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a specific statement thereof, alleging that of the court below on the grounds that there during the time for which the board allowed is no bill of exceptions or other sufficient cerdefendant Caldwell for services he was not tificate in the record to show that the papers actually and necessarily engaged in trans- presented in the transcripts were used on acting county business. The record shows said motion; or that the transcripts contain that the plaintiff in error could not have all the papers used upon said motions. been in any manner prejudiced by reason of the notice of appeal not being more specific,

F. E. Ensign, for appellant. S. B. Kingsand therefore is not injured.

bury and Johnson & Johnson, for respond

ents. We have carefully considered the contention of plaintiffs in error in regard to the refusal of the court to give certain instruc- MORGAN, C. J. The district court is retions, and fail to find any error.

The ques

quired by law to keep a complete record of tion involved was submitted to a jury, and all matters and proceedings had and done in they found that Caldwell, plaintiff in error, said court. This record is kept by the clerk had been allowed per diem compensation for . under the direction of the judge. It is also 10 days more than he had actually and nec- necessary that a record of all matters done essarily been engaged in the transaction of at chambers should be kept. It is the praccounty business. There is evidence in the tice of the district court judges to direct the record sufficient to sustain the verdict. The clerk to keep this record also. Necessarily, judgment of the district court is affirmed, then, the clerk has as good a knowledge of with costs of this appeal in favor of defend- | the proceedings at chambers as he has of ants in error.

court proceedings. It would be the duty of

the clerk, under the direction of the judge, to MORGAN, C. J., and HUSTON, J., concur. in some manner identify the papers, or in

some way mark the papers used on the hear

ing in the court below, in order that he may (4 Idaho, 386)

be able to correctly state in his certificate SIMMONS HARDWARE CO. et al. V. AL

what papers were so used. Section 4819, Rev. TURAS COMMERCIAL CO.

St., requires the appellant to furnish the su

preme court with a copy of the notice of ap(Supreme Court of Idaho. March 4, 1895.) APPEAL-RECORD-CLERK'S CERTIficate.

peal, of the judgment or order appealed from,

and of papers used on the hearing in the On appeal from an order denying a motion, a certificate of the clerk of the court in

court below. Who is to determine what pawhich the action was pending "that the fore- pers were so used? Section 4821, Rev. St., going transcript contains a full, true, and correct in our opinion, distinctly states who shall do copy of all papers used on the motion," is a compliance with Rev. St. § 4821, providing that

This section states: "The copies providcopies of papers required on appeal must be

ed for in the last three sections (this includes certified to be correct by the clerk or the attor- | 4819) must be certified to be correct by the neys.

clerk or the attorneys. *

The appel Appeal from district court, Alturas county; lant, who is required by section 4819 to furC. 0. Stockslager, Judge.

nish this court with copies of the papers used Action by the Simmons Hardware Compa- on the hearing below, does everything he is ny and another against the Alturas Commer- required to do in the court by his attorney, cial Company. From an order denying a mo- and therefore section 4821 says that the attion to dissolve attachments, defendant ap- torneys may certify that the papers so furpealed, and plaintiffs move to affirm the or- nished are correct. What does the word "corder for defects in the appeal record. Motion rect" mean, as used in this connection? Evidenied.

dently something more than that the papers In these cases plaintiffs issued attachments are correct copies of others on file.

