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(15 Mont. 56) STATE v. DAKIN. (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.

Railway Co. v. Jurey, supra; Allis v. U. S., 15 Sup. Ct. 36. However, we have examined the portion of the charge detining 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 atfirm 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.

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 es. tablish 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

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

pealed from will be affirmed, without further with the clerk for the judge on July 21, 1893. reasons.” In Territory v. Roberts, 9 Mont. On the same day the respondent's counsel 12, 22 Pac. 132, the court says: “The appel- filed with the clerk their objections and exlant was convicted of the crime of murder in ceptions to the bill of exceptions. The case the first degree, and this appeal has been was tried by Judge Woody, of the Fourth taken from the judgment of the court be- district, sitting for Judge Brantly, in the low, and the order overruling the motion for Third district. The bill of exceptions was new trial. No briefs have been filed, and no finally settled by Judge Woody, October 23, arguments have been made, in this action, 1893. The terms of the Third district court and we would be justified by many prece- were held commencing on the first Mondays dents in affirming the judgment without any of June, September, and November. This examination of the transcript. This court case was tried during the June term. That has expressed its disapproval of similar con- term lasted until September 2d, when it was duct upon the part of counsel for appellants; adjourned for the term. and, while we do not desire to act as censors, Counsel for respondent, in moving to we hope that this is the last time that we strike out the bill of exceptions, rely upon shall be called upon to comment on the omis- section 294, Code Civ. Proc., which is as sion of attorneys to perform their important follows: "All bills of exceptions shall be reduties. The gravity of the offense demands duced to form, unless noted by the clerk, a careful investigation, although we are em- and signed during the term in which the barrassed by our ignorance of the real same is tried, except in cases where the grounds for taking this appeal.” In the case counsel consent, or the judge, by an entry at bar there is no grave question of human on the record, direct that it may be prepared life or liberty involved, as in Territory v. in vacation, and signed nunc pro tunc. The Roberts, supra, to demand of this court an bill of exceptions must be signed by the investigation of the important legal question judge who tried the cause, and if he has presented by the record. Under the circum- inadvertently omitted to sign a bill of exstances, we do not feel that it is our duty to ceptions, he may, on motion, be permitted do so.

We feel justified in concluding that to do so, although his term of office has the appellant, by failing to present and pros- expired, or said office has otherwise become ecute its appeal in accordance with the rules vacant." It was the proper practice for of practice of this court, intends to abandon the respondent to note his objections to the the case, and for this reason alone the order settling of the bill of exceptions, and have and judgment appealed from will be af- the same made a part of the record. Sweefirmed.

ny v. Railway Co., 11 Mont. 34, 27 Pac. 317;

Arnold v. Sinclair, 12 Mont. 261, 29 Pac. DE WITT and HUNT, JJ., concur.

1124. One objection was that the term at which the case was tried expired and ad

journed long prior to the service of said (15 Mont. 554)

proposed bill of exceptions upon respondCOQUARD V. WEINSTEIN.

ent's counsel. The record does not sustain (Supreme Court of Montana. March 25, 1895.) this objection, for, as observed above, the BILL OF EXCEPTIONS-SETTLEMENT—WAIVER OF bill of exceptions was served on the 17th of OBJECTIONS.

July, and filed on the 23d, and the term did A party who is present and participates not finally adjourn until September 2d. Anin the settlement of a bill of exceptions waives all objections to its settlement not then made.

other objection was that no order was made

by the court extending the time for preparAppeal from district court, Deer Lodge

ing and settling the bill of exceptions, and county; Frank H. Woody, Judge.

that the court had not on July 23d the auAction by L. A. Coquard against Tessie

thority to settle or sign it. The court exWeinstein, administratrix. From a judg

tended the time for preparing the bill of exment rendered, defendant appeals. Motion

ceptions for 30 days, but, as it happened, by plaintiff to strike from the record the bill

the term lasted for longer than 30 days, and of exceptions. Denied.

the bill of exceptions was prepared, not only Cole & Whitehill, for appellant. McCon- during the 30 days' extension, but during the nell, Clayberg & Gunn, for respondent.

term of the court.

The respondent's objection which he filed DE WITT, J. The respondent moves to to the bill of exceptions was that the court strike from the record the bill of excep- had not then-that is, on July 230-power to tions therein contained, for the reason that settle the bill. This objection, as so made the judge who signed and settled the same and filed, we have above seen, could not be had no jurisdiction so to do. The case was sustained. The judge did not settle the bill tried June 21, 1893. On June 23d the court upon that day, and not until the 23d of Ocmade an order granting 30 days' time to pre- tober. When the court did settle the bill, pare and file a bill of exceptions. The de- the attorneys for the respective parties, the fendant (the appellant) served a bill of ex- plaintiff and defendant, appeared, and arceptions on respondent's counsel on July gued the question of the settlement of the 17, 1893. They filed the bill of exceptions bill. The respondent did not object that

