Volume 19 — Arizona Reports

<p>1. Intoxicating Liquors — “Permit.”—To “permit” the unlawful use of intoxicating liquors by the proprietor of a business implies his knowledge and consent and acquiescence.</p> <p>2. Intoxicating Liquors — Principles—Statute.—The proprietor of a soft drink place was not liable for the unlawful sale of intoxicating liquors by his employee, although committed in his place of business, unless such unlawful act was directed, or knowingly assented to, acquiesced in, or permitted by the employer.</p> <p>[As to liability of licensee for illegal sale of intoxicating liquors by his servant without instructions, see note in Ann. Cas. 1912A, 1109.].</p> <p>3. Criminal Law — Instructions—Repetition.—Refusal of proper instruction asked was not ground for reversal, where an instruction given was considered by court to cover the same ground.</p> <p>4. Criminal Law — Evidence—Admissibility—Other Sales. — In a prosecution for the illegal sale of intoxicating liquors by an employee of defendant, evidence of other sales of intoxicating liquors by such employee both before and after the sale charged was properly admitted to show knowledge, consent and acquiescence in the sales by the defendant.</p> <p>5. Criminal Law — Instructions.—In a prosecution for sale of intoxicating liquors by an employee of the defendant, an instruction was requested that evidence had béen admitted of sales other than the one charged, and verdiet should not be rendered against defendants or either of them by reason of such other sales, and that the material sale is that alleged to have been made on a certain date. The court gave this instruction, adding thereto: “Evidence of other sales was admitted for the purpose merely of aiding in determining whether or not there was a sale on the date alleged.” Reid, that the instruction as requested and as modified was too general as a definition of the purpose of admitting evidence of other sales.</p> <p>6. Criminal Law — Evidence—Admissibility.—In a prosecution for the illegal sale of intoxicating liquors by an employee of defendant, although a conviction could not be had upon other sales, evidence of other sales not personally made by defendant were competent to show scienter or knowledge on his part; it being a reasonable and fair inference that if liquor was frequently disposed of at his place of business, he must have known of it.</p> <p>7. Criminal Law — Review—Prejudicial Error. — In the view that the defendant’s establishment was making it a business to sell liquor, the modification of the instruction made by the court, while not strictly an accurate statement of the law, was not prejudicial.</p> <p>8. Criminal Law- — Review—Reversible Error. — In a prosecution for the illegal sale of intoxicating liquors by an employee of defendant, where a person during the trial sent a whiskey glass containing liquor to defendant’s attorney who immediately disclaimed knowledge of the performance, and upon inquiry from the court, the person stated that it was ginger ale, and that he brought it for the defendant, who then drank the liquor, and the court later called the person for examination, and fined him for eontempt after his statement that he wanted the jury to see that ginger ale looked like whiskey, and that his purpose was to influence them in behalf of his defendant, the refusal of the court to excuse the jury while such person was being examined was not reversible error, since it is probable that the jury were less prejudiced by the explanation of the act than they would have been had they been left to guess or draw on their imaginations for an explanation.</p> <p>9. Intoxicating Liquors — Evidence—Sufficiency.—In a prosecution for the illegal sale of intoxicating liquors by an employee of the defendant, evidence held to support a verdict of guilty.</p>

<p>Partnership — Evidence of Relation — Sufficiency.—Evidence held wholly insufficient to show a partnership, as all acts which would indicate the same were without the authority or assent of one of the alleged partners, and were never ratified by him.</p> <p>[As to what agreements establish the existence of a partnership, see note in 43 Am. St. Rep. 229.]</p>

<p>APPEAL from a judgment of-the Superior Court of the county of Maricopa. B. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Criminal Law- — Venue—Place of Offense. — In prosecution for introducing intoxicating liquor into the state, the contention that the court did not have jurisdiction for the reason that the liquors, before being brought into venue county, were actually introduced into the state in another county, and hence that the offense was eom- . mitted in that county, was without merit.</p> <p>2. Criminal Law — Prosecutions—Instructions.—In a prosecution for introducing intoxicating liquors into the state, the principle of law, stated in a refused requested instruction, that “you are instructed that, before you are justified in finding the defendant guilty, you must be satisfied by the evidence beyond a reasonable doubt that the defendant introduced the whiskey in question into this state for an unlawful purpose, that is, to sell, give, barter or dispose of to another, he is not guilty if he introduced it for his own personal use or consumption,” was fairly stated in a given instruction that: “The court instructs the jury that a person may lawfully introduce whiskey into this state for his own personal use or consumption. That is no erime, and, if you believe from the evidence that the defendant introduced the whiskey in question into the state for his own personal use or consumption, it is your duty to acquit him.”</p> <p>3. Criminal Law — -Appeal—Instruction.—In a prosecution for introducing intoxicating liquor into the state, where the court gave an instruction which fairly stated the law, no error was committed in refusing to give another which sets forth the same principle of law, but by a different arrangement of the language used to express the idea involved.</p> <p>4. Witnesses — Evidence—Impeachment op Accused. — In a prosecution for introducing intoxicating liquor into the state, where the defense was that the liquor which the defendant admits he introduced from California was for his own personal use, and not for illegal disposition, and he testified to that effeet, the state had the right to test the matter of defendant’s purpose in introducing the liquors by cross-examination into that issue, and to ask the questions whether it was the first time he had brought liquors into the state and if he had not made regular trips for such purpose.</p> <p>5. Witnesses — Evidence—Impeachment op Accused. — In a prosecution for introducing intoxicating liquors into the state, where the defendant on direet examination and in support of his defense stated that he introduced the liquors for personal use, and on cross-examination denied that he had brought in other lots, evidence offered by the state in rebuttal, tending to show that defendant had made other and different statements of the intended use of the liquors he had brought in, was relevant and competent as bearing on the defense offered.</p> <p>[As to impeaching witnesses, see note in 14 Am. St. Eep. 157.]'</p> <p>6. Criminal Law — Evidence—Admissibility.—Evidence of trips made by defendant to the same place and of loads of whiskey brought baek by him other than the load in question was also admissible.</p>

