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a specific statement thereof, alleging that during the time for which the board allowed defendant Caldwell for services he was not actually and necessarily engaged in transacting county business. The record shows that the plaintiff in error could not have been in any manner prejudiced by reason of the notice of appeal not being more specific, and therefore is not injured.

We have carefully considered the contention of plaintiffs in error in regard to the refusal of the court to give certain instructions, and fail to find any error. The question involved was submitted to a jury, and they found that Caldwell, plaintiff in error, had been allowed per diem compensation for 10 days more than he had actually and necessarily been engaged in the transaction of county business. There is evidence in the record sufficient to sustain the verdict. The judgment of the district court is affirmed, with costs of this appeal in favor of defendants in error.

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SIMMONS HARDWARE CO. et al. v. AL-
TURAS COMMERCIAL CO.
(Supreme Court of Idaho. March 4, 1895.)
APPEAL RECORD-CLERK'S CERTIFICATE.

On appeal from an order denying a motion, a certificate of the clerk of the court in which the action was pending "that the foregoing transcript contains a full, true, and correct copy of all papers used on the motion," is a compliance with Rev. St. § 4821, providing that copies of papers required on appeal must be certified to be correct by the clerk or the attor

neys.

Appeal from district court, Alturas county; C. O. Stockslager, Judge.

Action by the Simmons Hardware Company and another against the Alturas Commercial Company. From an order denying a motion to dissolve attachments, defendant appealed, and plaintiffs move to affirm the order for defects in the appeal record. Motion denied.

In these cases plaintiffs issued attachments and levied upon the property of defendant on the 22d day of October, 1894. On the 1st day of November, 1894, defendant moved the court to dissolve said attachments, stating that the motion would be heard upon the papers on file in said court in said action. The court below, upon the hearing, denied the motion, and defendant appeals to this court. The clerk of the district court of the Fourth judicial district, in which these cases were pending, in his certificate to the transcripts, certifies that the foregoing transcripts contain a full, true, and correct copy of all the papers used on the motions of defendant to vacate and discharge the attachments, and the motions of plaintiff to be allowed to file additional undertaking, etc. The respondent now moves this court to affirm the judgment

of the court below on the grounds that there is no bill of exceptions or other sufficient certificate in the record to show that the papers presented in the transcripts were used on said motion; or that the transcripts contain all the papers used upon said motions.

F. E. Ensign, for appellant. S. B. Kingsbury and Johnson & Johnson, for respondents.

MORGAN, C. J. The district court is required by law to keep a complete record of all matters and proceedings had and done in said court. This record is kept by the clerk under the direction of the judge. It is also necessary that a record of all matters done at chambers should be kept. It is the practice of the district court judges to direct the clerk to keep this record also. Necessarily, then, the clerk has as good a knowledge of the proceedings at chambers as he has of court proceedings. It would be the duty of the clerk, under the direction of the judge, to in some manner identify the papers, or in some way mark the papers used on the hearing in the court below, in order that he may be able to correctly state in his certificate what papers were so used. Section 4819, Rev. St., requires the appellant to furnish the supreme court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below. Who is to determine what papers were so used? Section 4821, Rev. St., in our opinion, distinctly states who shall do So. This section states: "The copies provided for in the last three sections [this includes 4819] must be certified to be correct by the clerk or the attorneys. The appel

lant, who is required by section 4819 to furnish this court with copies of the papers used on the hearing below, does everything he is required to do in the court by his attorney, and therefore section 4821 says that the attorneys may certify that the papers so furnished are correct. What does the word "correct" mean, as used in this connection? Evidently something more than that the papers are correct copies of others on file. This section states that the papers provided for in section 4819 must be certified to be correct by the clerk or by the attorney. Clearly, they must certify that they are the papers required by section 4819, and these were the papers used on the hearing in the court below. Counsel contends that this certificate mentioned in section 4821 is simply that the papers in the transcript are correct copies of those on file in the court below, but this will not do, as the clerk is the sole custodian of those papers, and the only person authorized to make copies from them, and certify to the correctness of such copies. The attorney can neither make copies of such papers, as they are not in his custody, nor has he any right to copy them for this court, nor can he make a certificate that a copy of a paper on file or in the cus

tody of the clerk of the district court is a correct copy of such paper, and ask this court to receive such certificate as any evidence of the facts therein stated; but he may certify that certain papers were the ones used on the hearing below, because this would be within his knowledge, nor would he need the actual custody of the papers so to do. If it be claimed that the word "attorneys" means 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 both parties to certify to the correctness of a copy which the clerk could do alone. Our law (Rev. St. § 4427) specifically states that such papers need not be embodied in the bill of exceptions, but the same, appearing in the record or files, may be reviewed upon appeal as though settled in a bill of exceptions.