This secand levied upon the property of defendant on tion states that the papers provided for in secthe 22d day of October, 1894. On the 1st day tion 4819 must be certified to be correct by the of November, 1894, defendant moved the clerk or by the attorney. Clearly, they must cercourt to dissolve said attachments, stating tify that they are the papers required by secthat the motion would be heard upon the pa- tion 4819, and these were the papers used on pers on file in said court in said action. The the hearing in the court below. Counsel concourt below, upon the hearing, denied the mo- tends that this certificate mentioned in section, and defendant appeals to this court. tion 4821 is simply that the papers in the The clerk of the district court of the Fourth | transcript are correct copies of those on file in judicial district, in which these cases were the court below, but this will not do, as the pending, in his certificate to the transcripts, clerk is the sole custodian of those papers, certifies that the foregoing transcripts con- and the only person authorized to make coptain a full, true, and correct copy of all the ies from them, and certify to the correctness papers used on the motions of defendant to of such copies. The attorney can neither make vacate and discharge the attachments, and copies of such papers, as they are not in his the motions of plaintiff to be allowed to file custody, nor has he any right to copy them additional undertaking, etc. The respondent for this court, nor can he make a certificate now moves this court to affirm the judgment that a copy of a paper on file or in the cus

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tody of the clerk of the district court is a in this case, that the transcript contains full, correct copy of such paper, and ask this court true, and correct copies of all the papers used to receive such certificate as any evidence of on the hearing of the motion of defendant in the facts therein stated; but he may certify the court below, or as the case may be. This that certain papers were the ones used on certificate, if incorrect, would be subject to the hearing below, because this would be correction by either party upon a suggestion within his knowledge, nor would he need the of diminution of the record. Motion denied. actual custody of the papers so to do. If it be claimed that the word "attorneys” means SULLIVAN and HUSTON, JJ., concur. the attorneys for both parties must certify, then this would be an additional reason why the construction here given is correct, as it would not certainly require the attorneys for

(4 Idaho, 345) both parties to certify to the correctness of a

STATE v. HURST. copy which the clerk could do alone. Our law

(Supreme Court of Idaho. Feb. 21, 1895.) (Rev. St. $ 4127) specifically states that such

MURDER-INSANITY AS A Defense-INSTRUCTIONS. papers need not be embodied in the bill of 1. Where the plea of insanity is interposed,

it is sufficient for the state, in offering testiexceptions, but he same, appearing in the

mony in rebuttal of such plea, to show by witrecord or files, may be reviewed upon appeal nesses upon its part that they had an intimate as though settled in a bill of exceptions.

acquaintance with the defendant for years, As to the decisions of the California su

and up to the time of the homicide, to qualify

such witnesses to testify as to their opinion as preme court, which we are requested to fol- to the insanity of defendant. low, we must respectfully say the path is too 2. Where the record shows that all instrucdevious. In Pieper v. Land Co., 56 Cal. 173,

tions given were given by the court, and does that court holds that at that time a bill of ex

not show that any were given upon request or

suggestion of either party, the presumption is ceptions was unnecessary, and the certificate that all of the instructions were given by the of the judge was sufficient. In Nash v. Har. court upon its own motion; and in such case, to ris, 57 Cal. 242, there was no identification entitle exceptions thereto to be heard, the record

must show that such exceptions were taken whatever, and the court there say the papers before yerdict, must be made a part of the case by bill of ex- 3. Where no error appears in the record, ceptions, or be authenticated by the judge;

prejudicial to the defendant, the judgment will but our statute does away with the bill of ex

be affirmed.

(Syllabus by the Court.) ceptions in this instance, as above stated. In Baker v. Snyder, 58 Cal. 617, the court says:

Appeal from district court, Oneida county; “The Code provides no mode by which the

C. 0. Stockslager, Judge. papers used on the hearing shall be identified,

John J. Hurst was convicted of murder in and that, when the clerk certifies that certain

