Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Railway Co. v. Jurey, supra; Allis v. U. S., 15 Sup. Ct. 36. However, we have examined the portion of the charge defining these terms, and we find no error therein. This counsel practically concedes in his brief. And we think there was no error in charging upon the question of murder in the second degree. It was the duty of the court to define murder, and its degrees, but not to hold as a matter of law (in view of all the testimony) that the defendant was either guilty of murder in the first degree or innocent. It was the exclusive province of the jury to determine whether premeditation and deliberation existed. They might have believed beyond all reasonable doubt that the defendant committed the homicide, and think it was done with malice, yet not have been convinced beyond all reasonable doubt that the defendant acted with premeditation and deliberation. The case of People v. Hopt, supra, presented such facts as to irresistibly lead one to the conclusion that, if the defendant committed the crime, he was guilty of murder in the first degree; yet the supreme court of the United States (Hopt v. Utah, 110 U. S. 582, 4 Sup. Ct. 202), speaking of the case, say: "It was for the jury, having been informed as to what was murder, * *to say whether the facts made a case of murder in the first degree or murder in the second degree. It was competent for the judge to * inform the

jury what the statutes defined as murder in the first degree and murder in the second degree."

Defendant complains because his requests were not all given. They were asked in the aggregate, and the rule is that, when so asked, and there is anything exceptionable in either of them, the whole may be properly rejected by the court. Railroad Co. v. Horst, 93 U. S. 295; U. S. v. Musser, 4 Utah, 166, 7 Pac. 389. A number of defendant's requests stated mere abstract principles of law, and had little, if any, application to the case; and two at least were not correct statements of the law. Most of them, however, were substantially given in the charge of the court. We think the entire case was covered in the court's charge, and that it was submitted properly to the jury. When this is done, the court may refuse to instruct further; and it may "use its own language, and present the case in its own way." Railroad Co. v. Horst, supra; U. S. v. Musser, supra. Admitting that the general exception taken to the refusal of the court to give defendant's requests was good, we are of opinion that the case was fairly presented to the jury. We find no error in the record, and accordingly affirm the judgment of the lower court, and remand the case, with directions to the lower court to fix the day for carrying its sentence into effect.

MERRITT, C. J., and SMITH, J., concur.

STATE v. DAKIN.

(15 Mont. 556)

(Supreme Court of Montana. April 1, 1895.) CRIMINAL LAW-APPEAL-FAILURE TO FILE BRIEF. On appeal by the state from the overruling of its demurrer, the judgment will be affirmed where no brief has been filed and no oral argument made by either party.

Appeal from district court, Madison county; Frank Showers, Judge.

Information against William Dakin for grand larceny as bailee. From the overruling of the state's demurrer to the defendant's plea of former acquittal, and an order that defendant be discharged, the state appeals. Affirmed.

W. A. Clark, Henri J. Haskell, and Ella L. Knowles, for the State.

PEMBERTON, C. J. The defendant was tried in the district court in Madison county, under an information charging him with the crime of grand larceny, and acquitted. At the trial it appears the evidence tended to show that the defendant was guilty of grand larceny as a bailee, if guilty at all. After the acquittal of defendant, the county attorney filed an information against him charging him with the crime of grand larceny as a bailee. He was tried for the alleged stealing of money belonging to one Sarah McGary. He is charged with stealing the same money, as bailee, in the second information. Upon the filing of the second information, the defendant pleaded not guilty, and also filed his special plea of former acquittal in bar. The state demurred to the plea of former acquittal. The demurrer was overruled, and the court ordered the defendant discharged. From this action of the court the state appeals.

In this case no brief has been filed by either party; no oral argument has been made; our attention has not been directed to any error of the court below, or any authority cited for any purpose by counsel. In Territory v. Mooney, 8 Mont. 151, 19 Pac. 595, the court says: "The court has not had the benefit of brief or oral argument from either side; and we here desire to express our disapproval of the practice of appealing criminal cases to this court, and then neglecting to comply with the rule which requires a statement of points and authorities relied on for appellant. Much labor and time will be saved to the court by observing this rule." In Territory v. Stanton, 8 Mont. 157, 19 Pac. 593, the court says: "The appeal is taken by the appellant from the judgment, and from an order denying a motion for a new trial. There is no brief filed on either side. I have carefully examined the record in the case, and find no error; and I do not wish to establish a precedent for the future guidance of this court, or one to be overruled in the future, where the attention of the court is not called to any error, or to any authority. For this reason, the judgment and order ap

