Volume 22 — Montana Reports

II Woody, Judge. F. W. Morris was prosecuted in a justice’s court for a misdemeanor, and demurred to the complaint. On appeal to the District Court, defendant’s demurrer was sustained, and from the judgment entered thereon the state appeals.

<p>Inheritance Tax Law — Construction.</p> <p>Inheritance Tax Law, Sec. 1 (Laws of Montana, 5th Sess. p. 83), provides that all property within the State passing by will, other than to a decedent’s father, mother, husband, wife, etc., shall be subject to a tax of $5 on every Sioo of its market value; that when the beneficial interest of any personal property passes to any father, mother, husband, wife, etc., the rate of tax shall be $1 on every $100 of its market value; and that in all other cases -the rate shall be $5 on every $100 of the market value of all property, provided that any estate of less than $500 valuation shall not be subject to-the tax. Held, that real estate devised by testator to his widow is npt subject to the tax.</p>

<p>Highways — Establishment — Prescription — Evidence — Statutes.</p> <p>1. Under Compiled Statutes 1887, Fifth Div., Sections 1809,1810, providing that, on petition presented to the county commissioners for a county road, they shall appoint viewers to mark out the road, and give parties in interest notice that, at a time fixed, the viewers shall meet at a designated point to attend to their duties, and that proof of such notice shall be made by affidavit accompanying the petition, it is necessary to jurisdiction that the affidavit show that notice of the place, as well as the time, of the meeting of the viewers, was given.</p> <p>2. Adverse use by the public for the period named in the statute of limitations will establish a highway by prescription, but the title will be confined to the very way traveled during the period, unless an attempt has been made by the proper authorities to erect a highway, when the extent of the title will be measured by the claim exhibited by the proceedings.</p> <p>3. A highway by prescription does not exist unless the proof shows that the general public has used the way as one common to all the public, without substantial interruption, for the time prescribed by the statute of limitations applicable to lands.</p> <p>4. Political Code 1895, Section 2600, providing that all highways laid out or erected by the public, or now traveled or used by it, are public highways, is a remedial statute, intended to cure irregularities, but not to supply jurisdiction, where none was acquired in the creation of such highways.</p> <p>5. Where a road has been traveled by the public generally as a highway, and is kept in • repair by the road authorities, a legal presumption arises that it is a public highway.</p> <p>6. Evidence that one person had traveled a road “off and on” for several years, and another had seen the road, and “had frequently passed through there,” for 18 or 19 years, is not sufficient proof that the road was open to the public generally for the period prescribed by the statute of limitations.</p>

<p>Homicide — Evidence— Character of Parties — Instructions.</p> <p>1. On a trial for murder, defendant can prove that his general reputation for peacefulness was good, by witnesses who knew defendant, and lived in the community in which he lived, although they never heard defendant’s reputation in that respect discussed.</p> <p>2. Error in excluding testimony tending to show good character is not cured by admitting the testimony of other witnesses to the same effect.</p> <p>3. On a trial for murder, where the defendant claims that the killing was done in self-defense, it is error to refuse to allow defendant to state what kind of a man the deceased was physically.</p> <p>4. Where there was evidence that deceased was the assaulting party, it was competent to prove that the general reputation of deceased for peace and quiet was had, under a plea of self-defense.</p> <p>5. It is error to allow a declaration made by deceased 30 minutes before the homicide that he (deceased) had had a difficulty with defendant, and that he (deceased) was not armed, and was afraid of defendant, to show that deceased was not armed at the time he was shot by defendant.</p> <p>6. Neither was it admissible as'a part of the res gestee.</p> <p>7. An instruction that “it is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and, if such is the case, the killing is murder in the first degree,” is erroneous as a definition of murder in the first degree, since it omits the words “malice aforethought.”</p> <p>8. Where the record shows many technical objections of the prosecuting attorney to competent evidence offered by defendant, and many technical rulings excluding such testimony, as well as admitting testimony of like character on the part of the state, and many instructions that approach closely the border line of prejudicial error, if they do not cross it, and the charge contains a confused and voluminous mass of not wholly harmonious declarations of the law, a new trial will be awarded, on the ground that defendant has not had a fair trial.</p>

Petition by C. B. Nolan, Attorney General of the State of Montana, for certiorari to the District Court of the First Judicial District, in and for the county of Lewis and Clarke, and Sidney H. Mclntire, Judge thereof. Statement of the case by the Justice delivering the opinion.