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the judge had not then-that is, October 23d206, was decided. See, also, State v. Malish -power to settle the bill, but was present (this term) 39 Pac. 739. An information charby his counsel, and participated in the set- ging forgery by the uttering, etc., as does tlement. Therefore, if there were valid rea- this one, is proper, for the uttering is, under sons for objecting to the settlement of the our statute (section 96, Cr. Prac. Act), one bill of exceptions on October 23d, we think method by which forgery may be commit. they were waived. McKay v. Railway Co., ted. See cases last cited. This question of 13 Mont. 15, 31 Pac. 999; Walsh v. Mueller, criminal pleading was not considered in State 14 Mont. 76, 35 Pac. 226.

v. Hudson, 13 Mont. 112, 32 Pac. 413, the It is therefore ordered that the motion to case being decided on the question of juris. strike out the bill of exceptions be denied. diction only. See State v. Malish (this term)

39 Pac. 739. The ground upon which the moHUNT, J., concurs.

tion in arrest of judgment was granted seems
to be that the alleged forged instrument con-

cluded with the words: “And charge to him (15 Mont. 539)

at my office. Johnson & McCarthy." CounSTATE v. EVANS.

sel for the respondent argue that this writ(Supreme Court of Montana. March 25, 1895.) ing is invalid on its face, in that, if it were FORGERY-WHAT CONSTITUTES-CHARACTER OF

used as genuine, it could not do any damage INSTRUMENT.

to the alleged signers of the same, namely, The signing by defendant, in another's Johnson & McCarthy, for the reason that it name, of an order requesting S. to "pay to the requested Schumacher to charge the $20 to order of E. (defendant) the amount of $20, and Evans, instead of requesting him to charge charge to him at my office," will not support defendant's conviction of forgery, the order not

it to Johnson & McCarthy. We are of opinbeing such as would, if genuine, create a liabil- ion that the motion in arrest of judgment ity on the part of the signer.

was properly granted. Appeal from district court, Gallatin county; Mr. Bishop says, in his work on Criminal F. K. Armstrong, Judge.

Law (volume 2, $ 506), as follows: "When W. L. Evans was convicted of forgery, and the writing is invalid on its face, it cannot from an order sustaining a motion in arrest be the subject of forgery, because it has no of judgment the state appeals. Afirmed. legal tendency to effect a fraud." Section This is an appeal by the state from an or

511 of the same work states as follows: der of the district court arresting judgment

“Therefore the general doctrine is that the in a case where the defendant had been found invalidity of an instrument must appear on guilty under an information charging him its face, if the defendant would avail himself with forgery. The motion in arrest of judge of this defect on a charge of forgery. In ment was made upon the two statutory

still other words, the forged instrument, to grounds (1) that the information does not be the foundation for an indictment, must state facts sufficient to constitute a crime of appear on its face to be good and valid for forgery, and (2) that the court had no juris- the purpose for which it was created. It diction of the action. The charging part of

must be, another aspect, such that, if it the information was: “That the above-nam

were genuine, it would be evidence of the ed W. L. Evans is guilty of the crime of

fact it sets out." We find it stated in Peoforgery, committed as follows, that is to say:

ple v. Tomlinson, 35 Cal. 506, as follows: That the said W. L. Evans, late of said coun

“Without much conflict, if any, it has been ty and state, on Tuesday, the 25th day of

held from the outset that the indictment December, 1894, at the county of Gallatin,

must show that the instrument in question and state of Montana, then and there a cer

can be made available in law to work the tain false, forged, and counterfeited writing intended fraud or injury. If such appears on paper, of the tenor following: “Bozeman,

to be the case on the face of the instrument, December 25, '94. Schumacher, Esq.: Please

it will be sufficient to set it out in the inpay to the order of W. L. Evans the amt, of

dictment; but, if not, the extrinsic facts, in twenty dollars ($20.00), and charge to him

view of which it is claimed that the instruat my office. Johnson & McCarthy,'-did

ment is available for the fraudulent purfalsely, feloniously, and designedly utter and

pose alleged in the indictment, must be pass as true and genuine; he, the said W. L.

averred. If the indictment merely sets out Evans, at the same time well knowing the

an instrument which is a nullity upon its said writing on paper to be false, forged, and

face, without any averment showing how it counterfeit, with intent, then and there, one

can be made to act injuriously or frauduWilliam Guy to prejudice and defraud.” lently, by reason of matter aliunde, no case

is made. This rule is so well settled by the H. J. Haskell, Ella L. Knowles, and W. L.

precedents that we do not feel called upon Holloway, for the State.

to discuss it upon principle. Rex v. Knight,

1 Salk. 375, 1 Ld. Raym. 527; Reg. v. MarDE WITT, J. (after stating the facts). cus, 2 Car. & K. 336; People v. Shall, 9 Cow. This information is drawn under a statute 778; People v. Harrison, 8 Barb. 560; State similar to that which was in existence in V. Briggs, 34 Vt. 501; Com. v. Ray, 3 Gray, California when the Case of Ah Woo, 28 Cal. 441; Barnum v. State, 18 Ohio, 717; Clarke