the second degree, and appeals. Affirmed. papers were the ones used on the bearing, it 0. W. Powers, C. F. Stone, and D. C. Mcis not conclusive, but such certificate may be Dougall, for appellant. Atty. Gen. Geo. M. contradicted." In the latter statement we Par ons (James H. Hawley and Geo. A. agree with that court. In Walsh v. Hutch- Gray, of counsel), for the State. ings, 60 Cal. 228, the court says: “There is no bill of exceptions, and the court does not HUSTON, J. The defendant was convicted identify these papers as being used on the of murder in the second degree. From that motion.” The plain inference is that, if ei- judgment this appeal is taken, as also from ther mode had been used, the authentification the order refusing a new trial. The defense would have been sufficient, but our statute of defendant was insanity. Errors are almakes a bill of exceptions unnecessary, and leged as to the admission of certain evidence the California supreme court afterwards, in on the part of the state upon the question Herrlich v. McDonald, 80 Cal. 472, 22 Pac. of insanity. The defense having introduced 299, says the judge has no authority thus to their testimony in support of such plea, the identify the papers. Referring again to state, in rebuttal thereof, offered evidence Walsh v. Hutchings, supra, the court, fur. which was admitted over the objection of ther on, says the clerk has no power to deter- defendant. To the ruling of the trial court mine what papers or evidence the court acted in this behalf, exception was taken. Conupon, but offers no explanation of section 953 cisely stated, the contention of the defend. of the California Code of Civil Procedure, ant is that the court erred in the admission which is identical with our section 4821. of the opinions of nonexpert witnesses, upon Here is an end of the whole matter. The the part of the state, upon the question of California supreme court decides the clerk the sanity of the defendant, without the has no power to certify, and the judge of the proper or requisite predicate having been court cannot do it, but it must be done by slown. Numerous witnesses were bill of exceptions, which is only another form amined, on the part of the state, upon this of the certificate of the judge; and our stat- issue; and as the questions propounded, and ute expressly says the bill of exceptions is the answers given in response thereto, are not necessary. We think a fair construction substantially the same, they will all be conof section 4821 would authorize the clerk of sidered under this objection, the district court or attorneys to certify, as It is contended by appellant that, while