<p>1. Criminal Law — Naming Defendants in Statement Charging Acts. • "Wiiere the names of defendants were given in the title of the information, and the charging part referred thereto by the nse of the words “said defendants,” the information was sufficient, although defendants were not named in the statement charging the offense, in view of Penal Code of 1913, section 944, providing that no information.is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defeet or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.</p> <p>2. Criminal Law — Allegation of Filing. — The information was sufficient, although it did not allege the date of filing.</p> <p>3. Intoxicating Liquors — Importation into State — Evidence—Sufficiency. — In a prosecution for illegal transportation of whiskey over state line, evidence held sufficient to justify jury in drawing inference that accused advised and encouraged the unlawful introduction.</p> <p>[As to state regulation of transportation of intoxicating liquors, see note in Ann. Cas. 1917A, 622.]</p>

<p>1. Criminal Law — Criminal Prosecution — Conduct of Trial. — The exhibition, during a trial for introducing intoxicating liquors into the state, of a blackboard showing two other similar indictments against defendant, and collecting in the courtroom large quantities of whiskey involved in such other cases, was improper, where the sole defense was that accused received the whiskey inside the state.</p> <p>2. Intoxicating Liquors — Criminal Prosecution — Instructions.—In a prosecution for bringing intoxicating liquors into the state, evidence that accused, when arrested while driving from the state line with intoxicating liquors, stated that it cost him an additional amount to have such liquors brought and delivered to him within the state, warrants an instruction that persons aiding, etc., in the introduction of liquor into the state are guilty as principals.</p> <p>3. Intoxicating Liquors — Sufficiency of Evidence — Introduction into State. — Such evidence sustains a conviction for unlawfully introducing liquors in the state.</p> <p>4. Intoxicating Liquors — Criminal Prosecution — Admissibility of Evidence.. — In a prosecution for introducing liquors into the state, where the sole defense was that accused received it within the state, labels and internal revenue stamps showing the liquor was whiskey and time and place of bottling are inadmissible.</p> <p>5. Criminal Law — Appeal and ERror — Harmless Error. — The error in admitting such evidence is harmless.</p> <p>6. Intoxicating Liquors — Criminal ' Prosecution — Sufficiency of Evidence.. — In a prosecution for introducing intoxicating liquor into the state, evidence sufficient to sustain conviction of one defendant does not sustain a conviction of Ms companion, who was not shown to have been interested either in the liquor, its purchase, or in the automobile used to convey it.</p> <p>7. Criminal Law — Appeal and Error — Harmless Error. — A conviction for introducing intoxicating liquors into the state based upon the admissions of accused and attendant circumstances, the sole defense being that the liquor was received inside the state, will not be reversed because the jury was erroneously informed that other similar charges were pending against accused and the liquor involved in such cases was shown them.</p> <p>[As to regulation or prohibition of sales of intoxicating liquors by the state, see note in 35. Am. Dec. 331.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Intoxicating Liquors — Sales—Persons Liable. — In a prosecution for selling intoxicating liquors brought against the president of a corporation and its manager, where the president actually sold the liquor and the manager, although not present at the sale, prepared .the invoice therefor in the usual course of business on information received from the buyer, and left the invoice on the desk of the shipping clerk for his attention, such acts did not constitute advising or encouraging the commission of the offense within Penal Code of 1913, section 27.</p> <p>2. Intoxicating Liquors — Prosecutions—Intent.—Where defendant, prosecuted for selling intoxicating liquors, knew that he was selling the identical eider in question^ made a price therefor, and received payment accordingly, and caused the identical eider to be delivered, he cannot claim that he did not know that such liquor was intoxicating under Penal Code of 1913, section 24, subdivision 4, excepting from punishment persons who committed the act or made the omission charged under am ignorance or mistake of fact disproving criminal intent.</p> <p>3. Criminal Law — Similar Sales op Liquor — Evidence.—In a prosecution for selling eider found to be intoxicating, evidence that defendant had, at prior times, made similar sales was properly admissible to show intent, and that the cider was sold in the usual course of business.</p> <p>[As to evidence of other offenses, and when admissible, see notes in 44 Am. Rep. 299; 105 Am. St. Rep. 976.]</p> <p>4. Criminal Law — Review—Preservation op Exceptions. — Appellants, in a criminal prosecution cannot complain of testimony to which no objection is interposed, either at the time it is given or by motion to strike.</p> <p>5. Criminal Law — Review—Harmless Error. — In a prosecution for selling eider which was subsequently found to be intoxicating, the admission of evidence that a purchaser thereof was convicted and fined for selling intoxicating liquor held harmless.</p>

