(185 P.) that the appellee possessed an equity in the premises after the time Coffin had secured the deeds from the depository and placed them on record. tional sale. 4 Kent, Com. 145. The principal | festly indicate that the appellants recognized test to be applied in determining whether a given instrument is a mortgage is whether the relation of the parties towards each other of debtor and creditor continued after the execution of the instrument. 20 Am. & Eng. Enc. Law (2d Ed.) p. 940. Says the Supreme Court of California, in Montgomery v. Spect, 55 Cal. 352: "Whether a deed absolute in form be a mortgage is a question of intention to be inferred from all the facts and circumstances of the transaction in which the deed was executed, taken in connection with the conduct of the parties after its execution. In such cases, the central fact to be found is the existence of an indebtedness at the time of the transaction, and a continuation of the relation of debtor and creditor. If that fact be found, the inference deducible from it is that the deed was not made to transfer the title to the land described in it, but was made for the purpose of securing the debt which the grantor owed to the grantee." There is no question but that the relation of debtor and creditor, and also mortgagor and mortgagee, existed between the parties at the time the escrow agreements and deeds were executed, and the evidence fairly tends to show that such relation did not cease to exist, but that it continued after the execution of the instruments. This is evidenced by the receipt of payments on the interest due on the mortgages after the execution of the escrow agreements and deeds, and also by the fact that the appellant Coffin retained possession of the notes and mortgages even after he had procured the delivery of the deeds to him by the Phoenix National Bank. The action of the appellant Coffin in accounting to the appellee, Green, for the rents and profits of the land covering a period after he had secured possession of the deeds from the escrow holder and had recorded them, and the further fact that both of the appellants joined the appellee in a lease of the premises to other parties for a period extending more than a year beyond the escrow period, mani [3-5] The deeds being intended as mortgages at the time they were executed, the escrow agreements executed at the same time and as a part of the same transaction cannot be construed as having the effect to cut off the equity of redemption vested by law in the appellee. The proposition is well settled that no force will be given to a stipulation in a mortgage (or in a deed intended as a mortgage) by which the mortgagor agrees that if he fails to make payment by.a stated time the mortgagee shall become the absolute owner of the property. 27 Cyc. 1098. And it is also firmly established, in equity, that no effect will be given to such an agreement made separately from the mortgage but at the same time. 11 Am. & Eng. Enc. Law, p. 243; Plummer v. Ilse, 41 Wash. 5, 82 Pac. 1009, 111 Am. St. Rep. 997, and note to the same in 2 L. R. A. (N. S.) 628. [6] As we view the facts, we believe it to be our duty-under the rule that a court of equity in a contest over the question as to whether a given transaction constituted a conditional sale of land or mortgage—to lean to the theory that the transaction mortgage, "as that secures the interests of all parties and works a hardship to none." Irwin v. Coleman, 173 Ala. 175, 55 South. 492; 3 Pomeroy, Eq. Jur. (3d Ed.) par. 1795; 1 Jones on Mortgages, par. 328. was a By the decree in this case, the appellants have received the principal and interest in ment for all expenses incurred and made on full on their loans, together with reimburseaccount of the transaction, and hence they suffer no hardship. The judgment of the lower court is affirmed. CUNNINGHAM, C. J., and ROSS, J., concur. FECT OF WITHDRAWING REASONS FOR NOT FILING INFORMATION. Though, after transcript was transmitted to district court, district attorney filed a "statement of reasons in law for not filing information," where statement was withdrawn by permission of court, which immediately ordered district attorney to file an information, court properly refused to quash information on ground that district attorney "lost all further jurisdiction or right to proceed in the case unless ordered to do so by the court," under Comp. Laws 1917, § 8780. 4. CRIMINAL LAW 419, 420(10)-HEARSAY EVIDENCE OF ADMISSION OF THIRD PERSON INADMISSIBLE. In prosecution for burglary, testimony of wife that her husband, who had been arrested on the same charge, tried, and discharged, stated that he got some of the property stolen at a named place when he was alone, was hearsay and inadmissible. 5. CRIMINAL LAW 1134(6) EXCLUDING TESTIMONY FOR WRONG REASON NOT ERROR. If the ruling of the court in excluding testimony was right for any reason, the court committed no error.1 6. CRIMINAL LAW 789(13)-DEFINITION OF REASONABLE DOUBT. In prosecution for burglary, instruction defining reasonable doubt as "a doubt for which you can give a reason," while not commended, held not prejudicial error. 7. CRIMINAL LAW 1059(2)-GENERAL EXCEPTION TO INSTRUCTION INSUFFICIENT. A general exception to an instruction containing different propositions, six of which are correct statements of law, is not available on appeal.2 1 Holt v. Nielson et al., 37 Utah, 574, 109 Pac. 473. 