pealed from will be affirmed, without further reasons." In Territory v. Roberts, 9 Mont. 12, 22 Pac. 132, the court says: "The appellant was convicted of the crime of murder in the first degree, and this appeal has been taken from the judgment of the court below, and the order overruling the motion for new trial. No briefs have been filed, and no arguments have been made, in this action, and we would be justified by many precedents in affirming the judgment without any examination of the transcript. This court

has expressed its disapproval of similar conduct upon the part of counsel for appellants; and, while we do not desire to act as censors, we hope that this is the last time that we shall be called upon to comment on the omission of attorneys to perform their important duties. The gravity of the offense demands a careful investigation, although we are embarrassed by our ignorance of the real grounds for taking this appeal." In the case

at bar there is no grave question of human life or liberty involved, as in Territory v. Roberts, supra, to demand of this court an investigation of the important legal question presented by the record. Under the circumstances, we do not feel that it is our duty to do so. We feel justified in concluding that the appellant, by failing to present and prosecute its appeal in accordance with the rules of practice of this court, intends to abandon the case, and for this reason alone the order and judgment appealed from will be affirmed.

DE WITT and HUNT, JJ., concur.

(15 Mont. 554)

COQUARD v. WEINSTEIN. (Supreme Court of Montana. March 25, 1895.) BILL OF EXCEPTIONS-SETTLEMENT-WAIVER OF OBJECTIONS.

A party who is present and participates in the settlement of a bill of exceptions waives all objections to its settlement not then made. Appeal from district court, Deer Lodge county; Frank H. Woody, Judge.

Action by L. A. Coquard against Tessie Weinstein, administratrix. From a judgment rendered, defendant appeals. Motion by plaintiff to strike from the record the bill of exceptions. Denied.

Cole & Whitehill, for appellant. McConnell, Clayberg & Gunn, for respondent.

DE WITT, J. The respondent moves to strike from the record the bill of exceptions therein contained, for the reason that the judge who signed and settled the same had no jurisdiction so to do. The case was tried June 21, 1893. On June 23d the court made an order granting 30 days' time to prepare and file a bill of exceptions. The defendant (the appellant) served a bill of exceptions on respondent's counsel on July 17, 1893. They filed the bill of exceptions

v.39p.no.8-54

with the clerk for the judge on July 23, 1893. On the same day the respondent's counsel filed with the clerk their objections and exceptions to the bill of exceptions. The case was tried by Judge Woody, of the Fourth district, sitting for Judge Brantly, in the Third district. The bill of exceptions was finally settled by Judge Woody, October 23, 1893. The terms of the Third district court were held commencing on the first Mondays of June, September, and November. case was tried during the June term. That term lasted until September 2d, when it was adjourned for the term.

This

Counsel for respondent, in moving to strike out the bill of exceptions, rely upon section 294, Code Civ. Proc., which is as follows: "All bills of exceptions shall be reduced to form, unless noted by the clerk, and signed during the term in which the same is tried, except in cases where the counsel consent, or the judge, by an entry on the record, direct that it may be prepared in vacation, and signed nunc pro tunc. The bill of exceptions must be signed by the judge who tried the cause, and if he has inadvertently omitted to sign a bill of exceptions, he may, on motion, be permitted to do so, although his term of office has expired, or said office has otherwise become vacant." It was the proper practice for the respondent to note his objections to the settling of the bill of exceptions, and have the same made a part of the record. Sweeny v. Railway Co., 11 Mont. 34, 27 Pac. 347; Arnold v. Sinclair, 12 Mont. 261, 29 Pac. 1124. One objection was that the term at which the case was tried expired and adjourned long prior to the service of said proposed bill of exceptions upon respondent's counsel. The record does not sustain this objection, for, as observed above, the bill of exceptions was served on the 17th of July, and filed on the 23d, and the term did not finally adjourn until September 2d. Another objection was that no order was made by the court extending the time for preparing and settling the bill of exceptions, and that the court had not on July 23d the authority to settle or sign it. The court extended the time for preparing the bill of exceptions for 30 days, but, as it happened, the term lasted for longer than 30 days, and the bill of exceptions was prepared, not only during the 30 days' extension, but during the term of the court.

