bottles of coal oil lunch of sandwiches and canned stuff; that under a pile of railroad ties, and took them Shirley afterwards met them in Wichita, and to a junk man to sell. G. 0. Smith testified paid the balance as agreed. On cross-examthat he was a clerk in the restaurant of Mr. ination, this witness testified that he was also Matthews in the Rogers building on the lower known by the name of Mickey Slade; that floor, under the joint before mentioned; that he had been frequently arrested for petty he went to work at 7 o'clock on the night of crimes; and that he was promised immunity the fire, and quit at 7 the next morning; that from prosecution if he would testify to the he saw Shirley on that night, first, at about facts within his knowledge in this case. One 1 o'clock in the morning, in the restaurant; H. W. Black was then called as a witness, that he got a lunch, consisting of pie, sand- and testified that he had lived in Wichita for wiches, meat, and took it away with him; 23 years, and had known George H. Shirley that he came into the restaurant again about between 9 and 10 years; that Shirley had 4 o'clock, and was out and in quite a number been his tenant: that in February, 1893, Shirley of times, and acted restless and excited; that lived in one of the witness' houses in Wichita; he pulled out a large roll of bills, which he that on one Sunday witness went to see said was $100, which he said he had made Shirley about borrowing some money from that night gambling; that at one time he him; that, in the course of the conversation, came in, and went through the room "on a Shirley said that he wanted some dirty work kind of a tiptoe, double-quick run; then he done, and wanted to know of the witness if came back and went up stairs"; that that he knew of any one he could get to do a was about 4 o'clock in the morning; that dirty job. Some time in April, and after the about 5 o'clock the witness went up stairs, records were burned, the witness was again and got a bill changed, and there saw Clark at Shirley's house, and had a conversation Fierce and Shirley also; that Shirley was with him, in which he states that Shirley stooping over a trunk as though in the act of said: "I don't know whether I will be prepacking something; that witness heard of the pared to let you have it or not. Mr. Rogers, fire between half past 5 and 6 o'clock. The my partner, objects to loaning any money out janitor testified that he went to the court- of Harvey county.” “But he says: 'Doc, I house about 6 o'clock, opened the front door, guess I will let you have it before a great discovered the fire, got a bucket of water, while out of my own, whether he objects or threw it on the fire, and then went and called not.'' The witness further testified: “I the sheriff. William Fleming, a brakeman, says: 'George, did you ever find your men testified that he went to the joint kept by to get that work done you spoke of?' He Fierce between 5 and 6 o'clock on the morn- says: “Yes; I got my men, and the work is ing of the fire, and there saw Shirley and done, and the records of Harvey county is Fierce, and learned of the fire; that he went burned, and we have the only abstract books for the purpose of borrowing some money of of that county.'
•By God, Doc, by Shirley; that Shirley appeared to be intoxi- God, we have got something equal to a gold cated or excited. Edward Harris was then mine. Yes,' he says, 'better; a gold mine called by the state, and testified that he came might play out, and this never will.'" The to Newton from Wichita, furnished by a man witness Carroll testified with reference to a