BONNIFIELD, J. The original plaintiff, S. C. Wright, brought this action in the district court in and for Ormsby county against the Carson Water Company, a corporation, defendant, on a certain promissory note of date December 8, 1886, for the sum of $2,000, and interest, alleged in the complaint to be the note of said defendant, executed by its president and secretary. The complaint contains the usual and necessary allegations in such action. The answer of the defendant, as to the note, is confined to specific denials of the averments of the complaint. In March, 1892, the case was tried before the court sitting without a jury, and the plaintiff recovered a judgment for the amount of his note, less the sum of a counterclaim set up in the defendant's answer for water rent. The district court granted the defendant a new trial. Mr. Wright having died, his executors were substituted as plaintiffs, and they appealed to the supreme court from the order granting a new trial. This order of the district court was affirmed. by this court. 34 Pac. 381. The cause came on regularly for second trial in the court below at its session in January, 1894, before a jury. After making such preliminary proofs as they had, the plaintiffs offered the note in evidence; to which the defendant objected on various grounds, among which are the following, to wit: "It is denied that this is the note of the Carson Water Company. There has been no evidence in this case, in fact, differing from the testimony or varying the testimony that was introduced in the former trial. The supreme court of this state decided that this note is not the note of the corporation, and that its officers who signed it had no authority to execute the corporate note, or bind said corporation." The objections of the defendant were sustained, the note was excluded, and judgment given against the plaintiffs for defendant's costs, taxed at $210. The plaintiffs duly excepted to the rulings of the court. The appellants, J. M. Wright and S. C. Wright, the heirs at law of S. C. Wright, deceased, and the distributees of his estate, being this appeal from the order of the court excluding said note, and from the judgment rendered against the plaintiffs for costs. The appellants urge several assignments of error, but from the view we feel compelled to take of the case it is not material for this court to pass upon any except the second, which goes to the vitals of the case, and is as follows, to wit: "The court erred in refusing to admit in evidence the promissory note for $2,000, sued upon and set out in the complaint, as being invalid, and as having been given for an outlawed note for the same amount by the president and secretary of the company, for the reason that no such defense is set out or pleaded in defendant's answer, the testimony showing, also, that the members of the board of trustees of the defendant had knowledge of the manner and

purpose in and for which said note was given; that interest had been paid thereon, monthly, for more than two years after the note sued on had been given; the testimony further showing that it was the custom of the company to transact similar business in this same manner; and there is nothing in the testimony showing or tending to show that said note is invalid, or that said company has ever repudiated the acts of its officers who executed said note."

The first question to be determined is, was the same state of facts presented on the former appeal as is presented on this one, upon the vital question at issue in the pleadings? From the most careful examination of the evidence set out in the transcript here, and the evidence disclosed in the opinions of the majority and minority of this court on the former appeal, we find no material difference affecting the question of the validity of the note. It is true, as suggested by counsel for appellants in their brief, that Mr. Helm was not examined at the second trial as a witness on questions concerning the note, and that his testimony given on the first trial does not appear in this appeal. We regard the testimony of Mr. Helm found in Edwards v. Water Co., 21 Nev. 469, 34 Pac. 381, on the controlling issue made by the pleadings, as favorable to the appellants in their contention on the issue of the validity of the note, whatever its force may be as proof of payment, or on other matters presented on the former appeal. So regarding it, the fact that his testimony is not in this case now cannot be fairly urged by the appellants as showing that they have set up a different state of facts, and more favorable to them, on this appeal, than was presented in the record on the former one as to the validity of the note, the establishment of which is essential to the maintenance of this action. When this case was before the supreme court under the title of Edwards v. Water Co., reported in 21 Nev. 469, 34 Pac. 381, the several questions presented and argued by the respective parties now were then before the court and determined. validity of the note is an issue made by the pleadings, and was properly presented, argued, and contested on the former hearing. Both in the opinion of the majority and minority of the court, there is an elaborate review of the evidence and the authorities, and this vital question was fully entered into and discussed, the majority of the court holding against the contention of the appellants. Although it does not appear upon what particular ground this court affirmed the order granting a new trial, it did decide "that the note in suit does not bind the respondent." This went to the essence of the case, and is fatal to appellants' contention on this appeal. Under that decision, it follows that the lower court did not err in excluding the note. That decision is the law of the case, not only binding on the parties and their