As to the decisions of the California supreme court, which we are requested to follow, we must respectfully say the path is too devious. In Pieper v. Land Co., 56 Cal. 173, that court holds that at that time a bill of exceptions was unnecessary, and the certificate of the judge was sufficient. In Nash v. Harris, 57 Cal. 242, there was no identification whatever, and the court there say the papers must be made a part of the case by bill of exceptions, or be authenticated by the judge; but our statute does away with the bill of exceptions in this instance, as above stated. In Baker v. Snyder, 58 Cal. 617, the court says: "The Code provides no mode by which the papers used on the hearing shall be identified, and that, when the clerk certifies that certain papers were the ones used on the hearing, it is not conclusive, but such certificate may be contradicted." In the latter statement we agree with that court. In Walsh v. Hutchings, 60 Cal. 228, the court says: "There is no bill of exceptions, and the court does not identify these papers as being used on the motion." The plain inference is that, if either mode had been used, the authentification would have been sufficient, but our statute makes a bill of exceptions unnecessary, and the California supreme court afterwards, in Herrlich v. McDonald, 80 Cal. 472, 22 Pac. 299, says the judge has no authority thus to identify the papers. Referring again to Walsh v. Hutchings, supra, the court, further on, says the clerk has no power to determine what papers or evidence the court acted upon, but offers no explanation of section 953 of the California Code of Civil Procedure, which is identical with our section 4821. Here is an end of the whole matter. The California supreme court decides the clerk has no power to certify, and the judge of the court cannot do it, but it must be done by bill of exceptions, which is only another form of the certificate of the judge; and our statute expressly says the bill of exceptions is not necessary. We think a fair construction of section 4821 would authorize the clerk of the district court or attorneys to certify, as

in this case, that the transcript contains full, true, and correct copies of all the papers used on the hearing of the motion of defendant in the court below, or as the case may be. This certificate, if incorrect, would be subject to correction by either party upon a suggestion of diminution of the record. Motion denied. SULLIVAN and HUSTON, JJ., concur.

(4 Idaho, 345)

STATE v. HURST. (Supreme Court of Idaho. Feb. 21, 1895.) MURDER-INSANITY AS A DEFENSE-INSTRUCTIONS.

1. Where the plea of insanity is interposed, it is sufficient for the state, in offering testimony in rebuttal of such plea, to show by witnesses upon its part that they had an intimate acquaintance with the defendant for years, and up to the time of the homicide, to qualify such witnesses to testify as to their opinion as to the insanity of defendant.

2. Where the record shows that all instructions given were given by the court, and does not show that any were given upon request or suggestion of either party, the presumption is that all of the instructions were given by the court upon its own motion; and in such case, to entitle exceptions thereto to be heard, the record must show that such exceptions were taken before verdict.

3. Where no error appears in the record, prejudicial to the defendant, the judgment will be affirmed.

(Syllabus by the Court.)

Appeal from district court, Oneida county; C. O. Stockslager, Judge.

John J. Hurst was convicted of murder in the second degree, and appeals. Affirmed.

O. W. Powers, C. F. Stone, and D. C. McDougall, for appellant. Atty. Gen. Geo. M. Parsons (James H. Hawley and Geo. A. Gray, of counsel), for the State.

HUSTON, J. The defendant was convicted of murder in the second degree. From that judgment this appeal is taken, as also from the order refusing a new trial. The defense of defendant was insanity. Errors are alleged as to the admission of certain evidence on the part of the state upon the question of insanity. The defense having introduced their testimony in support of such plea, the state, in rebuttal thereof, offered evidence which was admitted over the objection of defendant. To the ruling of the trial court in this behalf, exception was taken. Concisely stated, the contention of the defendant is that the court erred in the admission of the opinions of nonexpert witnesses, upon the part of the state, upon the question of the sanity of the defendant, without the proper or requisite predicate having been shown. Numerous witnesses were examined, on the part of the state, upon this issue; and as the questions propounded, and the answers given in response thereto, are substantially the same, they will all be considered under this objection.