We are

v. State, 8 Ohio St. 630. These cases estab- them. We are satisfied the writing in queslish the doctrine that, to constitute forgery, tion is not a subject of forgery, and no inthe forged instrument must be one which, if dictment can be sustained on it, and no avergenuine, may injure another, and that it ments can aid it." To the same effect, see must appear from the indictment that such Com. v. Hinds, 101 Mass., at page 211, where is its legal character, either from the recital the court say: "If the fraudulent character or description of the instrument itself, or, if of the forged instrument is not manifest on that does not show it to be so, then by the its face, this deficiency should be supplied by averment of matter aliunde, which will such averments as to extrinsic matter as show it to be of that character." We take would enable the court judicially to see that the following from the remarks of Judge it has such a tendency. We find nothing of Cowen in People v. Shall, 9 Cow. p. 778: "In the kind in the present indictment, and the principal case I have shown that the pa- therefore cannot say that the plea of guilty per forged, if genuine, would be a mere nulli- is a confession of any crime whatever.” See, ty for any purpose; nor, to my mind, could also, the learned note in Arnold v. Cost, 22 it be made good by any possible averment. Am. Dec., at page 314. See, also, Barnum It could not be made the foundation of lia- v. State, 15 Ohio, 717; Raymond y. People bility, like the letter of credit. It does not (Colo. App.) 30 Pac. 509; State v. Wheeler, come within any of the cases sustaining in- 19 Minn. 98 (Gil. 70); Abbott v. Rose, 62 Me. dictments; but to me it appears to be direct- 194; 2 Bish. New Cr. Law, $ 533. ly within the cases cited holding that an in- of opinion that the alleged forged instrument strument purporting to be void on its face, set out in the information in this case is and not shown to be operative by averment, such a one as comes within the doctrine of if genuine, is not the subject of forgery. the decisions quoted, and, as far as we How is it possible, in the nature of things, know, generally held. The instrument in that it should be otherwise? 'Void things question, if genuine, and if acted upon as its are as no things.' Was it ever heard of that terms suggest it might be, could do no posthe forgery of a nudum pactum, a thing sible damage. If the amount of $20 was adwhich could not be declared on, or enforced vanced to Evans by Schumacher upon this in any way, is yet indictable? It is the for- order, and if that amount were charged to gery of a shadow." The following remarks Evans himself, it would be nothing whatwere made by the Indiana supreme court in ever but a transaction between Schumacher Reed v. State, 28 Ind. 396: “The certificate, and Evans, which could be accomplished beso far as it purports to be an instrument en- tween those two persons with as much ease titling Allen to the bounty claimed therein, without the order as with it. The order, as was, at the time charged, utterly void. it appeared on its face, would not accomThere was no law authorizing the giving of plish the advancing of the money by Schubounties by the county commissioners. Oli- macher to Evans on the credit of Johnson ver v. Keightley, 24 Ind. 514; King v. Course, & McCarthy. Schumacher would as readily 25 Ind. 202. The legalizing act was not have advanced it without the order as with passed until March 3, 1865. Every one is it. There were no extrinsic facts alleged in presumed to know the law. Officers acting the information to show that the instrument under an official oath are presumed to do was available for the fraudulent purpose altheir duty. The order of the county com- leged in the information. The order of the missioners referred to in the certificate was district court in arrest of judgment is afvoid. 'Void things are as no things.' The in- firmed. dictment must show the forgery of an instrument which appears on its face natural- HUNT, J., concurs. ly calculated to have some effect, or, if it be not sufficient for that purpose, extrinsic matter must be averred, so that the court may

(15 Mont, 461) judicially see its fraudulent tendency." The BOOKWALTER v. CONRAD et al. supreme court of Illinois takes the same view

(Supreme Court of Montana. March 11, 1895.) when that court says, in the case of Water

StatCTES-REPEAL-Effect on PENDING ACman v. People, 67 Ill. 92: “The indictment

TIONS. framed upon this writing contains not a sin

Comp. St. div. 5, $ 209, providing that gle averment of any extrinsic matter which no action pending at the time any statutory pro

vision shall be repealed shall be affected by such could give the instrument forged any force

repeal, but shall proceed the same as if the proor effect beyond what appears on its face. vision were not repealed, refers only to proviNo connection is averred between the party sions which affect the action, and not the place

of trial. to whom the writing is addressed and the Chicago, Rock Island & Pacific Railroad On rehearing. Denied. Company, nor is it averred that the prisoner For former opinion, see 39 Pac. 573. attempted to pass the writing on that company. The writing, if genuine, has no legal DE WITT, J. The respondent has moved validity, as it affects no legal rights. It is for a rehearing in this case. His counsel a mere attempt to receive courtesies on a have filed a brief in which they earnestly promise, of no legal obligation, to reciprocate contend that the court erred in its construction 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

(Cal

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

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

(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.

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 stat. utory 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 it 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 tbe 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

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, it, 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 y.

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 lay. ing 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 adop tion 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 Fran. cisco against Thomas Mooney and others to recover lands claimed and held by deiendants adversely to the city. From a judgment

1 Rehearing denied March 25, 1895

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