(185 P.) and 75 inches as of date March 1, 1884. a violation of the decree and a contempt of There were prior appropriations aggregating court. Rev. Codes, § 7309. more than 1,600 inches. On June 10th of [3] To exonerate himself from the charge this year, the water flowing in these creeks of contempt, and for that purpose only, it was less than 1,000 inches, and the commis- was competent for relator to show that, by sioner appointed by the court to distribute his own efforts, he had developed an indethe water under the decree closed the head-pendent source of supply, and that the quangates to Zosel's ditches in order to permit the water, which Zosel was using, to flow down to the prior appropriators. Zosel reopened the headgates and continued to use about 100 inches of water until he was arrested, charged with contempt. The trial resulted in an order adjudging him guilty and imposing a fine. To review that order this proceeding was instituted. tity of water used by him did not exceed the amount so developed. He could not, however, establish his right to the use of the socalled developed water as against the prior appropriators. The title to property cannot be tried in a contempt proceeding. Ryan v. Quinlan, 45 Mont. 521, 530, 124 Pac. 512. If relator has acquired the right to which he lays claim, he must have it determined in a civil action to which others interested may be made parties. Upon the trial Zosel admitted that he had reopened the headgates to his ditches and used the water in defiance of the commission- [4] Contempt proceedings are sui generis. er, but undertook to show that his use of the State ex rel. Boston & Mont. Co. v. Judges, water did not impair the right of any prior 30 Mont. 193, 76 Pac. 10. For the violation appropriator; that by early irrigation of his of a lawful judgment or order of the district land there was created a subterranean stor- court, that court alone has authority to inage system upon his land from which, during flict punishment, and so far exclusive is the the later irrigation season, there was return-authority that by express legislative declaraed, in seepage, water to the creeks (as much tion the right of appeal is denied. Rev. water as he was using through his ditches); Codes, § 7322. and that this condition prevailed at the time of the alleged contemptuous acts of which complaint was made. [5] If, in adjudging one guilty of contempt, the court acts without jurisdiction, the proceedings may be reviewed on certiorari (section 7322, above), and in exigent cases where the court acts within jurisdiction, but in a manner so arbitrary and unlawful as to be tyrannical, this court may intervene, by virtue of the power conferred by the Constitution, to exercise supervisory control over inferior courts. State ex rel. Sutton v. Dis [1] When an appropriation is made of the waters of a stream, the rights of the appropriator are limited to the natural condition of the stream at the time the appropriation is made, and are not enlarged by subsequent improvements made by another which increase the supply flowing in the stream, and, if such other person by his own exertions in-trict Court, 27 Mont. 128, 69 Pac. 988; State creases the available supply, he has the prior right to use it to the extent of the increase. It is not sufficient, however, that the increase is occasioned by the mere removal of obstructions which accelerates the flow. It must constitute a new or independent source of supply-a supply which would not otherwise have flowed in the stream. Beaverhead Canal Co. v. Dillon E. L. & P. Co., 34 Mont. 135, 140, 85 Pac. 880; Smith v. Duff, 39 Mont. 382, 102 Pac. 984, 133 Am. St. Rep. 587; Spaulding v. Stone, 46 Mont. 483, 488, 129 Pac. 327. [2] By the terms of the decree, whenever the waters of these streams receded to an amount less than 1,619 inches, relator was not entitled to the use of any of the water which constituted a part of the natural supply, if the water was needed by the prior appropriators; and, it appearing that all the water flowing in the streams was needed by the prior appropriators, relator's use of a portion of the water constituted, prima facie, ex rel. Coleman v. District Court, 51 Mont. 195, 149 Pac. 973. In such a case, however, our review of the proceedings is limited to an examination of the record for the purpose of ascertaining whether there is any substantial evidence to justify the order adjudging the accused guilty. State ex rel. Boyle v. District Court, 27 Mont. 134, 69 Pac. 671. [6] In reaching the conclusion that the relator, in this instance, was guilty, the trial court necessarily passed upon the credibility of the witnesses and the weight to be given to their testimony. Those subjects are excluded from our review. There is some substantial evidence to justify the order, and therefore this is not a proper case for our interference. The motion to quash is sustained, and the proceedings are dismissed. Dismissed. BRANTLY, C. J., and HURLY and COOPER, JJ., concur. On appeal from judgment of conviction, the review of the evidence by the Supreme Court is limited to an examination of the record to determine whether there is any substantial evidence to justify the verdict. 