The respondent's objection which he filed to the bill of exceptions was that the court had not then-that is, on July 23d-power to settle the bill. This objection, as so made and filed, we have above seen, could not be sustained. The judge did not settle the bill upon that day, and not until the 23d of October. When the court did settle the bill, the attorneys for the respective parties, the plaintiff and defendant, appeared, and argued the question of the settlement of the bill. The respondent did not object that

the judge had not then-that is, October 23d -power to settle the bill, but was present by his counsel, and participated in the settlement. Therefore, if there were valid reasons for objecting to the settlement of the bill of exceptions on October 23d, we think they were waived. McKay v. Railway Co., 13 Mont. 15, 31 Pac. 999; Walsh v. Mueller, 14 Mont. 76, 35 Pac. 226.

It is therefore ordered that the motion to strike out the bill of exceptions be denied.

HUNT, J., concurs.

(15 Mont. 539)

STATE v. EVANS.

(Supreme Court of Montana. March 25, 1895.) FORGERY-WHAT CONSTITUTES-CHARACTER OF

INSTRUMENT.

The signing by defendant, in another's name, of an order requesting S. to "pay to the order of E. [defendant] the amount of $20, and charge to him at my office," will not support defendant's conviction of forgery, the order not being such as would, if genuine, create a liability on the part of the signer.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

W. L. Evans was convicted of forgery, and from an order sustaining a motion in arrest of judgment the state appeals. Affirmed.

The charging part of "That the above-nam

This is an appeal by the state from an order of the district court arresting judgment in a case where the defendant had been found guilty under an information charging him with forgery. The motion in arrest of judgment was made upon the two statutory grounds (1) that the information does not state facts sufficient to constitute a crime of forgery, and (2) that the court had no jurisdiction of the action. the information was: ed W. L. Evans is guilty of the crime of forgery, committed as follows, that is to say: That the said W. L. Evans, late of said county and state, on Tuesday, the 25th day of December, 1894, at the county of Gallatin, and state of Montana, then and there a certain false, forged, and counterfeited writing on paper, of the tenor following: 'Bozeman, December 25, '94. Schumacher, Esq.: Please pay to the order of W. L. Evans the amt. of twenty dollars ($20.00), and charge to him at my office. Johnson & McCarthy,'-did falsely, feloniously, and designedly utter and pass as true and genuine; he, the said W. L. Evans, at the same time well knowing the said writing on paper to be false, forged, and counterfeit, with intent, then and there, one William Guy to prejudice and defraud."

H. J. Haskell, Ella L. Knowles, and W. L. Holloway, for the State.

DE WITT, J. (after stating the facts). This information is drawn under a statute similar to that which was in existence in California when the Case of Ah Woo, 28 Cal.

206, was decided. See, also, State v. Malish (this term) 39 Pac. 739. An information charging forgery by the uttering, etc., as does this one, is proper, for the uttering is, under our statute (section 96, Cr. Prac. Act), one method by which forgery may be committed. See cases last cited. This question of criminal pleading was not considered in State v. Hudson, 13 Mont. 112, 32 Pac. 413, the case being decided on the question of jurisdiction only. See State v. Malish (this term) 39 Pac. 739. The ground upon which the motion in arrest of judgment was granted seems to be that the alleged forged instrument concluded with the words: "And charge to him at my office. Johnson & McCarthy." Counsel for the respondent argue that this writing is invalid on its face, in that, if it were used as genuine, it could not do any damage to the alleged signers of the same, namely, Johnson & McCarthy, for the reason that it requested Schumacher to charge the $20 to Evans, instead of requesting him to charge it to Johnson & McCarthy. We are of opinion that the motion in arrest of judgment was properly granted.

Mr. Bishop says, in his work on Criminal Law (volume 2, § 506), as follows: "When the writing is invalid on its face, it cannot be the subject of forgery, because it has no legal tendency to effect a fraud." Section 511 of the same work states as follows: "Therefore the general doctrine is that the invalidity of an instrument must appear on its face, if the defendant would avail himself of this defect on a charge of forgery. In still other words, the forged instrument, to be the foundation for an indictment, must appear on its face to be good and valid for the purpose for which it was created. It must be, in another aspect, such that, if it were genuine, it would be evidence of the fact it sets out." We find it stated in People v. Tomlinson, 35 Cal. 506, as follows: "Without much conflict, if any, it has been held from the outset that the indictment must show that the instrument in question can be made available in law to work the intended fraud or injury. If such appears to be the case on the face of the instrument, it will be sufficient to set it out in the indictment; but, if not, the extrinsic facts, in view of which it is claimed that the instrument is available for the fraudulent purpose alleged in the indictment, must be averred. If the indictment merely sets out an instrument which is a nullity upon its face, without any averment showing how it can be made to act injuriously or fraudulently, by reason of matter aliunde, no case is made. This rule is so well settled by the precedents that we do not feel called upon to discuss it upon principle. Rex v. Knight, 1 Salk. 375, 1 Ld. Raym. 527; Reg. v. Marcus, 2 Car. & K. 356; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; State v. Briggs, 34 Vt. 501; Com. v. Ray, 3 Gray, 441; Barnum v. State, 1♪ Ohio, 717; Clarke

