Volume 21 — Montana Reports

II. Li. Buck, Judge. Action by A. C. Botkin, guardian of the person and es' ate of William Kohlweiss, against T. H. Kleinschmidt and others, on the bond of Henry C. Yaeger, former guardian. From a judgment in favor of plaintiff, defendants appeal. Statement of the case by the justice delivering the opinion. This is a suit on a guardian’s bond.

<p>Appealable Order — New Trials.</p> <p>1. Appealable Obdeb. — An order made after judgment and which extends the time for filing a bill of exceptions, is an appealable order, under Section 1722, Code of Civil Procedure, which authorizes an appeal from any special order made after final judgment.</p> <p>2. Same. — The general rule that, when an appeal can be taken from an order, an order refusing a motion to modify the former order is not appealable, does not apply when the original order was irregularly issued, or was made without notice.</p> <p>3. Same. — An order refusing to modify a prior order is a decision upon a matter of law to which an exception may he taken.</p> <p>4. NewTblal. — An issue of fact upon which a new trial can be granted is such an issue only as is raised by the pleadings; a statement on motion for new trial is confined to such issues; and a new trial of a motion is not authorized by the code. ({j§ 662,1030 and 1170, Code of Civil Procedure, construed.)</p>

<p>Appeal from District Court, Fergus County. Dudley Du Bose, Judge.</p> <p>Action by Robert E. Hamilton against E. A. Huson and another. From a judgment for defendants, plaintiff appeals.</p>

X. II. Parker, Judge. Action by the Gaffney Mercantile Company against Charles Hopkins to reform a contract. Defendant demurred to the complaint, and his demurrer was sustained. Plaintiff appeals.

Henry -C. Smith, Judge. Action by George F. Cope, cashier, against the Minnesota Type Foundry Company and others. Judgment for plaintiff. Some of the defendants appeal. Statement of the case by the justice delivering the opinion. The nature and history of this case are fully stated in the former report thereof.

William Clancy, Judge. Quo warranto by the state, on the relation of Edwin Bray, O. J. McConnell, F. E. Curtis, and J. A. Baker against… Held: the defendants, who had been duly nominated and who were duly qualified, were elected as school trustees, and the result of such election was duly declared, and the said defendants did duly qualify pursuant to law, and ever since April 17, 1897, have been in the possession and entitled to the possession of their respective offices as…

Henry AT. Blake, Judge. Action by Patrick J. Harrigan and another against Michael Lynch. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. As the common law prevails here (except as modified by statute — Section 5152 of the Political Code) the following common law principles are important, (a) Co-tenants hold by unity of possession.

<p>In an advertisement for bids for furnishing supplies for state officers, a detailed description of the goods were given; there were two bidders; as to some of the articles, the relator bid lower, and as to others his bid was higher than that of his competitor; the advertisement also provided that in case a greater quantity of any article should be needed than was specified, they should be delivered at the prices mentioned in the bid; the difference in the bids was exceedingly small, and it was impossible to tell the exact quantities which would be needed of those articles in regard to which the two bids differed. Held, that the evidence did not show that the state board had abused its discretion in determining which was the lowest responsible bid.</p>

<p>Section 402 of the Code of Civil Procedure, provides that an attorney may be removed when he has been convicted of a felony or misdemeanor involving moral terpitude, and that in such a case the record of conviction shall be conclusive evidence; Section 417, Id., provides that, when an attorney has been convicted of such a crime, the Clerk of the Court shall, within thirty days thereafter, transmit to the Supreme Court, a certified copy of the record of conviction; Section 418 provides that, in such cases, the proceedings to remove must be taken by the Supreme Court upon receipt of the certified copy of the record; in the ease under review the attorney had been found guilty of the crime of secreting a public record which is a felony. Held, that it was not necessary to file any complaint, orto issue or serve any citation in the proceeding.</p>

8 H. Me Intire, Judge. Action by the State against the Thomas Cruse Savings Bank. Judgment for plaintiff, and defendant appeals. Statement of the case by the justice delivering the opinion. The defendant is a corporation engaged in the banking business in the City of Helena.

Application by Montana Coal & Coke Company, a corporation, against Alexander Livingston, treasurer of Park county, Montana, for injunction. The injunction was denied and plaintiff appeals.

R. Buck, Judge. Action by Calvin E. Hull against George B. Diehl and others. Judgment for defendants. Plaintiff appealed.

3. Benton, Judge. Action by the city of Great Falls against Will Hanks, Thomas E. Brady, K. B. Mclver, A. E. Dickerman, R. Vaughn and J. H. McKnight. Judgment for defendants, and plaintiff appeals. Statement of the case by the justice delivering the opinion. Action by the plaintiff and appellant, the City of Great Falls, against the sureties on the official bond of the treasurer of the city.

H. Woody, Judge. Quo warranto by the state, on the relation of John T. Williams and others, against John W. May hew and others. From judgment for relators, defendants appeal. Statement of the case by the justice delivering the opinion. This is a quo warranto proceeding.

Action by Maggie Whitbeck against the Montana Central Railway Company and the Great Northern Railway Company, in the District Court of Cascade County, J. B. Leslie, Judge.

Action by William Beck against William O’Connor and another. Judgment for defendants, and plaintiff appeals. Statement of the case by the justice delivering the opinion. This is an action to recover the sum of $1,250, which plaintiff claims to be due as a balance of the purchase price of an interest in a bond and lease sold by him to the defendant O’Connor in and to certain mining property mentioned in the complaint.

II. Armstrong, Judge. Action by William Beck against W. Y. Fransham and others. From an order dissolving a temporary restraining order, plaintiff appeals. Statement of the case by the justice delivering the opinion. Injunction.

N. Blake, Judge. Action by John Murray against S. T. Hauser, impleaded with Howard Oviatt and F. D. Spratt. From a judgment for ■defendant Hauser, plaintiff appeals. Our contention is that the court erred in refusing to submit to the jury a general verdict, as asked for by plaintiff. This is .an action for the recovery of money.

K. Armstrong, Judge. Action by the town of White Sulphur Springs against Allen PierceJ county treasurer. There was a judgment .for plaintiff, and defendant appeals. Statement of the case by the justice delivering the opinion.

<p>Information — Leave to File■ — Jury List — Presumption■ that Officers LLave Acted in Accordance with Law — Rape—JUvidence of Relation Between Defendant and Prosecuting Witness — Age, Evidence of — Cross-Examination—Age of Prosecuting Witness — Force—Instructions.</p> <p>1. Ineoiímation — Leave to File. — Under Section 8, Article 3, of the Constitution, and Section 1382, Penal Code, prosecutions in the district court may either be by information, in cases where there has been an examination and commitment or admission to bail by magistrate, in which case an order of the court is not necessary; or by information filed by order of the court upon the written motion of the county attorney, which may be done without such examination.</p> <p>2. Same. — Where the information is filed by leave of court, it need not be entered in writing before the filing of the information; but after the arrest of the defendant, tile minutes of the court may be corrected so as to amend the order.</p> <p>3. Juby List — Presumption that Officers Have Acted in Accordance with Law. — It the officials, whose duty it is to make up the jury list, purposely omit to put upon the jury list the names of persons competent and qualified to serve as trial jurors, a challenge should be sustained as to the whole panel. But the presumption is that the officials have done their duty and that the lists were properly made up, until the contrary is made to appear; and this presumption is not overcome by a mere oiler of proof to the contrary not accompanied by an affidavit, and without calling a witness or asking leave to call one, and then tendering such proof.</p> <p>4. Rafts — Evidence of Relation Between defendant and Prosecutrix. — In a prosecution for rape, it is not error to allow-the state to show that the defendant is the father of the prosecuting witness.</p> <p>5: Age — iiviaence of.— In such an action, the prosecuting witness may testify as to her own age.</p> <p>6. Same. — Where the witness upon direct examination is testifying concerning her age, it is not error to deny the request of defendant to interrogate her as to her knowledge of her age; defendant being allowed to make such investigation upon cross-examination.</p> <p>7. Rape — A.geof Prosecuting Witness— Force.— Under Section 450, Renal Code, in a prosecution for rape, the question of force is immaterial where the prosecuting witness is under 16 years of age.</p> <p>8. Rape — Evidence of Force. — Upon the evidence in this case, it was held that the evidence showed the rape was committed by force.</p> <p>9. iNSTBPCTioifs. — It is not error to refuse an instruction requested by the defendant, when the court has already correctly and fully instructed .the jury on the same subject.</p>

<p>Bobbery — Instructions—Proof of Species of Money or Notes.</p> <p>1. Robbeky — Instructions.—The defendant was tried for the crime of robbery, the information charging that the crime was committed by force; the court, haying properly defined the crime, further charged the jury that it was incumbent upon the prosecution to prove that the property was taken by force. Held, that the omission of the word “feloniously” from this charge was not error, as the court had already fully instructed the jury upon that branch of the case.</p> <p>2. Tkoof of Species of Money ok Notes. — Section 2109 of the Penal Code provides that upon a trial for larceny of money, notes, certificates of stock, etc., the allegation of the information, so far as regards the description of the property, is sustained, if tlie offender he proved to have embezzled or stolen any money, bank notes, etc. Held, that larceny is included in the crime of robbery, and that in a prosecution for robbery it was not error to instruct the jury in accordance with the above law concerning the proof of the property alleged to have been taken.</p>

Herman Weinstein was convicted of violating an ordinance of the city of Philipsburg in carrying on a pawnbroking business without a license. From the judgment and an order overruling his motion for a new trial, he appeals.

<p>The second section of the Act of 1897 (pp. 166-171) relating to the erection of the State Capitol Building, authorized the State Board to procure plans and specifications for the building, but did not limit the Board to plans, etc., prepared by citizens of the state. Section 3 of the Act, after providing that the Board should contract with the architect for compensation, contains the following: “That all architects, superintendents and contractors shall be citizens of the State of Montana.” The law also authorizes the Board to “avail itself of the plans and specifications heretofore adopted for a State Capitol Building” if the same can be used, etc.</p> <p>Held, That a petition which held that the Board had awarded the contract for furnishing plans and specifications to certain architects who were not residents of Montana, and had also entered into a contract with them to superintend the construction of the building, and were about to carry out these contracts, states facts sufficient to entitle the petitioner to a writ of prohibition. Held, further, that if the plans contracted for were modifications of the plans heretofore adopted for the State Capitol Building, or if the persons to whom the contract was awarded are citizens of the state these matters should be set up in an answer.</p>

<p>Criminal Law — Robbery—Information—Instruction—Record on Appeal.</p> <p>1. Robbery. — Information.—An injunction for robbery charged as follows (omitting unimportant matters): That the defendants on the 13th day of November, A. D. eighteen hundred and ninety-seven, with force and arms in and upon one ”0. H..’ then and there being, feloniously did make an assault, and the said “C. II.” in bodily fear and danger of his life then 'and there feloniously did put, and (describing the property) of the goods and chattels of said “C. II.” — then and there In the possession of the said “C. F.,” from the immediate presence of the said “O. H.” and against the will of the said “C. H.,” by means of the fear aforesaid, did feloniously steal, take and carry away, with the intent then and there to deprive the said '“C. H.” thereof, etc. Held, first, that the information states the time when the property was taken, second, that the intent to deprive the owner of the property was sufficiently alleged, Third, that the information sufficiently charged the fear necessary to constitute the crime of robbery as defined in Section 391 of the Penal Code.</p> <p>2. Instiotcitok'. — Where the record on appeal does not contain any evidence, the court will not consider any assignment of error in the giving or refusing instructions.</p>

Petition by Alex. J. Johnston for certiorari to the District Court of the Second Judicial District. Statement of the case by the justice delivering the opinion.

Action by John Eakins and the Butte Sewer-Pipe & Tile Company against James W. Kemper. From an order setting aside a judgment by default, plaintiffs appeal. Statement of the case by the justice delivering the opinion. This was an action by the plaintiffs to recover the possession of certain premises and mining claims, and for damages for the detention of the possession of such property and premises from the plaintiffs.