H. Loud, Judge. Yellow Hair, Spotted Hawk and others were indicted for murder. Spotted Hawk was convicted, and he appeals. The statement of facts appears in the opinion. The appellant contends that the information filed in this cause does not state facts sufficient to show jurisdiction of the trial court. (Act of Congress of March 3, 1885; 1 Chittenden on Criminal Law, 131; McBride v. State, 10 Humph.

U. Loud, Judge. George S. Geddes was convicted of murder in the second degree, and appeals. The statement of facts appears in the opinion. The question is presented to this court, whether an information charging one simply as principal is sustained by testimony showing, without contradiction, that he was, if anything, only an accessory and was in fact not a principal. This question has not been passed upon by the Supreme Court of this State.

<p>Homicide — Accomplice—Evidence —Argument of Counsel— Harmless Error — Hearsay—Corroboration of Defendant's Testimony — Corroboration of Accomplice — Directing Yerdict When There is Utter Failxtre of Proof.</p> <p>^Evidence — Argument of Counsel. — 1.—Although a complaint filed by deceased against defendant’s accessory is admissible to show a motive for the murder, it is error for the State’s attorney to comment on the facts charged in such complaint as though they were true, although there has been incompetent evidence admitted tending to establish such facts.</p> <p>Same — Harmless Error.— %. — Where, on the trial of one charged as accomplice in a murder, a letter from defendant to deceased, asking him to meet him at a certain time and place is admitted, it is error to exclude evidence that defendant wished to meet deceased to settle a controversy between the latter and defendant’s accomplice. ’ •</p> <p>'The exclusion of material testimony is harmless error, where it is afterwards admitted on cross-examination of the witness.</p> <p>'•Same — Eoundation for Introduction of. — 3.—Where, on the trial of one charged with being an accomplice in a murder, the State proved that letters had passed between defendant and the wife of his co-defendant, and defendant testified that he had destroyed the letters received by him, and that he had no reason for destroying them, except that that was his usual custom, sufficient foundation is laid for defendant to prove the contents of the letters.</p> <p>Same — Hearsay.—i.—In a murder trial, testimony that a third person had told witness that defendant had told such person that he had tried on several occasions to kill deceased, and would try again, is hearsay and inadmissible.</p> <p>Same — Corroboration of Defendant’s Testimony. — 5.—Where the photograph of the wife of defendant’s alleged accomplice in a murder, found upon defendant, was admitted in evidence to raise an inference of criminal intimacy, it is error to exclude' evidence to corroborate defendant’s explanation of his possession of the picture.</p> <p>Same — Corro’boration of Accomplice. — 6.—Defendant, accused of having instigated a murder, was 50 miles away when it was committed. The murderer, between whom and defendant a hatred existed, testified that, some time before, defendant had told him that he was going to kill deceased. The only corroborating evidence was that defendant was very intimate with the person for whose benefit the murder was al-. leged to halve been committed, and particularly with the latter’s wife, with whom he corresponded, and to whom lie had sent money two days after the murder. Held insufficient, under Penal Code, Sec. 2089, providing that testimony of an accomplice-must be corroborated by evidence tending to connect defendant with the crime.</p> <p>Directing Verdict— Utter Failure of Proof.7. — Where there is a total failure of evidence to convict defendant, it is the duty of the court to direct a verdict of not. guilty. . •</p>

<p>Foreign Corporations — Actions—Pleadings—Interstate Commerce.</p> <p>It is not necessary for a foreign corporation plaintiif, bringing action on a domestic contract, to allege that it has complied with the statutory conditions precedent to doing business in the state, where the petition shows_facts making the transaction prima facie interstate commerce.</p>

Proceedings by Isaac Mayer to contest the title of David Sweeney to the office of mayor of the town of Neihart. Judgment for contestee, and contestant appeals.

