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It is urged that the employment of the lan- excerpt is made, are found in the record in guage above italicized, in the connection in two places. They appear first, duly and reg. which it is used, was to tell the jury, in effect, ularly indorsed and authenticated, in the that the claim of the prosecution as to the judgment roll, and they are also found inconspiracy had been proved, and that, even serted in the bill of exceptions. As found in without any proof of conspiracy, one defend- the bill of exceptions, that part of the inant could be convicted for the act of the other. struction under consideration reads as above We do not so read the instruction, nor can quoted. As it appears in the judgment roll, it, in our judgment, be so regarded, without there is a difference, it there reading: “If ignoring the context. The grammatical con- you believe froin the evidence, beyond a reastruction of this portion of the instruction, in sonable doubt, that the defendants, or either expressing what the court intended, may be of them, unlawfully and with malice aforeopen to criticism, but the meaning of the thought, killed the said deceased, you will court is plain. The court was informing the find him guilty of murder of the first degree,” jury as to the circumstances under which the etc.,-the difference being that the word defendants, or either of them, committing the “them,” where italicized above, is used in act, could be convicted of murder of the first the bill of exceptions in place of the word degree; and the effect of its language was to “him,” as found in the judgment roll. If tell the jury that, if they should find that the instruction was given as it appears in the two defendants killed the deceased under the judgment roll, it is apparent tbat the obthe circumstances indicated, they could con- jection is untenable, and is disposed of by vict them both, or, if they should find that what is said of the same objection to the either one of them committed the act, then first part; the jury being merely told that they could convict that one. The defendants they could convict either or both of the dewere being tried together, and the court was fendants, as the evidence might warrant. If, endeavoring to so frame its charge as to con- however, it was given as quoted above from vey to the minds of the jury the fact that they the bill of exceptions,-and this is the ascould find a verdict against either one or both sumption of appellants,-there is, perhaps, of the defendants on trial, as the circumstan- ground for the objection that it assumes the ces should warrant. That this was the idea conspiracy established, since the jury are, in in the mind of the court, and the meaning effect, told that if they find that defendants, which would be conveyed to the mind of any or either of them, committed the act, then jury of ordinary intelligence, is, we think, they can find them guilty; in other words, manifest; and we think it equally plain that that is either one killed the deceased they no jury could get the impression from this would both be equally guilty. While it is part of the instruction that the court, by its very doubtful if the jury would so underlanguage, was assuming a conspiracy estab- stand the language, in view of the other inlished, or even referring to that subject. Else-structions given, we may assume for present where the court charged the jury upon the purposes that they would, and that the question of conspiracy, and not only made charge in that form would be prejudicially plain to them the rights of the defendants up- erroneous. The question then arises, how on that subject, but clearly charged them that are we to know in which form this particular the question as to whether a conspiracy had instruction was given to the jury? In one been established was one upon which they form, it is free from objection. In the other, alone were competent to pass, and indicated it is not. At one point in the record, we are very plainly that the court in no way intend told it was given in its unobjectionable form; ed to trench upon the province of the jury in at another, that, as given, it was erroneous. that regard. Even assuming, therefore, that Both facts are certified to us in a manner the language under criticism, taken by itself, importing equal verity. The recitals of the might possibly be open to the construction bill of exceptions in this regard are entitled sought to be put upon it by appellants, when to no greater consideration than those of the read, as it must be, with the other parts of the judgment roll. In fact, if any intendments charge upon the same subject, there is no are to be indulged in favor of one over the chance that any erroneous impression as to other, they should run here in favor of the the meaning of the court could have been judgment roll, since the instructions properleft upon the minds of the jury.

ly belong there, and do not belong in the bill Appellants also complain of that portion of exceptions. It is only where an oral of the instruction which reads: "If you be- charge is given, and not otherwise authenlieve from the evidence, beyond a reasonable ticated, or modifications are made in written doubt, that the defendants, or either of them, instructions, which it is desired to show, unlawfully and with malice aforethought, that it is either necessary or proper to prekilled the said deceased, you will find them serve them in a bill of exceptions. Where guilty of murder of the first degree,” etc. the instructions are, as here, in writing, and