ex

the weight of authority is in favor of the ad- inconclusive character. The hypothetical missibility of the opinion of nonexpert wit- questions put by counsel for defendant to nesses upon the question of insanity, before the medical witnesses were, as stated by the such opinion can be given by such witnesses counsel, predicated upon facts "assumed to it is necessary that the competency of the be true,” and yet every material alleged witness to give it should be established by fact stated in such questions was disproved evidence of his acquaintance with the de- by an overwhelming preponderance of tesfendant, and with his character, habits, and timony. It was an ingeniously prepared epitdisposition. Conceding this to be the true ome-or, rather, elaboration--of the defend construction of the rule, let us apply it to ant's case, from his standpoint. Unforthe present case. Several witnesses were in- tunately for him, it was not sustained by the troduced by defendant, who testified various proofs. ly as to the pedigree, peculiarities, etc., of Counsel for appellant bases his argument, the defendant, all tending to the establish- both oral and in his brief, largely upon an ment of the theory of insanity. The state assumed state of facts, which assumption is then introduced various witnesses, the con- not only not supported by the evidence in sensus of whose evidence was to this effect: the record, but is, in nearly every particular, Have known defendant for past sixteen or overcome by a preponderance of testimony. twenty years. Have seen him almost daily. If the facts assumed by counsel in his arguHave done business with him frequently. ment had been established by proof, there Saw him just previous to, and immediately would have been neither occasion nor excuse after, the homicide. From my knowledge for resorting to the plea of insanity. But, of defendant, and from my acquaintance instead of being established, they were comwith him, I consider him sane." What more pletely overthrown, by the evidence; and does the rule require, even under the con- this conclusion is accentuated by the fact struction contended for by the appellant? that the defendant, instead of relying on a What more could be required? Suppose the defense which would have been conclusive prosecution should attempt to go into a de- upon the facts assumed, abandons that des tail of circumstances. What would the in- fense, and resorts to the last refuge,-the quiry be properly and necessarily limited to? plea of insanity. The intelligence of the "Do you know, or are you acquainted with, country is becoming weary of this plea. The any particular acts, words, or statements of wisdom of God and the enlightened experithe defendant indicative of sanity?” That ence of man are constantly sought to be is about the extent. It seems to us, counsel overcome by the speculative ingenuity of overlooked the fact that in this inquiry the men in the defense and extenuation of prosecution are only required to, and are crime;' and courts are constantly called uponly seeking to, establish the negative of the on to wrestle with these intricately devised defendant's plea of insanity; and that line propositions, which, if once given recogniof inquiry which would be eminently proper tion by the judicial mind, would inevitably upon cross-examination of the witnesses for result in the utter inutility of all laws for the state by defendant would be essentially the punishment of crime. The evidence of out of place in their examination in chief. this case establishes, by a most unmistakaWe have examined with considerable care ble preponderance, that the homicide charthe cases cited by counsel for the appellant, ged was not only premeditated, but was and we have found nothing in any of them without any apparent excuse or justification, which militates against our view. A party A careful and laborious consideration of the pleading insanity in defense of a crime as- record convinces us that the jury reached sumes the burden of proving such insanity. their conclusion upon the facts proved, and Incidents and circumstances may be offered that in so doing they mercifully gave the in support of such plea, but how are you defendant the full measure of extenuation going to prove sanity by incidents and cir- warranted by the evidence. When we have cumstances? It would entail unnecessary reached the conclusion that crime is a disand unavailable labor to review in detail the ease which can be defended, excused, or numerous authorities cited in support of a extenuated upon a plea of emotional, mental contention which we consider untenable. aberration, hypnotism, heredity, or any other The evidence offered by the defense in sup- of the multitudinous excuses which the inport of the plea of insanity was, in our view, genuity of counsel, aided by the abstruse scarcely sufficient to call upon the state for speculations of scientists, may intimate or rebuttal, or to require of the court the elab- suggest, it were better that we should dele. orate instructions given upon the subject. gate the administration of the criminal law We think the verdict of the jury is fully sus- to the medical scientists. tained by the evidence, and that they were Counsel for appellant takes exceptions to neither confused nor misled by the instruc- the instructions of the court. It is impostions of the court, or the voluminous and in- sible for us to conclude from the record consequential evidence intended to support what instructions were given by the court the plea of insanity. The record shows that on its own motion, and what on the request the evidence in support of the plea of in- of parties. No exception was taken at the sanity was of the most unsatisfactory and time to any instructions, and, in the absence

not, as he assures us, have anything to do with the trial, or the preparation of the appeal, and should not, therefore, be held responsible for' the condition of the record. The judgment of the district court is affirmed.

MORGAN, C. J., and SULLIVAN, J., concur.

of anything in the record to the contrary, we must presume that all of the instructions were given by the court upon its own motion, and to such instructions we have heretofore held (State v. Schieler [Idaho] 37 Pac. 272) that exceptions must be taken before the case is submitted to the jury.

Appellant objects to the allowing, by the trial court, of the assistant counsel for the state to make the closing argument. This has always been the practice in this jurisdiction, and there is nothing in the statute prohibitory of it. We are convinced, upon a careful review of the entire record, that the defendant had the full benefit of a fair and impartial trial; that the record discloses no errors which can reasonably be considered as prejudicial to the defendant. Order and judgment of district court affirmed.

MORGAN, C. J., and SULLIVAN, J., con

cur.

(4 Idaho, 343)

STATE y. O'DONALD. (Supreme Court of Idaho. Feb. 21, 1895.) CRIMINAL LAW-RECORD ON APPEAL-EXCEPTIONS

TO INSTRUCTIONS. 1. A record on appeal which does not comply either with the statutes or with the rules of this court will not be considered.

2. Where instructions are given by the court upon its own motion, they must be excepted to before verdict to be considered here.

(Syllabus by the Court.)

Appeal from district court, Bingham county; D. W. Standrod, Judge.

Stephen O'Donald was convicted of burglary, and appeals. Affirmed.