<p>1. Criminal Law — Appeal and Error — Presumptions.—Where the record is silent, it will be presumed the trial court properly admonished the jury in a criminal case upon retiring.</p> <p>2. Criminal Law — Reserving Grounds for Review — Necessity of Objections. — In a criminal case, accused cannot complain for the first time upon appeal that the court failed to admonish the jury when it retired.</p> <p>3. Indictment and Information — Commitment—Sufficiency.—Where a defendant was charged with rape, a commitment reciting that he appeared guilty “as charged,” and ordering him held to answer “the same,” is sufficient basis for an information charging violent rape.</p> <p>4. Criminal Law — New Trial — Postponement.—Under Penal Code of 1913, section 1105, subdivision 4, authorizing the court to grant a new trial for material errors, and section 1012, authorizing postponements, the trial court’s refusal to grant a postponement may be asserted as ground for new trial.</p> <p>5. Criminal Law — Postponement—Discretion of Court. — Postponement of a criminal trial rests largely in the trial court’s discretion, and his action will not be reversed unless such discretion has been abused to accused’s prejudice.</p> <p>6. Criminal Law — Postponement—Discretion of Court. — A trial court held not to have abused its discretion in refusing to postpone the trial of a rape case because a witness desired by defendant was absent, where such proposed witness’ affidavit disclosed that he had no intention of venturing within the court’s jurisdiction.</p> <p>7. Rape — Sufficiency of Evidence. — Evidence, consisting largely of prosecutrix’s story and physical facts, held to sustain a conviction for rape against the .defense that the prosecutrix did not forcibly resist.</p> <p>8. Criminal Law — New Trial — Newly Discovered Evidence. — There is no abuse of discretion in refusing a new trial motion in a rape case for newly discovered evidence, where one of the proposed witnesses testified fully at the former trial and the other two did not offer to testify in the future, and the evidence if given would be cumulative or impeaching.</p> <p>9. Criminal Law — Venue—Sufficiency of Evidence. — The venue in a prosecution for rape held sufficiently established by indirect evidence.</p> <p>[As to venue as place where crime is deemed to have been committed, see note in 44 Am. St. Rep. 79.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Greenlee. F. B. Laine, Judge.</p>

A. G. McAlister, Judge. STATEMENT OF CASE BY THE COURT. The appellee, as plaintiff, commenced this action against the appellant to recover damages alleged to have been suffered by the plaintiff resulting from the negligent manner in which appellant maintained its street railroad tracks within the corporate limits of the city of Bisbee, in violation of the express terms of Ordinance No. Ill of the city of Bisbee.

<p>1. Ejectment — Necessity fob Title in Plaintiff — Absence of Statute. — In the absence of statute, it is the universal rule that possession of real property is sufficient basis to authorize ejeetment against mere strangers or intruders.</p> <p>2. Ejectment — Necessity fob Title in Plaintiff — Consteuction of Statute — “Valid Subsisting Inteeest in Real Pbopebty.” — Civil Code of 1913, paragraph 1628, providing that any person having “a valid subsisting interest in real property,” and a right to immediate possession, “may recover same by action against any person acting as owner, landlord or tenant”; paragraph 1629, providing that plaintiff must recover on the strength of his own title and paragraph 1631, providing that complaint may state generally that plaintiff is entitled to possession, also “the quantity of his estate, and the extent of his interest therein, etc.,” do not require more than a showing of mere possession to support ejectment against strangers.</p> <p>3. Ejectment — Defense—Interest in Public Lands — “Duplicate Receiver’s Receipt.”- — Defendant, having filed a homestead entry on publie lands, was entitled to recover as against plaintiff in ejectment who merely held possession of a part of such lands, in view of Civil Code of 1913, paragraph 1747, providing that a certificate of purchase or of location or duplicate receiver’s receipt of any land shall be prima faoie evidence that the holder thereof is the owner, and entitled to possession of the land described therein as against every other person, except the United States, the “duplicate receiver’s receipt” being intended to cover the initial step to secure title from the government.</p> <p>4. Public Lands — Possessory Rights — Purpose of Statute. — Civil Code of 1913, paragraph 1747, was enacted for the purpose of aiding persons to seeure possession of their lands before patents were issued, as without the aid of such statute the pre-emptor or homesteader was unable to dispossess occupants of his entries.</p> <p>[As to the property or invasion of possession for which ejectment is maintainable, see note in 116 Am. St. Rep. 568.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Yavapai. Prank O. Smith, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Cochise. Alfred C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Greenlee. F. B. Laine, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pima. G. W. Shute, Judge.</p>

G. W. Shute, Judge. STATEMENT OF FACTS BY THE COURT. The appellee commenced this action to recover damages for alleged injuries received by him on June 28, 1914, while occupied in the performance of his underground duties in the course of his employment by the appellant in appellant’s mines.

Alfred C. Lockwood, Judge. STATEMENT OP PACTS BY THE COURT. The appellee was employed by the appellant in the underground workings of its mines in Cochise county. The appellee’s duties required him to load, push on a track, and unload ore ears. The place for the performance of such duties was on the 900-foot level of the mine. The track was laid through a drift from the point of loading the cars to a point of unloading the ores into a chute.

<p>APPEAL from a judgment of the Superior Court of the county of Graham. W. A. O’Connor, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pinal. O. J. Baughn, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pima. Win. F. Cooper, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Santa Cruz. Prank Baxter, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pima. Wm. F. Cooper, Judge.</p>

<p>1. Counties — Taxes—Amount.—Under Civil Code of 1913, title 49, chapter 3, with reference to the levy and collection of taxes by county supervisors, section 4842, providing ■ that all taxes shall not exceed -the amount specified in such published estimate, and in no event shall the aggregate amount of taxes to be raised, except taxes for sehool purposes, exceed ten per cent greater in amount than the total sum levied and collected from all sources for all purposes other than school purposes during the year next prior to that in which the levy is made, construed with title 52, chapter 2, section 5278, making it the duty of the board of supervisors to levy and cause to be collected a tax, in addition to the amount of taxes which now or may hereafter be authorized by law for state and county purposes upon all taxable property in said county, sufficient to pay the interest on all bonds issued, a county board of supervisors may levy an amount to cover interest on county bonds in excess of the limit prescribed by section 4842.</p> <p>2. Counties — Taxation—Statutes—Enactment on Different Dates —Effect.—That Civil Code of 1913, title 49, chapter 3, and title 52, chapter 2, became laws on different dates, would be immaterial, as the latter chapter authorizes the board of supervisors to levy and collect an interest tax “in addition to the amount of taxes which now or may hereafter be authorized by law for county purposes.”</p>

F. H. Lyman, Judge. STATEMENT OF FACTS BT THE COURT. The appellant commenced an action in said court against the appellee, wherein he is seeking an absolute divorce upon certain alleged grounds. The appellee was served with process by publication, and did not appear in person or by an attorney, or at all. Judgment was rendered in said cause on said service of process by publication on the twentieth day of October, 1914.