It is first urged that this part of the in- indorsed by the judge, they belong properly struction is open to the same objection made in the judgment roll, and there alone. Here to that above discussed,--that it assumes the there is nothing to justify the inference that conspiracy to be established. The instruc- the instructions were incorporated in the bill tions, including the one from which the above of exceptions for the purpose of preserving 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 "In order, therefore, to find the defendant that in which they appear in the judgment guilty of murder of the first degree, you must roll. In fact, a comparison shows that the be convinced beyond a reasonable doubt that one change above noted is the only difference the defendants, or either of them, unlawfully disclosed between the entire charge as found and with malice aforethought, killed the in the bill of exceptions and as it appears in deceased, Fletcher Burton, either by means the judgment roll. It is apparent, therefore, of poison, or lying in wait, or by torture, or we think, that this discrepancy is the result by some other kind of willful, deliberate, of mistake, inadvertent or otherwise, but and premeditated killing," etc. And immewhen the mistake occurred is not apparent. diately following the objectionable language, Under such circumstances, we must apply and connected therewith by the conjunctive the familiar principle that all intendments of preposition, the jury are told: "If you bethe law are in favor of the regularity of the lieve from the evidence, and beyond all reajudgment and proceedings of the court be- sonable doubt, that such murder was perpelow, and it is incumbent upon appellants to trated by any kind of willful, deliberate, and show error affirmatively. People v. Wil- premeditated killing, it is murder of the liams, 45 Cal. 27. This the record does not first degree," etc. And again, in the next disclose, and we will presume that the in- sentence: "If the jury find the defendants struction was given in the form which will guilty of murder, the next question to be dego to sustain the judgment. An observance termined is, was the murder accompanied of the plain dictates of the statute in making by a deliberate and clear intent to take life? up the record would have avoided this con- In order to constitute murder in the first de. fusion. These instructions, as we have in- gree, that intent to kill must be the result of dicated, had no proper place in the bill of deliberate premeditation." In view of this exceptions, and yet they would seem to have clear and elaborate statement of the law, in been inserted solely because of an idea that the same breath, as it were, with the erroit was necessary in order to have them re- neous language, it is hardly to be conceived viewed. This idea is erroneous. Under the that by this mere accidental lapse the jury law, a defendant in a criminal case has the were in any way misled. Even if the objecsame advantage of every objection to an er- tionable words arrested their attention,roneous instruction when properly authenti- which, in all probability, they did not,-it cated in the judgment roll as when set out in would seem very improbable, indeed, almost a bill of exceptions and formal exception impossible, under the circumstances, that made. The law preserves the exception as they should give rise to any confusion in fully as though stated in terms in the rec- their minds. In such a case we cannot preord. The repetition of instructions, there- sume injury to the defendant. People v. •fore, in the bill of exceptions, except in the Moore, 8 Cal. 90. instances above adverted to, is wholly unnec- Several other instructions are assailed as essary, and only serves to incumber the rec- not correct statements of the law, but we ord, and impose an additional burden of ex- think the criticisms are without substantial pense upon the county which pays for the merit, and some of them exceedingly byperprinting of the record.

critical. The instructions upon the question It is further urged that the instruction is of alibi were clearly right; and those upon open to the objection that it ignores the nec- the subject of circumstantial evidence, read essary element of deliberation and premedi- together, stated the law correctly to the jury. tation, in its definition of murder of the In fact, taking the charge as a whole, while first degree. Taken by itself, and there is we cannot commend it as a model to be folno doubt but the language of that part last lowed for brevity, conciseness, and freedom quoted is open to this criticism, since the from verbal inaccuracies, we think that it jury are told that, if the killing was with stated the law sufficiently full and clear, malice aforethought, it would be murder of and that it contains nothing of such prejudithe first degree. This, of course, was erro- cial character as to warrant us in reversing neous, and the only question is, was it an the judgment. Some isolated sentences and error which worked prejudice to the defend- phrases are open to just criticism, as is alants? It is perfectly apparent from a read- most invariably the case when the court un. ing of the whole instruction tbat the addi- dertakes to charge the jury at great length; tion of the words “of the first degree" after but, regarded in its entirety, we find nothing the word "murder," in the connection in in the way of substantial error. See People which they were used in the part of the in- v. Kernaghan, 72 Cal. 612, 14 Pac. 566; Peostruction objected to, was a mere misprision, ple v. Bruggy, 93 Cal. 486, 29 Pac. 26; Peoor a slip of the pen; and it is only those ple v. Chun Heong, 86 Cal. 331, 24 Pac. words which work the vice complained of. 1021. Both immediately before and immediately 3. A large number of rulings of the court following this part of the instruction, and in admitting and excluding evidence are in the same connection, the learned judge complained of, a few of which are specificalvery fully and correctly charged the jury as ly pointed out and presented, but by far the to the elements of murder in the first degree. larger number of which are assigned in

For

groups, without suggestion of counsel's rea- ion of an expert, and, as such, was clearly sons for deeming them erroneous. We shall admissible as the statement of a fact. Peoundertake to notice those of the former class ple v. Hong Ah Duck, 61 Cal. 388. that require it, but we cannot undertake to These are the only points requiring special deal with the latter in detail, nor to seek notice. We have carefully examined the for grounds of error to which our attention other assignments, and find no material error is not called. It is the duty of counsel to in the record. The judgment and order de direct the court's particular attention to nying a new trial are affirmed. those matters which he regards of sufficient moment to affect the substantial rights of We concur: MCFARLAND, J.; GAhis client, and, in the absence of this, we feel ROUTTE, J.; HARRISON, J. at liberty to regard points not thus presented as mere makeweight, of no real merit. It was not error to admit in evidence the

(27 Or. 110) testimony of Luther and David Burton with

SHMIT V. DAY et al. reference to the working of the mining claim,

(Supreme Court of Oregon. April 1, 1895.) and the misunderstanding arising between

INJURY TO EMPLOYE-ACTION BY PARENT-ADMISthe Burton boys, Luther and Fletcher, and

SIONS BY CHILD EFFECT JURISDICTION OF the defendant Charles, in the absence of STATE Corits INJURIES ON FEDERAL TERRI William Gibson. This difficulty occurred

TORY - REVIEW ON APPEAL SUFFICIENCY OF

EVIDENCE. less than a week prior to the homicide, and was shown to have been the primary cause

1. A plaintiff suing for injuries received by

his minor son while in the employ of defendant which led to it. It constituted a link in the is not bound by a recital in a receipt for the son's chain of circumstances sought to be estal- wages, signed by another at the son's request, lished by the prosecution, pointing to the

that a party other than defendant was the em

ployer. guilt of defendants, as tending to show mo

2. Where the defendants in a personal injury tive, and was relevant and material to the suit by an employé alleged that they had previissue. It was certainly admissible against

ously assigned the contract for the work at which the defendant Charles, and, it being subse

plaintiff was employed, the burden is on them

to establish the assignment. quently shown to have been cominunicated 3. In the absence of a showing that the to and acted on by William Gibson, was as summons, in a suit for personal injuries received clearly admissible against the latter.

on land over which the United States has ex

clusive jurisdiction. was served in that territory, like considerations there was no error in per

the state courts have jurisdiction of the action. mitting the prosecution to prove by the same 4. Where defendant fails to ask a nonsuit, witnesses the statements made by Charles or that the jury be directed to find for him beduring this difficulty at the mine. It was

cause the evidence does not support the com

plaint, and a general verdict is rendered for simply evidence of a transaction, thereafter plaintiff, the material allegations of the comcommunicated to the other defendant, tend- plaint will, on appeal, be presumed to have been ing to establish the origin of the bad blood

found true. between the parties, a transaction avowedly, Appeal from circuit court, Wasco county; by William Gibson, made the basis of his W. L. Bradshaw, Judge. subsequent conduct in the case. Under the Action by Joseph Shmit against J. G. Day circumstances shown, it was admissible & I. N. Day. From a judgment for plaintiff, against both defendants.