2 State v. Riley, 41 Utah, 225, 126 Pac. 294; State v. Haworth, 24 Utah, 398, 68 Pac. 155; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808; State v. Campbell, 25 Utah, 342, 71 Pac. 529. STRUCTION NOT SUPPORTED BY EVIDENCE REVERSIBLE ERROR. Instruction, that, if possession of recently stolen property is accompanied with such evidence as the defendant's giving false, incredible, or contradictory accounts of the manner of acquiring it, his attempting to conceal it, or his being so near to the place where the property was stolen or the building entered as to create criminating circumstances against him, such and other like circumstances may create a presumption of guilt in possessor, requires re versal; there being no evidence to support the instruction. 9. CRIMINAL LAW 761(1)-INSTRUCTIONS Appeal from District Court, Millard County; D. H. Morris, Judge. Junior Overson was convicted of burglary, and appeals. Reversed, and new trial granted. J. H. McKnight, of Nephi, and R. B. Thurman and H. C. Allen, both of Salt Lake City, for appellant. Dan B. Shields, Atty. Gen., and J. H. Wolfe, O. C. Dalby, and H. Van Dam, Jr., Asst. Attys. Gen., for the State. WEBER, J. Defendant was tried in the district court on the charge of burglary in the third degree, was found guilty by a jury, and appeals from the judgment of conviction. [1, 2] It is claimed by defendant that the court erred in refusing to quash the information, because he was not given an opportunity to have a preliminary examination. The defendant filed his affidavit, and in it claimed that he never intended to waive a prelimina (185 P.) ry examination; that his request to be per- [4, 5] The defendant called Mrs. Frank mitted to see an attorney was denied by the Slaughter as a witness, and after she had tessheriff; and that the sheriff, without his con- tified that her husband brought home some of sent, told the justice of the peace that the the property alleged to have been stolen by preliminary examination was waived, and defendant, she was interrogated as to statethe justice so ordered. A preliminary ex-ments then made by her husband, who had amination is a substantial right of one ac- been arrested on the same charge on which cused of a felony, and when he waives that | defendant was being tried and had been disright it must be of his own choice, not be cause an arresting officer insists upon the waiver. Had defendant's affidavit remained uncontradicted, it would have been error to overrule the motion to quash the information; but the bill of exceptions shows that a hearing was had upon the motion and that the court heard evidence. What that evidence was the record does not show. The presumption is that it was sufficient to justify the court in overruling the defendant's motion. [3] The transcript transmitted by the justice of the peace was filed in the district court August 20, 1917, and on September 4, 1917, the district attorney filed a "statement of reasons in law for not filing information." It is argued by appellant's counsel that the district attorney "lost all further jurisdiction or right to proceed in the case unless ordered to do so by the court," and they cite section 8780, Comp. Laws 1917 (section 4693, Comp. Laws 1907), which provides: "If the district attorney determines that an information ought not to be filed in any such case, he must make, subscribe, and file with the clerk of the district court of the county a statement in writing setting forth his reasons in fact and in law for not filing such information, and such statement must be filed during the term of court at which the defendant is held to appear for trial. The court must thereupon examine such statement, together with the evidence filed in the case, and if, upon such examination, the court is not satisfied with such statement, the district attorney must be directed and required by the court to file the proper information and bring the case to trial. But if the court does not require that information to be filed, and the defendant is not held or wanted to answer for any other public offense, he shall be discharged, his bail exonerated, and his money refunded to him." The record discloses that the district attorney's "statement" was withdrawn by permission of the court October 2, 1917, and that immediately thereafter, on the same day, the district attorney was ordered by the court to file an information in the case. The information was then filed. No necessity existed for withdrawing the statement filed by the district attorney, nor could such withdrawal in any possible manner result in prejudice to the defendant. When the court ordered the information to be filed, and the order was obeyed by the district attorney, it was a full compliance with the requirements of the statute. We find neither error nor irregularity in the court's refusal to sustain the motion to quash the information. charged. The defense sought to prove by the witness that she had been told by her husband "where he got the stuff; that he stated to her that he was alone when he got it, and where he got it." The question was objected to by the state as calling for hearsay testimony. The objection was overruled, whereupon the district attorney made the further objection that the proposed testimony should be excluded because "a wife should not be allowed to testify against her husband." The court thereupon sustained the objection on the ground that what was said by her husband to the witness was a privileged