Volume 30 — Colorado Reports

Original Application for a Writ of Mandamus. In the district court of Lake County, upon a criminal charge of assault with intent to commit murder, Thomas Keady was tried, convicted, and sentenced to the penitentiary, where he is now confined. During the trial a certain juror of the regular panel was passed for cause and accepted both by the district attorney and counsel for defendant.

<p>1. Jurisdiction — Judgments.</p> <p>The jurisdiction of a court to render a judgment is not determined alone from the controverted or uncontroverted questions of fact which may alone be involved in a case, but from the object of the action. If the judgment pronounced is responsive to the relief sought in the action it is within the jurisdiction of the court pronouncing it, even though it is erroneous or is based upon an issue, which in fact is not involved.</p> <p>2. Same — Contracts—Vendor’s Lien.</p> <p>In an action to enforce a vendor’s lien it was within the jurisdiction of the court to hold that the contract on which the lien claimed was based was not a contract of sale although no such issue was made by the pleadings, and its jurisdiction was not affected by the correctness or incorrectness of the decision of that question.</p>

<p>1. Municipal Corporations — Estoppel.</p> <p>The defense of equitable estoppel may be asserted against a municipal corporation when the character of the action and the facts and circumstances are such that justice and equity demand the corporation should be estopped.</p> <p>2. Cities and Towns — Counties—City Taxes — Liability of Counties.</p> <p>There is no privity between a city and county with respect to the city taxes and the county is not liable to the city for the collection of such taxes by the county treasurer, but so far as the collection of the city taxes is concerned the county treasurer is ex officio the official of the city for that purpose, and where a county treasurer collects interest and penalties on delinquent city taxes and pays the same into the county treasury instead of to the city, an action can be maintained therefor by the city against the county only upon the theory that the county has received money belonging to the city which should be paid over to the city. The liability of the county does not arise from any trust relation with the city, or from a breach or neglect of any governmental or public duty imposed by law.</p> <p>3. Same.</p> <p>Where for 23 years the county treasurer of a county has been collecting the taxes of a city and paying them over to the ' city treasurer and during all that time the interest and penalties collected on delinquent city taxes were paid into the county treasury and there was no fraud or collusion between the treasurer and the county, and the treasurer’s books and reports were public, and no demand was made by the city for the payment by the county of such penalties and interest and no reason is given why the city during all that period did not have knowledge of the acts of the treasurer in respect to such interest and penalties, the city is by its laches estopped from suing the county for any such penalties and interest paid into the county treasury more than six years prior to the commencement of the action.</p> <p>4. Same — Offset.</p> <p>An action by a city against a county to recover interest and penalties collected on delinquent city taxes by the county treasurer and paid into the county treasury, is not an action to recover taxes or revenue that precludes offsets, and in such action it was error to refuse to allow the county to introduce as offsets items of expense incurred by the county for registration books and booths furnished the city and for advertising the city taxes and for refunds paid out by the county for taxes which had been paid the city, on the ground that offsets could not be allowed against taxes.</p> <p>5 Same.</p> <p>In an action by a city against a co*unty for interest and penalties collected on delinquent city taxes and paid into the county treasury the county cannot defend on the ground that at the time the collections were made the city taxes did not bear interest. The interest and penalties thus collected should have been paid to the city even tbougb collected without warrant of law.</p> <p>15</p> <p>6. Taxes — Interest and Penalties.</p> <p>In the absence of a statute directing what disposition shall be made of the penalties and interest collected on delinquent taxes, they follow the principal.</p>

Two informations were filed against defendant in the county court of San Miguel county. One charged him with selling liquor to Frank J. Callender on the 25th of August, 1900, for his own gain; the other with selling liquor on the same day and to the same person for his own gain and for the gain of Antone Seed, and without a legal license in either case. The causes were consolidated for trial over the objections of defendant.

Action to Recover Damages for Personal Injuries. The complaint attempts to state a canse of action based on acts of the defendant showing wanton, wilful, and intentional misconduct. The answer is a general denial and a pl$a of contributory negligence by plaintiff. The evidence is not voluminous, or substantially conflicting. The statement of the parties is accepted as to the case thereby made, with such additions from the record as the court deems inaterial.