defendants appeal. Affirmed. The witness Manning, who discovered the This is an action to recover damages for body of the deceased, was permitted, against personal injuries sustained by the plaintiff's the objection of defendants that he was not minor son while in the defendants' employ an expert, to testify as to the character of

upon the government works at the Cascade the wound found upon the body, and this locks, Or. The facts show: That in transruling is assigned as error. Assuming, as porting material for the locks the defendants contended by appellants, that this was the operated a movable crane upon an elevated subject, properly, of expert testimony, we track about 20 feet from the ground. That are of opinion that the witness was suffi- this track was about 200 feet long by 30 feet ciently shown to be such. He was shown to wide, and consisted of two iron rails supporthave had experience, not only in the observa- ed by longitudinal timbers resting upon posts tion of, but treatment of, gunshot and other unconnected by cross-ties. An inclined plane wounds on the frontier, against the Indians furnished a means of reaching a platform at and in the territories. We are not aware of the east end of the track, and slats were nailany rule that requires experts in knowledge ed to some of the posts, forming a ladder by of this character to belong to the medical which the track could be reached at points profession. It is not a class of knowledge beyond the platform. That the crane conwhich, in its nature, is so peculiarly con- sisted of a wide car, on the side of which was fined to men educated in the science of med- / a small house containing an engine that opicine or surgery as to preclude its acquisition , erated a windlass with which stones were by others. We think the witness was shown raised until their weight rested upon the to be competent. The testimony of the wit- crane, when they were transported along the ness was, furthermore, more in the nature track, and between the rails, by means of a of a description of the wound than the opin- stationary engine. That Frank Shmit, plain

1

tiff's son, 13 years and 8 months of age, names as payment in full of all demands, re. was employed to serve those two engines as mote or contingent, up to and including the fireman, and wait upon the engineer, and on date first above written,”-and shows the sum July 2, 1893, when he had been thus employed of $8.10 due said minor, and that he and othabout 10 days, he was ordered by the engineer ers signed said pay roll. (2) Error in giving to go from the crane to the ground, and fire the following instruction: "(15) The burden the stationary engine. That he went down of proof is upon the party holding the affirmthe incline, and while he was executing the ative, and the plaintiff in this case, to prove order the crane was moved from the plat- his case by a fair preponderance of testimony, form, and, desiring to return to his work, be excepting as to the affirmative allegations in went to one of the posts forming a ladder, and defendants' answer that this work was being hailed the engineer, who just then happened operated and controlled by the J. G. & I. N. to stop the car; but owing to the engineer's Day Contracting Company at the time of the attention having been directed to the work- accident.” And (3) that the court had no jumen below, whom he was looking at through risdiction to try or determine the case, for the an opening in the floor of the engine house, reason that the cause of action alleged in the and the noise of the windlass being so great, complaint occurred within the bounds of a he neither heard nor saw the boy, who, sup- tract of land over which the United States posing the car had been stopped for him, has exclusive jurisdiction. climbed the ladder, and placed his right hand on the iron rail, a few inches from one of the