William E. Cooper, Judge. STATEMENT OP PACTS BY THE COURT. This action was commenced by the appellant, as plaintiff, seeking to enjoin the defendant, appellee, from using the public streets, alleys, and grounds within the corporate limits of the town of Nogales for distributing electric energy for lights, power, etc., upon the grounds that plaintiff is engaged in the same occupation in said town, and uses such public streets, alleys, and grounds for the same purpose by…

<p>APPEAL from a judgment of the Superior Court of the county of Gila. F. B. Laine, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Gila. Fj B. Laine, Judge.</p>

<p>Appeal and Error — Assignments op Error — Sufficiency.—Under Civil Code of 1913, paragraph 1231, making it the duty of tbe court, upon appeal from final judgment, to review all orders and rulings made by the court below which are assigned as error, assignments of error, except fundamental ones, although indicating the rulings complained of, will not be noticed, where not specifying the ground of error, further than stating for “the reasons hereinafter stated in the argument on” such assignment of error, in view of rule 8, subdivision 1, providing that “all assignments of error niust distinctly specify each ground of error relied upon and the particular ruling complained of.”</p> <p>[As to what judgments and orders may be appealed from, see note in 20 Am. St. Eep. 173.}</p>

<p>1. Criminal Law — Justices of the Peace — Jurisdiction—Disorderly House.- — Justiee courts have jurisdiction over the offense of keeping a disorderly house contrary to Penal Code of 1913, section 317, under Constitution, article 6, section 9, Civil Code of 1913, paragraphs 382, 385, 1278, 1281, and Penal Code of 1913, sections 19, 1308.</p> <p>2. Criminal Law — Criminal Jurisdiction of Superior Court. — The superior court has jurisdiction over the offense of keeping a disorderly house, contrary to Penal Code of 1913, section 317, and to every other misdemeanor prosecuted by indictment or information, under section 898, so providing, and Civil Code of 1913, page 338, defining jurisdiction of such court.</p> <p>3. Courts — Jurisdiction" of Superior Court — Constitutional Provisions. — Under Constitution, article 6, section 6, providing original jurisdiction in the superior court of all matters not vested exclusively in some other court, jurisdiction is not taken away by statute declaring that some other court shall have jurisdiction, unless the statute declares exclusive jurisdiction.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pinal. O. J. Baughn, Judge.</p>

APPB'AIi from a judgment of the Superior Court of the county of Coconino. F. W. Perkins, Judge. STATEMENT OR PACTS BY THE COURT. The appellant commenced this action to enjoin the appellee from erecting a building and from committing other threatened alleged acts of trespass upon the Cape Horn mining claim. The said mining claim is situate within the “Francis mining district” in Coconino county.

<p>APPEAL from a judgment of the Superior. Court of the . county of M'aricopa.. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Gila. G. W. Shute, Judge.</p>

<p>1. Mandamus — When Issued. — The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, and issues when the party has no other legal remedy, and the duty of which performance is sought is clear and indisputable.</p> <p>[As to performance of what duties may be compelled by mandamus, see note in 125 Am. St. Rep. 492.]</p> <p>2. Mandamus — Refusal to Set Case for Trial — Rights of Litigants. Mandamus will issue where a judge refuses to set a cause for trial, because, in his opinion, there may be another cause pending on appeal which involves the same issues, as litigants are entitled to have their causes orderly determined and with reasonable expedition.</p> <p>3. Continuance — Foe What Granted. — That there is a cause pending in the supreme court that may involve the same issues as the immediate action cannot be raised on a motion for continuance, but the court must proceed on the issues as pleaded.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Navajo. Sidney Sapp, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Statutes — Repeal — Taxation — Levy por Schools. — Laws of 1915 (1st Sp. Sess.), chapter 4, section 4, subdivision “a,” levying a tax of $100,600 to defray the expense of maintenance and support of the state common schools during the fiseal year ending June 30, 1916, being dependent upon General Appropriation Act, chapter 3, section 44, which was vetoed by tbe Governor, did not repeal by implication Civil Code of 1913, paragraph 2815, making a general levy to raise a fund of $500,000 for sehool purposes, to he known as a state common sehool fund.</p> <p>2. Counties — Estimates op County Expenses — Inclusion op Bridge as County Improvement — Statute.—A bridge constructed over a river at an expense of $18,000 to the county was a “public improvement” within Civil Code of 1913, section 4840, requiring that the county board of supervisors’ estimates of the amounts required to meet public expenses and to be raised- by taxation shall include the amount required for each public improvement, etc.</p> <p>8. Bridges — Construction and Levy by Board op Supervisors — Election — Statute.—Civil Code of 1913, section 5994, making it tbe duty of tbe county board of supervisors in certain contingencies to call an election to determine the question as to whether a bridge shall be constructed and for authority to raise “funds necessary to pay the same by taxation as provided by law,” makes it a condition precedent to tbe levying of taxes to construct a bridge by the board of supervisors that tbe taxpayers of the county shall first authorize the levying of such taxes.</p> <p>4. Bridges — Construction by County — “Taxation as Provided by Law” — Statute.—Civil Code of 1913, section 5094, making it the duty of the county board of supervisors to call an election to determine whether a bridge shall be constructed, and for authority to raise necessary funds by “taxation as provided by law,” means by direct levy upon tbe taxable property of the county in accordance with the tax-levying statutes (title 49, chapter 3).</p> <p>5. Bridges — Construction by County Supervisors — Taxation.—Civil Code of 1913, section 5099, providing that county board of supervisors shall cause amount necessary for payment of cost of bridge to be raised by direct levy on taxable property of county, is at most a grant of power authorizing the raising of the necessary funds by taxation as provided by tax-levying statutes (title 49, chapter 3).</p> <p>6. Counties — Taxation—Levy by Board of Supervisors — Amount.— A county board of supervisors, in levying taxes for all county purposes, including tbe cost of construction of a bridge, in tbe year 1915 was authorized to exceed tbe levy of .tbe preceding year ten per cent and no more, and any excess over sucb amount contained in the levy was beyond its jurisdiction, and when tbe board discovered its levy was beyond tbe limit, it was its duty to scale tbe estimate down to comply with tbe limitations fixed by Civil Code of 1913, sections 4839-4842.</p> <p>7. Taxation — Legislature as Source of Taxing Power. — Tbe legislature is the source of tbe taxing power, and without a grant from it no taxes can be levied or collected.</p> <p>[As to tbe purposes for which the power of taxation may be exercised, see notes in 2 Am. St. Rep. 94; 16 Am. St. Rep. 365.]</p>

