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It is urged that the employment of the language above italicized, in the connection in which it is used, was to tell the jury, in effect, that the claim of the prosecution as to the conspiracy had been proved, and that, even without any proof of conspiracy, one defendant could be convicted for the act of the other. We do not so read the instruction, nor can it, in our judgment, be so regarded, without ignoring the context. The grammatical construction of this portion of the instruction, in expressing what the court intended, may be open to criticism, but the meaning of the court is plain. The court was informing the jury as to the circumstances under which the defendants, or either of them, committing the act, could be convicted of murder of the first degree; and the effect of its language was to tell the jury that, if they should find that the two defendants killed the deceased under the circumstances indicated, they could convict them both, or, if they should find that either one of them committed the act, then they could convict that one. The defendants were being tried together, and the court was endeavoring to so frame its charge as to convey to the minds of the jury the fact that they could find a verdict against either one or both of the defendants on trial, as the circumstances should warrant. That this was the idea in the mind of the court, and the meaning which would be conveyed to the mind of any jury of ordinary intelligence, is, we think, manifest; and we think it equally plain that no jury could get the impression from this part of the instruction that the court, by its language, was assuming a conspiracy established, or even referring to that subject. Elsewhere the court charged the jury upon the question of conspiracy, and not only made plain to them the rights of the defendants upon that subject, but clearly charged them that the question as to whether a conspiracy had been established was one upon which they alone were competent to pass, and indicated very plainly that the court in no way intended to trench upon the province of the jury in that regard. Even assuming, therefore, that the language under criticism, taken by itself, might possibly be open to the construction sought to be put upon it by appellants, when read, as it must be, with the other parts of the charge upon the same subject, there is no chance that any erroneous impression as to the meaning of the court could have been left upon the minds of the jury.

Appellants also complain of that portion of the instruction which reads: "If you believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, unlawfully and with malice aforethought, killed the said deceased, you will find them guilty of murder of the first degree," etc.

It is first urged that this part of the instruction is open to the same objection made to that above discussed,-that it assumes the conspiracy to be established. The instructions, including the one from which the above

excerpt is made, are found in the record in two places. They appear first, duly and regularly indorsed and authenticated, in the judgment roll, and they are also found inserted in the bill of exceptions. As found in the bill of exceptions, that part of the instruction under consideration reads as above quoted. As it appears in the judgment roll, there is a difference, it there reading: "If you believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, unlawfully and with malice aforethought, killed the said deceased, you will find him guilty of murder of the first degree," etc., the difference being that the word "them," where italicized above, is used in the bill of exceptions in place of the word "him," as found in the judgment roll. If the instruction was given as it appears in the judgment roll, it is apparent that the objection is untenable, and is disposed of by what is said of the same objection to the first part; the jury being merely told that they could convict either or both of the defendants, as the evidence might warrant. If, however, it was given as quoted above from the bill of exceptions,-and this is the assumption of appellants,-there is, perhaps, ground for the objection that it assumes the conspiracy established, since the jury are, in effect, told that if they find that defendants, or either of them, committed the act, then they can find them guilty; in other words, that if either one killed the deceased they would both be equally guilty. While it is very doubtful if the jury would so understand the language, in view of the other instructions given, we may assume for present purposes that they would, and that the charge in that form would be prejudicially erroneous. The question then arises, how are we to know in which form this particular instruction was given to the jury? In one form, it is free from objection. In the other, it is not. At one point in the record, we are told it was given in its unobjectionable form; at another, that, as given, it was erroneous. Both facts are certified to us in a manner importing equal verity. The recitals of the bill of exceptions in this regard are entitled to no greater consideration than those of the judgment roll. In fact, if any intendments are to be indulged in favor of one over the other, they should run here in favor of the judgment roll, since the instructions properly belong there, and do not belong in the bill of exceptions. It is only where an oral charge is given, and not otherwise authenticated, or modifications are made in written instructions, which it is desired to show, that it is either necessary or proper to preserve them in a bill of exceptions. Where the instructions are, as here, in writing, and indorsed by the judge, they belong properly in the judgment roll, and there alone. Here there is nothing to justify the inference that the instructions were incorporated in the bill of exceptions for the purpose of preserving

