Volume 23 — Colorado Reports

William Holt and Deonicio Romero were tried and convicted in the district court of Las Animas county of murder of the first degree, and sentenced to suffer the death penalty. The prosecution was by information filed by leave of court and based upon the affidavit of Fred J. Radford, without any preliminary examination having been had or waived. Upon this information capiases were duly issued and the defendants arrested.

<p>1. Information—Affidavit.</p> <p>It is essential in all prosecutions in which a preliminary examination has not been had or waived that the affidavit made as a basis for the information set out the offense.</p> <p>2. Preliminary Examination.</p> <p>A preliminary examination is not a prerequisite to a prosecution by information.</p> <p>3. Appellate Practice—Exceptions.</p> <p>Assignments of error predicated upon the giving or refusing instructions, to which no objections or exceptions were reserved, will not be considered.</p> <p>4. Accessories.</p> <p>An accessory during the fact may be charged in the information as having done the act himself, and be tried and punished as principal.</p> <p>5. Murder.</p> <p>A homicide committed in attempt to perpetrate a robbery is murder of the first degree.</p>

<p>1. Mining Claims—Additional Location Certificates.</p> <p>An additional location certificate of a mining claim must be based upon an original and relate back to the first location.</p> <p>2. Trusts and Trustees.</p> <p>A trustee is not permitted to reap a profit or gain an advantage, directly or indirectly, from the trust estate or from his relation to it.</p> <p>3. Same.</p> <p>One to whom interests in a mining claim had been conveyed for the purpose of obtaining a patent for the benefit of all the owners filed an amended or additional location certificate taking in additional territory and afterwards obtained a patent to the claim as described in the additional or amended certificate. Held, that the title to the territory thus acquired inured to the benefit of all the cestuis que trust.</p>

<p> Appeal from the County Court of Jefferson County. </p>

.Error to the District Court of Arapahoe County. Action for personal injuries. Verdict for defendants directed by the court upon the evidence. Verdict and judgment accordingly. Plaintiff brings the case here upon error.

<p>1. Bill of Exceptions—Mandamus.</p> <p>The hill of exceptions as tendered to the trial judge for authentication contained none of the evidence produced at the trial, but did contain recitals that evidence tending to prove the allegations of the complaint and of the amended replication was introduced by the plaintiffs; that the defendants produced evidence tending to prove the allegations of their answer and cross complaint and to disprove the averments of the plaintiff’s complaint and amended replication, after which plaintiffs introduced evidence in rebuttal; that the testimony was conflicting; and closed with an additional recital as to the giving and refusal to give certain instructions. Held, not to be such a bill as the trial judge would be compelled to authenticate.</p> <p>2. Same.</p> <p>When complaint is made of the giving or refusal to give instructions, the bill of exceptions should contain a distinct statement of the evidence introduced which raises the question to which the instructions apply.</p>

This action was instituted by Sarah J. Westlake, appellee, as plaintiff below, to recover from The Farmers’ High Line Canal and Reservoir Company damages for the death of her husband, Andrew Westlake, caused, as it is averred, by the negligence of the defendant company. In the district court a verdict and judgment for forty-five hundred (4500) dollars was rendered. The defendant brings the case here by appeal.

<p> JOrror to the County Court of JSl Paso County. </p>

The complaint in this action was filed in the district court of Pueblo county on March 30,1894.

<p>1. Streets.</p> <p>The fee in the streets and alleys of the city of Denver is in the municipality in trust for the use of the public.</p> <p>2. Same—Injunctive Relief.</p> <p>When a railway company is acting under sufficient legislative or municipal authority, an injunction does not lie at the suit of an abutting owner to restrain the construction of a street railway through a street merely because damages for impairing his right of ingress and egress have not been compensated in advance.</p> <p>S. Same—Nuisance.</p> <p>When duly licensed by the municipal authorities, the operation of a street railway in the streets of a city or town or upon private property therein is not, per se, a nuisance.</p> <p>4. Same—Pleading.</p> <p>In all cases to restrain a threatened nuisance, the complaint must, inter alia, clearly show that the thing complained of will, not that it possibly may, constitute a nuisance. The mere allegation that a private nuisance will ensue is not sufficient.</p>

Election contest instituted by Tyler D. Heiskell against Thomas J. Landrum for the office of clerk and recorder of Morgan county. Judgment for defendant. Plaintiff appeals.

