Volume 23 — Montana Reports

ON APPEAL. Appeal from District Court, Cascade County; Dudley Du Dose, Judge. Action by the Northwestern National Bank of Great Falls against the Great Falls Opera House Company and others. A judgment in favor of plaintiff was paid by Ernest Crutcher and others, who were sureties for the opera house company, and joint judgment debtors. From an order directing execution to issue in favor of the paying sureties against F. P. Atkinson, the latter appealed. Statement op the Case.

Brantly, Judge. Application for mandamus on the relation of the M. & J. Kaiser Water Company against the City of Philipsburg and others. Judgment for plaintiff against defendant City of Philipsburg, and it appeals. Statement op the Case.

Action by James Patten against Joseph A. Hyde. There was a verdict for plaintiff. From an order granting defendant a new trial, plaintiff appealed.

II. Benton, Judge. Action by P. B. Gallagher, and another against J. W. and Minnie Cornelius, in which Morgan Cornelius intervened. From a judgment in favor of plaintiffs, and from an order refusing a new trial, defendants and the intervener appeal.

on appeal Appeal from District Court, Cascade Cou/nty; Dudley Du Bose, Judge. Action by the Merchants’ National Bank of Great Falls against the Great Falls Opera House Company and others. A judgment in favor of plaintiff was paid by Ernest Crutcher and others, who were sureties for the opera house company, and joint judgment debtors. From an order directing execution to issue in favor of the paying sureties against F. P. Atkinson, the latter appealed.

<p>On the application of D. J. Plume for leave to prove exceptions.</p>

<p>Appeal — Briefs—Buies of Supreme Court — Dismissal.</p> <p>Where the brief of defendant does not contain specifications of errors, nor abstract, nor-statement of the case, as required by the Supreme Court, Rule 5, Subdivision 3, the appeal -will be dismissed.</p>

Application by the state, on the relation of the State Publishing Company, against Robert B. Smith, governor, and Timothy E. Collins, treasurer, for mandamus to compel them to approve a contract for the state printing claimed to have been awarded to relator by the State Board of Examiners. Statement of the Case.

Brcrntby, Judge. Action by J. B. Reynolds against John Fitzpatrick and another, as sheriff and deputy sheriff. From a j udgment in favor of defendants, plaintiff appealed.

<p>Appeal — Briefs—Buies of Supreme Court — Water Bight— Appurtenance — Sale Under Mortgage.</p> <p>1. A brief filed by appellant, which does not, in the statement of the case, make appropriate references to the transcript, showing where therein evidence of witnesses or pleadings are to be found, or which does not specify errors complained of in accordance with Supreme Court Rule 5, is so defective as to justify the court in dismissing the appeal.</p> <p>Obiter: In the future, the failure of the appellant to meet every requirement of the rules of the Supreme Court touching briefs will be sufficient cause for dismissal of the appeal.</p> <p>2. The appropriation of a water right from a creek on the public domain for the purpose of irrigating a certain parcel of land, by a person who has no title to said land, but is in rightful possession of said land under a contract with the owner thereof, and the conducting by him of the water so appropriated by means of a ditch to said land, and its continuous use thereon, constitutes such water right and ditch-in the absence of a segregation, change of possession, or diversion of the water by the owner thereof to a use other than that for which it was appropriated, or an intention to do so, and there being no agreement between the owner of the water right and the owner of the land upon which the water right was used by which it might be severed from said land-an incident to the ownership of the land on which it is used, and an appurtenance thereto which none but the owner of said land can convey or-sell, and a purchaser at a foreclosure sale of a mortgage of the land, “together with all the water ditches and water rights therewith usually had and enjoyed,” made hy the owner of the water right, does not acquire any right or title to said water right.</p>

Smith, Judge. Action by Duncan Cameron against George W entworth. Verdict and judgment for plaintiff. From an order granting a new trial, plaintiff appeals. It was contended by the defendant in the court below that said complaints do not state facts sufficient to show that the plaintiff was entitled to the immediate possession of the animals in dispute at the time the suits were instituted.