The

privies, but on the court below and on this court itself. A ruling of an appellate court upon a point distinctly made upon a previous appeal is, in all subsequent proceedings in the same case upon substantially the same facts, a final adjudication, from the consequences of which the court cannot depart. The supreme court has no power to review its own judgments in the same case, except upon petition for rehearing, in accordance with the rules established for that purpose. Such are the decisions of more than 200 cases, decided in more than 30 states of the Union, besides a great number of the federal courts, including the supreme court of the United States. A list of these cases is too extended to be given here, but they may be found in Herman on Estoppel and Res Judicata (page 118 et seq.). From these rules, and upon these authorities, we are of opinion that the judgment of the district court should be affirmed. It is so ordered.

In order to obviate the idea of an implied approval of the former decision, and to leave us unembarrassed by it if similar cases are presented in other cases for consideration, it is proper to state that the judgment on this appeal is based alone upon the ground of res judicata.

1895.) HOMICIDE-KILLING BY POISON-ARREST OF JUDGMENT-REVIEW.

1. Under an indictment charging murder in the first degree under Pen. Code, § 1, providing that "every person who shall * * by administering poison or causing the same to be done, kill another shall be deemed guilty of murder in the first degree," a conviction may be had for murder in the second degree or manslaughter, under Code Civ. Proc. § 1319, providing that under an indictment for an offense consisting of different degrees, the defendant may be convicted of any degree inferior to the degree charged in the indictment.

2. A motion in arrest of judgment and for a new trial in a criminal action may be heard without the defendant being present.

3. A reversal cannot be had for improper conduct of the state's attorney upon an affidavit of such conduct filed in the court below, where the record contains no statement of the facts or bill of exceptions.

Appeal from superior court, Spokane county; Norman Buck, Judge.

Helen Grier was convicted of murder in the second degree, and appeals. Affirmed.

W. T. Stoll and S. P. Domer, for appellant. James E. Fenton, for the State.

HOYT, C. J. The information in this case charged the defendant with the crime of murder in the first degree by the administration of poison. A verdict of murder in the second degree was returned by the jury,

and, after motion for new trial had been made and overruled, judgment was rendered thereon, and the defendant sentenced to imprisonment for the period of 10 years. Thereafter a motion in arrest of judgment was made and denied, and an appeal from the judgment and sentence prosecuted to this court. Three assignments of error are relied upon: First, that the court erred, because the verdict found the defendant guilty of a crime not charged in the information, and of which the defendant had no notice; second, that the court erred in hearing and denying appellant's motions for a new trial and in arrest of judgment in the absence of the defendant; and, third, that the court erred in allowing the deputy prosecuting attorney to conduct himself in the presence of the jury, as is stated and set forth in the affidavits of Stoll and Domer.

The record upon appeal contains no statement of facts or bill of exceptions by the aid of which the doings of the court and jury shown by the transcript can be interpreted. It follows that every reasonable presumption which can be indulged must be invoked to aid such doings before the judgment and sentence will be reversed on account thereof. If the facts shown by the record would warrant us in entering into an investigation of the argument in reference thereto, the first assignment of error would present questions of importance for our decision. In such argument it is contended that under the provisions of our statute murder in the first degree by the administration of poison is a distinct statutory offense complete in itself, and without any crime lesser than the principal one being included therein. If the definition of this crime stood by itself, and had no connection with murder in the first degree, as otherwise defined, there would be force in this contention. But murder in the first degree, however it may be committed, is the crime which is defined in the section, which provides that one of the methods by which it may be committed is by causing the death of a person by the administration of poison. Such being the fact, there is no distinction between the crime of murder in the first degree when so committed and the crime of murder in the first degree when committed by other means. The language of the statute is that every person who shall kill another under certain circumstances shall be guilty of murder in the first degree, and there is no distinction as to the crime growing out of the means employed for its commission. We are, therefore, of the opinion that the crime set out in the statute is a single one, and that, by whatever means it may have been committed, it includes the crime of murder in the second degree, and manslaughter as thereafter defined in the statute. The sections defining these crimes, when construed with section 1319 of the Code of Civil Procedure, which provides that

"upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto," authorized the verdict rendered in the case at bar. But the determination of this question is not necessary to the decision of this case, for the reason that the appellant is not in a position to raise it in this court. The transcript shows that at the time the verdict was received the defendant was in court with her counsel, that she made no objection to the form of the verdict, and took no exception to its being received by the court. Under these circumstances it will be presumed in aid of the judgment that the defendant consented to the verdict. If such verdict was received by her consent or request, she cannot successfully assign error on account thereof. The time has gone by when a defendant, even in a criminal. case, can secure a reversal on appeal on account of a ruling by the trial court to which he at the time gave his consent. Not only was no objection made at the time the verdict was received, but in the motion for a new trial thereafter made no relief from the verdict was asked upon the ground that the crime of which the defendant was thereby convicted was not charged in the information. Further, it appears from the transcript that after the overruling of the motion for a new trial the defendant was asked if she had anything to say why the judgment of the court should not be pronounced against her, and that she said nothing except to refer to what she had before said; that, after such statement, the court adjudged her guilty in accordance with the verdict of the jury, and sentenced her to imprisonment; that no objection was made or exception taken to the action of the court in so doing; and that it was not until after all this had been done that the motion in arrest of judgment was filed, and for the first time the point now relied upon presented for the decision of the court. Under these circumstances, such objection to the verdict and the judgment and sentence thereon furnishes ground for a reversal by the appellate court. As to the second error it is only necessary to say that, in our opinion, the motions for a new trial and in arrest of judgment were properly heard by the court in the absence of the defendant, and that, even if she had a right to be present, it was waived by the action of her counsel at the time the motions were heard.

no

The other assignment of error has nothing in the record on which it can stand. It is founded upon certain allegations contained in an affidavit filed in the court below as to the conduct of the deputy prosecuting attorney in the course of his closing argument to the jury, and if therefrom we could assume that the conduct of such officer was

as set out in such affidavit, there would be some foundation for the contention of the appellant that reversible error was committed by the court in allowing it. It is probable, however, that we should not be so satisfied that the defendant had been injured by such statement that we should reverse the case on that account. However that may be, there is nothing in the record to show that the prosecuting attorney conducted himself as stated in the affidavit referred. to. Before this court could take notice of such conduct the facts in relation thereto must have been found by the court, and made a part of the record by a statement of facts or bill of exceptions. Without such finding it cannot be here assumed that the conduct of the deputy prosecuting attorney was as claimed by the appellant. The judgment and sentence will be affirmed.

(Supreme Court of Wyoming. March 28, 1895.) RIGHT TO BAIL PENDING APPEAL-CONSTITUTIONALITY OF LAW.

Rev. St. § 3326, providing that a person convicted of a felony, sentence being suspended pending appeal, shall be imprisoned until the appeal is determined, does not conflict with Const. art. 1. § 14, providing that "all persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or the presumption great."

Collingwood Boulter was convicted of manslaughter, and applied to be admitted to bail until his appeal was heard and determined. Petition dismissed.

Ralph E. Esteb, for petitioner. B. F. Fowler, Atty. Gen., and Baird & Churchill, for sheriff of Laramie county, respondent.

GROESBECK, C. J. The petitioner was convicted of the crime of manslaughter in the district court for Laramie county, and, after the verdict of the jury, he made a motion for a new trial in that court, which was overruled. He objected to the imposition of sentence against him pending proceedings in error, which he announced he was about to institute, but this objection was overruled, and he was sentenced to imprisonment in the penitentiary for the term of six years. Thereupon he gave notice of his intention to apply for a writ of error, and at his request the district court suspended the execu

tion of his sentence until the next term of that court. His application for bail pending his appeal, which has not yet been perfected, as no writ of error has been applied for, was refused by the district court, and by habeas corpus he seeks to be admitted to bail pending his proceedings in error in this court, which he asserts he will prosecute. The statute applicable to his case reads as follows: "Whenever a person shall be convicted of a felony, and the judgment shall be suspended as aforesaid, it shall be the duty of the court to order the person so convicted into the custody of the sheriff, to be imprisoned until the case in error be disposed of." Rev. St. Wyo. § 3326. The petitioner claims that this statute, which was enacted prior to the adoption of the constitution of the state, under the territorial regime, is repugnant to the bill of rights, which contains the following provision: "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great." Const. Wyo. art. 1, § 14, cl. 1. He insists that this language is broad enough to include all persons convicted of a felony, less than capital, after as well as before conviction of the offense; and that, notwithstanding the statute, he is entitled to bail during the pendency of the cause on error.