<p>Pbactice—Sham Defenses.</p> <p>When the affidavits in support of a motion to strike out an answer because of its being a sham make a prima facie case against the truth thereof, and no showing is made in support of the plea, it may he stricken out and judgment may he rendered for the plaintiff.</p>

<p>1. Contracts—Public Agents.</p> <p>Every person who seeks to obtain through his dealings with an officer the obligations of the public, must, at his peril, ascertain that the proposed act is within the scope of authority which the law has conferred upon the officer.</p> <p>2. Constitutional Law—Construction.</p> <p>It seems the provisions of the constitution manifestly intended as salutary checks upon improvident conduct of governmental affairs should not be held as merely directory.</p> <p>3. Same—Secretary op State, Power to Contract—Statutory</p> <p>Construction.</p> <p>The act of February 12, 1889, enacted to carry out the provisions of section 29, article 5, of the constitution, made the secretary of state the purchasing agent for the three great departments, and made it his duty to procure suitable apartments for them and to have the same supplied with furniture, etc. It also provided that he should advertise for bids for the articles required and let the contract therefor to the lowest responsible bidder, and gave him power to reject any and all bids if he should deem it for the best interests of the state so to do. Held, that the statute is exclusive and mandatory, that the power of the secretary to contract for such supplies must be exercised in the manner prescribed by the statute, and that he has no power to bind the state by purchases made in open market.</p> <p>4. Same.</p> <p>The only power which the secretary of state has to contract in behalf of the state is derived from the statute.</p> <p>5. Same—Quantum Meruit.</p> <p>The state is not bound as upon a quantum, meruit for goods the contract for which was made in violation of a statute.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p> JEIrror to the District Court of Arapahoe County. </p>

<p>1. Legislative Powek.</p> <p>Legislative enactments, the object of which is to provide for the comfort and well-being of such persons as by reason of infancy, defective understanding, or other misfortune or infirmity are unable to take care of themselves, are not to be interfered with unless some constitutional limitation plainly and unequivocally requires it.</p> <p>2. Constitutional Law—Forbidden Appropriations.</p> <p>The constitutional provision that no appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state (sec. 34, art. 5, Const.), has reference to state money only, and does not inhibit the legislature from conferring upon counties the power to use county funds in the treatment and cure of their indigent inebriates as provided by the act of 1895. 1</p>

Plaintiffs in error, Henry A. Miller, Joseph Vernon and Mike O’Brien, were convicted in the district court of the crime of robbery, and each sentenced to three years confinement in the state penitentiary. It is alleged, in the information, that the crime was committed on the 10th day of July, A. D. 1895, one hi els Christian being the victim.

At the general election of 1895, in Lincoln county, Colorado, Robert B. Sharp and Archibald Mclntire were rival candidates for the office of county commissioner' of said county. Upon the canvass of the votes cast at such election for that office, Mclntire was elected by a majority of four votes, and a certificate of election issued to him.

This action was brought by Mary B. Campling, as plaintiff, for the purpose of removing a cloud from the title of six hundred and forty (640) acres of land, situate in Otero county, Colorado, and known as “Indian Claim No. 12,” for which a patent was issued on the 20th day of September, 1870, to one Armama Smith.

Edwin S. Raymond, appellee, as plaintiff below, complains of Anguste Courvoisier, appellant, and alleges that on the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound; that in so doing the defendant acted wilfully, knowingly and…

<p>1. Attachment.</p> <p>When the grounds of an attachment have been traversed and there is no evidence to sustain any one of them, the attachment should be dissolved.</p> <p>2. Evidence.</p> <p>If the action be to recover the price of chattels alleged to have been sold by the plaintiff to the defendant and the defendant denies the sale and purchase, evidence that he took and retained the goods and mortgaged them is admissible to overthrow his contention.</p>

<p>1. Criminal Law—Dentistry.</p> <p>It is not unlawful, under the act of 1889 as amended in 1891, for a person to practice dentistry, if he possesses the “other qualifications” prescribed by the board of dental examiners and is a graduate of, and holds a diploma from, a reputable chartered institution where the specialty of dentistry is taught, or has received a license from the board of dental examiners of any other state, notwithstanding he may not have been licensed by the board of dental examiners of this state.■</p> <p>2. Statutory Construction.</p> <p>A penal statute is not to he extended by forced construction to cover cases not within its terms.</p>