<p>Criminal Lam — Instructions—Presumption of Innocence— Reasonable Doubt.</p> <p>1. It is error to refuse to charge that accused is presumed innocent until proven guilty a reasonable doubt, though the court gave an instruction properly defining a reasonable doubt.</p> <p>2. The presumption of innocence has the weight and effect of evidence in the defendant’s behalf — introduced by the law in his behalf — and the mere definition of a reasonable doubt does not supply the lack of an instruction upon the presumption of innocence.</p> <p>3. “A reasonable doubt, within the meaning of the law, is not a mere imaginary or possible doubt, but a substantial doubt, based upon reason and common sense, and induced by the facts and circumstances attending the particular case, and growing out of the testimony. It is such a doubt as will leave one’s mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt as charged.” Held: a good definition of a reasonable doubt.</p>

Courts will not allow contracting parties to oust the” jurisdiction of the courts as to any controversies that may arise. (Randall v. American Fire Ins. Go., 10 Mont. 353; Kumle v. Grand Lodge A. O. If. W., 110 Cal. 204, 42 Pac. R. 634; Ba/niher v. Grand Lodge A. O.U.W., 37 Pac.

<p> Appeal from District Court, Silver Bow County; William Clancy, Judge </p> <p>Action by the City of Butte against Frank Call. From a judgment for plaintiff, defendant appeals.</p>

<p>Mdnving Claims — Location — Ouster — Evidence — Filing of Record — Construction of Notice.</p> <p>1. A notice of location of a mining claim, which, by reference to natural objects and monuments erected by the locator, contains directions which, taken in connection with such objects, would enable a person of ordinary intelligence to find the claim and trace its boundaries, is sufficient.</p> <p>Obiter. — Courts always construe these notices liberally.</p> <p>2. Whether or not a claim could be ascertained from such notice and the proof in regard to the surroundings is for the jury.</p> <p>3. Xn an action to determine adverse claims to a mining claim, a notice of location which described a claim as being situated in a certain county, a certain distance from another claim, and defined by courses marked by substantial monuments, readily identified by marks thereon, taken in connection with evidence that the' locator discovered gold-bearing quartz, and made a monument at the place of discovery, upon which he posted his notice of claim, shows prima facie ownership of such claim.</p> <p>4. An entry upon the land of another under assertion of title is an ouster; intention guides the entry, and fixes its character.</p> <p>5. Where one enters upon the mining claim of another under claim of title thereto, and mines thereon, and warns such other not to mine thereon, such conduct amounts to an ouster from the territory of the latter claimed by the former.</p> <p>6. Where one mining claim encroaches upon another, it is not error to permit the engineer, who has made a plat thereof, to point out the exterior boundaries of the encroaching claim, as it tends to enlighten the jury as to the controversy.</p> <p>7. A question as to whether a practical surveyor, familiar with the methods of locating claims, and familiar with surveys in mountainous countries and with the neighborhood, could take the description in a notice of location of a claim, and, starting at the pointof discovery, find the claim described therein, is incompetent, as calling for an opinion.</p> <p>8. In an action'to determine the boundaries of conflicting mining claims, evidence as to whether or not a surveyor found the boundaries of a claim without assistance, whether the blazing upon posts appeared to be old or new, and whether he could readily find the blazes on the trees along the boundaries, and whether they could be traced from one to another, relates to matters of fact, and is not open to the objec-</p> <p>' tiou of being opinion evidence.</p> <p>9. Under Comp. St., div. 5, § 1477, which provides that the discoverer of a mining claim shall have 20 days in which to complete the location and malte the necessary record, a discoverer who posted in plain view a notice of location, and “claim of 1,500 feet on this lead, with twenty days for prospecting,” if he made it in good faith, and with an intention to complete his location within the prescribed 20 days, thereby acquired a right to all the ground along the lead legitimately covered by his notice; and one locating thereon subsequently to such notice, and prior to the expiration of the 20 days, does not acquire a superior title, though he filed his statement and record within 20 days, and the former did not.</p> <p>10. A notice, posted by the locator of a claim, that he claims 1,500 feet on a lode, will be construed to limit Ins claim to 750 feet along the lode on either side of the point of discovery.</p> <p>11. The fact that a locator, after posting his notice, included within his boundaries ground not legitimately covered by his notice, if this was done in good faith as the result of ignorance or inadvertence merely, would not invalidate his claim, in so far as it includes what was legitimately covered by the notice.</p>