communication. If defendant could prove by competent evidence that some other person committed the crime with which defendant was charged it would be a good defense; but testimony that some third party admitted to the witness, or declared in her presence, that he, and not the defendant, committed the crime, would be hearsay, and would be incompetent and inadmissible. Wharton, Crim. Ev. (10th Ed.) § 225. The proposed testimony was properly excludednot on the ground that it was a privileged communication, but because it was hearsay. "If the ruling was right for any reason, the court committed no error." Holt v. Nielson et al., 37 Utah, 574, 109 Pac. 473. [6] Objection is made that the trial court, in its instruction defining reasonable doubt, used the words "a doubt for which you can give a reason." The statement has been approved by some courts, criticized by others, and by many has been held to be prejudicial error when used in a charge to a jury. 2 Brickwood, Sackett's Instructions, §§ 26522673; 3 Brickwood, §§ 4430-4435. See, also, Abbott v. Territory, 20 Okl. 119, 94 Pac. 179, 16 L. R. A. (N. S.) 260 and notes, 129 Am. St. Rep. 818.. [7] In the present case exception was not taken to the particular words above quoted. The exception was general, and to an instruction that contained different propositions, including six which were correct statements of law. That an exception must specifically point out to the court the matter objected to, in order to be of avail on appeal, has been repeatedly held by this court. State v. Riley, 41 Utah, 225, 126 Pac. 294; State v. Haworth, 24 Utah, 398, 68 Pac. 155; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808: State v. Campbell, 25 Utah, 342, 71 Pac. 529. Had the exception been properly taken, we still would not hold that the words complained of in defendant's brief would be prejudicial error in this particular to defendant's attempting to conceal the instance, though we do not commend the stolen property. We have examined the words "for which you can give a reason" as transcript with care, and find no testimony being enlightening to the jury or in any way tending to prove concealment by defendant desirable or useful in an instruction defin- of the stolen property found in his possession. ing reasonable doubt. [8] In an instruction in which the court declared possession of recently stolen property not of itself sufficient for conviction of defendant, the court informed the jury: "But if such possession is accompanied with such evidence as the defendant giving false, incredible, or contradictory accounts of the manner of acquiring it, his attempting to conceal it, or his being so near to the place where the property was stolen or the building entered as to create criminating circumstances against him, such and other like circumstances, when shown in connection with the possession, the larceny or house breaking, may raise a presumption of guilt in the possessor." [11, 12] The record is also devoid of any testimony tending to prove that defendant was "so near to the place where the property was stolen or the building entered as to create a criminating circumstance against him." The sentence last quoted is not only without basis in the evidence; it is misleading, in that it omits the essential element that, in order to be a circumstance for consideration by the jury, his being at the place where the property was stolen or burglary was committed must have been at or near the time when the crime was committed, not at some time so remote that it could not possibly have any bearing upon his guilt or innocence. Assuming that the statements in the instruction were based on evidence, the circumstances should have been submitted to the jury without the statement that they "may raise a presumption of guilt in the possessor." Barrow v. Territory, 13 Ariz. 302, 114 Pac. 976; Smith v. State, 58 Ind. 340; 2 Am. C. R. 375; State v. Hodge, 50 N. H. 510. [9, 10] Instructions should be applicable to the evidence, and instructions which assume that there is evidence before the jury tend ing to prove material facts, when there is no such evidence, are improper, and have generally been held to be prejudicially erroneous. When evidence is referred to in an instruction, it should not be stated in a manner to mislead jurors or to cause confusion in their Were the evidence of guilt in this case so minds. In the above instruction the refer- clear that no other verdict than that of guilty ence to "false, incredible, or contradictory could have been found in reason, we might statements of the manner of acquiring it" possibly consider the instruction referred to could not have been helpful to the jury, and as being erroneous, without being prejudicial may have been misleading and confusing be- to the defendant; but a careful consideration cause there was no evidence whatever of of all the evidence disclosed by the record "contradictory" statements by defendant. convinces us that the instruction given was The only statements by defendant referring | prejudicial to defendant, and that it prob to the manner in which he had acquired the ably prevented the jury from giving the eviproperty alleged to have been stolen were dence that fair and impartial consideration that he had bought the articles at a bargain to which the accused was entitled. from a person who was leaving or moving, and when the prosecuting witness identified certain articles as being his property he was