<p>1. Pleading — General Demurrer. — A general allegation that defendant bank took over all the assets and assumed all the liabilities of its predecessor bank was sufficient to inelude a particular note and mortgage as against a general demurrer.</p> <p>2. Chattel Mortgages — Sales by Mortgagee — Surplus. — A mortgagee, selling personalty in the exercise of a power, is a trustee of a surplus, and the mortgagor may resort to equity for an accounting.</p> <p>3. Judgment — Res Judicata. — Where a mortgagor commenced and dismissed actions to restrain a sale of sheep, to replevy the sheep from tbe purchaser, and to recover damages for conversion of the property, she was not estopped by such judgments to bring action for an accounting for a surplus; all of such actions being ill-advised.</p> <p>4. Election op Remedies — Mistaken Remedies. — Where a mortgagor commenced and dismissed actions to restrain a sale of sheep, to replevy from the purchaser, to recover damages for conversion, all being ill-advised, there was no election of remedies to prevent her from suing for an accounting for a surplus in the hands of the mortgagee, because there can be no election of remedies, where there is only one proper remedy.</p> <p>[As to when resort to one remedy bars the prosecution of another, see note in 1 Am. St. Rep. 626.]</p> <p>5. Limitation op Actions — Bonds — Trusts. — Where on releasing an injunction restraining sale of sheep by mortgagee, the court required a bond of the mortgagee, the fact that limitations has run on the bond does not avail the mortgagee in an action for an accounting as to a surplus, because a surplus in the hands of a mortgagee, being held in trust, is the possession of the mortgagor.</p> <p>6. Banks and Banking — Liability of Officers. — Officers of a bank cannot be sued in their individual capacities for an accounting for surplus on a sale by the bank under a mortgage.</p>

<p>APPE'AL from a judgment of the Superior Court of the county of Gila. A. G. McAlister, Judge.</p>

W. A. O’Connor, Judge. Reversed and remanded, with directions as to Joseph L. Wiley and Ramon Salazar. STATEMENT OF FACTS BY THE COURT. The appellants were informed against and tried jointly upon the charge of murder alleged to have been committed on the twelfth day of April, 1916, in Pima county, Arizona, in the billing of one Mary Josephine Walsh Bates. They were convicted of murder in the second degree.

<p>APPEAL from a judgment of the Superior Court of the county of Yavapai. Frank O. Smith, Judge.</p>

<p>i. Intoxicating Liquors — Offenses—Preliminary Examination. — In prosecution for disposing of intoxicating liquor, a preliminary examination before a committing magistrate is unnecessary.</p> <p>2: Criminal Law — Evidence—Demonstrative Evidence — Identity.— In a prosecution for the unlawful sale of whiskey the admission of the bottle in evidence, after it was definitely traced from the hands of defendant right into the courtroom, was not objectionable on the ground that it had not been properly identified.</p> <p>3. Criminal Law — Evidence — Other Offenses. — la prosecution for unlawful sale of whiskey, the admission of evidence of other sales of a similar nature to that charged in the information was proper, where the evidence for the state was to the effect that defendant showed a desire for secrecy, and disposed of it surreptitiously and by a roundabout way, calculated to evade detection, and where it was limited to showing a plan or scheme.</p> <p>[As to when evidence of other offenses is admissible, see notes in 44 Am. Rep. 299; 105 Am. St. Repi 976.]</p> <p>4. Criminal Law — Detective Evidence — Province of Jury. — In prosecution for the unlawful sale of whiskey the testimony of the detectives to whom it was sold was not unworthy of belief merely because . of their employment and interest in the case, its weight and credibility being for the jury.</p> <p>5. Intoxicating Liquors — Offenses — Evidence — United States License. — In a prosecution for selling whiskey in violation of the prohibition amendment, evidence that defendant had been granted a license by the United States to retail intoxicating liquor was admissible, as the acquisition or possession of instruments, or other means of doing an act, is always a relevant inquiry.</p> <p>6. Criminal Law — Sufficiency of Evidence — Appeal.—Unless the evidence is inherently improbable or bad, the supreme court cannot reject the evidence for the state and decide the case upon the evidence for the defendant, as the weight and credibility of testimony must be decided by, and any conflict reconciled by, the jury.</p> <p>7. Criminal Law — Appeal—Reversal.—Cases may be reversed in the supreme court only where the record affirmatively shows error prejudicial to some substantial right of a defendant.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Yavapai. Frank O. Smith, Judge.</p>