<p> Appeal from District Cowrt, Cascade County; J. B. Leslie, Judge. </p> <p>Contest of an election by David Dowty against William H. Pittwood. Prom a judgment in favor of contestant, the contestee appeals.</p>

Smith, Judge. Joseph Allen was convicted of murder, and from a judgment sentencing him to death, and an order denying his motion for a new trial, he appeals.

Action by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. Original proceeding by certain of defendants for leave to prove exceptions. In some of the decisions the Court may find that the question of mandamus as against a district judge to compel him to sign a bill of exceptions is discussed.

II. Armstrong, Judge. Application for a writ of mandamus by George Lambert against B. S. Coad, as clerk and recorder of Broadwater county. From a judgment granting a peremptory writ, respondent appealed. Statement oe the Case. Application for a writ of mandamus to compel the defendant, as clerk and recorder of Broadwater county, to permit relator to have access to the public records of said county for the purpose of indexing the same.

<p>Attorney — Disbarment—Accusation — Bribery emd Conspiracy— Crimes Committed Outside of Official Capacity ■— Jurisdiction of Court.</p> <p>1. Where an accusation preferred by a private person in a disbarment proceeding, is for a cause named in Code of Civil Procedure, Section 402, Subdivision 5, providing that an attorney and counselor who is guilty of deceit, malpractice, crime, or misdemeanor arising after his admission to practice, may be removed or suspended, an objection that such accusation is preferred by a person not authorized by law to inform the court oí the matters therein charged, is without merit.</p> <p>2. Proceedings under the fifth subdivision of Section 402 of the Code of Civil Procedure, may be instituted and maintained in the same manner as may those brought under the other subdivisions of said section.</p> <p>3. Charges in an accusation against an attorney, in disbarment proceedings, which are indefinite, vague, as well as uncertain, will, on motion, be stricken out.</p> <p>4. Under Code of Civil Procedure, Section 402, Subdivision 5, providing that an attorney who is guilty of any deceit, malpractice, crime, or misdemeanor arising after his admission to practice may be removed or suspended, the jurisdiction of the court is not confined to crimes or misdemeanors committed by an attorney while acting in his official capacity. 1</p> <p>Obiter: Bribery and conspiracy are heinous crimes involving moral turpitude, and the perpetration thereof by an attorney proves his unfitness to practice the honorable profession of the law.</p> <p>5. Under Code of Civil Procedure, Section 402,’ Subdivision 5, providing that an attorney and counselor who is guilty of any deceit, malpractice, crime, or misdemeanor, arising after his admission to practice, may be removed or suspended, it is discretionary with the court whether it will exercise its jurisdiction to remove or suspend an attorney in such cases, and, where the accused is charged with bribery and conspiracy, the court will refuse to inquire into the truth of the charges, unless cogent reasons be furnished by the accusation, or by a showing in support of it, why jurisdiction should be entertained in advance of a criminal prosecution and conviction.</p>

District Court, Yellowstone County; C. H. Loud, Judge. Dependant, William C. Brooks, was convicted of murder in the first degree, and he appeals. The court’s action and ruling regarding the admission of evidence was clearly erroneous under the following authorities: State v. Mewherter, 46 la. 88; State v. Hays, 22 La. Ann. 39; State v. Hell/y, 57 N. H. 549; State v. Bauerman (Kas.), 53 Pac. Bep. 874; State v. Brooks, 4 Wash. 328; State v. Hurst (Idaho), 39 Pac.

Action by J. Franklin against Mary Schultz and Carl Schultz. Judgment for defendants, and plaintiff appeals. The defendants, by accepting the building and taking possession of the same and making a part of the last payment, which by the terms of the contract was to be made upon the full completion of the building, waived any further compliance of the terms of, the contract on the part of the plaintiff. {Bell v. Teague, 3 South.

Certiorari, on the relation of B. S. Coad, to review a judgment of the judge of the Ninth Judicial district adjudging relator guilty of contempt.

Me Hatton, Judge. Action by the Butte & Boston Mining Company against the Societe Anonyme des Mines de Lexington. From an order granting a new trial after a j udgment for plaintiff, it appeals.

Action by John Yank against T. J. Bordeaux, constable. From a judgment tor defendant, and an order overruling plaintiff’s motion for new trial, plaintiff appeals. The transfer of personal property, not accompanied by an immediate delivery and an actual and continued change of ■¡possession, is, conclusively presumed to be fraudulent and -therefore void as against the creditors of the vendor.

<p>Attorney — Disbarment—Materiality of Evidence as to Failure of Criminal Prosecution — Bribery of Legislator — Sufficiency of Attempt at Criminal Prosecution— Verification of Accusation.</p> <p>1. In disbarment proceedings grounded on an alleged bribery, an affidavit stating the existence of prejudice in favor of the accused in the county where criminal proceedings were attempted against him is immaterial, when it does not state that the failure of the criminal proceedings was due to this prejudice.</p> <p>2. Where evidence tends to show that an attorney has been guilty of bribing a legislator, it is sufficient to justify disbarment proceedings, although the act was done in his private, not in liis official, capacity.</p> <p>Obiter: A lawyer who is guilty of willful bribery of members of the legislature is unworthy of the honors and responsibilities accompanying the office of an attorney and counselor at law.</p> <p>3. In disbarment proceedings based on alleged bribery of a legislator, it appeared that a grand jury had been called to investigate the bribery by the accused; that they had examined witnesses, and failed to find an indictment; that thereupon the attorney general stated to the court that there were grounds for indictment, and asked for another grand jury, which was refused. No further criminal proceedings were instituted. Held, that this attempt at criminal prosecution was sufficient to justify the investigation of the charges by the Supreme Court as grounds for disbarment’.</p> <p>4. It is not necessary that, as a condition precedent to the exercise of the jurisdiction of the Supreme Court in a disbarment proceeding, repeated efforts be made to secure an indictment for crime, or that unusual and extraordinary procedure be invoked under the Criminal Code; it is sufficient to justify the institution of disbarment proceedings in the Supreme Court, if the ordinary and usual forms of the criminal practice and procedure have been pursued.</p> <p>5. ’ Under Code <jf Civil Procedure, Section 420, providing that an accusation must be verified by an oath that the charges therein are true, an accusation in disbarment proceedings wherein some of the charges are verified only on information and belief, and others are positively sworn to, is partially valid, and will stand against an objection aimed at the entire accusation.</p>

F. Smith, Judge. Action by Samuel Hilburn, as county treasurer of Flathead county, Mont., against the St. Paul, Minneapolis & Manitoba Bailway Company and Great Northern Bailway Company. There was a judgment for plaintiff, and defendants appealed. STATEMENT OF THE CASE.

Application by the state, on the relation of Charles F. Donyes, for a writ of mandamus against the board of commissioners of Granite county, to permit plaintiff to perform, his official duties as general superintendent of the public roads of Granite county.