2. CRIMINAL LAW 1159(4)-CREDIBILITY OF WITNESS A QUESTION for Jury. HOLLOWAY, J. On May 28, 1917, George Kozocar was shot and instantly killed while at his home in Valley county. The defendant was accused of having murdered him, was tried and convicted of murder in the second degree, and has appealed from the judgment. The brief of his counsel is devoted to a discussion of the sufficiency of the evidence and certain rulings of the trial court admitting and excluding evidence. The persons present at the time of the tragedy were all foreigners, presumably Roumanians, apparently of a very low order of intelligence. Most of them did not speak or understand the English language at all. Two or three of them were able to give their testimony without the aid of an interpreter, but they spoke and understood English so imperfectly that it is very difficult to com The credibility of witness and weight to be given his testimony were matters for determination by the jury, and, in the absence of such inherent weakness in the testimony as would destroy it as legal evidence, the Supreme Court will not substitute its judgment for that of jury.prehend the evidence. The state's case rests 3. CRIMINAL LAW ~1036(1)—Offer of proof NECESSARY TO REVIEW OF RULING SUSTAIN ING OBJECTION TO ANSWER. largely upon the testimony of Wessa Kozocar, the 13 year old son of the deceased, and it is conceded by the eminent counsel for deWhere an objection to evidence is sustained, fendant that, if this testimony is worthy of and the answer of the witness is not apparent, belief, it cannot then be said that the evian offer of proof is necessary to enable the Su-dence is insufficient to sustain the verdict preme Court to review the ruling. and judgment. MONY CANNOT EXTEND TO PARTICULAR ACTS. 4. CRIMINAL LAW 380-CHARACTER TESTI- Briefly, the story told by the boy is to this effect: Some ten days or two weeks beEvidence given either in support or impeach-fore May 28th Jake Moreaitu and his wife ment of the character of one accused of crime must as a rule be confined to general reputation, and cannot be extended to particular acts. 5. WITNESSES came from Canada looking for a location upon public land. They stopped at the Kozocar place during the interval under some sort of arrangement for compensating Kozocar for the accommodation furnished. About May UTATION OF DEFENDANT IN MURDER PROSE- 25th they began preparation to leave, and 274(2)-CROSS-EXAMINATION OF WITNESS TESTIFYING AS TO GENERAL REP CUTION. In murder prosecution, where defendant's witness had testified to the general reputation of defendant as a peaceable, law-abiding citizen, the state on cross-examination properly asked witness if he had not heard that defendant had undertaken with a gun to drive a neighbor from his claim. 6. CRIMINAL LAW 379 EVIDENCE OF ACCUSED'S GENERAL REPUTATION CONFINED TO TRAITS OF CHARACTER ATTACKED. Evidence of general reputation of accused is to be confined to the particular trait of character impugned in the alleged commission of the crime under investigation. 7. HOMICIDE 163(1)-EVIDENCE OF REPUTATION OF ACCUSED FOR HONESTY AND INTEGRITY IRRELEVANT. In the trial of one accused of murder, where no attempt is made to impeach accused, evidence of his general reputation for honesty and integrity is irrelevant. employed Popa and Alex. Boulder to assist in moving their property. On the evening of May 27th Popa and Boulder came to the Kozocar place and remained overnight. On the morning following Kozocar and Moreaitu and his wife engaged in a quarrel over the amount to be paid Kozocar in settlement, and Moreaitu and his wife left without adjusting the difference. When Popa and Boulder prepared to leave with their team and wagon, Kozocar stepped in front of the horses and with a monkey-wrench in his hand forbade them to go until Moreaitu should return and make settlement. Popa then went into the Kozocar house, procured a shotgun, returned to within a few feet of Kozocar, and shot him in the face, causing his death. This story is corroborated in some particulars by the wife of the deceased, who, however, testified that she was not in a position to observe all that transpired. Except in one important particular, it does not differ from the Appeal from District Court, Valley Coun- story told by Popa and Boulder. Their verty; John Hurly, Judge. sion is that, when Kozocar stepped