"In order, therefore, to find the defendant guilty of murder of the first degree, you must be convinced beyond a reasonable doubt that the defendants, or either of them, unlawfully and with malice aforethought, killed the deceased, Fletcher Burton, either by means of poison, or lying in wait, or by torture, or by some other kind of willful, deliberate, and premeditated killing," etc. And immediately following the objectionable language, and connected therewith by the conjunctive preposition, the jury are told: "If you believe from the evidence, and beyond all reasonable doubt, that such murder was perpetrated by any kind of willful, deliberate, and premeditated killing, it is murder of the first degree," etc. And again, in the next sentence: "If the jury find the defendants guilty of murder, the next question to be determined is, was the murder accompanied by a deliberate and clear intent to take life? In order to constitute murder in the first degree, that intent to kill must be the result of deliberate premeditation." In view of this clear and elaborate statement of the law, in the same breath, as it were, with the erroneous language, it is hardly to be conceived that by this mere accidental lapse the jury were in any way misled. Even if the objectionable words arrested their attention,which, in all probability, they did not,-it would seem very improbable, indeed, almost impossible, under the circumstances, that they should give rise to any confusion in their minds. In such a case we cannot presume injury to the defendant. People v. Moore, 8 Cal. 90.

any modifications, or to show that they were In the preceding sentence the jury are told: given to the jury in any different form from that in which they appear in the judgment roll. In fact, a comparison shows that the one change above noted is the only difference disclosed between the entire charge as found in the bill of exceptions and as it appears in the judgment roll. It is apparent, therefore, we think, that this discrepancy is the result of mistake, inadvertent or otherwise, but when the mistake occurred is not apparent. Under such circumstances, we must apply the familiar principle that all intendments of the law are in favor of the regularity of the judgment and proceedings of the court below, and it is incumbent upon appellants to show error affirmatively. People v. Williams, 45 Cal. 27. This the record does not disclose, and we will presume that the instruction was given in the form which will go to sustain the judgment. An observance of the plain dictates of the statute in making up the record would have avoided this confusion. These instructions, as we have indicated, had no proper place in the bill of exceptions, and yet they would seem to have been inserted solely because of an idea that it was necessary in order to have them reviewed. This idea is erroneous. Under the law, a defendant in a criminal case has the same advantage of every objection to an erroneous instruction when properly authenticated in the judgment roll as when set out in a bill of exceptions and formal exception made. The law preserves the exception as fully as though stated in terms in the record. The repetition of instructions, therefore, in the bill of exceptions, except in the instances above adverted to, is wholly unnecessary, and only serves to incumber the record, and impose an additional burden of expense upon the county which pays for the printing of the record.

It is further urged that the instruction is open to the objection that it ignores the necessary element of deliberation and premeditation, in its definition of murder of the first degree. Taken by itself, and there is no doubt but the language of that part last quoted is open to this criticism, since the jury are told that, if the killing was with malice aforethought, it would be murder of the first degree. This, of course, was erroneous, and the only question is, was it an error which worked prejudice to the defendants? It is perfectly apparent from a reading of the whole instruction that the addition of the words "of the first degree" after the word "murder," in the connection in which they were used in the part of the instruction objected to, was a mere misprision, or a slip of the pen; and it is only those words which work the vice complained of. Both immediately before and immediately following this part of the instruction, and in the same connection, the learned judge very fully and correctly charged the jury as to the elements of murder in the first degree.

Several other instructions are assailed as not correct statements of the law, but we think the criticisms are without substantial merit, and some of them exceedingly hypercritical. The instructions upon the question of alibi were clearly right; and those upon the subject of circumstantial evidence, read together, stated the law correctly to the jury. In fact, taking the charge as a whole, while we cannot commend it as a model to be followed for brevity, conciseness, and freedom from verbal inaccuracies, we think that it stated the law sufficiently full and clear, and that it contains nothing of such prejudicial character as to warrant us in reversing the judgment. Some isolated sentences and phrases are open to just criticism, as is almost invariably the case when the court undertakes to charge the jury at great length; but, regarded in its entirety, we find nothing in the way of substantial error. See People v. Kernaghan, 72 Cal. 612, 14 Pac. 566; People v. Bruggy, 93 Cal. 486, 29 Pac. 26; People v. Chun Heong, 86 Cal. 331, 24 Pac. 1021.