<p>Application in disbarment proceedings against John B. Wellcome, for commission to take deposition.</p>

Action by Patrick Deloughrey against Thomas R. Hinds, as county treasurer, and the county of Silver Bow. From a judgment overruling a demurrer to the complaint, defendants appealed. Section 1696 of the General Laws of Montana for the year 1887, relating to Revenue, requires that each town or city lot be valued and assessed separately, except when one or more adjoining lots are returned by the same person.

II. Woody, Judge. Action by the Manhattan Trust Company, trustee, against Mary M. and Smith Davis. Judgment for plaintiff, and defendants appeal. Statement of the Case. Action to foreclose a certain mortgage.

Injunction by John O’Rourke against Mary Schultz to restrain the enforcement of a judgment. From a judgment in favor of plaintiff, defendant appeals.

Appeal from District Court, Silver Dow County; John Lindsay, Judge. Proceeding in the estate of James Tuohy, deceased. Erom an order directing Cyril Pauwelyn, executor, to execute a lease of certain realty, he appealed. One McSherry and and another, who were made respondents, moved for a dismissal of the appeal.

J. Mc-Ilatton, Judge. Action by John O’Rourke and Daniel O’Sullivan against E. H. Sherman. There was a verdict and judgment for defendant, and a new trial granted on motion of plaintiffs. From the order granting new trial, defendant appealed.

C. Smith, Judge. Action by the Montana Mining Company, Limited, and others, against the St. Louis Mining & Milling Company of Montana, and others. From a judgment for plaintiffs, defendants appeal. Statement oe the Case.

<p>Appeal and Error— Undertaking on Appeal — Jurisdiction— Record. _¡__□</p> <p>1. A court granted, first, a restraining order, then an order continuing in force the restraining order and directing an injunction pendente lite to issue, and afterwards entered another order making the restraining order absolute and directing that the defendants be enjoined until further order; and defendants filed notice of appeal “from the order continuing the restraining order issued therein in force, and from the order granting an injunction against defendants pending the final determination of tills action, and from the injunction order granted herein,” and the undertaking on appeal, which was in the sum of $300, recited that, “whereas defendants have taken an appeal from the orders in said cause continuing a restraining order in force, granting a temporary injunction, and from said order of temporary injunction,” and the defendants in their brief on appeal assigned the orders as separate errors. Meld, that the appeal should be dismissed, as said undertaking was void on account of ambiguity, because it could not be referred to either of the orders from which the appeal was sought, although one of said orders was not appealable. (Following Creelty. Bozeman Water Works Go., 23 Mont. 327; and Murphy V. Northern Pac. My. Go., 22 Mont. 577.)</p> <p>2. The statute providing for appeals must be strictly complied with.</p> <p>3. The supreme court has no jurisdiction to entertain the appeal, where the appellant fails to file a proper undertaking on appeal.</p> <p>4. Where a record on appeal contains a certificate of the trial court’s clerk, as required by Code of Civil Procedure, section 1739, providing that such clerk shall certify that “an undertaking in due form has been properly filed.” an undertaking may be shown to be void for uncertainty by filing a certified copy of the same in the supreme court, where such copy does not tend to contradict the record as to any matter of fact.</p>

Charles Shepphard was convicted of murder in the second degree, and from the judgment and from an order denying a new trial he appeals.

E. Smith, Judge of the District Court of the Eleventh Judicial District, in and for Flathead County. Respondent demurs to the petition. Held: in the matter of a motion for a change of venue in actions commenced before a justice of the peace, that the filing of the affidavits containing the required statements ousts the justice of his jurisdiction for further proceedings except to transfer the cause.

<p>Appeal — £ £ Statement on Appeal ’ ’ — Bill of Exceptions — Refusal of Trial Judge to Settle or Alow Bill of Exceptions — Application to Supreme Cowrt to Prove Exceptions— Certification — Nonsuit.</p> <p>1. Since July 1,1895, the Statutes of Montana no longer recognize a “Statement on Appeal.”</p> <p>2. Under Code of Civil Procedure, Section 1157, and Supreme Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it in accordance with the facts, and requiring the bill, when proved, to be certified by the chief justice as correct, etc., a bill proved before a referee on leave granted, but not certified to as correct, will be disregarded.</p> <p>3. Under Code of Civil Procedure, Section 1157, and Supremé Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it, a bill proved before a referee will be disregarded when his report fails to show that the judge’s refusal to settle it because of delay in serving it was not justified.</p> <p>4. The remedy given by Code of Civil Procedure, Section 1157, and Supreme Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it in accordance with the facts, does not apply to a mere refusal of the judge to settle any bill whatsoever.</p> <p>5. Error in granting a nonsuit cannot be considered when there, is no bill of exceptions.</p>

<p>Appeal — Undertaking on Appeal — Ambiguity—Dismissal oj Appeal.</p> <p>A single undertaking in tbe sum of $300 to secure two appeals from two separate orders made at different times after judgment is void for ambiguity, justifying a dismissal of both appeals.</p>

Action by W. F. Cobban against Thomas R: Hinds, treasurer of Silver Bow county, and said county. From a judgment entered on sustaining a demurrer to the complaint, defendants appeal. Statement oe the Case. . The plaintiff is the owner of an undivided interest in certain real estate situate in the county of Silver Bow.

C. Smith, Judge. Action by Lewis Penwell against the board of county commissioners of the county of Lewis and Clarke. Judgment for defendant, and plaintiff appeals.

II. Parker, Judge. Martin Peel was convicted of murder in the first degree, and he appeals. Statement of the Case. The defendant herein was found guilty of murder in the first degree in the district court of Madison county on December 16, 1898. Thereafter a motion for anew trial was made. This was heard and overruled on March 15, 1899. The court thereupon pronounced judgment fixing the death penalty.

Brantly, Judge. Injunction by James B. Haggin against Raimond Saile and another. From a decree in favor of defendants, and from an order overruling a motion for a new trial, plaintiff appeals. The water right was an appurtenance of the land. (Sweet-land r. Oleson, 11 Mont. 27; Sloan v. Glancy, 19 Mont. 70, 76.) Upon the question of abandonment appellant refers the court to the following authorities: (Gassert v. Noyes, 18 Mont. 216; Smithy. Hope Min.

Woody, Judge. Action by D. E. Bandmann against A. J. Davis, as trustee of the First National Bank of Butte City, a corporation. From a judgment in favor of plaintiff and from an order denying a new trial, the defendant appeals.

II. Parker, Judge. Action by James W. Purdum against A. Laddin and others. From an order sustaining defendants’ motion for a new trial, plaintiff appeals.

Action by Barbara Horst against Con.- Shea and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by James A. Murray and others against Jane Polglase and others to establish an adverse claim to a mine location, in which W. W. .Adams and others intervened. Judgment was rendered for intervenors, from which defendants appeal; and plaintiffs appeal from the judgment and an order denying a new- trial. Statement oe the Case. On September 17, 1892, the defendants filed their application in the United States land office for a patent to the Rams-dell lode mining claim.

JMJillburn, Judge. -Action by Daniel R. Noyes and others against A. E. Ross and another. From a judgment in favor of defendants, plaintiffs appeal. Statement oe the Case.