Raleigh Stott, for appellants. A. S. Bencar wheels, for the purpose of getting upon

nett, for respondent. the track, and thence to the crane, when, without any warning, the car was started by MOORE, J. (after stating the facts). 1. A the engineer, and the wheel crushed the boy's copy of all the evidence offered or introduced finger's, necessitating amputation. The plain- at the trial set out in, and made a part of, tiff brings this action as the father of the boy, the bill of exceptions, from which it appears and entitled to his labor and earnings, and that the page of the pay roll offered in evialleges that the injury to his son was caused dence was signed, at the request of Frank by the defendants' negligence (1) in not pro- Shmit, by his brother, at the time the money viding a safe way in getting to and from the was received. We cannot think the plaintiff crane; (2) in failing, although necessary, to was precluded by any of the recitals containprovide any rules and signals for starting, ed in the pay roll. The cause of action acstopping, or operating the crane; and (3) in crued to him for the loss of his son's service, failing to notify or instruct said minor, who and he should not be prejudiced because anwas inexperienced, of immature judgment, other son, at Frank's request, received and and wholly ignorant, of the danger in passing receipted for the amount due him. And, even to and from the crane. The defendants, after if the recitals were binding upon the plaindenying the material allegations of the com- tiff, the words, "Pay Roll of the J. G. & I. plaint, for separate defenses, alleged that, N. Day Contracting Co.," do not necessarily having a contract with the government, they refer to a corporation. The evidence offered sublet it to the J. G. & I. N. Day Contracting tending to prove the existence of the corporaCompany, a corporation organized under the tion was a self-serving memorandum, not neclaws of California, which prior to and on July essarily admitting the fact in controversy, 2, 1893, was engaged in prosecuting the work; and not signed by the plaintiff, and hence not that the accident to the boy was the result of admissible. his own carelessness and negligence, which 2. The answer admitted that the defendcontributed to his injury; and that, if the ac- ants were the original contractors with the cident was the result of carelessness or negli- government for the improvement of the Cogence on the part of any employé of said cor- lumbia river, but they claimed to have sublet poration, then a fellow servant of said minor the contract to a corporation of which they was at fault, and not the corporation. The were agents, and J. G. Day the general manreply having put in issue the allegations of ager. The contract between the government new matter contained in the answer, a trial and the defendants having been proven to was had, resulting in a verdict for the plain- have once existed, it will be presumed to tiff, upon which, after overruling a motion continue until the work of opening, building, for a new trial, the court gave judgment, and constructiag the canal and locks is comfrom which the defendants appeal; and, al- pleted by them. Subdivision 33, $ 776, Hill's though several alleged errors are assigned, Code. And having alleged the assignment of their brief urges the following only the contract in their answer, and that fact grounds for reversal: (1) Error of the court being more particularly within their knowl. in refusing to admit in evidence a page of the edge, the burden of proof was upon them to pay roll of the J. G. & I. N. Day Contracting establish it. Peabody v. Navigation Co., 21 Company for the month ending June 30, 1893, Or. 121, 26 Pac. 1053; Ferguson v. Railway which contains the following: “We, the un- Co., 63 Wis. 145, 23 N. W. 123; Weber v. dersigned, each for himself, and not for each Rothchild, 15 Or. 385, 15 Pac. 650. The de. other, hereby acknowledge receipt for the fendants, in addition to the oral testimony several amounts set opposite our respective upon the subject, offered in evidence certified

as

copies of the certificate of organization of the of law, but appellate courts will consider J. G. & I. N. Day Contracting Company, and those law questions only which by the record sections of the statute of California showing appear to have been properly presented to and its powers. In Peabody v. Navigation Co., decided by the trial court; and the general supra, Lord, J., in commenting upon the rule is that objections not so presented will weight of evidence, says: “This seems to indi- receive no attention on appeal (Elliott, App. cate, as was contended, that when a presump- Proc. $8 238, 470), except objections to the jution arises in any case the jury is not bound to risdiction of the court, and that the combelieve the declaration of a witness, or a num- plaint does not state a cause of action (Hill's ber of them, contradicting the presumption, Code, 8 71). An objection must be appropribut that the credibility of such witness or ately made in the trial court to the ruling or witnesses then becomes a question for them, decision deemed to be erroneous, and when and if they are not satisfied of the truthful- not so made the right to object will be reness of the evidence of such witnesses they garded as waived, on appeal to this court are not bound to believe it, but may find in (Elliott, App. Proc. $$ 674, 675), for it is safe accordance with the presumption." The bur- to say that the general rule, and one of very den of proof relating to the assignment of comprehensive scope, is that where there is the contract was clearly upon the defend- no ruling, or no sufficient request to rule, ants, and hence the instruction complained there is no available error. Id. 726. It has of correctly stated the law; and, the jury been uniformly held that a judgment granthaving found for the plaintiff upon the pre- ing or refusing a motion for a new trial is a sumption, its verdict will not be disturbed question within the discretion of the trial upon that account.