<p>1. Amendment oe Record.</p> <p>Tlie record in a criminal case may be so amended as to speak the truth in respect to the furnishing to the defendant, at or previous to the time of arraignment, with a copy of the information and a list of the jurors, and of the people’s witnesses.</p> <p>2. Appellate Practice.</p> <p>In order to obtain a review of a' refusal to give instructions requested, the evidence must be properly preserved by a bill of exceptions.</p> <p>3. Instructions.</p> <p>Instructions substantially given in another portion of the charge may be refused.</p> <p>4. Practice in Criminal Cases—Public Trial.</p> <p>The trial in a criminal case must be public, not secret. But a public trial does not necessarily contemplate that every person whose morbid curiosity for indecent details draws him thither shall have that curiosity gratified by being permitted to be present in the court room to listen to their recital.</p> <p>5. Presumptions.</p> <p>In the absence of a showing to the contrary, it will be assumed that an order excluding from the court room, during the progress of the trial of a criminal case, all persons except members of the bar, officers of court, students at law and witnesses in the case, was made at the request or with the consent of the accused.</p>

<p> Appeal from the District Court of La Plata County. </p>

<p> Error to the District Court of Montezuma County. </p>

<p> Error to the District Court of Arapahoe County. </p>

This action was instituted by plaintiff in error against the defendants in error to remove an alleged cloud from the title to certain lots in Colorado City, El Paso county, Colorado. There is no dispute in reference to the facts, which are as follows: In 1875 a judgment was duly rendered in one of the justice courts of El Paso county in favor of E. T. Colton, and against one Fred Holderer, for the sum of two hundred and ninety (290) dollars.

jError to the District Court of Gunnison County. This action was commenced by George T. Challis, defendant in error, against plaintiffs in error, for the partition of the Iron Duke lode mining claim, situate in Elk mining district, Gunnison county, Colorado.

Original Application for Writ of Prohibition. This action grows out of a contest between two factions, each claiming the right to file nominations of and for the people’s party, and to use the emblem of that party, to wit, the device known as the “ cottage home.” Each party claims that it constitutes the only genuine “ people’s party,” one convention having met in the city of Denver, on September 7, 1896, and the other in the city of Pueblo two days later.

<p> Original Application for Writ of Mandamus. </p>

This action was instituted by appellee, Alexander Bliley, against The Continental Divide Mining Investment Company for an accounting of a mining partnership between appellant, appellee and others, in a lease and option to purchase certain mining property in Roaring Fork mining district, Pitkin county, Colorado.

Ella E. Ames, as the surviving wife of Fred Ames, instituted this action to recover damages on account of the death of her husband, alleged to have been caused by the negligence of the defendant company. In its answer the Mining Company denied the charge of negligence, and alleged that the death of plaintiff’s husband was caused by his own lack of care.

This is a suit in equity instituted by Norman R. Barnard against the widow and heirs at law of George B. Stimpson,deceased, for the rescission of a certain contract entered into by the plaintiff and said Stimpson.

<p> Error to the District Court of Arapahoe County. </p> <p> Upon Application to Tax Costs. </p>

This action was instituted under chapter 28 of the Civil Code of 1887, to recover the N. 20 feet of lot 20, in block 4, in St. Louis Smelting & Refining Company’s addition to the city of Leadville. At all times while the action was pending in the district court the following provision of the code was in force: “ Sec. 272.

<p>1. Evidence—Books oe Account.</p> <p>The fact that, according to the merchants’ custom, the charges were made in the first instance upon slips of paper and the same day transferred to a daybook, does not take away from the daybook its character as a book of original entry.</p> <p>2. Same.</p> <p>Admissions contained in a ledger kept by the defendants in the ordinary course of business are admissible as evidence for the plaintiff.</p> <p>3. Same—Corporate Existence.</p> <p>A person who has dealt with a corporation, recognizing it as such, is not permitted, when sued in respect of such dealings, to deny its corporate existence.</p> <p>4. Attachment—Affidavit.</p> <p>An affidavit for attachment which alleges that the defendant is indebted for “goods, wares and merchandise sold by the plaintiff to the defendant,” states the nature of the action sufficiently.</p> <p>5. Pbaotice—Reopening Rest—Discbetion.</p> <p>It is always within the discretion of the trial court to reopen a case for the purpose of allowing additional evidence, and it should reopen it whenever the ends of justice can be advanced thereby.</p>

jError to the District Court of El Paso County. This is an action brought to restrain the unlawful diversion of certain water claimed by defendants in error by virtue of a prior appropriation.