<p>Original proceedings to disbar John B. Wellcome.</p>

F. Smith, Judge. yVilliam Pepo was convicted of murder, and he appeals.

<p>Criminal Law — Homicide—Evidence—Hew Trial— Witnesses —Impeachment—Jury—Instructions—Argument of Counsel —Review—Bill of Exceptions.</p> <p>Evidence reviewed and, held, to justify a verdict of guilty of murder.</p> <p>2. A witness’ credibility and the effect to be given his evidence are for the jury to determine.</p> <p>3. The appellate court cannot try a case de novo, and thus invade the province of the trial court by passing upon disputed questions of fact and the credibility of witnesses.</p> <p>4. Refusal to grant a new trial of a criminal case for insufficiency of evidence will not be disturbed on appeal where the evidence was conflicting, and tended to support the verdict.</p> <p>5. Where a witness based her testimony that threats against deceased were made by defendant on her recognition of his voice, it was not error to exclude evidence tending to show that such witness had mistaken the voice of another person on a different occasion, where it was not shown that the conditions were the same.</p> <p>6. It was not error to allow the state to ask defendant’s witness a question on cross-examination for the purpose of laying a foundation for his impeachment which was not germane to his direct testimony, since the state could have recalled the witness at any time for such purpose.</p> <p>7. Under Code of Civil Procedure, Sec. 3380, declaring that a witness may be impeached by evidence that at other times he made statements inconsistent with his present testimony, a witness having denied making statements at a coroner’s inquest, the state was properly allowed to call another witness in rebuttal, who was present when such statement was claimed to have been made, and ask him whether the former witness made a certain statement just after he finished his testimony before the coroner.</p> <p>8. Where a jury in a criminal case had been fully instructed as to their individual duties under the law, it was not error for the court to refuse to instruct that if, after consideration of the whole case, any juror entertained any reasonable doubt of the guilt of the defendant, it was the duty of such juror not to vote for a verdict of guilty, nor to be influenced in so voting for the single reason that a majority of the jury were in favor of a verdict of guilty.</p> <p>S. On appeal, alleged objectionable statements of counsel in argument cannot he considered, nor the action of the trial court thereon be reviewed, unless they, and the ruling of the court thereon, are preserved in a bill of exceptions and properly certified.</p>

The Anaconda Copper Mining Company, convicted of violation of the act requiring cages of all mines to be cased in, appeals. Defendant contends that the title of the amendatory act in question fails to state the object of the act, which was to have cased in the cages of those mines whbse shafts were sunk below 300 feet. The title, therefore, which describes the actas one to have the cages of all mines cased in, fails to state its object.

<p>Criminal Law — Homicide—Information—Indorsement of the Hamssof Witnesses — Evidence—Corpus Delicti — Testimony of Accomplice — Sufficiency of Corroboration — Instructions—• Degrees of Murder — Circumstantial Evidence.</p> <p>1. Under Penal Code ot 1895, See. 1734, requiring tlie county attorney to indorse on the information, at the time of its filing, the names of the witnesses then known to him, where the name of a witness known to the county attorney at the filing of the information was omitted, but there was no evidence of bad faith, the court properly permitted it to be indorsed on the day before trial.</p> <p>2. On a trial for murder, the identity of the person alleged to have been killed was proved by direct evidence of an accomplice, who was an eyewitness, and assisted in disposing of the body by burning it and throwing the ashes in a river, corroborated by circumstantial evidence. The death of a human being was directly proved, by the identification of certain teeth and charred bones found in a river near the point where the body was burned, and there was circumstantial evidence to prove the identity of the deceased. Held, that the evidence was sufficient to satisfy the requirements of Penal Code, Sec. 358, that the “death” of the person alleged to have been killed must be established by “direct proof,” as an independent fact, and of Code of Civil Procedure, Sec. 3108, defining “direct proof” as that which proves the fact in dispute, without an inference or presumption.</p> <p>•3. In prosecutions for murder, proof of the corpus delicti involves the establishment of the fact that a murder has been committed, but includes neither the identity of the person alleged to have been killed, nor the killing by the person accused.</p> <p>4. Under Penal Code, Sec. 2089, requiring an accomplice to be corroborated by other evidence which of itself tends to connect the defendant with the crime, it is not essential that the evidence in corroboration must be sufficient, when standing alone, to connect the defendant with the crime, but it is sufficient if it tends so to do.</p> <p>5. The court is not bound to charge upon murder in the second degree, or upon a lower grade of homicide, when there is no evidence, direct or circumstantial, to which the instruction could apply.</p> <p>3. On a trial for murder, the refusal to charge specifically as to the burden of proof resting on the state to establish beyond reasonable doubt the existence of each link in the chain of circumstantial evidence was not error, where there was direct evidence of the main fact, and the indirect evidence was merely in corroboration.</p>