Alfred C. Lockwood, Judge. STATEMENT OE PACTS BY THE COURT. The appellant commenced this action to enjoin the defendant from advertising a labor strike and from appealing to union members and sympathizers by means of banners, hand-hills, circulars, and street talks to cease dealing with plaintiffs upon the grounds that the plaintiffs are injured in their business and the defendants are insolvent and unable to respond in damages, and that the plaintiffs have no other speedy,…

<p>APPEAL from a judgment of the Superior Court of the county of Yuma. Frank Baxter, Judge.</p>

Alfred C. Lockwood, Judge. STATEMENT OP PACTS BY THE COURT. This action was commenced by the appellee, relying upon the employers’ liability law (chapter 6, title 14, Civil Code of Arizona 1913), to recover damages for alleged injuries to and loss of the sight of his left eye, alleged to have been sustained on the sixth day of May, 1914, while engaged in his duties operating a machine drill under ground in the appellant’s mine, in the course of his employment.

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa.' R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. P. H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of tlie Superior Court of tlie county of Graham. G. W. Shute, Judge.</p>

Frank Baxter, Judge. STATEMENT OF PACTS BY THE COURT. Action on a promissory note made and delivered by the appellants on the first day of December, 1915, payable to E. F. Sanguinetti “on demand or six months after date,” the principal sum of $3,089.64, with interest from date at the rate of ten per cent per annum, payable quarterly, with a promise to pay a reasonable attorney’s fee if collection enforced. The plaintiff is the owner and holder of the note by indorsement.

A. G. McAlister, Judge. STATEMENT OF FACTS BT THE COURT. This action was commenced during the spring of the year 1915 by the appellees and the appellant, as plaintiffs, owners of irrigable agricultural lands in Graham county, against George N. Campbell and other named defendants, therein seeking to adjudicate and finally settle the priority rights of all of the parties to the action to the waters of a stream known as Merejildo Wash.

<p>APPEAL from a judgment of the Superior Court of the county of Pima. W. A. O’Connor, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Gila. Frank O. Smith, Judge.</p>

<p>1. Criminal Law — Public Trial — Discretion of Court. — Though Constitution, article 2, section 24, guarantees a public trial, the court in a prosecution for contributing to the dependency of a girl, wherein it was obvious much indecent language and conduct would necessarily be repeated and described, and she would be subjected to 'a gruelling cross-examination, properly exercised its discretion in restricting public attendance to newspaper reporters.</p> <p>2. Criminal Law — Public Trial — Waiver of Eight by Accused.— . Accused, by not objecting to an order clearing people from the courtroom after it was modified by allowing newspaper reporters to remain, waived any right of his involved in the order as modified.</p> <p>[As to right to public trial and what are infringements of the' right, see note in 28 Am, St. Eep. 308.]</p>

<p>1. New Trial — Time por Application — Construction op -Statute.— Under Civil -Code of 1913, paragraph 590, providing that motions-for new trial shall be made after rendition of judgment, a motion before rendition of judgment was premature and ineffectual.</p> <p>2. Appeal and Error — Review—Motion por New Trial. — Civil Code of 1913, paragraph 1231, providing that in an appeal from a final judgment in an action tried before a jury, the supreme court shall not consider the sufficiency of evidence unless a motion for a new trial shall have been made, held, to preelude consideration of sufficiency of evidence, where motion was ineffectual because made before rendition of judgment, contrary to paragraph 590.</p> <p>3. Evidence — Best or Secondary Evidence — Amount Due on Note.— In an action by bank on pledged note given as security for discounted note subsequently renewed, parol evidence as to state of indebtedness at time of renewal without production of original note is not in violation of best evidence rule.</p> <p>4. Trial — Order of Proof. — Cross-examination of plaintiff’s witness to develop a matter of defense set up in the answer, and which defendant is required to bring out as a part of his own case, is properly excluded.</p> <p>5. Banks and Banking — Bona Fide Purchasers — Notice.—That the agent of a bank discounting a note knew that the payee of the note did not have sufficient money in bank to ereet a building held insufficient to charge the bank with knowledge that collateral notes taken by the bank were obtained by such payee on fraudulent representations that it had sufficient funds for sueh purpose.</p> <p>6. Trial — Instructions—Construction as a Whole. — An instruction that ignores the principle that notice to an agent is notice to the principal held no error, where ’instructions as a whole fairly and accurately presented the law applicable to the case.</p> <p>7. Trial — Instructions—Weight of Evidence. — Instruction that puffing statements, made by promoters or agents selling stock as to the value of the stock as an investment, would not constitute a defense, held not á comment on the evidence, and, in view of other instructions defining false and fraudulent representations, could not have been misunderstood by the jury.</p> <p>8. Action — Consolidation — Judgment. — Where a bank brought separate actions on pledged notes against seven defendants, and upon motion of defendants, the issues bang the same, the suits were consolidated, a single verdict and judgment is sufficient.</p> <p>9. Trial — Verdict—Ascertainment of Amount of Recovery. — Where in consolidated actions on notes transferred to plaintiff as collateral for another note larger in amount than any of the notes sued on, it being stipulated that, if plaintiff was entitled to recover, the amount due should be shown by the faee of the notes in suit, defendant’s objection that the jury in its verdict for plaintiff failed to find the amount due on the collateral notes was untenable.</p> <p>10. Bills and Notes — Bona Fide Purchasers. — In view of Civil Code of 1913, paragraphs 4201, 4202, a purchaser of negotiable paper in good faith and without knowledge of infirmity or defects is not required to make original and independent investigation of the circumstances surrounding the issue of the paper and the relations of the parties thereto.</p> <p>[As to title and right of bona fide holder of stolen negotiable instrument, see note in Ann. Cas. 1916A, 603.]</p>