Under the common law, bail in felony cases was not granted as a matter of right, but the power to admit to bail was lodged in the court of king's bench and the judges thereof, and was a matter of discretion, and not a matter de jure. There are English cases where bail has been granted after conviction of a felony, but they present extraordinary circumstances, where there was some doubt as to the law of the case or of the prisoner's guilt. In most of the states of the Union, aided by express legislation, which has been termed "the more merciful conclusion," bail is granted after conviction when a sound and cautious discretion prompts, though not so freely as before verdict. Bish. Cr. Proc. (New) § 253. Our statute takes away this discretion in cases of conviction of felony, but in misdemeanor cases the trial court is directed to suspend the execution of the sentence only where the convicted person enters into a recognizance, with such security as the court may require, conditioned that such person so convicted and sentenced of a misdemeanor shall appear at the next term of the court from term to term, until the case in error be determined, and abide the judgment or sentence of the court. Rev. St. § 3328. In cases of felonies the supreme court or the judge allowing the writ of error orders the suspension of the execution of the sentence until such case shall be heard and determined in the supreme court, and this rule applies also to misdemeanors. Id. §§ 3355, 3356. Another statute of more recent enactment provides that "all offenses shall be bailable

under the laws of Wyoming, by sufficient sureties, except capital offenses, when the proof is evident or the presumption great: provided, that no person shall be admitted to bail after indictment has been found against him charging a capital offense." Sess. Laws 1890, c. 23. This statute did not repeal any existing law in express terms. With the exception of the proviso which limited the right of bail in capital cases, when the proof is evident or the presumption great, to proceedings prior to the finding of the indictment, it is substantially the guaranty of the constitution. Such, then, was the state of the law at the time of the admission of the state into the Union. Misdemeanors were bailable offenses even after conviction; felonies less than capital were bailable until conviction and sentence; and capital offenses were bailable until the finding of the indictment. The discretion of the judges, sometimes used in England after conviction in felony cases, but cautiously exercised, was withdrawn and bail before conviction, except in capital cases, became a matter of right. It is contended that the statutory rule was changed by the general words of the constitution, and that "all persons" except those accused of capital offenses, where proof is evident or the presumption great, are entitled to bail as a matter de jure, after as well as before conviction. If this be true, there is no limit to the power to bail in felonies less than capital, and the rule of the common law absolutely denying bail after the sentence has gone into effect or execution is abrogated, and we would witness the strange spectacle of convicts in the penitentiary released on bail during the pendency in this court of proceedings in error, or perhaps even where no proceedings in error had been instituted, and where the application to bail is capriciously made. We are not willing to attribute such a construction to the words of the constitution permitting bail, as there must be a time when the right to bail must absolutely cease. The common-law rule withholding the right to bail after the sentence had gone into execution was a check, and a wholesome one, on the discretion of the court or its judges, and it will not be seriously contended that the constitution has invented a new rule in this respect. The object and purpose of the constitutional provision are to allow bail as a matter of right, and to take away the discretion of the judges. It first found root in the ordinance of 1787, creating the Northwest Territory, and from that source found its way into the supreme law of most of the states with varying phraseology. Street v. State, 43 Miss. 1.

Some of the constitutions of the states, relating to bail, contain an express provision that the right to bail terminates upon conviction; in others, the language is similar to ours. There are but few cases directly in point, and it would seem that the power to

admit to bail after conviction, where there is no statutory or constitutional provision granting such a right, has been rarely invoked. The earliest case in this country is that of State v. Ward, 2 Hawks, 443. The defendant was indicted for passing counterfeit money, and, after his conviction and sentence, there arose a point on his prayer to be bailed pending appeal. The judge delivering the opinion said upon this point: "I think that the clause in the constitution which declares that all prisoners shall be bailable by sufficient securities, unless for capital offenses, where the proof is evident or the presumption great, relates entirely to prisoners before conviction, for, although the words 'where the proof is evident or the presumption great' relate to capital cases only,-that is, to prisoners in capital cases,-the meaning is evidently prisoners before conviction, for after conviction there is no such thing as proof and presumption; all is certainty; and that the word 'prisoners' must be understood alike in each member of the sentence,-that is, prisoners before conviction. And persons remain convicted of the offense, notwithstanding the appeal; for the appeal is for matter of law only. The facts remain unaffected by the appeal, unlike the cases of appeal for matters of fact as well as for matters of law, and where a new trial de novo is given on appeals from the county to the superior courts, or from a single justice to the county court, where the appeal annihilates the verdict and judgment both." In petty misdemeanors, after conviction, the appeal was held to be a matter of right, but that an indiscriminate right of going at large after an appeal upon giving bail would render the criminal law a dead letter. The decision of tuis court would seem to be in harmony with our statutes before the constitution was operative, to allow bail as a matter of right after conviction of a misdemeanor, and denying bail after conviction of a felony; and the construction of the clause in the constitution of that state similar to ours was that the right to bail did not extend to persons convicted of a felony. To the same effect as this decision in North Carolina is the decision of the supreme court of California in the case of Ex parte Voll, 41 Cal. 29, under petition for writ of habeas corpus for the purpose of admitting one to bail convicted of manslaughter while his appeal was undetermined. The provision of the constitution of that state relating to bail is akin to ours in that respect, and the statute there provided that a person charged with such an offense as manslaughter might be admitted to bail before conviction as a matter of right, but after conviction, as a matter of discretion only. It was held that such a statute was not unconstitutional as being more restrictive than the constitution, as the provision of the latter was designed only to alter the rule of the common law as to certain criminal cases before conviction, and that bail after conviction was still left discretionary as at com

mon law, with the modifications wrought by the statute. The court was of the opinion, by a bare majority of its members, two judges not expressing an opinion, that the constitution, in declaring bail to be a matter of right, had in view only those cases wherein the guilt of the party had not already been judicially ascertained, in cases in which the prisoner yet stood upon his plea of not guilty, when surrounded with all the presumptions with which the law delights to encompass him; but when the trial is had, and his plea proven untrue, the law will not stultify itself by presuming him other than it has adjudged him to be. It was said, in the course of the opinion, that the absolute right to bail after conviction, as well as before, would lead to the result that no convict would be punished for his crime if he had either wealth or friends, and would operate as a mere money commutation for the infamous punishment which the law provides for the perpetration of crime, and, construing the language of the constitution in its literal sense, bail must be taken in any case, whether or not there be an appeal, and that this absurd result was not contemplated by the framers of the constitution. This case was affirmed by a later decision. Ex parte Smallman, 49 Cal. 35. The Case of Longworth, 7 La. Ann. 247, holds the contrary view. It was one of peculiar hardship, as the petitioner had been convicted of the offense of larceny, and sentenced to imprisonment in the penitentiary for one year. He took an appeal to the supreme court, but immediately afterwards was pardoned by the governor, or rather reprieved, under the peculiar statute of the state then in force, which provided that the object of executive clemency should be confined in the parish prison until the meeting of the next legislature, which in this case did not convene in regular session for two years, in order that the sense of the senate might be made known as to their concurrence with the executive in a pardon. The court indicated its views at length, and held reluctantly that the constitutional provision did not take away the discretionary power which the judges possessed at common law to admit to bail after conviction and pending appeal. It is admitted in the opinion that this power was cautiously exercised by the British judges, as the best security to obtain the body of a convict was the "four walls of the prison"; but it is contended that the power was exercised in a number of cases, including one of manslaughter, where the conviction was afterwards affirmed, and the defendant branded for the crime. The provision of the Louisiana constitution was like ours, and it was determined that bail became a matter of right even after conviction, and that the statute denying bail in such cases was unconstitutional. This decision was reached with extreme reluctance, one of the judges dissenting, and adhering to the doctrine of the North Carolina case (State v. Ward), supra, and with the knowledge