<p>Criminal Law — • Witnesses — Indorsing Names on Information —Evidence—Impeaching Defendant — Instructions— Weight of Evidence — Preponderance of Evidence — Reasonable Doubt — New Trial — Defect in Information— Waiver.</p> <p>1. Under Penal Code, Section 1734, requiring the county attorney to indorse on the information, on iiling it, the names of the witnesses for the state, if known, but not providing for the indorsement of other witnesses thereafter discovered, the act of the attorney at the trial in indorsing, under the directions of the court, the names of other witnesses on the information is not error, as such witnesses were subject to be examined whether their names were indorsed on the information or not.</p> <p>2. It is error to deny the county attorney the right to examine witnesses because their names do not appear on the information, in the absence of a showing on the part of the defendant that the county attorney did in fact know of their existence at the time the information was filed.</p> <p>8. When a defendant is sworn, and testifies in his own behalf, he is subject to the same rules of cross-examination and impeachment as any other witness, and it is competent for the state to impeach his testimony by evidence that his general reputation for truth, honesty and integrity is bad.</p> <p>4. An instruction calling special attention to the defendant’s witnesses and giving special direction as to how their evidence should be weighed, is properly refused, as invading the province of the jury.</p> <p>5. The refusal of an instruction easting upon the state no greater burden than that of showing by a preponderance of the evidence the circumstances establishing defendant’s guilt was proper, since the universal rule is that in all such cases the prosecution must establish such circumstances beyond a reasonable doubt.</p> <p>O. Under Penal Code, Section 1910, providing that an information may be set aside when not properly subscribed by the county attorney, and Section 1911, providing that, unless a motion to set aside be made before demurrer or plea, this ground of objection is waived, if the motion to set aside the information was made in the trial court, and improperly refused, the error can be reviewed only on appeal from the judgment; it cannot be reviewed on an appeal from an order granting a new trial, not being one of the grounds for new trial enumerated under Penal Code, Section 2192.</p> <p>7. It is error, in a criminal case, to grant defendant’s motion for a new trial on the ground that the information therein is not properly subscribed.</p> <p>8. The rule that the trial court’s action in granting a new trial cannot be disturbed, even if it committed errors during the course of the trial, because such action was discretionary, applies only when the motion is made upon grounds which appeal to the discretionary power of the court, hence does not apply where the motion was made upon assignments of errors in law only.</p>

Action by American Hand-Sewed Shoe Company, a corporation, against John O’Rourke and others, co-partners as A. Ducharme & Co. Judgment for defendant O’Rourke, and plaintiff appeals. Statement of the Case.

Woody, Judge. Arthur McClellan and Michael Horeigan were convicted of robbery, and they appeal. It is never permissible for the defendant, in cross-examining the plaintiff’s witness, to inquire of matters which constitute an affirmative defense. Such a course isopen to the twofold objection that it is not proper cross-examination, and that it reverses the order of proof.

James Eli Fisher was convicted of murder. From a judgment and an order denying a new trial he appeals.

Action by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. From an order denying an application for an injunction pendente lite, plaintiff appeals.

Injunction by James A. Danforth against Alex. Livingston, treasurer and collector of Park county, Montana, to restrain the collection, by sale, of taxes due on real estate belonging to the plaintiff. From a judgment for plaintiff, ■defendant appeals. Statement of the Case. Application for an injunction to restrain the collection, by sale, of taxes due for the year 1898 upon real estate belonging to the plaintiff.

Application by the state of Montana, on the relation of Edward Hickey and others, for a peremptory writ of mandamus against the district court of the Second Judicial district of the state of Montana, in and for the county of Silver Bow, and the judges of said court, requiring said court and its judges to hear and decide a motion to dissolve an interlocutory injunction.