Action by Washington I. Kimpton against the Jubilee Mining Company and another. From a judgment in favor of plaintiff in obedience to the mandate of the Supreme Court (16 Mont. 379; 41 Pac. 137; 42 Pac. 102), defendants appeal.

II. Parker, Judge. Action by William H. Sanders and others against D. H. Noble and others. There was a judgment for defendants, and plaintiffs appeal. The court below did not err in holding that the plaintiffs were bound by the description in their location notice. (Juhiter M. Co. v. Bodie M. Co., 11 Fed. 676; Morr. M. R., 40, 41, 61, 62, 28, 29; 1 Lindley on M., Secs. 344, 330, 371 — 3; Upton v. Larkin, 5 Mont. 600; Horsewell v. Puis, 67 Cal.

C. Smith, Judge. Action by Charles Guignon against the First National Bank, of Helena and another. There was a judgment for plaintiff,., and all parties appeal. Statement of the case by the Justice delivering the opinion.. On August 8, 1896, plaintiff deposited with the First National Bank of Helena; Mont, (hereinafter called the “National Bank”) a draft for £400 on the Standard Bank of South Africa, of London, England, with instructions to col- • lect it, and notify him.

Action by the Basin Mining & Concentrating Company against Wallace McC. White. From a judgment for defendant and the denial of a new trial plaintiff appeals.

Action by James Glass and another, composing the firm of Glass Bros., against the Basin Mining & Concentrating Company. Judgment for plaintiffs, and defendant appeals. We contend that under our statute it is not necessary to ah lege an attempt to agree. It will be observed that this writ was instituted previous to July 1st, 1895, and is governed by the law as it stood at that time. There are two statutes relative to the exercise of eminent domain.

Suit by the Montana Ore Purchasing Company against the Boston & Montana Consolidated Copper and Silver Mining Company. From an order denying a motion to dissolve a temporary injunction, and modifying the injunction, defendant appeals. Statement of the case by the Justice delivering the opinion. Action in damages by plaintiff (respondent) against defendant (appellant) for ores extracted from certain mineral veins, the apexes of which the plaintiff claims to have.

Blake, Judge. Action by T. C. Power against B. O. Lenoir and others. From a j udgment for plaintiff, and from an order denying a new trial, defendants appeal. Statement of the case by the Justice delivering the opinion.

Application by the State, on the relation of William Kranich, for a writ of mandate to James P. Supple, requiring defendant to write out and file objections, rulings and exceptions.

C. Smithj Judge. Action by Louis Stadler and another against the First National Bank of Helena and another. From the judgment of the court below plaintiffs appeal; and from a part thereof the First National Bank of Butte, defendant, appeals. Statement of the case by the Justice delivering the opinion.

Statement of the case by the Justice delivering the opinion.

Certiorari by the State, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company and another, to the District Court of the Second Judicial District of the State of Montana in and for Silver Bow county, and William Clancy, Judge thereof, and Thomas R. Hinds.

Appeal from District Court, Madison County/ ’ Frank Showers, Judge. Action by P. J. McCleary against J. J. Crowley. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

O. Speer, Judge. Bill' by Malvina B. Mitchell against John McCormick. There was a decree for plaintiff, and defendant appeals. Statement of the case by the Justice delivering the opinion. This action was brought by plaintiff to quiet title to lot 6, block 18, in the original townsite of Butte, county of Silver Bow, Montana.

J. McEattan, Judge. Action by John R. Bordeaux against Flora E. Greene. From a judgment for defendant entered on sustaining a demurrer to the complaint, plaintiff appeals. Statement of the case by the Justice delivering the opinion Action to abate a nuisance. Plaintiff was the owner of certain lots, and a building thereon, in Butte. Defendant owned an adjoining lot, upon the front part of which she erected a brick building. . In the rear of her lot were outbuildings.