Motion to Dismiss, the Writ of Error. The defendant in error, Hubbard, as plaintiff in an action pending in the district court of Arapahoe county, recovered a judgment against plaintiff in error, The Platte Land Company, defendant in that action, in the sum of about $1,600. The company prosecuted an appeal to the court of appeals, which resulted in an affirmance of the judgment.

<p>1. Pleading — Misjoinder—Waiver.</p> <p>Where a complaint contained several items of account, the defendants by answering waived objection to the complaint on the ground that items were improperly joined or embraced matters which could not properly be included in the action.</p> <p>2. Pleading — Joinder of Causes of Action — Parties.</p> <p>Causes of action cannot be united in the same complaint unless they affect all the parties, both plaintiff and defendant, in the same character and capacity.</p> <p>3. Same — Mortgages—Exemplary Damage.</p> <p>In an action by two plaintiffs to have a conveyance declared a mortgage and for an accounting, a claim for exemplary damage growing out of the manner the defendant took possession of the mortgaged premises, which affected only one of the plaintiffs, could not properly be joined.</p> <p>4. Trusts and Trustees.</p> <p>A trustee will not be permitted to commit acts inconsistent with his trust, or which interfere with his duty in discharging It.</p> <p>5. Mortgages — Trusts and Trustees — Measure of Damage.</p> <p>Defendant became surety for plaintiffs and to secure him plaintiffs executed to defendant a deed to certain land and placed it in escrow to be delivered to defendant in case he had to pay the debt. Defendant paid the debt and received the deed and placed it on record. By agreement with plaintiffs defendant then offered to sell the land to the. county in which it was located at a price agreed upon between defendant and plaintiffs and which was sufficient to have repaid defendant and left a balance of several thousand dollars for plaintiffs. After negotiating the sale to the county and just on the eve of its consummation and acceptance by the county defendant withdrew the offer and went into possession of the land claiming it as absolute owner. Held that defendant, by agreeing to act on behalf of plaintiffs in negotiating the sale to the county, the legal title being vested in him, and having made an offer to the county which was satisfactory to both himself and plaintiffs, thereby accepted and entered upon the execution of a trust which he could not surrender at will, and having refused to carry out the agreement he became liable to plaintiffs for the loss sustained by them, measured by the difference between the price the land was to have been sold for and its then market value.</p> <p>6. Same</p> <p>That plaintiffs made no objection to the withdrawal of the offer by defendant, and the fact that they might have made a sale to the county, and upon tender of the amount due defendant he would have been required to execute releases that would have enabled them to convey a title to the county, was no defense in view of defendant’s claim of absolute ownership.</p> <p>7. Same.</p> <p>As between plaintiffs and defendant, the fact that the offer of sale had not been accepted by the county in a manner that would be binding upon it was no defense, where the county was prevented from accepting by the act of defendant in withdrawing the offer.</p> <p>8. Same.</p> <p>The fact that plaintiffs still assert ownership of the property and are seeking to redeem and to recover for rents and other damages does not prevent them from holding defendant responsible for any loss they may have suffered because of his withdrawal of the offer of sale to the county.</p> <p>9. Trusts and Trustees — Evidence.</p> <p>In an action by cestuis que trust against a trustee for damages for preventing a sale of trust property to a county by withdrawing his offer of sale before it was formally accepted by resolution of the board of commissioners, testimony of the commissioners was admissible to prove that they would have accepted the offer if it had not been withdrawn.