It is contended by appellant that, while

the weight of authority is in favor of the admissibility of the opinion of nonexpert witnesses upon the question of insanity, before such opinion can be given by such witnesses it is necessary that the competency of the witness to give it should be established by evidence of his acquaintance with the defendant, and with his character, habits, and disposition. Conceding this to be the true construction of the rule, let us apply it to the present case. Several witnesses were introduced by defendant, who testified variously as to the pedigree, peculiarities, etc., of the defendant, all tending to the establishment of the theory of insanity. The state then introduced various witnesses, the consensus of whose evidence was to this effect: "Have known defendant for past sixteen or twenty years. Have seen him almost daily. Have done business with him frequently. Saw him just previous to, and immediately after, the homicide. From my knowledge of defendant, and from my acquaintance with him, I consider him sane." What more does the rule require, even under the construction contended for by the appellant? What more could be required? Suppose the prosecution should attempt to go into a detail of circumstances. What would the inquiry be properly and necessarily limited to? "Do you know, or are you acquainted with, any particular acts, words, or statements of the defendant indicative of sanity?" That is about the extent. It seems to us, counsel overlooked the fact that in this inquiry the prosecution are only required to, and are only seeking to, establish the negative of the defendant's plea of insanity; and that line of inquiry which would be eminently proper upon cross-examination of the witnesses for the state by defendant would be essentially out of place in their examination in chief. We have examined with considerable care the cases cited by counsel for the appellant, and we have found nothing in any of them which militates against our view. A party pleading insanity in defense of a crime assumes the burden of proving such insanity. Incidents and circumstances may be offered in support of such plea, but how are you going to prove sanity by incidents and circumstances? It would entail unnecessary and unavailable labor to review in detail the numerous authorities cited in support of a contention which we consider untenable. The evidence offered by the defense in support of the plea of insanity was, in our view, scarcely sufficient to call upon the state for rebuttal, or to require of the court the elaborate instructions given upon the subject. We think the verdict of the jury is fully sustained by the evidence, and that they were neither confused nor misled by the instructions of the court, or the voluminous and inconsequential evidence intended to support the plea of insanity. The record shows that the evidence in support of the plea of insanity was of the most unsatisfactory and

inconclusive character. The hypothetical questions put by counsel for defendant to the medical witnesses were, as stated by the counsel, predicated upon facts "assumed to be true," and yet every material alleged fact stated in such questions was disproved by an overwhelming preponderance of testimony. It was an ingeniously prepared epitome-or, rather, elaboration-of the defend ant's case, from his standpoint. Unfortunately for him, it was not sustained by the proofs.

Counsel for appellant bases his argument, both oral and in his brief, largely upon an assumed state of facts, which assumption is not only not supported by the evidence in the record, but is, in nearly every particular, overcome by a preponderance of testimony. If the facts assumed by counsel in his argument had been established by proof, there would have been neither occasion nor excuse for resorting to the plea of insanity. But, instead of being established, they were completely overthrown, by the evidence; and this conclusion is accentuated by the fact that the defendant, instead of relying on a defense which would have been conclusive upon the facts assumed, abandons that de fense, and resorts to the last refuge,-the plea of insanity. The intelligence of the country is becoming weary of this plea. The wisdom of God and the enlightened experience of man are constantly sought to be overcome by the speculative ingenuity of men in the defense and extenuation of crime; and courts are constantly called upon to wrestle with these intricately devised propositions, which, if once given recognition by the judicial mind, would inevitably result in the utter inutility of all laws for the punishment of crime. The evidence of this case establishes, by a most unmistakable preponderance, that the homicide charged was not only premeditated, but was without any apparent excuse or justification. A careful and laborious consideration of the record convinces us that the jury reached their conclusion upon the facts proved, and that in so doing they mercifully gave the defendant the full measure of extenuation warranted by the evidence. When we have reached the conclusion that crime is a disease which can be defended, excused, or extenuated upon a plea of emotional, mental aberration, hypnotism, heredity, or any other of the multitudinous excuses which the ingenuity of counsel, aided by the abstruse speculations of scientists, may intimate or suggest, it were better that we should delegate the administration of the criminal law to the medical scientists.

Counsel for appellant takes exceptions to the instructions of the court. It is impossible for us to conclude from the record what instructions were given by the court on its own motion, and what on the request of parties. No exception was taken at the time to any instructions, and, in the absence

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 v. 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.

HUSTON, J. The defendant was convicted of the crime of burglary. Appeal is taken from judgment and sentence thereon. Νο 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

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., con

cur.