E. P. Blickensderfer, for appellant. Geo. M. Parsons, Atty. Gen., for the State.

(4 Idaho, 365) ADA COUNTY . RYALS. (Supreme Court of Idaho. Feb. 26, 1895.) CLERK OF PROBATE Court-FEES-COMPENSATION

OF JUDGE. 1. The probate judge may appoint a clerk of the probate court, or he may act as the clerk of his own court; and in either case such clerk may charge and receive the fees provided by law, when performing the duties of such position.

2. When such judge acts as probate judge, superintendent of public instruction, and clerk of his own court, he can receive and retain, from fees and commissions allowed by law, the sum of $2,000 per annum. Any sum so received in excess of said amount must be paid over to the county treasurer.

3. When said judge appoints another person clerk of his court, the amount of fees and commissions received and retained by both the judge and clerk can amount to only $2,000 per annum.

(Syllabus by the Court.)

Appeal from district court, Ada county; Edward Nugent, Judge.

Action by the county of Ada against William F. Ryals. Judgment for defendant, and plaintiff appeals. Reversed.

Defendant was elected probate judge of Ada county, Idaho, October 1, 1890; quali. fied and entered upon the duties of his office; continued to exercise the duties and hold said office from January, 1891, to January, 1993; was re-elected in November, 1892, and entered upon his second term the second Monday of January, 1893; and was still in said office, at the time of commencement of this suit, March 8, 1894. Said defendant was probate judge and ex officio superintendent of schools during said time, and acted also as ex officio clerk of probate court. During 1891 said defendant received from fees and commissions the sum of $2,344.01, all of which was retained by defendant. During the year 1892, defendant received as fees and commissions by virtue of his said office, and as fees as clerk of the probate court, the sum of $2,281.59, all of which was retained by defendant. During 1893 the defendant received by virtue of said office, and as clerk of probate court, the sum of $2,085.57, all of which was retained. (1) The fees charged by defendant, and received and collected, as clerk of said probate court, in 1891, amounted to more than the sum of $344.01; in 1892, amounted to more than $281.59; and, in 1893, amounted to more than the sum of $85.51. (2) On this state of facts, the questions propounded to the court are as follows: Is a probate judge entitled to act as ex officio clerk of the probate court, or may he appoint a clerk of said

HUSTON, J. The defendant was convicted of the crime of burglary. Appeal is taken from judgment and sentence thereon. No bill of exceptions appears in the record. In fact, there is no record, such as is contemplated by the statute. Unless the record shows a substantial compliance with the statutes and the rules of this court, it will not be considered. What purports to be the record is merely a copy of the information; a copy of three affidavits by defendant, and one by his wife, in support of a motion for a continuance; the motion for a continuance, and the order of the court overruling the same; the instructions of the court, to which no exceptions were taken; the verdict, and judgment thereon. The action of the court in overruling the motion for a continuance was correct. The instructions to the jury were all given by the court upon its own motion, and no exception was taken thereto. The appeal in this case is, or at least from the record appears to be, a mere scramble, and the most scrutinizing examination thereof fails to develop any merit whatever. The counsel who represents the defendant in this court did

court? (3) Is the probate judge, or the clerk for performing such duties to the sum of $2,appointed by said judge, entitled to fees 000 per annum. He may receive fees and while acting as clerk of the probate court; commissions in excess of this sum, but must and, if so, are such fees to be accounted for account for and pay over such excess to the as a part of the compensation of said judge? | county treasurer. It is the opinion of the Is said judge entitled to receive and retain, court that it was the intention of the framers while acting in all three of the positions nam- of the constitution to limit the compensation ed, more than $2,000 per year. The cause was that may be received and retained for the heard by the district court. The district performance of all the duties of probate court held that defendant was entitled to act judge, superintendent of public instruction, as such clerk, and receive fees, which need and clerk of the probate court, to the sum of not be accounted for as part of salary of pro- $2,000 per annum; and therefore the probate bate judge, and gave judgment against the judge may unite all these offices or functions county for one dollar and costs. Plaintiff ap- in himself, and receive all the fees, to the peals to this court.