</p> <p>10. Mortgages — Nursery Trees — Rights of Mortgagee.</p> <p>As between a mortgagor and mortgagee nursery trees planted by the owner of real estate become a part of the realty and pass as such under a mortgage, but as long as the mortgagor has the right to redeem, he would have the right, in the ordinary course of trade, to sell such of the stock as was suitable for transplanting, and the mortgagee would have no right to remove or convert to his own use any of such trees and would be liable in damage to the mortgagor for any of such trees removed by him.</p> <p>11. Same.</p> <p>Where a son planted and owned a nursery on his mother’s land, and afterwards joined his mother in a mortgage of the land although he had no interest in the land, and at the time of the transaction he called the mortgagee’s attention to the nursery as enhancing the value of the security it was sufficient to sustain a finding that it was the intention of the mortgagors to convey the nursery as a part of the realty upon which it was situate.</p> <p>12. Bills and Notes — Mortgages—Redemption—Accounting.</p> <p>Defendant became surety on plaintiffs’ note for the purpose of raising money to pay off another note and mortgage of the plaintiffs. Plaintiffs conveyed the land to be redeemed to defendant to secure him agaist the note he signed. Defendant received the face value of the note he signed as security and with the money paid off plaintiffs’ note and mortgage, but only part of the money received by him was required to pay off the note. Afterwards defendant paid in full the note signed by him as surety for plaintiffs. In an action by plaintiffs against defendant to redeem the land and for an accounting, defendant is only entitled to credit for the amount paid by him in taking up plaintiffs’ original note and mortgage and not for the amount he paid on the note signed by him.</p> <p>13. Mortgages- — Redemption—Accounting—Rents — Water Assessments.</p> <p>In an action by mortgagors against a mortgagee in possession of the mortgaged premises, to redeem and for an accounting, where defendant was charged with the full rental value of the premises, including water for irrigation, he was properly credited with amounts paid for ditch assessments to secure water for irrigation.</p> <p>14. Same — Taxes.</p> <p>In an action by mortgagors against a mortgagee for an accounting and to redeem, the mortgagee is entitled to credit for amounts paid for taxes.</p> <p>15. Same — Insurance.</p> <p>Where defendant became surety for plaintiffs to raise money to take up a note and mortgage on land and took a conveyance of the land to secure him, and the mortgage so paid off by defendant provided that in case the mortgagors failed or refused to insure the property the party holding it as security could pay the insurance and add the amount to the debt secured, in an action by plaintiffs against defendant to redeem and for an accounting, defendant is entitled to credit for amounts paid by him for premiums for insurance of the buildings on the premises. ■ '</p> <p>16. Mortgages — Foreclosure*— Redemption.</p> <p>Where the beneficiary in a deed of trust executed prior to the enactment of the statute allowing redemption from foreclosure sales under deeds of trust, elects to foreclose by proceedings in court, he waives his right of sale under the terms of the trust deed and the decree of foreclosure should give the mortgagor the right of redemption.</p> <p>17. Same — Receivers.</p> <p>Where a mortgagee has no lien-upon the rents and profits of the mortgaged premises, the mortgagor is entitled to retain possession after entry of a decree of foreclosure and during the time within which he may redeem, and the mortgagee is not entitled to the appointment of a receiver for the premises upon an allegation that the security is inadequate and that the mortgagor is unable to farm and manage the property, where it does not appear that a receiver is necessary to preserve the property from waste and depreciation in value.</p>