(4 Idahe, 365)

ADA COUNTY v. 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; qualified and entered upon the duties of his office; continued to exercise the duties and hold said office from January, 1891, to January, 1893; 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 $2,284.59, 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 $284.59; 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

court? (3) Is the probate judge, or the clerk appointed by said judge, entitled to fees while acting as clerk of the probate court; and, if so, are such fees to be accounted for as a part of the compensation of said judge? Is said judge entitled to receive and retain, while acting in all three of the positions named, more than $2,000 per year. The cause was heard by the district court. The district

court held that defendant was entitled to act as such clerk, and receive fees, which need not be accounted for as part of salary of probate judge, and gave judgment against the county for one dollar and costs. Plaintiff appeals to this court.

Hawley & Puckett, for appellant. W. F. Ryals, in pro. per.

MORGAN, C. J. (after stating the facts). The plaintiff contends that section 2, art. 5, of the constitution of the state of Idaho prohibits the probate judge from receiving and retaining more than $2,000 per year for all services rendered by him. By the terms of section 3844, Rev. St. Idaho, it is provided that there shall be a clerk of the probate court, to be appointed by the judge thereof, or the probate judge may act as the clerk of his own court. This law is still in full force and effect. This is in no sense a county office. The probate judge, therefore, may appoint a clerk, or he may act as the clerk of his own court. In either case, such clerk may receive the fees provided by law, when performing the duties of such position. Section 7 of article 18 of the constitution provides that the probate judge, who is ex officio county superintendent of public instruction, shall receive for his services not more than $2,000, and not less than $500, per annum. Section 8 provides that such compensation shall be paid by fees or commissions, as prescribed by law, and all fees and commissions in excess of the maximum must be accounted for and paid to the county treasurer.

If the probate judge, under the law, acts as his own clerk, as he may do, all three positions or offices are united in one person. The language of the court in the case of Hillard v. Shoshone Co., 2 Idaho, 846, 27 Pac. 678, is peculiarly applicable to this case. The court says of the clerk of the district court: "Thus far the constitution has provided for a clerk of the district court for each county, and has made this officer ex officio auditor and recorder. He is still one person and one officer, although he holds two or three distinct and separate offices, if we please to call them such, and performs the duties of all. must not confound the office with the officer, or person who holds the office." So, with the probate judge, he is made ex officio superintendent of public instruction, and the statute provides that he may act as the clerk of his own court. He is still one person, although performing the duties of all three of these positions; and the constitution (section 18) limits the fees and commissions he may retain

We

for performing such duties to the sum of $2,000 per annum. He may receive fees and commissions in excess of this sum, but must account for and pay over such excess to the county treasurer. It is the opinion of the court that it was the intention of the framers of the constitution to limit the compensation that may be received and retained for the performance of all the duties of probate judge, superintendent of public instruction, and clerk of the probate court, to the sum of $2,000 per annum; and therefore the probate judge may unite all these offices or functions in himself, and receive all the fees, to the limit named, or he may appoint another person clerk, and permit him to receive such fees. But the fees and commissions received by such judge and such clerk, in excess of $2,000, must be paid to the county treasurer. Any other construction would defeat the plain intent of the constitution. As the probate judge may, and usually does, unite in himself all three of these positions, and perform the duties of each, when doing so, he cannot retain fees and commissions in excess of $2,000 per annum. We think it was the intent of the constitution that this office should not cost the people of the county more than $2,000 per annum, under any circumstances. The judgment of the lower court is reversed, and the cause remanded for further proceedings in accordance with this opinion. Costs awarded to appellant.

SULLIVAN and HUSTON, JJ., concur.

(4 Idaho, 323, 392) YOUNG. FIRST NAT. BANK OF HAILEY et al.

(Supreme Court of Idaho. Feb. 8, 1895.) RELIEF AGAINST EXECUTION-INJUNCTION - VACATION OF LEVY.

Defendants recovered judgment against certain parties, including husband of plaintiff. Execution was issued upon such judgment, and levied upon certain mining property of plaintiff, "as community property" of plaintiff and her said husband,-the same being claimed as separate property of plaintiff,-and the same was advertised to be sold under such execution. Plaintiff brought her action, under section 4538 of the Revised Statutes of Idaho, to enjoin the sale, and for the vacation of the writ of execution, as to such property. Held, that such action was properly brought.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; J. Holleman, Judge.

Action by Helen L. Young against the First National Bank of Hailey and others. Judgment for plaintiff, and defendants appeal. Modified.

R. F. Buller, for appellants. W. B. Heyburn, for respondent.

HUSTON, J. This is an action to remove a cloud from the title of mining property. The facts, concisely stated, are as follows: Appellants brought suit in the district court

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