Ed. Howell was convicted of assault in the third degree, and from a judgment rendered on the verdict, and an order denying a motion for a new trial, he appeals. Statement of the case by the justice delivering the opinion. The defendant was tried in the district court of Park county under an information charging him with an assault in the second degree, committed upon one J. W. Guilford on the 3d day of February, 1897, by beating the said Guilford with a pistol.

II. Woody, Judge. Action by Elizabeth Hadley against Manuel Rash and others to establish her claim as widow of Daniel Rash, deceased. From a judgment for defendants, plaintiff appeals. Statement of the case by the justice delivering the opinion.

C. Smith, Judge. Statement of the case by the justice delivering the opinion. Appeal from an order refusing to discharge a writ of attachment. On August 6, 1897, the receiver of the First National Bank of Helena, Montana, filed his complaint, setting up seven causes of action arising out of a like number of express contracts for the direct payment of money, executed by the defendant to said bank.

Action by Calvin Beach and others against the Spokane Ranch & Water Company. An order was made granting additional time to prepare a bill of exceptions and move for a new trial, the order reciting that it was made with plaintiffs’ consent. From an order denying a motion to strike out this recital, plaintiffs appeal.

Pomeroy, Judge. Replevin by W. J. Sweeney and another against Peter Darcy and John Zimmerman, as sheriff, etc. Judgment for defendants, and plaintiffs appeal. Statement of the case by the justice delivering the opinion.

<p>Foreclosure of Mechanic’s Lien — Material Mem — EstoppelAppeal — Pleading—Admission—Denial.</p> <p>1. A material man, as surety on the bond of a contractor, expressly contracted not to suffer liens to be placed against the owner’s premises for work and material performed or furnished by the contractor, and that he would save the owner free and harmless against all loss, liens, etc. Held, that he was estopped to enforce a lien of his own for material furnished the contractor.</p> <p>2. And the fact that certain changes were made in the plans of the building does not alter the rule, where the building contract provides that such changes may be made..</p> <p>3. Where a plaintiff replied to an answer setting up an estoppel, and the case was tried. on the issues thus framed, he cannot, on appeal, depart from the lines within which he voluntarily confined himself by his pleadings below.</p> <p>4. Where a plaintiff admitted a bond pleaded by defendant, his denial of its plain and specific provisions is unavailing.</p>

<p>In an action to foreclose a mechanic’s lien, It was stipulated in the court below that the only question to be tried was as to whether the plaintiff furnished the material under any contract, express'or implied, made with defendants or either of them, or with any person or agent having authority to make such contract on the part of the defendants, or either of them, with the plaintiff.</p> <p>There was a conflict of evidence upon this issue — which was tried to the court without a jury. Held, that the finding of the court below would not be reversed on appeal to the Supreme Court.</p>

F. aSmith, Judge. Statement of the case by the justice delivering the opinion. The complaint in this case alleges that the plaintiffs and the defendant, about June, 1893, entered into a co-partnership for the purpose of buying, selling, and raising cattle in Flathead county, and continued to transact such partnership business until July 30, 1895,' when the partnership was dissolved by mutual consent. It seems that they did business without any firm name.

<p>Original proceeding in the Supreme Court by the Home Building & Loan Association of Helena against C. B. Nolan, attorney general, for a peremptory writ of prohibition.</p>

Certiorari by the state Montana, on the relation of William R. Kenyon, against E. J. Laurandeau, as justice of the peace in and for Silver Bow township,. Silver Bow county, Montana. From a judgment for plaintiff, defSndant appeals. Statement of the case by the justice delivering the opinion.

Original proceeding by the State of Montana, at the relation of C. B. Nolan, attorney general, against the Montana Railway Company and the Butte, Anaconda & Pacific RailwajCompany, corporations. Citing Section 6, Article 15, of the State Constitution; Sections 912 and 923, Civil Code; Beach on Railways, Section 535; State v. Atchison Railway Go., 24 Neb. 143; Langdon v. Branch, 37 Fed. 463.