<p>1. Counties — Boundaries—Determination by Board of Supervisors— Effect. — Civ. Code of 1913, paragraphs 2373, 2380, fix the boundary line between Yuma and Maricopa counties upon meridian line 113 degrees, 20 minutes west longitude. Revised Statutes of 1887, paragraph 369, provided that whenever the boundary line of any county should be so indefinite as to malre it impossible to determine where the lines are, and when a part of the territory by reason of sueh indefinite description is claimed by two counties, the boards of supervisory of such counties may have a survey made to define the boundary, and makes the decision of arbitrators on appeal final. Held that the boundary line was not indefinite, and where the meridian line had not been surveyed and located on the ground, there was no tangible basis for a dispute, so that the act of county officials in 1889, in surveying and marking the line, could not have been taken under the act.</p> <p>2. Counties — Boundaries — Proceeding to Establish. — Under Civil Code of 1913, paragraphs 2373, 2380, and Laws of 1889, No. 42, permitting the boards of supervisors of contiguous counties to define the county boundary line by having a joint survey thereof made, and by establishing posts thereon, the act of the respective county boards of supervisors in making a survey, and posting, without making or filing the record thereof as required by the act, in the absence of any provision making the survey final or declaring it to be the true boundary line, was binding until in the regular course of law the true boundary was located on the ground.</p> <p>3. Counties — Boundary Line — Determination by Court — Statute.— Civil Code of 1913, paragraphs 2373, 2380, define the boundary line between Yuma and Maricopa counties as meridian line 113 degrees, twenty minutes west longitude; Constitution, article 6, section 4, gives the supreme court original and exclusive jurisdiction to determine disputed county boundary; and Civil Code of 1913, paragraphs 2381-2385, provides that on any dispute as to location of a county boundary line, either county may commence an aetion in the supreme court to have the line determined, and requires the court to define the true boundary line and directs that it be marked. Held that, even though a boundary line other than the true one may have been adopted by the legislature, it had the power to change it back to the true line fixed by statute, and that the court would define the true statutory boundary line.</p> <p>4. Counties — Establishment op Boundary Line — Recovery op Taxes. Where the county supervisors of Yuma and Maricopa counties in 1889 made a joint survey of the boundary, and mutually agreed upon it, and acted thereon in the collection of taxes, etc., until 1907, the boundary agreed upon was binding until the true boundary was lawfully established, so that, where a strip in which Marieopa county had collected taxes during that time was determined to belong to Yuma county, the latter county could not recover taxes so collected.</p> <p>[As to location of boundaries by acquiescence or agreement, see notes in 69 Am. Dec. 711 j 27 Am. Rep. 239.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Graham. F. B. Laine, Judge.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe county of Yuma. Frank Baxter, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Mohave. John A. Ellis, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Mohave. John A. Ellis, Judge.</p>

<p>APPEAL from a judgment of tbe Superior Court of the county of Santa Cruz. "W. A. 0 ’Connor, Judge. Affirmed.</p>

<p>1. Homicide — Indictment and Information — -Means or Instrument Employed — Sufficiency of Allegations. — An indictment or information for murder is not bad in failing to describe the means employed to effect death.</p> <p>[As to form and sufficiency of indictment for murder, see note in 3 Am. St. Rep. 279.]</p> <p>2. Homicide — Indictment and Information — Description of Wounds Causing Death — Sufficiency.—An indictment or information for murder is not bad because it fails to describe the wounds causing death.</p> <p>3. Criminal Law — Appeal—Invited Error — Cross-examination.—Defendants in a homicide trial cannot complain of a nonexpert witness giving his opinion as to the age of deceased from the appearance of the body, where such testimony was drawn from the witness on their own cross-examination.</p> <p>4. Criminal Law-Trial — Objections to Evidence — Time.—An objection to evidence made after answer comes too late.</p> <p>5. Criminal Law — Appeal—Harmless Error — Admission of Evidence —Identity of Deceased. — Where a state’s witness was asked whether he could tell the age of deceased from the appearance of the body, and answered that he was a young man, the answer was properly permitted to stand; the evidence that the body was that of a young man being uncontroverted.</p> <p>6. Criminal Law — Trial—Instructions—“Alibi”—“Elsewhere.”— An “alibi” is evidence offered in rebuttal of the state’s ease, and literally means “elsewhere,” and to be effective must show that the accused was at another place so far away or under sueh circumstances that he could not, with ordinary exertion, have reached the place of the crime in time to have participated in it, for, if accused is near the place and free to act, he, in contemplation of the law, is not “elsewhere.”</p>

<p>Telegraphs and Telephones — Offenses—Wire Tapping — -Dictograph. Penal Code of 1913, section 692, providing that every person who by means of any machine, instrument, or contrivance, or in any other manner, willfully and fraudulently reads, or attempts to read, any message or to learn the contents thereof while the same is being sent over any telegraph or telephone line, shall be punishable, does not apply to the a.et of secretly placing a dictograph over the transom of a room in a hotel for the purpose of learning the contents of a telephone message sent through a transmitter in the room, the room not being a receiving or sending office of a telegraph or telephone company, nor did the interception take' place while the message was being sent over the line.</p> <p>[As to the law of the telephone, see note in 10- Am. St. Bep. 128.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Apache. George H. Crosby, Jr:, Judge.</p>

Alfred C. Lockwood, Judge. The purpose of the action, the material issues joined in the pleadings, and the material facts appear in a statement in 16 Ariz. 447, 449, 147 Pac. 701, where the report of the decision of this court on a former cross-appeal of this ease may be found. A restatement of the case is not deemed necessary with a reference to the former appeal decision.