This was an action brought by P. B. Godsman, as plaintiff, against the defendants Biethmann & Co. and W. K. Burchinell for damages alleged to have been sustained by him on account of the wrongful taking and conversion by the defendants of his stock of drugs and druggists’ merchandise. There are two defenses in the answer,—one, a general denial, the other, an admission of the taking and a justification.

This is an action brought by The Commercial National Bank of Denver against The Joseph Holmes Fuel & Feed Company, E. R. Barton and James Matthews, upon two promissory notes.

<p> Brror to the Court of Appeals. </p>

JError to the District Court of Arapahoe County. Proceedings in Contempt.

JSrror to the District Court of Arapahoe County. This is an action brought by Hattie Sipes to recover damages for the death of her husband, George Sipes, who was killed on the night of May 7, 1890. His death was caused by the derailing of an engine upon which he was engaged in the line of his duty as fireman, while in service of the defendant company.

<p> Error to the District Qourt of Montrose Oounty. </p>

<p>1. Pbactice—Waives.</p> <p>By answering over after demurrer to complaint overruled, the defendant waives his objections on the grounds of defect of parties defendant and of uncertainty and ambiguity relied upon in the demurrer.</p> <p>2. Same—New Pabties.</p> <p>Where a complete determination of the controversy cannot be had without the presence of other parties, they should be brought in. Under the circumstances of this case, certain persons should have been made parties defendant according to the prayer of the answer and cross complaint.</p> <p>3. Equity—Refoemation—Resale.</p> <p>By mutual mistake in a deed of trust intended to cover several tracts of land, one tract intended to be included was omitted and another not owned by the grantor was included. The mistake was not discovered until after a sale under the deed of the land described to the holder of the notes to secure which the deed was given for a sum less than the amount of the claim. Held, that it was error tq decree the balance to be a lien upon the tract omitted without releasing the grantor from his warranty of title as to the tract included by mistake; and, further, that as it appeared that the property intended to have been included in the trust deed could have been sold to better advantage in its entirety, the sale should have been set aside, the trust deed reformed and the trustee directed to sell under the same as reformed.</p>

<p>1. JUBISDICTION.</p> <p>Tliis court has no jurisdiction to review proceedings of the court of appeals where the judgment does not relate to a franchise or freehold and is for less than twenty-five hundred dollars and no construction of a constitutional provision is necessary to a determination of the case.</p> <p>2. Same.</p> <p>A failure by the lower court to observe a rale of pleading does not present a constitutional question or authorize this court to take jurisdiction to review the proceedings on the ground that such a question was involved.</p>

The complaint alleges that The Singer Manufacturing Company was the owner of a sewing machine, which, on the 10th of December, 1892, it delivered to one Eva Redd, under and in pursuance of the following instrument in writing: “ LEASE. “ This certifies that I, Mrs. Eva Redd, * * * have received of The Singer Manufacturing Company * * * one Singer sewing machine, * * * with apparatus belonging thereto, all in good order and valued at seventy dollars, which I am to USE with…

A number of persons claiming liens upon defendant’s mining property for materials furnished therefor and for labor performed thereupon joined as plaintiffs in this action to foreclose these liens. The complaint contains eighteen separate causes of action. To each one of these defendant filed a separate demurrer on the ground that it did not set forth facts sufficient to constitute a cause of action.

<p> Error to the Court of Appeals. </p>

<p>1. Waivek by Amendment.</p> <p>By amending a complaint after demurrer sustained, the plaintiff waives his right to assign error upon the ruling.</p> <p>2. Decision Appkoved.</p> <p>The rulings of the court of appeals in this case (5 Colo. App. 362) are approved.</p>

<p>1. Constitutional Law—Title on Act.</p> <p>The title of the damage act of 1877, being “ An Act Concerning Damages, and to Repeal An Act Concerning Damages, Approved February 8, 1872,” is not obnoxious to the requirement of the constitution relating to titles of bills.</p> <p>2. Same.</p> <p>It is a sufficient compliance with the constitutional requirement if the provisions of the act are germane to the general subject expressed in its title.</p> <p>8. Same.</p> <p>That a statute has been long and frequently enforced without question as to its constitutionality is to be considered as a circumstance of more or less weight in determining its validity.</p>

<p> Error to the Court of Appeals. </p>

Appeals from the District Court'of Arapahoe County. These cases were submitted upon the same briefs, and argued together orally to the court. The plaintiffs in each case claim title from the government patentee through various mesne conveyances. The defendant in each case claims title by virtue of certain tax sales, and tax deeds executed in pursuance of such sales. These tax deeds are substantially in the form prescribed by statute.