JV~. Blake, Judge. Suit by Mattie E. Burns against Mary S. Smith, administratrix, and Norman B. Hotter, administrator, of the estate of James M. Smith, deceased, and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Statement of the case by the justice delivering the opinion. This is an action for the specific performance of a contract.

R. Buck, Judge. Replevin by J. R. Sanford against Gates, Townsend & Co. and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Buck, Judge. Suit by Charles Kelly against the Fourth of July Mining Company, Joseph K. Clark, and others. There was a judgment for plaintiff against Joseph K. Clark, and from the judgment and an ordér denying a new trial he appeals. Statement of the facts by the justice delivering the opinion. The Fourth of July Mining Company, a mining corporation. was organized under the laws of Montana (Chapter XXV, Fifth Division, General Laws of 1887) on December 19, 1-889.

Original application, on relation of W. E. Donovan and others, for a writ of prohibition against the State Capitol Commission and others.

Buck, Judge. Action by Joseph Horsky, Jr., against Patrick Moran, to quiet title. There was a judgment for plaintiff on the pleadings, and defendant appeals.

Action by J. L. Crowder against Edward McDonnell and others. Erom a1 judgment of nonsuit, and an order denying a new trial, plaintiff appeals. Statement of the case by the justice delivering the opinion. Plaintiff (appellant in this court) sued defendants (respondents) for damages to plaintiff’s lands, and for injury to his crops, and to have defendants enjoined from using a certain irrigating ditch to plaintiff’s damage. Two causes of action are relied on.

On rehearing. Statement of the facts by the justice delivering the opinion. Creditors’ bill to • avoid an assignment for the benefit of creditors made by Bathsheba Harris to Moses Morris. Bathsheba Harris on December 14, 1891, made a general assignment for the benefit of her creditors, with preferences declared in favor of certain creditors, among whom were her daughter, Annie Harris, and her daughter-in-law, Sarah S. Harris, wife of Ben E. Harris.

II. Benton, Judge. Action by the American Exchange National Bank against Williám Him and others. There was a judgment for certain defendants, and plaintiff appeals. Statement of the case by the justice delivering the opinion. Suit by plaintiff and appellant bank upon a promissory note, copy of which is as follows: “$10,125.00. Chicago, October 25, 1892.

Application by the state, on the relation of George Dildine, for a.writ of mandamus to compel Timothy E. Collins, state treasurer, to pay a certain warrant drawn by the building commission of the state university. Statement of- the case by the justice delivering the opinion.

<p> Appeal from Justices' Courts. </p> <p>An appeal lies from a judgment entered in a Justice’s Court upon failure of defendant to answer after tlie oyerruling of his demurrer to the complaint-the demurrer to the complaint raises a question of law. which is apparent upon the face of the papers. (Section 1761 Code of Civil Procedure.]</p>

Action by A. Guiterman and others against W. S. Wishon on an account. Judgment for plaintiffs on demurrer to the answer, and defendant appeals.

<p>In proceedings for tlie disbarment of an attorney, the evidence to sustain the charges preferred should be of suph a character that it satisfied the court to a reasonable certainty that the charges are true.</p>

<p>Appeal from District Court, Grcmite County; Theodore Brantby, Judge.</p> <p>Action by James McDonel and David W. Hennessy against Valentine Jacky and Edgar I. Holland. From judgment for plaintiffs, defendants appeal.</p>

. Application by the state, on the relation of Amos Buck, against the board of county commissioners of Ravalli county, for a writ of certiorari. From a judgment quashing the writ, relator appeals. The plaintiff does not appear to be a party beneficially interested.

Bill by Jóhn J. Cambers against William Lowry ancl others. From an order denying a temporary injunction, plaintiff appeals. Statement of the case by the justice delivering the opinion. Plaintiff, Cambers, sued defendant Lowry and others for damages for the breach of the conditions of a certain mining lease, and for an injunction enjoining defendants from working and mining the premises involved pending the suit.

' Application for an injunction by Henry Buck against-James T. Fitzgerald, as county clerk, etc. From an order refusing the same, the plaintiff appeals.