v. State, 8 Ohio St. 630. These cases establish the doctrine that, to constitute forgery, the forged instrument must be one which, if genuine, may injure another, and that it must appear from the indictment that such is its legal character, either from the recital or description of the instrument itself, or, if that does not show it to be so, then by the averment of matter aliunde, which will show it to be of that character." We take the following from the remarks of Judge Cowen in People v. Shall, 9 Cow. p. 778: "In the principal case I have shown that the paper forged, if genuine, would be a mere nullity for any purpose; nor, to my mind, could it be made good by any possible averment. It could not be made the foundation of liability, like the letter of credit. It does not come within any of the cases sustaining indictments; but to me it appears to be directly within the cases cited holding that an instrument purporting to be void on its face, and not shown to be operative by averment, if genuine, is not the subject of forgery. How is it possible, in the nature of things, that it should be otherwise? 'Void things are as no things.' Was it ever heard of that the forgery of a nudum pactum, a thing which could not be declared on, or enforced in any way, is yet indictable? It is the forgery of a shadow." The following remarks were made by the Indiana supreme court in Reed v. State, 28 Ind. 396: "The certificate, so far as it purports to be an instrument entitling Allen to the bounty claimed therein, was, at the time charged, utterly void. There was no law authorizing the giving of bounties by the county commissioners. Oliver v. Keightley, 24 Ind. 514; King v. Course, 25 Ind. 202. The legalizing act was not passed until March 3, 1865. Every one is presumed to know the law. Officers acting under an official oath are presumed to do their duty. The order of the county commissioners referred to in the certificate was void. 'Void things are as no things.' The indictment must show the forgery of an instrument which appears on its face naturally calculated to have some effect, or, if it be not sufficient for that purpose, extrinsic matter must be averred, so that the court may judicially see its fraudulent tendency." The supreme court of Illinois takes the same view when that court says, in the case of Waterman v. People, 67 Ill. 92: "The indictment framed upon this writing contains not a single averment of any extrinsic matter which could give the instrument forged any force or effect beyond what appears on its face. No connection is averred between the party to whom the writing is addressed and the Chicago, Rock Island & Pacific Railroad Company, nor is it averred that the prisoner attempted to pass the writing on that company. The writing, if genuine, has no legal validity, as it affects no legal rights. It is a mere attempt to receive courtesies on a promise, of no legal obligation, to reciprocate

|

them. We are satisfied the writing in question is not a subject of forgery, and no indictment can be sustained on it, and no averments can aid it." To the same effect, see Com. v. Hinds, 101 Mass., at page 211, where the court say: "If the fraudulent character of the forged instrument is not manifest on its face, this deficiency should be supplied by such averments as to extrinsic matter as would enable the court judicially to see that it has such a tendency. We find nothing of the kind in the present indictment, and therefore cannot say that the plea of guilty is a confession of any crime whatever." See, also, the learned note in Arnold v. Cost, 22 Am. Dec., at page 314. See, also, Barnum v. State, 15 Ohio, 717; Raymond v. People (Colo. App.) 30 Pac. 509; State v. Wheeler, 19 Minn. 98 (Gil. 70); Abbott v. Rose, 62 Me. 194; 2 Bish. New Cr. Law, § 533. We are of opinion that the alleged forged instrument set out in the information in this case is such a one as comes within the doctrine of the decisions quoted, and, as far as we know, generally held. The instrument in question, if genuine, and if acted upon as its terms suggest it might be, could do no possible damage. If the amount of $20 was advanced to Evans by Schumacher upon this order, and if that amount were charged to Evans himself, it would be nothing whatever but a transaction between Schumacher and Evans, which could be accomplished between those two persons with as much ease without the order as with it. The order, as it appeared on its face, would not accomplish the advancing of the money by Schumacher to Evans on the credit of Johnson & McCarthy. Schumacher would as readily have advanced it without the order as with it. There were no extrinsic facts alleged in the information to show that the instrument was available for the fraudulent purpose alleged in the information. The order of the district court in arrest of judgment is affirmed.

