chosen to exercise their right of locating this road. They have the benefit. Let them pay the damage." right of way for a road over any of the lands in controversy upon which valid filings were in existence, when the board attempted to act, without the signature of the [5] It is admitted that the entry in existence on one of these quarters in 1886 ripened into title. The only claim to a road on it, which counsel do not make clear, is by prescription or acquiescence of the owner in the regularity of the proceedings, with a claim left the owner for damages, if any, for the right of way. They also claim that under no circumstances is he entitled to injunctive relief. We cannot agree with any of these Eliminating the question of The same reasoning in these cases leads to the conclusion that the act of Congress un-entrymen to the petition. der consideration did not make of these section lines public highways. The act does not refer to section or township lines, but to the right of way for the construction of highways over public lands not reserved for public uses. It was a privilege which might be exercised or not. This fact was recognized by our Legislature in the adoption of section 5834, supra, giving to the boards of county commissioners the right to declare section and township lines on the public domain pub-contentions. lic highways; but, until they did so, no high-prescription, which will be considered later, ways existed, and when they attempt to do so their rights must be tested by conditions existing at that time, which, according to the decisions quoted from, are subject to the rights of the entryman. [4] The fact that these entries were thereafter relinquished did not change this condition so as to make these lands public highways at the time of relinquishments. By an act of Congress of July 2, 1864, c. 217, 13 Stat. 365, the Northern Pacific Railroad Company was granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of its railroad lines through certain territory, as it may adopt, etc., free from pre-emption or other claim at the time the line of said road is defi'nitely fixed and and a plat thereof filed, etc. In Bardon v. Northern Pacific Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806, the court held that lands, upon which filings were in existence at the time of the passing of this act, were segregated from the public lands and did not, by the cancellation of the pre-emption right before the location of the grant, pass to the company, but remained a part of the public domain. In commenting, at page 538 of 145 U. S., at page 857 of 12 Sup. Ct. (36 L. Ed. 806), the court said: the statute prescribed the methods whereby highways can be established. If, in this respect, former efforts have not accomplished what was desired, those interested have the right to again institute proceedings in the method provided by law; but, until this is done, they are not possessed with power to compel the owner to recognize the county's right to possession. When in possession the owner is not obliged to bring a direct action to set aside such proceedings, but may wait until his right to possession is attacked, before raising the question of validity, otherwise than to remain in possession under claim of title. White et al. v. Town of Arvada, 60 Colo. 343, 153 Pac. 696; Munson v. Marks, 52 Colo. 553, 124 Pac. 187. [6, 7] The record discloses that, at the time and after the entry of this order of the board of county commissioners, practically all the lands in controversy, including all others in that vicinity, were unfenced and the greater portion unoccupied; that reople traveled over them in all directions following section lines where it suited their con venience and otherwise at their pleasure. There is nothing to show that there was any attempt of the county or any road overseer to. at that time, open any roads or do work upon them or otherwise. The record further "The grant is of alternate sections of public discloses that this condition thus remained land, and by 'public land,' as it has been long for about 14 years; that thereafter the lands settled, is meant such lands as are open to sale in controversy were inclosed by fences by or other disposition under general laws. All land, to which any claims or rights of others the plaintiffs in error; that at most all of have attached, does not fall within the designa- the section lines gates were put in for the tion of public land." Per the reasoning in this case, it follows that, for the purposes of the establishment of this road, these quarters were not at that time a part of the public domain; such being the case, no road was at that time established over them. The fact that they thereafter became a part of the public domain, according to the holding in the case last cited, did not change the result. The right acquired by virtue of the petition and order of the board must be tested by conditions as they existed when such action was taken. For these reasons, we are of convenience of the owners and who, with the public (which in that vicinity was not very large), was allowed to use them as a mode of ingress and egress through and over these lands. It is admitted that for many years plaintiffs paid taxes on the strips of land in controversy as a part of each entire quarter, and that all of these last conditions continued for a period of about 12 years and up to the time that the road overseer made the threats to tear down the fences and open up the alleged roads which brought about this litigation. Other testimony in support of the claim for public highways is that these section lines 3. ASSAULT AND BATTERY 95-CRIMINAL OF OFFENSE-INTENT. A specific intent to injure any person in any manner is not necessary to the offense of of automobile. simple assault committed by reckless driving OFFENSE-EVIDENCE-RECKLESS although some of them with but slight traces, while others would be traveled more if the fences were not there, and that at one time, upon one of the section lines involved, the road overseer in one of these fields or pastures devoted one day's time with three men working thereon in order to make it more fit for travel. The rule is that, if the judgment of the trial court can be sustained for any reason, it should be, although the one on which it is based is erroneous. We are not convinced that the judgment was upon the theory that roads had been estab-5. ASSAULT AND BATTERY 52, 89-ELElished over the lands in controversy by acquiescence or prescription; if so, we think the testimony insufficient to support it. While the record does not state, we are of opinion that the judgment was upon the theory that the proceedings before the board of county commissioners were sufficient to establish the roads, which we conclude is not tenable in so far as nine quarters of this land are concerned. Per former rulings of this court, the evidence is entirely insufficient to sustain the claim of a road by prescription. Lieber v. People, 33 Colo. 493, 81 Pac. 270; Starr v. People, etc., 17 Colo. 458, 30 Pac. 64. [8] It was stipulated that the testimony should only apply to that portion of the alleged highways affecting the alleged rights of the plaintiffs. The trial court held that roads had been established. We affirm this ruling as to any of these lands in controversy, which were not filed upon when the board declared these section lines public highways. The burden was upon the plaintiffs to show that they had been abandoned; the judgment necessarily includes the holding that they had not; the testimony is conflicting concerning it, but does disclose that the remaining strips in controversy had been used for road purposes, for which reasons we are not at liberty to reverse the ruling in this respect. The judgment will be reversed, and the cause remanded for further proceedings, as the parties may be advised, not inconsistent with the views herein expressed. Reversed. PEOPLE v. HOPPER. (No. 8894.) (Supreme Court of Colorado. Dec. 3, 1917.) 1. ASSAULT AND BATTERY 56-ELEMENTS OF OFFENSE--INTENT. MENTS OF That defendant was driving an automobile at a speed constituting a violation of a city ordinance when he collided with another automobile would not of itself make him guilty of assault, but was proper evidence for the jury's consideration on the question of negligence. 6. INDICTMENT AND INFORMATION 189 (4) — CONVICTION OF INCLUDED OFFENSE-AS SAULT. An information charging that defendant with a deadly weapon, to wit, an automobile, unlawfully, etc., made an assault on B. with intent unlawfully, etc., to commit a bodily injury for assault and battery, as it did not charge a on his person, would not support a conviction battery. Error to District Court, City and County of Denver; William D. Wright, Judge. W. J. Hopper was prosecuted for assault with a deadly weapon. A verdict of not guilty was directed, and the People bring error. Reversed. Fred Farrar, Atty. Gen., and W. B. Morgan, Asst. Atty. Gen., for the People. ALLEN, J. The writ of error in this case is prosecuted on behalf of the people to review a decision of the trial court in directing a verdict of not guilty. Authority for a review of the decision is found in section 1997, R. S. 1908 (section 2124, Mills' Ann. Sts.), which provides, inter alia, that: "Writs of error shall lie on behalf of the state, or the people, to review decisions of the trial court in any criminal case upon questions of law arising upon the trial." This is a criminal case in which, after both the people and the defendant rested, upon motion of defendant the trial court directed the jury to find the defendant not guilty. The information which was filed against reads as follows: the defendant below, omitting formal parts, with a deadly "That W. J. Hopper, weapon, to wit, an automobile, which he, the said W. J. Hopper, then and there had and held, then and there unlawfully, willfully and maliciously did make an assault on one Frank W. Beard, with intent then and there unlawfully, Under Rev. St. 1908. § 1658 (Mills' Ann. St. 1912, § 1786), denouncing the offense of assault with a deadly weapon, instrument, or other thing with an intent to commit upon the person of another a bodily injury, a specific intent to injure is an essential element of the offense. 2. INDICTMENT AND INFORMATION 189 (4)-willfully and maliciously to commit a bodily inCONVICTION OF INCLUDED OFFENSE-As SAULT. An indictment or information for assault with a deadly weapon with intent to do bodily injury includes a simple assault, and will support a conviction therefor. jury upon the person of the said Frank W. Beard, no considerable provocation then and there appearing for the said assault and the circumstances thereof then and there showing an abandoned and malignant heart in him the said W. J. Hopper." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The information was substantially in the permitted by the speed ordinance of the city language of the statute, section 1658, R. S. of Denver and in violation of such ordi1908 (section 1786, Mills' Ann. Sts.), on which nance; that while so driving and when it was based, so far as such statute defines crossing an intersecting street the defendthe particular kind of assault here charged. ant's machine struck with great force the [1] It is not necessary in the present case side of an automobile which was being drivto determine whether or not an automobile en along such intersecting street, whereby ls, or under some circumstances may be, the car struck was "smashed all to pieces" "a deadly weapon, instrument or other thing" and both cars turned "end for end"; that the referred to in the statute in question. A collision occurred in an old settled part of verdict of not guilty, so far as the particular the city, and the defendant while so driving offense charged in the information is con- the car "was expecting to find any one comcerned, was properly directed for the reason ing out from those dark streets," it being that there was, according to the evidence, about 11:25 p. m. on a dark, dusty, and hazy no specific intent on the part of the defend- night; that the defendant's car was in firstant "to commit a bodily injury upon the class condition, under his control, and the person of the said Frank W. Beard." Un- brakes were in perfect condition; that as der the statute on which the information a result of the collision one of the occupants was drawn, the intent therein mentioned is of defendant's car was thrown about 15 an essential element of the offense. In the feet in the air, and that the driver of the car case of State v. Potello, 42 Utah, 396, 132 struck by defendant's automobile was severePac. 14, the court had under consideration ly injured. a statute very similar to ours; the statute having reference to assaults "with intent to do bodily harm." The court in the opinion To the same effect is the case of In re Burns (C. C.) 113 Fed. 987. It is said in 5 C. J. 736, that: Where "the statute provides that the weapon must be used with a specific intent, such intent is an essential element of the offense." See, also, 3 Cyc. 1030; 2 Am. & Eng. Enc. Law, p. 965. It has been held, however, that the intent need not be a specific intent to assault the prosecuting witness, or to inflict the particular kind of injury which resulted. 3 Cyc. 1030. The evidence in the case at bar disclosed no intent to injure any person or to inflict any particular injury. [4] There was no evidence that the defendant had a specific intent to injure any person in any manner, but this intent was not necessary to make out the offense of assault. The general rule with reference to what is the equivalent of criminal intent under these circumstances is thus stated in section 204, Clark & Marshall, Law of Crimes (2d Ed.): question, there seems to be no good reason to "While there is very little authority on the doubt that a person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury." See, also, Commonwealth v. Hawkins, 157 Mass. 551, 32 N. E. 862. In 1 Bishop's New Crim. Law, § 313, the author says: between a will to do a wrongful thing and an "There is little distinction except in degree indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of an affirmative criminal intent." This quotation was used and applied in the case of State v. Surry, 23 Wash. 655, 63 Pac. 557, 560, which was an assault case. The law with reference to assault and battery in what may be called the "automobile cases" is summarized by the court in its syllabi in the case of Tift v. State, 17 Ga. App. 663, 88 S. E. 41, as follows: [2] The mere fact, however, that there was no evidence of the required specific intent whereby defendant would be guilty of the precise offense charged in the information would not justify the court in discharging the defendant. The defendant might still be guilty of simple assault. An indictment or information for assault to do bodily harm includes a simple assault. 22 Cyc. "1. Assault and battery may be committed 473. On a charge of aggravated assault the tionally, or by driving the machine so reckby striking another with an automobile intenjury may find that an assault was commit-lessly as to justify a jury in finding that there ted without the aggravating circumstances and return a verdict of conviction of simple assault. 2 R. C. L. § 52, p. 571. [3] Upon the trial of this case there was some evidence introduced which made it the duty of the trial court to submit to the jury, under proper instructions, the question of defendant's guilt of simple assault. There was testimony that the defendant was driving an automobile down a very much-traveled street at a rate of from 45 to 50 miles was a reckless disregard of human life and safety. Dennard v. State, 14 Ga. App. 485, 81 S. E. 378. The same is true where, under like circumstances, the automobile is driven against another vehicle in which persons are riding. whereby the collision occasions bruises, blows, vehicle so struck. State v. Lewis, 4 Pennewill and similar physical injuries to persons in the (Del.) 332, 55 Atl. 3. "2. Where the state's testimony tended to show a case of assault and battery, through the reckless driving of an automobile, it was misdemeanor shall consist in the violation of not error to charge the jury that 'a crime or shall be a union or joint operation of act and [ fendant was driving at a speed whereby he intention, or criminal negligence.' "3. Nor in such a case was it error for the court to charge the jury as follows: 'Every person is presumed to intend the natural and necessary consequence of his acts.' son.' violated the speed ordinance would not make him guilty of assault in this case. Commonwealth v. Adams, 114 Mass. 323, 19 Am. Rep. 362. But "the fact that the act was done in violation of a city ordinance was proper evidence for the consideration of the jury on the question of negligence." Commonwealth v. Hawkins, supra. "4. Nor was it error in such a case for the court to charge the jury as follows: 'Persons traveling in automobiles or buggies have the lawful right to use a public highway, but in so doing they should not, without lawful justification or excuse, intentionally, wantonly, or recklessly drive their vehicle against that of an[6] The Attorney General in his brief asother person, to the injury of such other per-sumes that the charge of assault with intent to commit upon the person of another 5. Nor in such a case was it error to charge a bodily injury, as the offense is describthe jury that, 'if the defendant did not intentionally cause said machine to run against said ed in section 1658, R. S. 1908, and as chargbuggy, but at the time of such collision said Tifted in the information, includes a charge of was intentionally handling said machine in such assault and battery. It is to be noted, howa wanton or reckless manner, or intentionally ever, that the information does not charge driving said machine at a rate of speed so high and reckless, as to render said machine a battery. It goes no further than to charge obviously dangerous to other travelers upon an assault of an aggravated nature. It insuch highway, and, as a result, the said machine cludes all the elements of a simple assault, ran against said buggy, thereby inflicting such personal injuries, the defendant would be guilty and therefore includes a charge of simple of assault and battery,' especially where the assault, but it does not include the elements court also, in the same context, charged the necessary to constitute a battery, and therejury that, if the defendant did not intentionally fore there could not be a conviction of batrun said machine against said buggy, and at the time the collision occurred defendant was not in- tery under the information in this case. The tentionally driving said car in such a wanton or rule applicable here is concisely stated in reckless manner, or at so high rate of speed. 22 Cyc. 473, as follows: as to render said machine obviously dangerous to others traveling said highway, whereby the collision occurred, and such collision was not caused by any evil design, intention, or culpable neglect on the part of said Tift, then such collision would be attributable to misfortune or accident, and said Tift would not be guilt of any offense.' 99 The sixth paragraph of the syllabus in Tift v. State, supra, is too lengthy to justify repeating, but is in accord with the following from the opinion in the case of Luther v. State, 177 Ind. 619, 98 N. E. 640, also an automobile and assault and battery case: "In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the willful, intentional act, the law imputes to the offender; and in this way a charge which otherwise would be mere negligence becomes, by reason of the reckless disregard of probable consequences, a willful wrong. That this constructive intention to do an injury in such case will be imputed in the absence of an actual intent to harm a particular person is recognized as an elementary principle in criminal law." "An indictment for assault with intent to do bodily harm or great bodily harm includes a simple assault. So an indictment for an assault with intent to do bodily harm includes an assault and battery, if a battery is averred, but not if the battery is not charged." In 5 C. J. 765, it is said: "A defendant cannot be convicted of a battery under an indictment which does not charge a battery." See, also, People v. Johnson, 147 Ill. App. 86; Moore v. People, 26 Ill. App. 137; Bryant v. State, 41 Ark. 359; Turner v. Circuit Judge, 88 Mich. 359, 50 N. W. 310; Jones v. State, 100 Ark. 195, 139 S. W. 1126; Alyea v. State, 62 Neb. 143, 86 N. W. 1066; 1 Wharton's Crim. Law (10th Ed.) § 640; 1 Bishop's New Crim. Law, § 803. The evidence in this case was conflicting, and we express no opinion as to what the verdict of the jury ought to have been upon the issue they should have been required to consider. The conclusions we reach are as follows: commit a bodily injury either upon the party injured or any other person, and the defendant could not be convicted of an assault with intent to commit a bodily injury as charged in the information. In Commonwealth v. Bergdoll, 55 Pa. Super. Ct. 186, it was held that a verdict (1) That there was no evidence of a specof guilty of assault in operating an automo-ific intent on the part of the defendant to bile will be sustained where the evidence shows that the machine was run with reckless speed on the wrong side of the highway, and in such a manner that it zigzagged from side to side. In Fishwick v. State, 33 Ohio Cir. Ct. R. 63, a conviction for assault and battery was sustained where there was no intent to injure, and where the automobile was driven at a high rate of speed. See, also, section 916, Berry on Automobiles (2d Ed.); Schneider v. State, 181 Ind. 218, 104 N. E. 69; State v. Schutte, 87 N. J. Law, 15, 93 Atl. 112; Id., 88 N. J. Law, 396, 96 Atl. 659. [5] The mere fact, however, that the de (2) That since no battery was averred in the information the defendant could not be convicted of assault and battery. (3) That there was some evidence of such negligence as would make the defendant guilty of simple assault. (4) That the trial court ought to have submitted to the jury the question of defendant's guilt of simple assault. (5) That the trial court erred in direct ing the jury to render a general verdict of charged with the crime of murder. The petinot guilty. Decision reversed. tion is then set out as follows: "The general statement of why Judge A. W. McHendrie should be recalled from office is as follows: Because he freed on bail, without any WHITE, C. J., and BAILEY, J., concur. showing made, mankiller Walter Belk of the MARIANS v. PEOPLE ex rel. HINES. (No. 8509.) (Supreme Court of Colorado. Dec. 3, 1917.) 1. CONTEMPT 8 PETITION FOR RECALL· JUDGES. Under Const. art. 21, § 1, providing for recall from office, and requiring the petition for recall to contain a general statement of the grounds upon which it is sought, one seeking the recall of a judge is privileged, and is not guilty of contempt in stating the facts upon which the recall is sought. Baldwin-Felts Detective Agency, whose hands reek with blood from the slaying of Organizer Lippiatt, and at the same time imprisoning for months in a foul jail, without bail, Organizer Bob Uhlich, believed by Trinidad citizens to be innocent of crime; both Belk and Uhlich being charged with murder in the first degree, and because this judge four times refused Uhlich bail-the last request being signed by the district attorney-in spite of the fact that the judge is recorded as putting it up to the district attorney to decide upon granting Uhlich bail, and because the judge said that Northcutt, the notorious agent of the coal operators, must sign Uhlich's bail application before he would grant it, notwithstanding that this same Northcutt objected to bail on a former occasion and told the judge that Uhlich had done 'more than any four men towards organizing' the striking miners A statement of grounds of recall of a judge in defense of their wives and children, and that that he freed a mankiller on bail without show-the judge well knew that he might just as well ing made, whose hands reeked with the blood ask John D. Rockefeller to beg for bail for of another person, and at the same time im- Uhlich as this Northcutt." prisoned in a foul jail another person believed to be innocent, both of such persons being charged with murder in the first degree, and that the judge four times refused bail to the second of such persons, or required impossible conditions as prerequisite to granting bail, though intemperate and ill-advised, did not show contempt 2. CONTEMPT 8-PETITION OF RECALLJUDGES. of court. 3. CONSTITUTIONAL LAW 52-ENCROACHMENT ON JUDICIARY-CONTEMPT. The right to punish as for contempt may be taken from the courts by constitutional provisions. Garrigues, J., dissenting. En Banc. Error to District Court, Las Animas County; Robert G. Strong, Judge. Proceeding by the People, on the relation of Walter G. Hines, as President of the Las Animas County Bar Association, against A. Marians. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. O. H. Dasher and T. S. McChesney, both of Trinidad, for plaintiff in error. Fred Farrar, Atty. Gen., and Ralph E. C. Kerwin, Asst. Atty. Gen., for defendant in error. TELLER, J. The plaintiff in error was adjudged guilty of contempt in the district court of Las Animas county, and fined $50, and committed to the county jail until the fine was paid. The defendant filed no answer to the information, and on the hearing he announced to the court: "That he had no plea to make further than the right of a citizen of the state of Colorado to circulate a recall petition setting forth in plain words the reason why the recall of Judge McHendrie was desired.' Article 21, § 1, of the Constitution, which authorizes a recall from office, provides that the petition for recall "shall contain a general statement, in not more than two hundred words, of the ground or grounds on which such recall is sought, which statement is intended for the information of the electors, and the electors shall be the sole and exclusive judges of the legality, reasonableness and sufficiency of such ground or grounds assigned for such recall, and said ground or grounds shall not be opened to review.' The court treated the defendant's statement as a confession of guilt, and imposed the penalty above mentioned. For the plaintiff in error it is contended that the matter set out in the petition is privileged; it being the right of any citizen to state in a recall petition the reasons why a public officer should be recalled. The theory of counsel is that the common law, which would or might make the author of this petition liable for contempt, is repealed, so far as it applies to this case, by the constitutional provision for a statement of the grounds for recall. The proceeding was instituted by the president of the Las Animas County Bar Association, who filed an information charging the [1] Clearly that provision intends that plaintiff in error with contempt of the court when a citizen is of the opinion that a public and the presiding judge thereof "by writing, officer, subject to recall, has done that which printing, publishing and circulating a so- shows him to be unfit for the office which he called 'Petition to recall District Judge A. holds, the citizen may make such act the W. McHendrie from office.'" The informa- basis of an attempt to recall the officer; and tion alleges that two cases were pending in to do that he must necessarily mention said said district court, when said petition was act in the recall petition. We have held that circulated, in which Walter Belk and Robert it was no contempt to set out in a petition Uhlich were respectively defendants and for a change of venue the facts upon which it |