Appeal Jrom District Court, Cascade County; J. Leslie, Injunction by the Great Falls Water Works Company against the Great Northern Railway Company and others. From a judgment for plaintiff, defendants appeal. Statement of the case by the justice delivering the opinion.

County; F. F. Armstrong, Judge. Action by W. H. Babcock against F. A. Maxwell. From a judgment for defendant on the pleadings, plaintiff appeals. Statement of the case by the justice delivering the opinion.

J. McHatton, Judge. Action by J. J. York against J. M. Steward and another, doing business as the Smith Piano Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Action by T. C. Power and others against Jacob Switzer. From a judgment for defendant and an order denying a new trial, plaintiffs appeal. Statement of the case by the justice delivering the opinion. Action to quiet title to the right of use of the water of Uncle George’s creek, in Deer Lodge county, and to enjoin defendant from diverting said water.

Appealfrom District Court, Lewis and Clarice County. Petition by Sarah Trotter against T. H. Kleinschmidt, executor. From a judgment for plaintiff, and an order denying a new trial, the defendant appeals.

<p>Forgery — Certificate of Deposit — Information.</p> <p>1. An information charging tlie forgery oí an endorsement of a certificate of deposit, which was set out in full in the information and contained the words “H. D. & Co., Bankers” at the top and above the date and was signed “H. D. & Co.” and was made payable to the order of the depositor, is sufficient, although no bank is referred to in the information, and there is no allegation therein of extrinsic facts to show that “H. D. & Cq.” had any bank in which the money was deposited. (Section 840, Penal Code.)</p> <p>2. An information charging forgery of a certificate of deposit is not subject to demurrer because it alleges that the defendant forged and counterfeited the indorsement in the name of the payee therein with the intent to defraud him.</p> <p>3. It is not necessary in an information for forging a certificate of deposit for the- payment of $60........"^Dollars, to allege extrinsic facts to show that it was a certificate of deposit for'sixty dollars, where the exact sum deposited appears “$60.00.”</p> <p>4. Section 3382 of the Code of Civil Procedure provides that a writing shown to and proved by a witness must be lead to the jury before the testimony of the witness is closed: Held that, where it appears that a written instrument was testified to and was admitted in evidence, the presumption is, in the absence of evidence to the contrary, that the contents of the paper were read to the jury.</p>

Action by the Butte & Boston Consolidated Mining Company against the Montana Ore Purchasing Company to enjoin the maintenance of a tramway. From an order dissolving a temporary restraining order, and refusing an injunction pendente lite, plaintiff appeals.

Action by Janies Forrester and another against the Boston & Montana Consolidated Copper and Silver Mining Company and others for injunction. From an order granting an injunction pendente lite, defendants appeal. Statement of the case by the justice delivering the opinion.

Action by H. L. Haupt and others against William Burton and others to revive a judgment. There was a judgment for defendants, and plaintiffs appeal.

<p> Appeal from District Court, Teton County; D. F. Smith, Judge. </p>

<p>Homicide — Instructions—Self-Defense— Calling Eyewitnesses.</p> <p>1. An instruction that it was the duty of accused to “exhaust all other reasonable means within his power consistent with his safety to prevent the homicide” before taking the life of deceased is erroneous, where there is evidence tending to show that the accused was murderously attacked by the deceased and his brother, near defendant’s home.</p> <p>2. An instruction that “the right to take life is limited to the apparent actual and present necessities then suddenly precipitated by the assailant, under such circumstances as then appear to the slayer, as a reasonable man, to place the life or person of the slayer in such peril as to admit of no other reasonable alternative than the killing of the assailant,” is erroneous, in that it ignores the right of accused to act on what appeared to him at the time, as a reasonable man, necessary to save his own life, or prevent his receiving great bodily harm, although he was in no actual danger.</p> <p>3. Where conflicting propositions of law are given to the jury on amaterial point, one correct, and the other incorrect, the error is fatal.</p> <p>4. Penal Code, Section 2082, providing that "upon a trial for murder or manslaughter it is not necessary for the state to call as witnesses all persons who were shown to have been present at the homicide, but the court may require all of such witnesses to be sworn and examined,” does not make it imperative that all such witnesses should always be introduced by the state, but authorizes the court to require it in its discretion.</p> <p>5. Under Penal Code, Section 2082, authorizing the court to require all persons who are shown to have been present at a homicide to he called as witnesses Dy the state, a refusal to order such witnesses placed on the stand, where such refusal is an abuse of the court’s discretion is reversible error.</p> <p>6. Where, after the refusal of the court to require the state to place on the stand certain eyewitnesses of the homicide, the witnesses in question were introduced and fully examined on defendant’s behalf, and it is not claimed that the prosecuting attorney acted unfairly in the matter, such refusal by the court worked no prejudice to defendant.</p>