<p> Error to the District Court of Prowers County. </p>

At the April, A. D. 1891, term of the district court of Arapahoe county, plaintiff in error was indicted for the murder of one Thomas J. Strawn. The ease was first tried in 1892, but the result of that trial does not definitely appear from this record. It sufficeth to know that a new trial was awarded, and the defendant again put upon trial in June, 1898.

<p>1. Practice in Criminal Cases—Joinder of Counts.</p> <p>Several cognate offenses growing out of the same transaction may be charged in separate counts in the same indictment or information; yet, when so charged, each count, to be valid, must be independent of the others and in itself charge the defendant with a different and distinct offense.</p> <p>2. Same—Larceny.</p> <p>In larceny cases the ownership of the property stolen must be alleged and proved as alleged, or the defendant is entitled to an aquittal.</p> <p>3. Same—Former Jeopardy.</p> <p>When, at the trial under an information containing two counts, the court directs a verdict of not guilty as to one of them, it is equivalent to an acquittal of tlie offense charged in that count, and will support a plea of former jeopardy.</p>

JSrror to the County Court of Arapahoe County. In 1884, John D. Armstrong brought an action in the county court of Arapahoe county against John S. Sanderson, Amos Sawyer, Marcus Finch and P. T. Smith, as partners doing business under the firm name of J. S. Sanderson & Company, to recover for goods, wares and merchandise, sold and delivered. Summons was issued and served upon John 5. Sanderson, Marcus Finch and P. T. Smith on September 3, 1884.

<p> dirror to the District Gourt of Ml Paso Qounty. </p>

This action is brought to recover damages for injuries alleged to have been sustained by the plaintiff from falling upon a defective sidewalk on the south side of Agate avenue, in the city of Highlands.

jError to the District Court of Park County. The plaintiff in error was the sheriff of Lake county, Colorado. In the district court of that county he was proceeded against under an information consisting of four separate counts, the first two of which charged him, as sheriff, with bribery under section 1274 of Mills’ Ann. Statutes (Gen. Stats. ’83, sec. 791), and the last two under section 1302 of Mills’ Ann.

<p>1. Witnesses—Deaf-Mutes.</p> <p>That difficulty attends the examination of a deaf-mute is no reason why his testimony should he excluded.</p> <p>2. Practice—Motion to Strike out Evidence.</p> <p>A motion to strike out all of the testimony of a witness, part of which was admissible, should be denied.</p> <p>3. Felony Defined.</p> <p>“Eelony,” under our constitution, means any criminal offense punishable by death or imprisonment in the penitentiary, and none other.</p> <p>4. Criminal Law—Self-Defense.</p> <p>The right to kill in necessary self-defense is not limited to cases where the assailant intends to commit a crime of the grade of felony.</p> <p>5. Same—Instructions.</p> <p>The use of the word “enormous” instead of “great,” in an instruction defining the bodily harm to prevent which one may justifiably kill his assailant, is improper.</p> <p>6. Same.</p> <p>It is not commendable, in instructions, to attempt a new statement of an old settled rule, or to qualify old, unbroken and well understood expressions of what the law is.</p> <p>7. Same—Retreat.</p> <p>An instruction that “ A party is not compelled to flee from his adversary who assaults him, but before he can justify the homicide, the assault must be so fierce as not to allow the party assailed to yield without manifest danger to his life, or enormous bodily harm. In such case, if there be no other way of saving his own life, or saving himself from great bodily harm, he may in self-defense kill his assailant,” is prejudicially erroneous, in that it does not discriminate between the classes of cases wherein the doctrine of retreat to the wall is, and wherein it is not, applicable. And the error is not cured by another instruction by which its application to the facts of the case which the defendant’s evidence tended to establish is correctly made.</p> <p>As to this instruction being prejudicial error, under the facts, Campbell, J., dissents.</p> <p>ON PETITION FOR REHEARING.</p> <p>1. Practice in Criminal Cases—Instructions.</p> <p>The practice in criminal cases of giving instructions taken from the reports of states having statutes dissimilar to those of the state wherein the trial is had, condemned.</p> <p>2. Conflicting Instructions—Error.</p> <p>When conflicting propositions of law are given «pon a material point, one correct and the other incorrect, the judgment will be reversed. Clare v. The People, 9 Colo. 122, cited and approved.</p> <p>3. Bill op Exceptions—When to be Piled—Laches.</p> <p>A bill of exceptions should be filed during the term of court at which the trial is had, or, if thereafter, within such time as may be granted by the court by order duly entered of record; but the right to strike from the files a bill signed after the term may be lost by laches, although the clerk’s record fails to show an order extending the time.</p> <p>4. Same.</p> <p>In a criminal case a delay of four months in filing a motion to strike the bill from the files held fatal to the motion; the attorney general having, in the meantime, appeared and resisted an application for a supersedeas based upon the bill of exceptions, and thereafter, upon an application to modify such order, counsel for plaintiff in error having in the meantime filed abstracts and briefs based upon such bill of exceptions, and the cause having been set down for oral argument upon the merits at the request of the attorney general.</p> <p>5. Exceptions to Instructions.</p> <p>It is the better practice to require counsel to particularly point out their objections to instructions at the time the same are given; but if this is not done, an exception at the close of a written charge, duly paragraphed and numbered, “to each and every instruction,” held sufficient, if allowed in this form by the trial court.</p> <p>6. Duty op Prosecuting Oppicers—Legal Trial.</p> <p>It is the duty of public officers intrusted with the prosecution of criminal cases to see that no conviction shall take place except in strict conformity to law.</p>