3. A large number of rulings of the court in admitting and excluding evidence are complained of, a few of which are specifically pointed out and presented, but by far the larger number of which are assigned in

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groups, without suggestion of counsel's reasons for deeming them erroneous. We shall undertake to notice those of the former class that require it, but we cannot undertake to Ideal with the latter in detail, nor to seek for grounds of error to which our attention is not called. It is the duty of counsel to direct the court's particular attention to those matters which he regards of sufficient moment to affect the substantial rights of his client, and, in the absence of this, we feel at liberty to regard points not thus presented as mere makeweight, of no real merit.

It was not error to admit in evidence the testimony of Luther and David Burton with reference to the working of the mining claim, and the misunderstanding arising between the Burton boys, Luther and Fletcher, and the defendant Charles, in the absence of William Gibson. This difficulty occurred less than a week prior to the homicide, and was shown to have been the primary cause which led to it. It constituted a link in the chain of circumstances sought to be established by the prosecution, pointing to the guilt of defendants, as tending to show motive, and was relevant and material to the issue. It was certainly admissible against the defendant Charles, and, it being subsequently shown to have been communicated to and acted on by William Gibson, was as clearly admissible against the latter. For like considerations there was no error in permitting the prosecution to prove by the same witnesses the statements made by Charles during this difficulty at the mine. It was simply evidence of a transaction, thereafter communicated to the other defendant, tending to establish the origin of the bad blood between the parties, a transaction avowedly, by William Gibson, made the basis of his subsequent conduct in the case. Under the circumstances shown, it was admissible against both defendants.

The witness Manning, who discovered the body of the deceased, was permitted, against the objection of defendants that he was not an expert, to testify as to the character of the wound found upon the body, and this ruling is assigned as error. Assuming, as contended by appellants, that this was the subject, properly, of expert testimony, we are of opinion that the witness was sufficiently shown to be such. He was shown to have had experience, not only in the observation of, but treatment of, gunshot and other wounds on the frontier, against the Indians and in the territories. We are not aware of any rule that requires experts in knowledge of this character to belong to the medical profession. It is not a class of knowledge which, in its nature, is so peculiarly confined to men educated in the science of medicine or surgery as to preclude its acquisition by others. We think the witness was shown to be competent. The testimony of the witness was, furthermore, more in the nature of a description of the wound than the opin

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1. A plaintiff suing for injuries received by his minor son while in the employ of defendant is not bound by a recital in a receipt for the son's wages, signed by another at the son's request, that a party other than defendant was the employer.

2. Where the defendants in a personal injury suit by an employé alleged that they had previously assigned the contract for the work at which plaintiff was employed, the burden is on them to establish the assignment.

3. In the absence of a showing that the summons, in a suit for personal injuries received on land over which the United States has exclusive jurisdiction. was served in that territory, the state courts have jurisdiction of the action.

4. Where defendant fails to ask a nonsuit, or that the jury be directed to find for him because the evidence does not support the complaint, and a general verdict is rendered for plaintiff, the material allegations of the complaint will, on appeal, be presumed to have been found true.

Appeal from circuit court, Wasco county; W. L. Bradshaw, Judge.

Action by Joseph Shmit against J. G. Day & I. N. Day. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action to recover damages for personal injuries sustained by the plaintiff's minor son while in the defendants' employ upon the government works at the Cascade locks, Or. The facts show: That in transporting material for the locks the defendants operated a movable crane upon an elevated track about 20 feet from the ground. That this track was about 200 feet long by 30 feet wide, and consisted of two iron rails supported by longitudinal timbers resting upon posts unconnected by cross-ties. An inclined plane furnished a means of reaching a platform at the east end of the track, and slats were nailed to some of the posts, forming a ladder by which the track could be reached at points beyond the platform. That the crane consisted of a wide car, on the side of which was a small house containing an engine that operated a windlass with which stones were raised until their weight rested upon the crane, when they were transported along the track, and between the rails, by means of a stationary engine. That Frank Shmit, plain