<p>Sale of State Lands — Taxation Before Payment of Price.</p> <p>State lands after sale, but before the price is fully paid, are subject to taxation as the property of the purchaser, notwithstanding Constitution, Article 12, Section 2, exempts the property of the state from taxation, and that the state retains the legal title as security for the deferred payments, since the purchaser is the owner, for the purpose of taxation, after he has entered into possession, paid a portion of the price, and contracted to pay the balance, as required by Political Code, Section 3480 et seq.</p>

<p>Criminal Law — Larceny iy False Pretenses — Ingredients of Offense — Information — Evidence— Variance — Title and Possession — Jury—Disregard of Instructions— Cross-Examination.</p> <p>1. In order to convict under Penal Code, Section 880, declaring guilty of larceny any person who, with intent to defraud the true owner of his property or to appropriate it to his own use, obtains from the possession of such owner,'by false representation or pretenses, any money, it is necessary to prove that defendant obtained the money in question under circumstances showing that the owner parted with the title thereto, and not merely with the possession thereof.</p> <p>2. In an information under Penal Code, Section 880, defining larceny by false pretenses, it was alleged that defendant falsely and fraudulently represented that he was a certain physician named, the discoverer of a certain specified remedy, and the founder and agent of the drug company by which it was manufactured and sold, and that by-means of such pretenses he obtained from the possession of prosecutrix a certain sum of money, with intent, etc. Prosecutrix testified to the representations alleged, and also that she had been induced to call on defendant by means of his advertisement: that she believed in his ability to cure, from what she had been told respecting the physician whom he represented himself to be; and that she paid him the money demanded, relying on his “guaranty,” and believing thathe would return the money, as agreed, if he failed to cure. Held, that the evidence proved that prosecutrix had voluntarily parted with the title to the money in question on the faith of the representations made to her by defendant.</p> <p>3. Under an information charging defendant with larceny by obtaining money by means of false pretenses, it was error to instruct that if defendant obtained the “possession” of such money, with intent to feloniously convert it to his own use, in manner and form as charged, such act would amount to larceny, though prosecutrix knowingly and intentionally parted with the possession thereof, “provided she did not part with the title to the same,” as such instruction authorized a conviction of larceny, under such information, even where there was a taking against the will of the owner, notwithstanding the requirements of Penal Code, Section 1882, that an information must contain a statement of the facts constituting the particular crime charged.</p> <p>4. On a trial for larceny by false pretenses it was error to instruct that, in order to constitute the crime charged, it was necessary that the owner should part with the possession only of his propeaty, relying on such false and fraudulent pretenses, and that “if the owner, under such circumstances, parts with both the title and possession of such property, the act will not constitute larceny, ,and will not sustain a verdict of guilty,” as proof of the two ingredients mentioned was indespensible to a conviction under an information charging such crime.</p> <p>5. A conviction which is contrary to the law as given in the instructions to the jury must be set aside, however erroneous the instructions may be.</p> <p>6. Where an officer of a company for which defendant, who was on trial under a criminal charge, had represented himself to be an agent, testified that defendant was not such agent at the time alleged, it was error to refuse to permit him to prove by such witness, on cross-examination, that the company in question had, shortly before the time alleged, constituted as an agent a person who appeared to be one and the same person with defendant, acting under a different name.</p>