in front George Popa was convicted of murder in in the head with the wrench; that Popa proof the team, be struck one of Popa's horses the second degree, and he appeals. Affirmed. tested and gave Kozocar a shove to one side; Henry C. Smith, of Helena, for appellant. that thereupon Wessa went into the house Frank Woody, of Helena, for the State. and procured the gun, returned, and pointed (185 P.) it at Popa, who seized it to prevent harm to himself; and that while the two thus held the gun it was accidentally discharged, killing Kozocar. Wessa and his mother both testified to violent language employed by Popa to Mrs. Kozocar when she upraided him for shooting her husband. Popa and Boulder admit that after the shooting they drove away and did not offer to render any assistance; did not even examine the body of Kozocar to ascertain whether he was dead. the affirmative. It is insisted that the court erred in overruling the objection. Evidence given either in support or impeachment of the character of one accused of crime must, as a rule, be confined to general reputation, and cannot be extended to particular acts. State v. Shadwell, 22 Mont. 559, 57 Pac. 281. But, whenever a defendant calls a witness to support his general reputation, he subjects him to all legitimate cross-examination and himself to whatever consequences may result [1] On appeal from a judgment the review therefrom. The purpose of cross-examining of the evidence by this court is limited to an the witness concerning rumors of specific acts examination of the record to determine which reflect adversely upon the accused is whether there is any substantial evidence to to determine whether the witness in fact justify the verdict. Buhler v. Loftus, 53 knows the general reputation, and, if so, Mont. 546, 562, 165 Pac. 601; Dawes v. City | whether he is testifying truthfully in regard of Great Falls, 31 Mont. 9, 15, 77 Pac. 309. to it. While the story told by the boy, when re[5] The court did not err in permitting duced to cold print, appears to contain many the question to be answered. The county atcontradictions and inconsistencies, we do not torney was well within the limits of approfeel disposed to say that it is so far in-priate cross-examination. State v. Crow, 107 herently improbable, or so far contradictory and inconsistent in itself, as to render it unworthy of credence. [2] The jury had the advantage of seeing the boy on the witness stand, observing his demeanor, his apparent candor or lack of it, and his ability to comprehend the question directed to him by counsel, and they may have been able to explain satisfactorily to themselves all inconsistencies and apparent contradictions in his story upon the theory of his limited knowledge of the English language, and this they must have done, and at the same time credited the story in all its essential particulars. The credibility of the witness and the weight to be given to his testimony were matters for determination by the jury, and, in the absence of such inherent weakness in the testimony as would destroy it as legal evidence, we may not substitute our judgment upon it for theirs. [3] 2. Certain assignments of error are predicated upon rulings sustaining objections to questions asked witnesses for defendant, but in every instance counsel failed to make an offer of proof. The general rule repeatedly announced by this court is controlling here: Mo. 341, 346, 17 S. W. 745. The subject was recently considered by this court in State v. Jones, 48 Mont. 505, 139 Pac. 441, where the rules and the limitations upon them will be found stated at length. [6] 4. A witness, Theony, called by defendant, was asked if he knew the defendant's general reputation for honesty and integrity, but upon objection was not permitted to answer. It is the rule that evidence of general reputation is to be confined to the particular trait of character impugned in the alleged commission of the crime under investigation. 1 Greenleaf on Evidence (Lewis' Ed.) § 55; 3 Greenleaf on Evidence (Lewis' Ed.) § 25; 1 Best on Evidence, § 259; 4 Chamberlayne on Evidence, § 3288; 1 Wharton on Criminal Evidence, § 59; 1 Wigmore on Evidence, § 59. [7] In the trial of one accused of murder, where, as in this instance, no attempt is made to impeach him, evidence of his general reputation for honesty and integrity is altogether irrelevant. People v. Cowgill, 93 Cal. 596, 29 Pac. 228; People v. Fair, 43 Cal. 137; Kee v. State, 28 Ark. 155; State v. Bloom, 68 Ind. 54, 34 Am. Rep. 247; State v Schuman, 89 Wash. 9, 153 Pac. 1984, Ann. Cas. 1918A, 633. The other assignments do not merit special consideration. We have examined all of "Where an objection to evidence is sustained, and the answer of the witness is not apparent, an offer of proof is necessary to enable the Supreme Court to review the ruling." Trogdon v. them, but do not find that any reversible erHanson Sheep Co., 49 Mont. 1, 4, 139 Pac. 792, 793. [4] 3. Daniel Black, a witness called by the defendant, testified to his general reputation as a peaceable, law-abiding citizen. On cross-examination he was asked if he had not heard that defendant had undertaken, with a gun, to drive a neighbor from his claim, and, over objections, he answered in ror was committed. The judgment is affirmed. BRANTLY, C. J., and MATTHEWS and COOPER, JJ., concur. HURLY, J., deeming himself disqualified, did not hear the argument and takes no part in the foregoing decision. 