called a liar by the defendant. Nor was there any reason or justification for referring|and THURMAN, JJ., concur. The judgment is reversed, and defendant granted a new trial. CORFMAN, C. J., and FRICK, GIDEON, Utah) (55 Utah, 248) HESS v. UDY et al. (Supreme Court of Utah. 1. ANIMALS HESS v. UDY (No. 3388.) AL OF FOR TRESPASS. Laws providing for the restraint, sale, or disposal of animals for trespass and damage must be strictly followed.1 2. ANIMALS 95(1)-DELIVERY OF TRESPASS- 367 dered to plaintiff and refused. The foregoing are the material facts found by the court. Numerous errors are assigned by appellant, but the controlling question, and the only one that need be considered here, is, Did the pound keeper of East Garland precinct have jurisdiction as pound keeper to receive, hold, and dispose of animals for trespass committed on land and growing crops in Fielding precinct? If, under the circumstances named, the poundkeeper of East Garland precinct was without jurisdiction, the entire proceeding was unlawful, and the judgment of the trial court should be affirmed. Particularly in view of the alternative remedy given by Comp. Laws 1917, § 58, delivery [1] The doctrine is well established, if not of trespassing pigs by a landowner in F. precinct to the constable as ex officio poundkeeper elementary, that laws providing for the rein G. precinct was not a compliance with sec-straint, sale, or disposal of animals for trestion 59, providing that the landowner who cis- pass and damage must be strictly followed. trains trespassing animals shall deliver them We so held in a recent case decided by this within 24 hours "to the poundkeeper of the pre-court. Nielsen v. Hyland, 170 Pac. 778. We cinct," meaning the poundkeeper of the pre- have no reason to doubt that the doctrine cinct in which the trespass was committed, and so rendered the landowner liable for conversion. therein enunciated is sustained by practically every well-considered case that has arisen in 3 C. J. other jurisdictions of the country. 82; 1 R. C. L. 1143-1145; Barrett v. Lightfoot, 1 T. B. Mon. (Ky.) 241, 15 Am. Dec. 110; Newsom v. Hart, 14 Mich. 235; Weber v. Hartman, 7 Colo. 13, 1 Pac. 230, 49 Am. Rep. 339; Havaird v. Lung, 19 Idaho, 790, 115 Pac. 930; Mills v. Fortune, 14 N. D. 460, 105 N. Appeal from First District Court, Box Elder County; J. D. Call, Judge. Action by Charles C. Hess against Hyrum Udy and W. A. Adams. From judgment for plaintiff against defendant Udy, the latter appeals. Affirmed. Le Roy B. Young, of Brigham, for appel- W. 235; 2 Cyc. 362d. lant. [2] Comp. Laws Utah 1917, as far as mate W. J. Lowe, of Brigham, for respondent. rial, provide: THURMAN, J. This is an action for the conversion of two pigs alleged to be of the value of $50. Sec. 50. "The constable in each precinct in this state is hereby made ex officio the poundkeeper. in such precinct, and is entitled to and is hereby made the custodian of all brand books and brand sheets pertaining thereto, which shall, at all reasonable hours, and without charge, be open to the inspection of the pub lic." Plaintiff's ownership of the pigs at and prior to the date of the alleged conversion is admitted by defendant, but defendant atSec. 59. "The owner or occupant of any proptempts to justify the taking under the provierty may distrain all of said animals trespasssions of Comp. Laws Utah 1917, tit. 3, c. 1, relating to estrays and trespassing animals. ing or doing damage thereon. He shall, within The trial court found the issues in favor of twenty-four hours thereafter, deliver said anithe plaintiff and against the defendant Udy. mals to the poundkeeper of the precinct, toJudgment was entered accordingly. Defend-gether with a certificate of the appraisement of ant appeals on the judgment roll. The defendant was the owner of land with crops growing thereon, in Fielding precinct, Box. Elder county, and at the time of the wrongs complained of by plaintiff said pigs were found trespassing and doing damage upon said land. There being no pound keeper in Fielding precinct, the defendant restrained the animals, and within 24 hours thereafter delivered them to the other defendant, W. A. Adams, poundkeeper of East Garland precinct of the same county. At the time of delivering the animals the defendant also delivered to the poundkeeper a certificate of appraisement of damage, as required by the statute, to which reference will be made. The animals were thereafter advertised and sold by the poundkeeper and the proceeds devoted to payment of the damages, costs, and expenses incurred, and the balance ten the damage done by such animals." These are the controlling provisions in this particular case. Other provisions of the statute have more or less bearing, but they are not of sufficient importance to justify special consideration. The question is, Was a delivery of the animals to the poundkeeper of East Garland precinct for damages done in Fielding precinct a compliance with the provisions of section 59, supra? The effect of appellant's contention is that the words "the poundkeeper of the precinct," in section 59, should be construed as if they read "the pound keeper of any precinct." (Italics ours.) If such were a correct interpretation of the statute, any poundkeeper in the state would have jurisdiction to receive and impound animals in any case, irrespective of the precinct in which the trespass was committed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |