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BONNIFIELD, J. The original plaintiff, purpose in and for which said note was S. C. Wright, brought this action in the dis- given; that interest had been paid thereon, trict court in and for Ormsby county against monthly, for more than two years after the the Carson Water Company, a corporation, note sued on had been given; the testimony defendant, on a certain promissory note of further showing that it was the custom of date December 8, 1836, for the sum of $2,000, the company to transact similar business in and interest, alleged in the complaint to this same manner; and there is nothing in be the note of said defendant, executed the testimony showing or tending to show by its president and secretary. The com- that said note is invalid, or that said complaint contains the usual and necessary alle. pany has ever repudiated the acts of its offi. gations in such action. The answer of the cers who executed said pote." defendant, as to the note, is confined to spe- The first question to be determined is, was cific denials of the averments of the com- the same state of facts presented on the plaint. In March, 1892, the case was tried former appeal as is presented on this one, before the court sitting without a jury, and upon the vital question at issue in the pleadthe plaintiff recovered a judgment for the ings? From the most careful examination amount of his note, less the sum of a coun- of the evidence set out in the transcript here, terclaim set up in the defendant's answer and the evidence disclosed in the opinions for water rent. The district court granted of the majority and minority of this court on the defendant a new trial. Mr. Wright hav. the former appeal, we find no material difing died, his executors were substituted as ference affecting the question of the validity plaintiffs, and they appealed to the supreme of the note. It is true, as suggested by councourt from the order granting a new trial. sel for appellants in their brief, that Mr. This order of the district court was affirmed Helm was not examined at the second trial by this court. 34 Pac. 381. The cause came as a witness on questions concerning the on regularly for second trial in the court be- note, and that his testimony given on the low at its session in January, 1894, before first trial does not appear in this appeal. a jury. After making such preliminary We regard the testimony of Mr. Helm found proofs as they had, the plaintiffs offered the in Edwards v. Water Co., 21 Nev. 469, 34 note in evidence; to which the defendant ob- Pac. 381, on the controlling issue made by jeoted on various grounds, among which are the pleadings, as favorable to the appellants the following, to wit: “It is denied that. in their contention on the issue of the validithis is the note of the Carson Water Com- ty of the note, whatever its force may be as pany. There has been no evidence in this proof of payment, or on other matters precase, in fact, differing from the testimony sented on the former appeal. So regarding or varying the testimony that was intro- it, the fact that his testimony is not in this duced in the former trial. The supreme case now cannot be fairly urged by the apcourt of this state decided that this note is pellants as showing that they have set up a not the note of the corporation, and that its different state of facts, and more favorable officers who signed it had no authority to to them, on this appeal, than was presented execute the corporate note, or bind said cor. in the record on the former one as to the poration." The objections of the defendant validity of the note, the establishment of were sustained, the note was excluded, and which is essential to the maintenance of this judgment given against the plaintiffs for de- action. When this case was before the sufendant's costs, taxed at $210. The plain- preme court under the title of Edwards v. tiffs duly excepted to the rulings of the Water Co., reported in 21 Nev. 469, 34 Pac. court. The appellants, J. M. Wright and S. 381, the several questions presented and arC. Wright, the heirs at law of S. C. Wright, gued by the respective parties now deceased, and the distributees of his estate, then before the court and determined. The being this appeal from the order of the court validity of the note is an issue made by the excluding said note, and from the judgment pleadings, and was properly presented, arrendered against the plaintiffs for costs. gued, and contested on the former hearing. The appellants urge several assignments of Both in the opinion of the majority and mierror, but from the view we feel compelled nority of the court, there is an elaborate reto take of the case it is not material for this view of the evidence and the authorities, court to pass upon any except the second, and this vital question was fully entered inwhich goes to the vitals of the case, and is to and discussed, the majority of the court as follows, to wit: “The court erred in re- holding against the contention of the appelfusing to admit in evidence the promissory lants. Although it does not appear upon note for $2,000, sued upon and set out in the what particular ground this court affirmed complaint, as being invalid, and as having the order granting a new trial, it did decide been given for an outlawed note for the "that the note in suit does not bind the resame amount by the president and secretary spondent." This went to the essence of the of the company, for the reason that no such case, and is fatal to appellants' contention on defense is set out or pleaded in defendant's this appeal. Under that decision, it follows answer, the testimony showing, also, that that the lower court did not err in excluding the members of the board of trustees of the the note. That decision is the law of the case, defendant had knowledge of the manner and not only binding on the parties and their privies, but on the court below and on this, and, after motion for new trial had been court itself. A ruling of an appellate court made and overruled, judgment was renderupon a point distinctly made upon a previous ed thereon, and the defendant sentenced to appeal is, in all subsequent proceedings in imprisonment for the period of 10 years. the same case upon substantially the same Thereafter a motion in arrest of judgment facts, a final adjudication, from the conse- was made and denied, and an appeal from quences of which the court cannot depart. the judgment and sentence prosecuted to The supreme court has no power to review this court. Three assignments of error are its own judgments in the same case, except relied upon: First, that the court erred, beupon petition for rehearing, in accordance cause the verdict found the defendant guilty with the rules established for that purpose. of a crime not charged in the information, Such are the decisions of more than 200 and of which the defendant had no notice; cases, decided in more than 30 states of the second, that the court erred in hearing and Union, besides a great number of the federal denying appellant's motions for a new trial courts, including the supreme court of the and in arrest of judgment in the absence United States. A list of these cases is too of the defendant; and, third, that the court extended to be given here, but they may be erred in allowing the deputy prosecuting at. found in Herman on Estoppel and Res Judi- torney to conduct himself in the presence of cata (page 118 et seq.). From these rules, the jury, as is stated and set forth in the and upon these authorities, we are of opin- affidavits of Stoll and Domer. ion that the judgment of the district court The record upon appeal contains no stateshould be affirmed. It is so ordered.
ment of facts or bill of exceptions by the In order to obviate the idea of an implied | aid of which the doings of the court and approval of the former decision, and to leave jury shown by the transcript can be interus unembarrassed by it if similar cases are preted. It follows that every reasonable presented in other cases for consideration, presumption which can be indulged must be it is proper to state that the judgment on invoked to aid such doings before the judgthis appeal is based alone upon the ground ment and sentence will be reversed on acof res judicata.
count thereof. If the facts shown by the
record would warrant us in entering into an BIGELOW, C. J., and BELKNAP, J., con- investigation of the argument in reference cur.
thereto, the first assignment of error would
present questions of importance for our de(11 Wash. 244)
cision. In such argument it is contended
that under the provisions of our statute STATE v. GRIER.
murder in the first degree by the adminis(Supreme Court of Washington. Feb. 20, tration of poison is a distinct statutory of1895.)
fense complete in itself, and without any HOMICIDE-KILLING BY Poisov-ARREST OF JUDG- crime lesser than the principal one being MENT-REVIEW.
included therein. If the definition of this 1. Under an indictment charging murder in the first degree under Pen. Code, $ i, providing crime stood by itself, and had no connecthat "every person who shall
by ad- tion with murder in the first degree, as othministering poison or causing the same to be erwise defined, there would be force in this done, kill another shall be deemed guilty of mur
contention. But murder in the first degree, der in the first degree," a conviction may he had for murder in the second degree or manslaugh- however it may be committed, is the crime ter, under Code Civ. Proc. $ 1319, providing that which is defined in the section, which prounder an indictment for an offense consisting of vides that one of the methods by which it different degrees, the defendant may be convicted of any degree inferior to the degree charged in
may be committed is by causing the death the indictment.
of a person by the administration of poison. 2. A motion ili arrest of judgment and for a Such being the fact, there is no distinction new trial in a criminal action may be heard with
between the crime of murder in the first deout the defendant being present.
3. A reversal cannot be had for improper | gree when so committed and the crime of conduct of the state's attorney upon an affidavit murder in the first degree when committed of such conduct filed in the court below, where
by other means. The language of the statthe record contains no statement of the facts or bill of exceptions.
ute is that every person who shall kill an.
other under certain circumstances shall be Appeal from superior court, Spokane coun
guilty of murder in the first degree, and ty; Norinan Buck, Judge.
there is no distinction as to the crime growHelen Grier was convicted of murder in
ing out of the means employed for its comthe second degree, and appeals. Affirmed.
mission. We are, therefore, of the opinion W. T. Stoll and S. P. Domer, for appellant. that the crime set out in the statute is a James E. Fenton, for the State.
single one, and that, by whatever means it
may have been committed, it includes the HOYT, C, J. The information in this case crime of murder in the second degree, and charged the defendant with the crime of manslaughter as thereafter defined in the murder in the first degree by the adminis- | statute. The sections defining these crimes, tration of poison. A verdict of murder in when construed with section 1319 of the the second degree was returned by the jury, Code of Civil Procedure, which provides that
"upon an indictment or information for an as set out in such affidavit, there would be offense consisting of different degrees, the some foundation for the contention of the jury may find the defendant not guilty of appellant that reversible error was commit. the degree charged in the indictmeut or lue ted by the court in allowing it. It is probformation, and guilty of any degree inferior able, however, that we should not be so satthereto," authorized the verdict rendered in isfied that the defendant had been injured the case at bar. But the determination of by such statement that we should reverse this question is not necessary to the deci. the case on that account. However that sion of this case, for the reason that the ap- may be, there is nothing in the record to pellant is not in a position to raise it in this show that the prosecuting attorney conductcourt. The transcript shows that at the ed himself as stated in the affidavit referred. time the verdict was received the defend. to. Before this court could take notice of ant was in court with her counsel, that she such conduct the facts in relation thereto made no objection to the form of the ver
must have been found by the court, and dict, and took no exception to its being re- made à part of the record by a statement of ceived by the court. Under these circum- facts or bill of exceptions. Without such stances it will be presumed in aid of the finding it cannot be here assumed that the judgment that the defendant consented to conduct of the deputy prosecuting attorney the verdict. If such verdict was received was as claimed by the appellant. The judgby her consent or request, she cannot suc
ment and sentence will be affirmed. cessfully assign error on account thereof. The time has gone by when a defendant, DUNBAR and SCOTT, JJ., concur. ANeven in a criminal.case, can secure a re- DERS, J., concurs in the result. versal on appeal on account of a ruling wy the trial court to which he at the time gave GORDON, J. I concur in the result, but his consent. Not only was no objection not in what is said concerning the recepmade at the time the verdict was received, tion of the verdict. The verdict was regubut in the motion for a new trial thereafter lar in form, and was adverse to the defend. made no relief from the verdict was asked ant. She has a right to assail it upon moupon the ground that the crime of which tion for new trial as being "contrary to law the defendant was thereby convicted was and evidence," and such was her motion benot charged in the information. Further, it low. appears from the transcript that after the overruling of the motion for a new trial the defendant was asked if she had anything
(5 Wyo. 263) to say why the judgment of the court
In re BOULTER. should not be pronounced against her, and (Supreme Court of Wyoming. March 28, 1895.) that she said nothing except to refer to Riget To BAIL PENDING APPEAL-CoxSTITUTIONwhat she had before said; that, after such
ALITY OF LAW. statement, the court adjudged her guilty in
Rev. St. $ 3326, providing that a person accordance with the verdict of the jury,
convicted of a felony, sentence being suspended
pending appeal, shall be imprisoned until the and sentenced her to imprisonment; that
appeal is determined, does not conflict with no objection was made or exception taken Const. art. 1, § 14, providing that “all persons to the action of the court in so doing; and
shall be bailable by sufficient sureties, except
for capital offenses when proof is evident or that it was not until after all this bad been
the presumption great." done that the motion in arrest of judgment was filed, and for the first time the point
Collingwood Boulter was convicted of mannow relied upon presented for the decision
slaughter, and applied to be admitted to of the court. Under these circumstances,
bail until his appeal was heard and detersuch objection to the verdict and the judg
mined. Petition dismissed. ment and sentence thereon furnishes no
Ralph E. Esteb, for petitioner. B. F. Fowground for a reversal by the appellate court. ler, Atty. Gen., and Baird & Churchill, for
As to the second error it is only necessary sheriff of Laramie county, respondent. to say that, in our opinion, the motions for a new trial and in arrest of judgment were GROESBECK, C. J. The petitioner was properly heard by the court in the absence convicted of the crime of manslaughter in of the defendant, and that, even if she had the district court for Laramie county, and, a right to be present, it was waived by the after the verdict of the jury, he made a moaction of her counsel at the time the mo- tion for a new trial in that court, which was tions were heard.
overruled. He objected to the imposition of The other assignment of error has noth- sentence against him pending proceedings ing in the record on which it can stand. It in error, which he announced he was about is founded upon certain allegations contain- to institute, but this objection was overruled in an affidavit filed in the court below as ed, and he was sentenced to imprisonment to the conduct of the deputy prosecuting in the penitentiary for the term of six years. attorney in the course of his closing argu- Thereupon he gave notice of his intention ment to the jury, and if therefrom we could to apply for a writ of error, and at his reassume that the conduct of such officer was quest the district court suspended the execu
tion of his sentence until the next term of under the laws of Wyoming, by sufficient that court. His application for bail pending sureties, except capital offenses, when the his appeal, which has not yet been perfect-proof is evident or the presumption great: ed, as no writ of error has been applied for, provided, that no person shall be admitted was refused by the district court, and by to bail after indictment has been found habeas corpus he seeks to be admitted to against him charging a capital offense." bail pending his proceedings in error in this Sess. Laws 1890, c. 23. This statute did not court, which he asserts he will prosecute. / repeal any existing law in express terms. The statute applicable to his case reads as With the exception of the proviso which follows: "Whenever a person shall be con- limited the right of bail in capital cases, victed of a felony, and the judgment shall when the proof is evident or the presumpbe suspended as aforesaid, it shall be the tion great, to proceedings prior to the finding duty of the court to order the person so con- of the indictment, it is substantially the victed into the custody of the sheriff, to be guaranty of the constitution. Such, then, imprisoned until the case in error be dis- was the state of the law at the time of the posed of.” Rev. St. Wyo. $ 3326. The peti- | admission of the state into the Union. Mistioner claims that this statute, whicli was demeanors were bailable offenses even after enacted prior to the adoption of the consti- conviction; felonies less than capital were tution of the state, under the territorial re- bailable until conviction and sentence; and gime, is repugnant to the bill of rights, capital offenses were bailable until the findwhich contains the following provision: “All ing of the indictment. The discretion of persons shall be bailable by sufficient sure- the judges, sometimes used in England ties, except for capital offenses when the after conviction in felony cases, but cauproof is evident or the presumption great." tiously exercised, was withdrawn and bail Const. Wyo. art. 1, § 14, cl. 1. He insists before conviction, except in capital cases, that this language is broad enough to include became a matter of right. It is contendall persons convicted of a felony, less than ed that the statutory rule was changed by capital, after as well as before conviction of the general words of the constitution, and the offense; and that, notwithstanding the that “all persons” except those accused of statute, he is entitled to bail during the capital offenses, where proof is evident or pendency of the cause on error.
the presumption great, are entitled to bail as Under the common law, bail in felony cas- a matter de jure, after as well as before es was not granted as a matter of right, but conviction. If this be true, there is no limthe power to admit to bail was lodged in it to the power to bail in felonies less than the court of king's bench and the judges capital, and the rule of the common law thereof, and was a matter of discretion, and absolutely denying bail after the sentence not a matter de jure. There are English has gone into effect or execution is abrocases where bail has been granted after gated, and we would witness the strange conviction of a felony, but they present ex- spectacle of convicts in the penitentiary retraordinary circumstances, where there was leased on bail during the pendency in this some doubt as to the law of the case or of court of proceedings in error, or perhaps the prisoner's guilt. In most of the states even where no proceedings in error had been of the Union, aided by express legislation, instituted, and where the application to bail which has been termed "the more merciful is capriciously made. We are not willing to conclusion,” bail is granted after conviction attribute such a construction to the words when sound and cautious discretion of the constitution permitting bail, as there prompts, though not so freely as before ver- must be a time when the right to bail must dict. Bish. Cr. Proc. (New) $ 253. Our absolutely cease. The common-law rule statute takes away this discretion in cases withholding the right to bail after the senof conviction of felony, but in misdemeanor tence had gone into execution was a check, cases the trial court is directed to suspend and a wholesome one, on the discretion of the execution of the sentence only where the the court or its judges, and it will not be seconvicted person enters into a recognizance, riously contended that the constitution has with such security as the court may require, invented a new rule in this respect. The conditioned that such person so convicted object and purpose of the constitutional proand sentenced of a misdemeanor shall ap- vision are to allow bail as a matter of right, pear at the next term of the court from and to take away the discretion of the term to term, until the case in error be de- judges. It first found root in the ordinance termined, and abide the judgment or sen- of 1787, creating the Northwest Territory, tence of the court. Rev. St. $ 3328. In cas- and from that source found its way into the es of felonies the supreme court or the judge supreme law of most of the states with vary. allowing the writ of error orders the sus- ing phraseology. Street v. State, 43 Miss. 1. pension of the execution of the sentence un- Some of the constitutions of the states, retil such case shall be heard and determined lating to bail, conta in an express provision in the supreme court, and this rule applies that the right to bail terminates upon conalso to misdemeanors. Id. 88 3355, 3356. viction; in others, the language is similar to Another statute of more recent enactment ours. There are but few cases directly in provides that “all offenses shall be bailable point, and it would seem that the power to
admit to bail after conviction, where there is mon law, with the modifications wrought by no statutory or constitutional provision grant- the statute. The court was of the opinion, ing such a right, has been rarely invoked. by a bare majority of its members, two The earliest case in this country is that of judges not expressing an opinion, that the State v. Ward, 2 Hawks, 413. The defend- constitution, in declaring bail to be a matter ant was indicted for passing counterfeit of right, had in view only those cases wheremoney, and, after his conviction and ser in the guilt of the party had not already been tence, there arose a point on his prayer to be judicially ascertained, in cases in which the bailed pending appeal. The judge delivering prisoner yet stood upon nis plea of not the opinion said upon this point: "I think that guilty, when surrounded with all the prethe clause in the constitution which declares sumptions with which the law delights to enthat all prisoners shall be bailable by suffi- coinpass him; but when the trial is had, cient securities, unless for capital offenses, and his plea proven untrue, the law will not where the proof is evident or the presump- stultify itself by presuming him other than tion great relates entirely to prisoners be- it has adjudged him to be. It was said, in fore conviction, for, although the words the course of the opinion, that the absolute 'where the proof is evident or the presump- right to bail after conviction, as well as betion great relate to capital cases only,—that fore, would lead to the result that no convict is, to prisoners in capital cases,-the mean- would be punished for his crime if he had ing is evidently prisoners before conviction, either wealth or friends, and would operate for after conviction there is no such thing as as a mere money commutation for the inproof and presumption; all is certainty; and famous punishment which the law provides that the word 'prisoners' must be understood for the perpetration of crime, and, construing alike in each member of the sentence,-that the language of the constitution in its literal is, prisoners before conviction. And persons sense, bail must be taken in any case, whethremain convicted of the offense, notwith- er or not there be an appeal, and that this abstanding the appeal; for the appeal is for surd result was not contemplated by the matter of law only. The facts remain unaf- framers of the constitution. This case was fected by the appeal, unlike the cases of ap- affirmed by a later decision. Ex parte Smallpeal for matters of fact as well as for mat- man, 49 Cal. 35. The Case of Longworth, 7 ters of law, and where a new trial de novo La. Ann. 247, holds the contrary view. It is given on appeals from the county to the was one of peculiar hardship, as the petitioner superior courts, or from a single justice to the had been convicted of the offense of larceny, county court, where the appeal annihilates and sentenced to imprisonment in the penithe verdict and judgment both.” In petty tentiary for one year. He took an appeal to misdemeanors, after conviction, the appeal the supreme court, but immediately afterwas held to be a matter of right, but that an wards was pardoned by the governor, or indiscriminate right of going at large after rather reprieved, under the peculiar statute an appeal upon giving bail would render the of the state then in force, which provided criminal law a dead letter. The decision of that the object of executive clemency should tuis court would seem to be in harmony with be confined in the parish prison until the our statutes before the constitution was op- meeting of the next legislature, which in this erative, to allow bail as a matter of right case did not convene in regular session for after conviction of a misdemeanor, and deny. two years, in order that the sense of the sening bail after conviction of a felony; and ate might be made known as to their conthe construction of the clause in the constitu- currence with the executive in a pardon. tion of that state similar to ours was that The court indicated its views at length, and the right to bail did not extend to persons held reluctantly that the constitutional proconvicted of a felony. To the same effect vision did not take away the discretionary as this decision in North Carolina is the de- power which the judges possessed at common cision of the supreme court of California in law to admit to bail after conviction and the case of Ex parte Voll, 41 Cal. 29, under pending appeal. It is admitted in the opinpetition for writ of habeas corpus for the ion that this power was cautiously exercised purpose of admitting one to bail convicted of by the British judges, as the best security to manslaughter while his appeal was undeter- obtain the body of a convict was the "four mined. The provision of the constitution of walls of the prison"; but it is contended that that state relating to bail is akin to ours in the power was exercised in a number of that respect, and the statute there provided cases, including one of manslaughter, where that a person charged with such an offense the conviction was afterwards affirmed, and as manslaughter might be admitted to bail the defendant branded for the crime. The before conviction as a matter of right, but provision of the Louisiana constitution was after conviction, as a matter of discretion like ours, and it was determined that bail beonly. It was held that such a statute was came a matter of right even after conviction, not unconstitutional as being more restrictive and that the statute denying bail in such than the constitution, as the provision of the cases was unconstitutional. This decision latter was designed only to alter the rule of was reached with extreme reluctance, one of the common law as to certain criminal cases the judges dissenting, and adhering to the before conviction, and that bail after convic- doctrine of the North Carolina case (State tion was still left discretionary as at com- V. Ward), supra, and with the knowledge