court, which cannot be reviewed upon ap3. The legislative assembly, by an act ap- peal. Bowen v. State, 1 Or. 270; Kearney proved October 15, 1878, ceded jurisdiction to v. Snodgrass, 12 Or. 311, 7 Pac. 309; State v. the United States over certain lands at the Mackey, 12 Or. 154, 6 Pac. 648; State v. Cascade locks, but reserved the right to exe- Becker, 12 Or. 318, 7 Pac. 329; State v. Clemcute civil and criminal process issued under ents, 15 Or. 237, 14 Pac. 410. The defendthe authority of the state against any person ants not having moved for a judgment of or persons charged with crimes committed, nonsuit, or asked the court to instruct the or for any cause of action accruing, without jury to find for them, upon the assumed failthe bounds of said tract. Sess. Laws 1878, ure of the evidence to support the ailegations p. 8. Assuming that the accident occurred of the complaint, the objections which they within the ceded territory, the transcript now urge were not presented to or decided does not show that the summons was served by the trial court, and cannot be considered therein. Actions for damages resulting from here; and, a general verdict having been personal injuries are transitory, and the rendered for the plaintiff, every material alcourts of any state have jurisdiction, with- legation of tbe complaint will be presumed out regard to where the injury was received. to be found true, and the verdict as broad as If this were not so then a sister state might the issues passed upon. Torrence v. Strong, become a "city of refuge," to which the party 4 Or. 39; Woods v. Courtney, 16 Or. 121, 17 guilty of negligence producing personal in- Pac. 745; Reed v. Gentry, 7 Or. 497. These jury might flee, and find a safe asylum. views rendering the examination of the eviSuch is not the law, and, the record failing to dence unnecessary, the judgment will be af. show that the process was served within the firmed, and it is so ordered. ceded territory, the court had jurisdiction of the cause of action. 4. It is contended that the evidence totally

(22 Nev, 304) fails to show that the defendants were negli

WRIGHT et al. v. CARSON WATER CO. gent in the performance of any duty they

(No. 1,420.) owed the plaintiff's minor son, but that, on (Supreme Court of Nevada. March 28, 1895.) the contrary, it clearly shows that the boy Second APPEAL-EFFECT OF FORMER DECISION. was injured in consequence of his own negli

The decision of the appellate court on a gence. No motion for a nonsuit, nor any re

previous appeal is, on a second appeal on sub

stantially the same facts, res judicata. quest for an instruction to the jury to find for the defendants, having been made in the

Appeal from district court, Ormsby county; court below, the question is presented wheth

Richard Rising, Judge. er this court has authority to review the evi

Action by S. C. Wright against the Carson dence. “Whether the plaintiff is entitled to

Water Company. On plaintiff's death, F. J. recover any damages," says Mr. Thompson

Edwards and another, executors, were subin his work on Charging the Jury (section 22),

stituted as plaintiffs. From a judgment for “is a question for the court, because this

defendant, John M. Wright and another, as question is a compound of two questions of

heirs at law and distributees of decedent, law, namely: (1) Whether he has, in his

appeal. Affirmed. pleadings, shown an actionable injury; (2)

For prior appeal, see 34 Pac. 381. whether he has adduced any evidence to Rives & Judge and Wm. Woodburn, for support the claim thus made." The right to appellants. Torreyson & Summerfield, for recover any damages is therefore a question respondent.

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