K. Armstrong, Judge. Action by Walter J. King against N. E. Benson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Chattel Mortgages — Bona Fide Pwrchasers.</p> <p>A bona flde subpurchaser of chattels takes free from the lien of an unrecorded mortgage, though the first purchaser had notice.</p>

Blake, Judge. Action by Katherine L. Ming against Charles H. Pratt. J udgment for plaintiff. Defendant appeals. The rule is settled that a written contract shall be so inter preted as, if possible, to carry out what the parties meant.

JR. Buck, Judge. Action by Daniel P. Wortman against the Montana Central Railway Company. Prom a judgment for plaintiff, and' from an order denying a new trial, defendant appeals. Statement of the case by the Justice delivering the opinion. Action for damages for breach of contract.

Action by L. Parrin against the Montana Central Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

K. Armstrong, Judge. Roland T. Sloan was convicted of murder in the second degree, and he appeals. Statement of the case by the Justice delivering the opinion. The defendant was tried in the District Court of Gallatin County under an information charging him with the murder of one William B. Russell on July 19, 1898. The jury found the defendant guilty of murder in the second degree.

N. Blalce, Judge. Suit by John R. Miller against A. R. Gates, Gates, Townsend & Co., and the Mutual Benefit Life Insurance Company. From a decree for defendants, plaintiff appeals. The decision of this Court in the case of Mutual Benefit Life Insurance Co. v. Wvnne, eliminates many questions from this case. We contend, however, that the decision in that case is not decisive of the case at bar.

<p>Corporations — Nuisa/nce — Liability of Directors — Trial— Nonsuit.</p> <p>1. On motion for a nonsuit, everything which the evidence tends to prove must be taken as true.</p> <p>2. The fact that powder stored in defendants’ warehouse did not exceed the quantity allowed by a city ordinance does not relieve them Irom liability for death from an</p> <p>■ explosion, if the amount kept by defendants was in excess of that authorized by a state statute.</p> <p>3. The directors of a corporation are personally liable for the death of one killed by the explosion of powder unlawfuly kept in the corporation’s warehouse, though they had no knowledge thereof, if, by exercising ordinary diligence as directors, they could have known that the warehouse contained an unlawful amount.</p> <p>i. In an action to recover of directors for the death of one killed by the explosion of an unlawful amount of powder kept in the corporation’s warehouse, the burden is on the directors to show that by the exercise of ordinary diligence in the management of the business they could not have discovered that powder was stored in unlawful quantities.</p>

Milburn, Judge. Action by Ered Sweetman against John M. Ramsey, sheriff of Yellowstone county. From a judgment for defendant, and an order denying plaintiff a new trial, plaintiff appeals.

Appeal from District Court, Gallatin County; Horace R. BucJc, Judge. • Action by Rachel E. Creek against the Bozeman Water Works Company. Judgment for defendant, and plaintiff appeals. On motion to dismiss the appeal.

Action by Fred W. Smith against White Caldwell. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Statement of the case by the Justice delivering the opinion. Action for damages for a conversion of personal property.

Blake, Judge. Action by Edward Menard against the Montana - Central Railway Company. • A verdict was directed for plaintiff, and judgment entered thereon, and from an order granting a new trial plaintiff appeals. Citing: Constitution, Art. XY, Secs. 1, 3, 8; Hays v. Com., 82 Pa. St. 524; DeMoss v. Newton, 31 Ind. 219; Price v. Hopkins, 13 Mich. 318; McGahey v. Virginia, 135 U. S. 662; Pereles v. Watertown, 6 Biss. ,79; Civil Code, Sec. 950 et seq; Cooley on Const.

<p> Recital of Contempt Proceedings. </p>

<p>Appeal from District Court, Granite County; Welling Napton, Judge. .</p> <p>Suit by F. M. Durfee against Joseph H. Harper and others for an injunction. From an order granting a preliminary injunction, defendants appeal.</p>

Application by the State, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company, against the Distict Court of the Second Judicial District of Silver Bow county and others, for a writ of prohibition. Statement of the case, by the Court.

Hogan, Secretary of State. Statement of the case by the Court.