James B. Foote was the owner of a fractional quarter section of land in Boulder county containing 148 acres, and during the time of his ownership, in May, 1888, he executed a trust deed to the defendant Ingersoll, as trustee, to secure the payment of two promissory notes payable to Crippen, Lawrence & Co. for #6,600, due in five years.

<p> Error to the Qounty Qourt of Arapahoe Qounty. </p>

Appellant, C. B. Rusbin, as trustee, brought this action in the court below to recover possession of the Little Alice mill site, in Gold Hill and Central mining districts, in Boulder county, Colorado. Plaintiff relies upon a certain tax sale and a tax deed to support his cause of action, and sets forth in his pleading the deed and the several steps taken in the assessment, levy, and sale of the property.

<p>Error to the District Court of Arapahoe County.</p>

This action was instituted by Jennie Crumbaugh to recover damages resulting from the death of her husband, Thomas Crumbaugh, who was killed by an accident on the 25th day of November, 1892.

This was an action brought by Alexander Taylor, as the owner of the Spur, Sucker and Sophia mining locations, situate in Grilpin county, Colorado, in support of an adverse claim filed by him in the United States land office against the application for patent of the Baby Ruth mining lode, owned by the defendants.

<p>1. Practice—Challenging Jurors.</p> <p>The particular disqualifying fact must have been specified in a challenge of a juror for cause interposed in apt time, or the objection will not be considered on review.</p> <p>2. Evidence—Brands—Identifying Marks.</p> <p>Testimony as to brands on cattle alleged to have been stolen is admissible to identify the animals, if expressly limited to this purpose, notwithstanding there may be no proof of the record of the brands.</p> <p>3. Evidence—Venue in Criminal Cases.</p> <p>It is not indispensable that the venue be proved in a criminal case by positive testimony. It may be inferred from the proof of other facts.</p> <p>4. Practice in Criminal Cases—Discretion— Opening Rest.</p> <p>The order of proof is generally within the discretion of the trial'court,</p> <p>and it is within its discretion to permit either the prosecutor or the defendant to introduce evidence after closing his case.</p> <p>5. Same—Reasonable Doubt.</p> <p>If by the testimony, whether introduced in his own behalf or by the prosecution, the defendant in a criminal case succeeds in raising in the minds of the jury a reasonable doubt as to any essential element in the case, he is entitled to an acquittal.</p> <p>6. Instructions—Recent Possession of Stolen Goods.</p> <p>Instructions are free from error if, considered together as a whole, the jury must have understood therefrom that in order to remove the impression produced by the fact of the defendant’s possession of the stolen goods recently after the theft, as a circumstance tending, in connection with the other evidence in the case, to show guilt, he must explain such possession, but that he might do this either by conclusively establishing the fact that he honestly and in good faith bought the chattels, or by proof far short of this, sufficient only to raise a reasonable doubt that he dishonestly obtained such possession.</p>

This is an action upon a negotiable promissory note against ■five of the joint makers, only two of whom (Reed and Weston) made any defense. The complaint alleges ownership by plaintiff, maturity and nonpayment of the note.