limit named, or he may appoint another perHawley & Puckett, for appellant. W. F. son clerk, and permit him to receive such Ryals, in pro. per.

fees. But the fees and commissions received by such

and such clerk, in excess of MORGAN, C. J. (after stating the facts). $2,000, must be paid to the county treasurer. The plaintiff contends that section 2, art. Any other construction would defeat the 5, of the constitution of the state of Idaho plain intent of the constitution. As the proprohibits the probate judge from receiving bate judge may, and usually does, unite in and retaining more than $2,000 per year for himself all three of these positions, and perall services rendered by him. By the terms form the duties of each, when doing so, of section 3844, Rev. St. Idaho, it is provided he cannot retain fees and commissions in exthat there shall be a clerk of the probate cess of $2,000 per annum. We think it was court, to be appointed by the judge thereof, or the intent of the constitution that this office the probate judge may act as the clerk of his should not cost the people of the county own court. This law is still in full force and more than $2,000 per annum, under any cireffect. This is in no sense a county office. cumstances. The judgment of the lower The probate judge, therefore, may appoint a court is reversed, and the cause remanded clerk, or he may act as the clerk of his own for further proceedings in accordance with court. In either case, such clerk may re- this opinion. Costs awarded to appellant. ceive the fees provided by law, when performing the duties of such position. Section SULLIVAN and HUSTON, JJ., concur. 7 of article 18 of the constitution provides that the probate judge, who is ex officio county superintendent of public instruction, shall

(4 Idaho, 323, 392) receive for his services not more than $2,000,

YOUNG 1. FIRST NAT. BANK OF and not less than $500, per annum. Section

HAILEY et al. 8 provides that such compensation shall be

(Supreme Court of Idaho. Feb. 8, 1895.) paid by fees or commissions, as prescribed

RELIEF AGAINST EXECUTION-INJUNCTION - - VACAby law, and all fees and commissions in ex

TION OF LEVY. cess of the maximum must be accounted for

Defendants recovered judgment against and paid to the ccunty treasurer.

If the pro

certain parties, including husband of plainbate judge, under the law, acts as his own

tiff. Execution was issued upon such judg

ment, and levied upon certain inining property clerk, as he may do, all three positions or of- of plaintiff, “as community property" of plainfices are united in one person. The language tiff and her said husband,—the same being of the court in the case of Hillard v. Sho- claimed as separate property of plaintiff,-and shone Co., 2 Idaho, 846, 27 Pac. 678, is pe

the same was advertised to be sold under such

execution. Plaintiff brought her action, under culiarly applicable to this case. The court says section 4538 of the Revised Statutes of Idaho, of the clerk of the district court: “Thus far to enjoin the sale, and for the vacation of the the constitution has provided for a clerk of

writ of execution, as to such property. Held,

that such action was properly brought. the district court for each county, and has

(Syllabus by the Court.) made this officer ex officio auditor and recorder. He is still one person and one offi

Appeal from district court, Shoshone councer, although he holds two or three distinct

ty; J. Holleman, Judge. and separate offices, if we please to call them

Action by Helen L. Young against the such, and performs the duties of all. We

First National Bank of Hailey and others. must not confound the office with the officer,

Judgment for plaintiff, and defendants apor person who holds the office." So, with the

peal. Modified. probate judge, he is made ex officio superin- R. F. Buller, for appellants. W. B. Heytendent of public instruction, and the statute burn, for respondent. provides that he may act as the clerk of his own court. He is still one person, although HUSTON, J. This is an action to remove performing the duties of all three of these po- a cloud from the title of mining property. sitions; and the constitution (section 18) lim- The facts, concisely stated, are as follows: its the fees and commissions he may retain Appellants brought suit in the district court

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