Smith, Judge. Application by the State, on the relation of E. W. Knight, Jr., and another, against the Helena Power & Light Company, for mandamus to compel respondent to operate a portion of its line of street railway in the city of Helena. Prom a judgment sustaining a demurrer to the application, relators appeal.

Application by the State, on the relation of Bernard Shanahan, for writ of mandamus to John Lindsay, judge of the Second Judicial District Court. Statement of the case by the Justice delivering the opinion. This is an application for a writ of mandate to compel Hon. John Lindsay, as Judge of the Second Judicial District Court in and for Silver Bow county, to hear and determine a motion to set aside a default judgment and entertain the appeal in a case entitled 1 'll.

O. Speer, Judge. Action by Charles Quinn against Bernard Quinn for an accounting. From a decree directing an accounting to be had, and from an order denying a new trial, defendant appeals. Statement of the case by the Justice delivering the opinion.

Action by I. M. Rockefeller against D. N. Dellinger, impleaded with others. There was a decree for plaintiff, and defendant Dellinger appeals. That real estate is held in the names of several persons and-that such persons are partners, however, is not alone sufficient to establish its partnership character. (Thompson v. Dow-man, 6 Wall (U. S.) 316; Ouilbeau v. Melancon, 28 La. Ann. 627; Blake v. Nutter, 19 Me. 16; Lmdley v. JDaon, 7 Mont. 210; 17 A. and E. Enc.

<p>Homicide — Indictment or Information— Waiver of Objections —Privileges and Immunities of Citizens — Indians—Trial —Presence of Accused.</p> <p>1. Constitution, Article IH, Section 8, providing that prosecutions shall he either by information or indictment, and authorizing the court to decide which method shall be pursued in each particular case, is not an abridgement of the privileges and immunities of citizens.</p> <p>2. The presence of accused is not necessary at a proceeding to obtain leave of court to file an information against him.</p> <p>8. State courts have jurisdiction of crimes committed against whites outside of an Indian reservation, by Indians maintaining tribal relations on a reservation within a state, in charge of the federal government.</p> <p>4. An objection that a petition for leave to file an information for homicide stated the wrong Christian name of deceased is waived when not raised in the trial court.</p> <p>5. Accused need not be present in court during the argument of a motion to quash the information, since such proceeding is no part of “trial.”</p>

Suit by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. There was a decree for plaintiffs, and defendants apply for a stay of proceedings pending appeal. Statement of the case by the Court.

Aprlication by the State, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company, for a writ of mandate to the Second Judicial District Court, and to the Honorable William Clancy, judge thereof, requiring the defendants to determine certain motions pending in said court.

II. Benton, Judge. Action by Mary Pierce against the Great Falls & Canada Railway Company. From a judgment for defendant, and an order refusing a new trial, plaintiff appeals.

Certiorari by the State, on relation of John P. Reins and others, against the District Court of the Sixth Judicial District in and for Carbon County, to review a judgment. Statement of the case by the Justice delivering the opinion.

AcTi&Nby W. EL Babcock against White Caldwell, Sheriff of Gallatin County. From a judgment for plaintiff and from an order refusing a new trial, defendant appeals.

Buck, Judge. Statement of the case. Action by the Eichardson-Eoberts-Byrne Dry Goods Company against Edward I. Goodkind, assignee for the benefit of the creditors of one Israel, to recover certain goods purchased from plaintiff by Israel, and by him delivered to the assignee. For several years immediately preceding August 19, 1895, Israel was engaged in the business of selling liquors and cigars at wholesale, and clothing at retail, at Helena, Mont.

Speer, Judge. Action by Emanuel Gallick against Thomas J. Bordeaux and others. From a judgment for defendants, and an order denying -a new trial, plaintiff appeals. Statement of the case by the Justice delivering the opinion. Action in claim and delivery to recover the possession of a stock of cigars, tobacco and liquors, and a lot of saloon furniture, with damages to plaintiff’s business by the wrongful seizure of and detention of the property.

Suit by H. M. Cosier and Annie Shaw, co-partners, doing business under the firm name and style of H. M. Cosier & Co., against A. J. McMillan, as county treasurer of Valley county. There was a decree for defendant, and plaintiff’s appeal. Statement of the case by the Justice delivering the opinion.

Appeal jrom District Court, Lewis and Clarice County/ II. N. Blahe, Judge, and II. C. Smith, Judge. Action by R. L. McDonald and others against E. I. Good-kind. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

<p>Appeal from, District Court, Meagher County; F. K. Arm,-. strong, Judge.</p> <p>Action by John Hines, Sr., against Dennis Carl and others: There was a judgment for plaintiff, and defendants appeal.</p>

Woody, Judge. Action by C. A. Yerrick against George C. Higgins and H. W. McLaughlin, sheriff of Missoula county. From a judgment for plaintiff, defendants appeal. Statement of the case by the Justice delivering the opinion. Action for an injunction to restrain the sale of lots 5 and 6, block 24, in Knowles’ addition to the city of Missoula, Missoula county, Montana, and to quiet plaintiff’ s title thereto.

II. Benton, Judge. Action by J. O. Gregg against Louis Kommers and others. Judgment for plaintiff. Defendants Henry H. Porter and John W. Stanton appeal. Statement of the case by the Court.

J. W. Kinder, charged under the name of William Kinder, and Hannah Kinder were convicted of receiving stolen goods, and appeal.

<p>Appeal — Brief-—Specification of Errors — Rules of Supreme Court.</p> <p>Wliere appellant’s brief contains no specification of errors relied upon, as required by Subdivision 3, Rule V, of the Supreme Court, the appeal will be dismissed.</p>

Atrpeal from District Court, Lewis and Clarke County; 11. R. Buck, Judge. Action by Joseph Kenck, as administrator of the estate of William Craigie, deceased, against Henry M. Parchen and T. H. Kleinschmidt, impleaded with Henry C. Yaeger. From a judgment for plaintiff and an order denying their motion for a new trial, defendants appeal.

Blake, Judge. Action by Herbert Hunter and others against the Montana Central Railway Company. There was a judgment for defendant, and plaintiffs appeal. Statement of the case by the Justice delivering the opinion. Action by the heirs of Henry N. Hunter for damages for injuries resulting in his death.

Appeal from District Court, Silver Bow County; William Clancy, Judge. Suit by William C. Bryant against Andrew J. Davis and the First National Bank of Butte. There was a judgment for plaintiff, from which defendants appeal.

Brantly, Judge. Action by James L. Hamilton, executor of the estate of Michael Sullivan, deceased, against Sarah A. Nelson, administratrix of the estate of John W. Nelson, deceased. From an order granting a new trial on a verdict for defendant, defendant appeals.

Action by Morty O. Sullivan against Carrie Schultz. From .a judgment for plaintiff, and an order denying a new trial, defendant appeals.. Statement of the case by the J ustice delivering the opinion. Action in claim and delivery to recover the possession of 70 feet of granite coping and seven granite posts.

F. ■Smith, Judge. Action by Clarence E. Proctor against William Irvin and -others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. The court erred in admitting evidence as to the probable increase of the cattle, provided they had remained in the possession of plaintiff. This was too remote. The dam ages, referred to were purely speculative.

Action brought by Anna Collier against John Fitzpatrick. From a judgment in favor of plaintiff, and from an order refusing to vacate a judgment, defendant appealed.

Appeal from District Court, Silver Brno County; William Clancy, Judge. Gr. R. Shadwell was convicted of murder, and appeals from the judgment and an order denying his motion for a new trial.

H. Loud, Judge. Action by Emma Murphy, individually and as administratrix of the estate of Patrick Murphy, deceased, against the Northern Pacific Railway Company. There was a judgment for defendant, and plaintiff appeals.

Action by James Greeley against Cascade countjc From a judgment for defendant, and an order denying a motion for new trial, plaintiff appeals. The receipt of a check from a debtor does not operate as payment of the debt in the absence of an express agreement that it shall have that effect. (See many cases cited on pages 167-170, Yol. 18, Am. and Eng.