A.t the general election in November, 1895, Richard Le Bert and George J. Kindel were opposing candidates for the office of county clerk of Arapahoe county.

This is an action for the possession of real property and damages for trespass thereon, instituted by Robert Turner and others, plaintiffs below, against The Argonaut Consolidated Mining and Milling Company and others, defendants.

<p>1. Notice—Cobpobations.</p> <p>A corporation is not affected with, notice of facts within the knowledge of its promoters, acquired before its organization.</p> <p>2. Same—Fbatto.</p> <p>A corporation is bound by the knowledge of its officers who fraudulently procure a subscription to its capital stock, if it ratifies the act of its agents by knowingly accepting the fruits of the deception.</p> <p>3. Fbattd—Misbepbesentations—Rescission.</p> <p>A statement by the agent of a corporation for the sale of its capital stock that its property cost it a certain sum of money is not a mere expression of opinion, but a statement of a fact which, if relied on by the subscriber, and it proves to have been false, may, as against the company, be sufficient ground for rescinding the contract of subscription.</p> <p>4. Same.</p> <p>The victim of a wrong wilfully committed by false representations as to a material fact is not to be denied relief merely because he was unsuspecting, or because he might have ascertained the falsity of the representations by an investigation of public records.</p> <p>5. Same.</p> <p>Generally, a subscriber to the capital stock of a corporation cannot exempt himself from liability on the ground of fraud of the company in misrepresenting or concealing facts which induced the subscription, unless, within a reasonable time after discovery of the fraud and before rights of innocent third parties have accrued upon the faith of his name, he rescinds or offers to rescind the contract and returns or offers to return his stock to the company. The facts of this case held to excuse an offer to return the stock.</p> <p>8. Same.</p> <p>By false representations of the agents of a corporation as to the value of its property, Z. was induced to subscribe for shares in the capital stock of the company and to give a nonnegotiable note in part payment. The note was pledged as collateral security March 16, 1893, and suit was brought thereon by the receiver of the pledgee October 7, 1893. Z. had discovered the fraud in July of that year, but was not chargeable with negligence in failing to make the discovery earlier. Held, there was no such laches as to preclude him from setting up as a defense a want of consideration arising out of the fraud.</p>

To a judgment of the district court of Conejos county sentencing him to imprisonment in the county jail for a period of thirty days for a contempt of court, John H. Bloom prosecutes this writ of error. This proceeding, instituted by the district attorney in the name of the people of the state of Colorado, is founded upon an information verified by said officer.

<p>Original Proceeding.</p>

This is an action for possession and damages to real property, instituted by Benjamin C. Catron, as plaintiff, against Robert O. Old and Ellen Old, defendants. The trial in the court below resulted in a verdict and judgment for the defendants. Plaintiff appeals.

<p> Original Application for Writ of Certiorari and Prohibition. </p>

The plaintiff in error, John Askew, was indicted jointly with Fred Busby, Hedley Eacock and Fred Goldsmith, for the larceny of cattle, of the personal goods, chattels and property of The D. T. Cattle Company, an incorporated company. The defendant secured a separate trial, which resulted in a verdict of guilty, upon which he was sentenced to the penitentiary for a term of two years. To reverse this judgment the cause is brought here by error.

jError to the District Court of Ml Paso County. Action for damages for personal injuries received by plaintiff, Charles Smock, while in the emploj' of the defendant, The Denver, Texas & Fort Worth Railroad Company.

<p>Jurisdiction.</p> <p>The statement of counsel that a constitutional question is involved in the case will not give this court jurisdiction to review a judgment of the court of appeals. It must appear that the question invoked is fairly debatable and not based upon mere assertion or the appeal will be dismissed.</p>

Original Application for Writ of Prohibition. This is an original application for a writ of prohibition, directed to the district court of Lake county, and to the Honorable Frank W. Owers, the judge thereof, to restrain further proceeding in a certain criminal cause- pending in said district court, and to require such court to enter an order dismissing the same upon a nolle prosequi heretofore filed by the district attorney.