tiff's son, 13 years and 8 months of age, was employed to serve those two engines as fireman, and wait upon the engineer, and on July 2, 1893, when he had been thus employed about 10 days, he was ordered by the engineer to go from the crane to the ground, and fire the stationary engine. That he went down the incline, and while he was executing the order the crane was moved from the platform, and, desiring to return to his work, he went to one of the posts forming a ladder, and hailed the engineer, who just then happened to stop the car; but owing to the engineer's attention having been directed to the workmen below, whom he was looking at through an opening in the floor of the engine house, and the noise of the windlass being so great, he neither heard nor saw the boy, who, supposing the car had been stopped for him, climbed the ladder, and placed his right hand on the iron rail, a few inches from one of the car wheels, for the purpose of getting upon the track, and thence to the crane, when, without any warning, the car was started by the engineer, and the wheel crushed the boy's finger's, necessitating amputation. The plaintiff brings this action as the father of the boy, and entitled to his labor and earnings, and alleges that the injury to his son was caused by the defendants' negligence (1) in not providing a safe way in getting to and from the crane; (2) in failing, although necessary, to provide any rules and signals for starting, stopping, or operating the crane; and (3) in failing to notify or instruct said minor, who was inexperienced, of immature judgment, and wholly ignorant, of the danger in passing to and from the crane. The defendants, after denying the material allegations of the complaint, for separate defenses, alleged that, having a contract with the government, they sublet it to the J. G. & I. N. Day Contracting Company, a corporation organized under the laws of California, which prior to and on July❘ 2, 1893, was engaged in prosecuting the work; that the accident to the boy was the result of his own carelessness and negligence, which contributed to his injury; and that, if the accident was the result of carelessness or negligence on the part of any employé of said corporation, then a fellow servant of said minor was at fault, and not the corporation. The reply having put in issue the allegations of new matter contained in the answer, a trial was had, resulting in a verdict for the plaintiff, upon which, after overruling a motion for a new trial, the court gave judgment, from which the defendants appeal; and, although several alleged errors are assigned, their brief urges the following only as grounds for reversal: (1) Error of the court in refusing to admit în evidence a page of the pay roll of the J. G. & I. N. Day Contracting Company for the month ending June 30, 1893, which contains the following: "We, the undersigned, each for himself, and not for each other, hereby acknowledge receipt for the several amounts set opposite our respective

names as payment in full of all demands, remote or contingent, up to and including the date first above written,"-and shows the sum of $8.10 due said minor, and that he and others signed said pay roll. (2) Error in giving the following instruction: "(15) The burden of proof is upon the party holding the affirmative, and the plaintiff in this case, to prove his case by a fair preponderance of testimony, excepting as to the affirmative allegations in defendants' answer that this work was being operated and controlled by the J. G. & I. N. Day Contracting Company at the time of the accident." And (3) that the court had no jurisdiction to try or determine the case, for the reason that the cause of action alleged in the complaint occurred within the bounds of a tract of land over which the United States has exclusive jurisdiction.

Raleigh Stott, for appellants. A. S. Bennett, for respondent.

MOORE, J. (after stating the facts). 1. A copy of all the evidence offered or introduced at the trial set out in, and made a part of, the bill of exceptions, from which it appears that the page of the pay roll offered in evidence was signed, at the request of Frank Shmit, by his brother, at the time the money was received. We cannot think the plaintiff was precluded by any of the recitals contained in the pay roll. The cause of action accrued to him for the loss of his son's service, and he should not be prejudiced because another son, at Frank's request, received and receipted for the amount due him. And, even if the recitals were binding upon the plaintiff, the words, "Pay Roll of the J. G. & I. N. Day Contracting Co.," do not necessarily refer to a corporation. The evidence offered tending to prove the existence of the corporation was a self-serving memorandum, not necessarily admitting the fact in controversy, and not signed by the plaintiff, and hence not admissible.

2. The answer admitted that the defendants were the original contractors with the government for the improvement of the Columbia river, but they claimed to have sublet the contract to a corporation of which they were agents, and J. G. Day the general manager. The contract between the government and the defendants having been proven to have once existed, it will be presumed to continue until the work of opening, building, and constructing the canal and locks is completed by them. Subdivision 33, § 776, Hill's Code. And having alleged the assignment of the contract in their answer, and that fact being more particularly within their knowledge, the burden of proof was upon them to establish it. Peabody v. Navigation Co., 21 Or. 121, 26 Pac. 1053; Ferguson v. Railway Co., 63 Wis. 145, 23 N. W. 123; Weber v. Rothchild, 15 Or. 385, 15 Pac. 650. The defendants, in addition to the oral testimony upon the subject, offered in evidence certified

copies of the certificate of organization of the J. G. & I. N. Day Contracting Company, and sections of the statute of California showing its powers. In Peabody v. Navigation Co., supra, Lord, J., in commenting upon the weight of evidence, says: "This seems to indicate, as was contended, that when a presumption arises in any case the jury is not bound to believe the declaration of a witness, or a number of them, contradicting the presumption, but that the credibility of such witness or witnesses then becomes a question for them, and if they are not satisfied of the truthfulness of the evidence of such witnesses they are not bound to believe it, but may find in accordance with the presumption." The burden of proof relating to the assignment of the contract was clearly upon the defendants, and hence the instruction complained of correctly stated the law; and, the jury having found for the plaintiff upon the presumption, its verdict will not be disturbed upon that account.