[blocks in formation]

tion of section 209 (General Laws) Comp. St. The contention is that we misinterpreted the last paragraph which we quoted from that section, which is as follows: "But the same [that is, the action] shall proceed in all respects as if such statutory provision had not been repealed." Whatever there was in the nature of a repeal in the act of the legisla ture which was before us for consideration was in the fact that the creation of Flathead county out of a portion of Missoula county, in effect, repealed the former statute which fixed the boundaries of Missoula county. In that sense there was a repeal of a former law. But we think that the word "repeal" is used in section 209 as referring to the statutory provisions which affect the action, and, as we endeavored to state in the original opinion, the fact of changing the place of trial does not in any way affect the action. The action remains in its integrity, with all of its rights unimpaired. Section 209 provides that the action shall proceed in all respects as if such statutory provisions had not beer repealed. Counsel argue that, by the view which we have taken of this section, we are required to write words into the section which are not there now; that is to say, that we make it read, "Shall proceed in all respects except as to the place of trial, as if such statutory provision had not been repealed"; the italicized words being those which counsel claims that we add. But, on the contrary, we are of opinion that it is the counsel's position which requires words to be written into the statute which are not there. Instead of reading as it does, counsel would read it, "The same shall proceed in all respects, and in the same place"; the italicized words being those which, we are of opinion, counsel must add, in order that his construction may prevail. We are satisfied that our original view was correct, and that the place of trial has nothing to do with the action, and that the statute meant simply to preserve the action as it was, and did not intend to run counter to the whole letter and spirit of the law, which requires actions in regard to real estate to be tried in the county where the real estate is situated, unless the venue is changed from that county, for reasons given in the statute. We think section 209 refers to what may be done, and not where it may be done. "The action shall proceed in all respects," etc.; but this does not say it shall so proceed in the same place as it would had the boundaries of the county not been changed. The action shall proceed, but it may proceed in the place where the law directs. The action can proceed in every respect in Flathead county exactly as it could have proceeded in Missoula 'county. Each county is subject to the same laws, both of statute and decision, and the application of the legal principles would be the same in either county. This case was originally decided in the absence of the chief justice. The motion for rehearing has been under consideration by

the full court, and it is the unanimous opinion of this court that the original decision was correct. The motion for rehearing I therefore denied.

PEMBERTON, C. J., and HUNT, J., con

cur.

(15 Mont. 429)

CITY OF HELENA v. BRULE et al.1 (Supreme Court of Montana. March 25, 1895.) APPEAL HEARING-ENGAGEMENTS OF COUNSEL

When an engagement of counsel in an inferior court conflicts with one in the supreme court, his duty is to attend the latter.

On motion for rehearing. Denied.
For former opinion, see 39 Pac. 456.

HUNT, J. A petition for a rehearing has been filed, based upon the ground that counsel for appellants expected to argue the case orally, but could not because it "became necessary for said counsel to attend the district court at White Sulphur Springs, Montana, and the nature of his business there was such that he could not, without a violation of professional duty, decline or refuse to give personal attention to it." The supreme court docket is now nearly 18 months behind. It is therefore imperatively necessary that causes be submitted upon the dates set for their hearing, to the end that the work of the court may progress. Moreover, if, after causes are set in this court, professional engagements of counsel in other state courts conflict with the sitting of the supreme court, the primary duty of counsel is to the appellate tribunal. We must insist upon the enforcement of this unwritten, but manifestly proper, rule. The excuse, of counsel being Insufficient, we decline to consider the motion for a rehearing. Motion denied.

DE WITT, J., concurs.

(106 Cal. 586) CITY & COUNTY OF SAN FRANCISCO ▼. MOONEY et al. (No. 15,686.) (Supreme Court of California. March 25, 1895.) STATUTE RATIFICATION OF INVALID ORDINANCE. Act March 11, 1858, ratifying and confirming a void ordinance providing for the laying out of streets in a city, and which took effect by relation as of the date of the passage of the ordinance, is not nugatory and ineffectual as to a map embraced in the same act of ratification because such map was prepared and adopted after the time limited for its preparation and adoption by the ordinance.

Department 2. Appeal from superior court, city and county of San Francisco; J. F. Sullivan, Judge.

Action by the city and county of San Francisco against Thomas Mooney and others to recover lands claimed and held by defendants adversely to the city. From a judgment

1 Rehearing denied March 25, 1895

« ΠροηγούμενηΣυνέχεια »