<p>APPEAL from a judgment of the Superior Court of the county of Coehise. Alfred C. Lockwood, Judge.</p>

<p>1. Public Lands — “Constructive Possession.” — Possession of such part of unsurveyed public lands within the boundaries of an appropriator’s claim as are not actually used by him is “constructive.”</p> <p>[As to rights of prescriptors, see note in 87 Am. Dec. 132.]</p> <p>2. Property — Constructive Possession. — Constructive possession unless founded upon a legal right is inferior to actual possession.</p> <p>3. Public Lands — Actual Peaceable Possession — Bights of Settler. Bevised Statutes of 1913, paragraphs 4717, 4718, as to acquiring title to public lands and as to distinctly marking boundaries of claim, protect a prior settler on unsurveved public lands in his actual peaceable possession without regard to monuments or record notices, for the reason that prior settlement gives prior right, and 'actual possession gives actual notiee of the extent of such right.</p> <p>4. Public Lands — Appropriation—Priority.—Bevised Statutes of 1913, paragraphs 4717, 4718, protect the prior claimant’s peaceable possession of unsurveyed public lands to the extent of the boundaries as marked by him not including more than 160 acres against all persons having actual knowledge of marked boundaries or constructive notice thereof from filed record notice.</p> <p>5. Public Lands — Appropriation of TJnsurveyed Lands — Becords.— Monuments showing boundaries of claim of an appropriator of unsurveyed public lands control calls of description in filed record notice where description in notice does not agree with monuments.</p> <p>6. Evidence — Admissions by Agent as to Boundaries.- — Statement of plaintiff’s herder as to boundary of plaintiff’s claim to unsurveyed public lands would not bind plaintiff as against defendant, a subsequent appropriator, who had aetual knowledge of extent of plaintiff’s claim.</p> <p>7. Public Lands — 'Notice of Claim — Bight of Subsequent Appropriator. — Erroneous description in recorded notice of claim to unsurveyed public lands would not bind plaintiff appropriator as to defendant subsequent appropriator, who had actual knowledge of extent of plaintiff’s claim.</p> <p>8. Public Lands — Claim — Appropriation — Abandonment. — That an appropriator of unsurveyed public lands caused a corral and a house to be torn down and removed may be denominated an act of dominion as well as an act of abandonment.</p>

Alfred C. Lockwood, Judge. STATEMENT OF FACTS BY THE COURT. Action commenced by tbe appellee against appellant Genardini as the lessor of plaintiff and against the other named defendants as tenants of said lessor, in actual possession, to recover the possession of certain described buildings situate on lots numbered 21 and 22 in block No. 82 of tbe Douglas townsite, in Cochise county, alleged to have been granted by Genardini to plaintiff by written lease made and bearing…

<p>Executors and Administrators — Dismissal of Frivolous Appeal.— ■Where appeal was perfected, and 60 days’ additional time to file the transcript was given, and no aetion was afterward taken to prosecute the appeal, and a motion to dismiss is not opposed, the appeal will he held frivolous, and damages will he awarded.</p>

- Frank O. Smith, Judge. STATEMENT OF FACTS BY THE COURT. On the twenty-eighth day of January, 1916, the superior court of Yavapai county, exercising its probate jurisdiction, ordered probated a document bearing date of December 30, 1915, as the last will and testament of Ygnacia de Brazil, deceased.

<p>1. Trusts — Conveyance for Special Purpose — Sufficiency of Evidence. — Iu a son’s action to set aside Ms conveyance to Ms father of Ms share of Ms deceased mother’s estate on the ground that the deed was not intended as a conveyance absolute, but as a conveyance of the legal title to be held by the father to deal with the property, with a promise to account, evidence held insufficient to sustain the son’s allegations.</p> <p>[As to creation of trust in land by parol, see note in 115 Anf. St. Rep. 774.]</p> <p>2. Limitation of Actions — Statute of Limitations — Fraud or Uistake. — Where a father, by the exercise of duress, procured conveyance from Ms son of the latter’s share in Ms deceased mother’s estate, and thereafter, as early as October 19, 1912, the son demanded his share, with full knowledge of his rights, and was met with a refusal, the father putting Mm out of the house, the son’s action to cancel the deed for duress was barred when commenced Mareh 27, 1916, by Civil Code of 1913, paragraph 711, subdivision 3, providing that action for relief on the ground of fraud or mistake must be commenced within three years after the cause of action accrued, since the son’s cause of action accrued when he left his father’s house, escaping from his duress, with knowledge of his rights.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Cochise. A C. Lockwood, Judge. Reversed with directions.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. F. H. Lyman, Judge.</p>

<p>Forcible Entry and Detainer — “Actual Possession.” — One reading on lot, the front part of which was fenced, was in “actual possession” of the rear unfenced part of the lot within the meaning of Civil Code of 1913, paragraph 1536, relating to forcible entry, where there was a toilet on the baek of the lot which was in constant use.</p> <p>[As to when title and color of title may be given in evidence in actions of forcible entry and detainer, see note in 77 Am. Dec. 552.]</p>

<p>Costs — Frivolous Appeal. — Under Civil Code of 1913, paragraph 1272, as to frivolous appeals, where appeal is taken for delay, appellee is entitled to damages of 10' per cent, of the amount of the judgment.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Cochise. W. A. O’Connor, Judge.</p>