1. MECHANICS' LIENS 136(2) ME pany. From judgment giving him insufficient relief and from orders made after judgment, plaintiff appeals. Affirmed. J. A. Bird, of Fairview, and H. J. Haskell, of Glendive, for appellant. C. E. Collett, of Sidney, for respondent. nished materials to Erickson & Simons for HOLLOWAY, J. Plaintiff, having furthe construction of a store building in Fairview, brought this action to foreclose a mechanic's lien. All the defendants, except the Alling Mercantile & Lumber Company, defaulted, and this company, a judgment creditor of Erickson and Simons, contested the validity of plaintiff's lien. The cause was tried upon an agreed statement of facts, from which the court deduced the conclusion that plaintiff was entitled to a money judgment only, and refused to decree a foreclosure of the lien. From that judgment and 136(5)—IDENTIFICA- from two certain orders made after judgment, plaintiff appealed. MISSIBLE TO IDENTIFY PROPERTY IN The validity of a mechanic's lien must be TION OF BUILDING. Property described in mechanic's lien may be identified sufficiently by such a description of the building itself as will enable a person familiar with the locality to point it out as the only one corresponding with the descrip tion contained in the lien. 4. MECHANICS' LIENS 136(4) CIENCY OF DESCRIPTION. SUFFI Entering judgment refusing to decree foreclosure of lien claimed by plaintiff, without expressly passing upon plaintiff's motion to amend complaint, was not premature; the order for judgment operating in effect to deny the motion. 6. MECHANICS' LIENS 276(2)-No AMENDMENT OF COMPLAINT WHERE DESCRIPTION IN LIEN WAS INSUFFICIENT. In action to foreclose mechanic's lien, where description in lien was insufficient and where time for filing lien had expired, plaintiff's motion to amend complaint was properly denied, since no amendment could change the fact that plaintiff had failed to properly describe premises in his lien. The lien describes the property to be charged, as that certain frame store building erected upon lot 23, block 8, in the L. E. Newlon Second addition to the town of Fairview. The agreed statement discloses that there are four additions to Fairview, viz., (1) L. E. Newlon addition, (2) Revised L E. Newlon addition, (3) L. E. Newlon Second addition, (4) Revised L. E. Newlon Second addition, and that the materials furnished by plaintiff were used in the construction of a store building upon lot 23, block 8, Revised L. E. Newlon addition. 1. Does the misdescription of the land, in the lien, vitiate the lien? By section 7290, Revised Codes, the lien is impressed upon the building or other improvement primarily, and therefore the property to be identified by the description in the lien is the building or other improvement, as the case may be. Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 52, 144 Pac. 722. The authorities are agreed that the building, as in this case, may be identified by reference to the land upon which it is situated (18 R. C. L. 936), and, if it is urban property, a reference to the lot and block as shown on the official plat is usually sufficient. Section 7291, Revised Codes, provides that The lien must contain "a correct description of the property to be charged with such lien, * * but any error or mistake in the description does not affect the validity Appeal from District Court, Richland of the lien, if the property can be identified by County; C. C. Hurley, Judge. the description." Action by J. C. Johnson against Henry Erickson and John Simons, a copartnership doing business under the firm name of Erick son & Simons, and others, contested only by defendant Alling Mercantile & Lumber Com The same section requires that the lien must be filed in the office of the county clerk of the county in which the property is situated, and section 7292 requires the clerk to make an abstract of the lien, in a book by (185 P.) him to be kept for that purpose and properly | tion 7291, above) in effect declares, that if, by indexed, containing the date of filing, the rejecting what is erroneous in the description name of the lien claimant, the amount