Appellant instituted this action in the district court, alleging that he was the owner by letters patent from the United States of an undivided two ninths interest in 1,720 acres of land in El Paso county, Colorado, particularly describing the same. Plaintiff alleges that he is entitled to the possession of the premises, hut that the defendant wrongfully withholds the same to his damage in the sum of $10,000.

This is a contest between water right claimants taking their supply from a common source and by means of the same ditch. It is before the court for the second time. ' At the first hearipg a demurrer was sustained to the complaint and judgment entered thereon by the district court. From this judgment the cause was taken to the court of appeals, and from that court into this court, and the complaint was held sufficient and the judgment of the lower court reversed.

Original Proceeding. The opinion of the court was delivered in response to the following resolution and interrogatory from the honorable house of representatives: “ Whereas, there has been introduced in the house of representatives of the state of Colorado, a bill entitled ‘ An Act to Provide for the Taxation of Gifts, Legacies and Inheritanees in Certain Cases, and to Provide for the Collection of the Same; ’ and “ Whereas, said bill has passed through its second reading,…

<p> Appeal from the Bistriet Court of Bent County. </p>

Mrror to the District Court of Ml Paso County. Oh the 26th day of September, 1896, the district attorney filed in the district court of El Paso county an information charging the defendant, Walter Davis, with the willful, deliberate and premeditated murder of one Will Fe, upon the 7th day of July, 1896. The defendant having no means with which to employ counsel for his defense, the law firm of A bbott & Hoffmire was assigned to his defense by the court.

Original Proceeding. The opinion of the court was delivered in response to the following resolution and interrogatories from the honorable senate: “ Whereas, there is now pending before the general assembly of the state of Colorado senate bill No. 23, —a bill for an act to amend an act entitled ‘ An Act for the Support and Better Regulation of the Public Schools of Denver/ approved February 13, 1874, — which has passed both houses and been delivered to the governor of the…

Original Proceeding. The opinion of the court was delivered in response- to the following interrogatories submitted by the senate : “ Whereas, there is now pending before the general assembly of the state of Colorado house bill No. 147, which has passed the house of representatives, and “ Whereas, the constitutionality of said bill has been questioned by members of the senate, and thereby an important question upon a solemn occasion has arisen, “ Therefore, be it resolved by…

Original Proceeding. The opinion of the court as to the constitutionality of the foregoing bill is in response to the following preamble and interrogatories : “ Whereas, under ‘ An Act Establishing the State Home and Industrial School for Girls,’ being sections 2187 to 2200 of Mills’ Annotated Statutes, the board of control entered into a ■contract (a copy of which is herewith submitted) with the Convent of the Good Shepherd, in accordance with section 2199 of said act.

This is an action brought by The First National Bank of Pueblo against W. S. Home and C. H. Nix, copartners as W. S. Home & Company, and is based upon two several promissory notes, aggregating the sum of $3,750, payable to E. J. Bent, as cashier, signed W. S. Home & Company.

<p>Appellate Pbactice.</p> <p>Where, after a bill of exceptions has been stricken from the files, it appears that all the assignments of error were based upon matters shown only by such bill, the judgment must be affirmed.</p>

This is a suit to enforce specific performance of a contract in relation to certain real property.

In AN action pending in the district court of Lake county, . brought by Clinton Reed, as plaintiff, against John C. Meagher et al., as defendants, for the purpose of establishing plaintiff’s claim to an interest (alleged to be an undivided 1/4) in a mining lease upon the Felicia Grace lode, a decree was rendered on December 24,1884, adjudging that plaintiff was the owner of an undivided 7/82 in the lease and a like share of the proceeds of ore extracted from the mine.

<p> Appeal from the District Court of Arapahoe County. </p>

This action was brought to declare and enforce a trust. Tbis is the second time it has been before this court. Upon the first trial the controverted questions of fact were submitted to a jury, and findings returned in favor of these appellants, upon which a decree was rendered, also in their favor. This decree was reversed upon the first appeal by reason of a defect in the pleadings. Seymour v. Fisher et al., 16 Colo. 188.

This action was instituted in the district court by defendant in error, as plaintiff, against plaintiff in error, as defendant, for damages for libel and slander. The complaint contains two causes of action founded on libel and two causes for slander. The language in each cause of action, while in substance the same, is somewhat differently'expressed in the several causes of action.