3. The legislative assembly, by an act approved October 15, 1878, ceded jurisdiction to the United States over certain lands at the Cascade locks, but reserved the right to execute civil and criminal process issued under the authority of the state against any person or persons charged with crimes committed, or for any cause of action accruing, without the bounds of said tract. Sess. Laws 1878, p. 8. Assuming that the accident occurred within the ceded territory, the transcript does not show that the summons was served therein. Actions for damages resulting from personal injuries are transitory, and the courts of any state have jurisdiction, without regard to where the injury was received. If this were not so then a sister state might become a "city of refuge," to which the party guilty of negligence producing personal injury might flee, and find a safe asylum. Such is not the law, and, the record failing to show that the process was served within the ceded territory, the court had jurisdiction of the cause of action.

4. It is contended that the evidence totally fails to show that the defendants were negligent in the performance of any duty they owed the plaintiff's minor son, but that, on the contrary, it clearly shows that the boy was injured in consequence of his own negligence. No motion for a nonsuit, nor any request for an instruction to the jury to find for the defendants, having been made in the court below, the question is presented whether this court has authority to review the evidence. "Whether the plaintiff is entitled to recover any damages," says Mr. Thompson in his work on Charging the Jury (section 22), "is a question for the court, because this question is a compound of two questions of law, namely: (1) Whether he has, in his pleadings, shown an actionable injury; (2) whether he has adduced any evidence to support the claim thus made." The right to recover any damages is therefore a question

of law, but appellate courts will consider those law questions only which by the record appear to have been properly presented to and decided by the trial court; and the general rule is that objections not so presented will receive no attention on appeal (Elliott, App. Proc. §§ 238, 470), except objections to the jurisdiction of the court, and that the complaint does not state a cause of action (Hill's Code, § 71). An objection must be appropriately made in the trial court to the ruling or decision deemed to be erroneous, and when not so made the right to object will be regarded as waived, on appeal to this court (Elliott, App. Proc. §§ 674, 675), for it is safe to say that the general rule, and one of very comprehensive scope, is that where there is no ruling, or no sufficient request to rule, there is no available error. Id. 726. It has been uniformly held that a judgment granting or refusing a motion for a new trial is a question within the discretion of the trial court, which cannot be reviewed upon appeal. Bowen v. State, 1 Or. 270; Kearney v. Snodgrass, 12 Or. 311, 7 Pac. 309; State v. Mackey, 12 Or. 154, 6 Pac. 648; State v. Becker, 12 Or. 318, 7 Pac. 329; State v. Clements, 15 Or. 237, 14 Pac. 410. The defendants not having moved for a judgment of nonsuit, or asked the court to instruct the jury to find for them, upon the assumed failure of the evidence to support the allegations of the complaint, the objections which they now urge were not presented to or decided by the trial court, and cannot be considered here; and, a general verdict having been rendered for the plaintiff, every material allegation of the complaint will be presumed to be found true, and the verdict as broad as the issues passed upon. Torrence v. Strong, 4 Or. 39; Woods v. Courtney, 16 Or. 121, 17 Pac. 745; Reed v. Gentry, 7 Or. 497. These views rendering the examination of the evidence unnecessary, the judgment will be affirmed, and it is so ordered.

(22 Nev, 304)

WRIGHT et al. v. CARSON WATER CO. (No. 1,420.) (Supreme Court of Nevada. March 28, 1895.) SECOND APPEAL-EFFECT OF FORMER DECISION.

The decision of the appellate court on a previous appeal is, on a second appeal on substantially the same facts, res judicata.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by S. C. Wright against the Carson Water Company. On plaintiff's death, F. J. Edwards and another, executors, were substituted as plaintiffs. From a judgment for defendant, John M. Wright and another, as heirs at law and distributees of decedent, appeal. Affirmed.

For prior appeal, see 34 Pac. 381.

Rives & Judge and Wm. Woodburn, for appellants. Torreyson & Summerfield, for respondent.

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