of the contained in the lien, enough remains to idenlien, the name of the person against whose tify the particular property sought to be property the lien is filed, and the description charged, the lien will be upheld. Dean v. of the property. Stewart, 49 Mont. 506, 515; 143 Pac. 966. If, on the other hand, it is impossible to identify the property by the description con [1] The purpose of requiring the lien to be filed and an abstract thereof made of record is to impart notice to the owner and to sub-tained in the lien, the lien will be held to be sequent purchasers or lienholders; and, in order that the purpose may be served, it is necessary that the description in the lien be sufficient to apprise interested parties just what property is sought to be charged. invalid. Ivanhoff v. Teale, 47 Mont. 115, 118, 130 Pac. 972. [4] Eliminating from the description contained in this lien the words, "L. E. Newlon Second addition," and we have the property described as that certain frame store building erected upon lot 23, block 8, in the town site of Fairview. The record does not dis close how many blocks, each numbered 8, there are in Fairview; how many additions there are other than the Newlon additions, or whether there was an original plat of the town site. Presumably there was, as each of the Newlon plats is referred to as the plat of an addition. Neither does the record disclose that the building upon which plaintiff would impress a lien is the only building in Fairview which answers to the description "that certain frame store building." If this lien had been ordered foreclosed and the [2] It is apparent at once that, in so far as plaintiff relied upon the description of the land to identify the building, he failed. Land described as lying in the L. E. Newlon Second addition could not identify a building situated upon land lying in the Revised L. E. Newlon addition. A prospective purchaser of the building and of the interest owned by Erickson & Simons in lot 23, block 8, Revised L. E. Newlon addition, would never be apprised by the lien that there was an incumbrance upon it. An abstract of the title to lot 23, block 8, Revised L. E. Newlon addition, would not disclose the fact that a lien was claimed upon the property or the improvements. The validity of the lien must be test-property sold, the officer attempting to exeed by the description contained in it. If there is merely an ambiguity in the description, it may be explained and the property identified by oral evidence; but in this connection the language employed by this court in Goodrich Lumber Co. v. Davie, 13 Mont. 76, 81, 32 Pac. 282, 283, is peculiarly applicable here. It was there said: "The description of the ground is perfectly definite and certain. The only difficulty is that it was a wholly wrong description." [3] But the description of the ground is not the only means of identifying the building. It may be identified sufficiently by such a description of the building itself as will enable a person familiar with the locality to point it out as the only one corresponding with the description contained in the lien. Hughes v. Torgerson, 96 Ala. 346, 11 South. 209, 16 L. R. A. 600, 38 Am. St. Rep. 105. This is the meaning of section 7291, above, and numerous instances might be cited to illustrate the principle; but the following cases will suffice: Western Iron Works v. Montana P. & P. Co., 30 Mont. 550, 556, 77 Pac. 413; Scholes v. Hughes, 77 Tex. 482, 14 S. W. 148; McHugh v. Slack, 11 Wash. 370, 39 Pac. 674; Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22; Rockel on Mechanics' Liens, § 105. The authorities hold, and our statute (sec cute the process could not have found the property from the description contained in the lien, and for this reason it must be held to be insufficient. [5] 2. After the trial court had indicated its views, plaintiff moved to amend his complaint. Without expressly passing upon the motion, the court ordered judgment entered. Plaintiff then moved to have the judgment set aside upon the ground that it had been entered prematurely-before the motion to amend was disposed of. This motion was overruled, as was the motion to amend. The order for judgment operated, in effect, to deny the motion to amend, and the judgment was not prematurely entered. [6] Furthermore, the motion to amend was altogether without merit. As observed heretofore, the lien must stand or fall by the description contained in it. The time for filing a lien had long since expired, and, in the absence of a statute authorizing the lien to be amended, nothing that plaintiff could incorporate in his complaint by way of amendment could change the fact that he had failed to properly describe the property in his lien. 27 Cyc. 206, 207. The judgment and orders are affirmed. |