<p> Error to the County Court of Park County. </p>

<p> Original Proceeding for Disbarment. </p>

<p> Error to the County Court of El Paso County. </p>

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

<p>1. Practice in Criminal Cases — Continuance.</p> <p>Where the defendant in a criminal case has had ample time to prepare for trial, in an application for continuance he must set out fully and In detail, under oath, the facts relied upon to support the application.</p> <p>2. Same.</p> <p>An application for a continuance in a criminal case which alleges that ten days before trial defendant was informed by the district attorney the case would be continued, but which shows that defendant knew four days before trial that it would be called for trial, and which does not show that any effort was made to be prepared for trial, and which fails to show who or where the witnesses are, for whom the continuance is asked, and which fails to show that defendant did not have all the witnesses present whom at that time he knew could give testimony material to his defense, is insufficient.</p> <p>3. Evidence — Objections—Exceptions—Waiver.</p> <p>Unless an exception is taken and preserved to the ruling of the court on an objection to the admission of testimony, alleged errors based thereon will be considered waived.</p> <p>4. —New Trial — Newly Discovered Evidence — Sufficiency of Motion — Diligence.</p> <p>In an application for a new trial on the ground of newly discovered evidence, the mere abstract statement that by the exercise of reasonable diligence the testimony could not have been discovered in time to have been produced at the trial is insufficient. There must be a showing as to what efforts were made to discover such testimony, or a showing sufficiently full and clear from which it may be inferred that by the exercise of reasonable diligence the testimony could not have been discovered in time.</p> <p>5. Same.</p> <p>In an application for a new trial on the ground of newly discovered evidence, the fact that the materiality of the evidence was not known until the prosecuting witness testified at the trial is not a sufficient showing where the witnesses for whose evidence the new trial is sought reside in the city where the trial was had and no effort was made to procure their testimony at the trial, nor application made to the court for time to procure such testimony.</p> <p>6. Practice in Criminal Cases — Juries—Instructions—Exceptions.</p> <p>Where in a criminal case the jury-after being out some time was called in by the court and having stated that they could not agree and that the difference was a question of fact, the court ' in the presence of the defendant and., his counsel proceeded to call their attention to the importance of the case and urge the desirability of a decision by them, and then directed them to continue their consideration of the case, and the remarks of the court were such as, if incorrect, they could have been corrected, in the absence of an exception to such remarks the appellate court will not determine whether or not they were prejudicial.</p> <p>7. Appellate Practice — Bills of Exception.</p> <p>Where the trial judge certifies a bill of exceptions, none of the matters therein stated can be contradicted by affidavit.</p> <p>8. Practice in Criminal Cases — Presence of Defendant.</p> <p>A party being tried for a felony has the inherent right to be present at every stage of his trial when anything is being done which the jury must consider in determining his guilt or innocence.</p> <p>9. Practice in Criminal Cases — Charging Jury — Intimidating Jury — Presence of Defendant.</p> <p>Where a jury in a criminal case after having been out considering a case for some time were brought into court and having announced that they had not yet agreed and that the difference was upon a question of fact, the judge stated that the' jury wére the sole judges of all questions of fact, and then proceeded to interrogate them as to whether they were being properly cared for and whether any one had attempted to intrude upon their deliberations or address them in regard to the case, and being answered in the negative directed the jury to again retire, it was not such a recharging of the jury as would require the presence of the defendant. Nor was the questioning of the jury by the court as to outside influence an intimidation of the jury.</p> <p>10. Same.</p> <p>Where one is on trial accused of a felony, after the cause has been submitted to the jury, the only safe course for the trial court to pursue is to hold no communication with the jury except in the presence of the defendant and his counsel.</p>

Transferred from the Court of Appeals: Action for damages for injury to plaintff’s city lots caused by a change of grade of adjacent Ogden street and Eleventh avenue, which change was made under authority of the city of Denver. Plaintiff is the owner of four city lots at the corner of Ogden street and Eleventh avenue in the city of Denver.

<p>1. Injunction — Appellate Practice.</p> <p>The appellate court will entertain an application for injunction in a cause pending on appeal or writ of error, only where there exists some unusual or extraordinary reason why the appellate court should assume such jurisdiction.</p> <p>2. Injunction — Pending Appeal.</p> <p>Trial courts should be liberal in allowing injunctions to preserve the status quo pending appeal, in causes appealed in good faith, when if awarded the appellee can be protected against all loss by a sufficient bond, and if refused the object of the appeal would be thwarted, and the fact that a temporary writ allowed before trial was vacated when judgment was pronounced on the merits should not deter the trial court from protecting the rights of the parties pending appeal.</p> <p>3. Injunction — Jurisdiction—Pending Appeal.</p> <p>The district court has jurisdiction to entertain an application for injunction in a cause appealed from such district court, although the cause has been removed by appeal to.,the appellate court, and the fact that the court- is presided over by a different judge when the application for injunction is made, than the one who tried the case, does not affect such jurisdiction.</p>

<p>1. Assault with Intent to Murder — Information—Sufficiency.</p> <p>An information which charges defendant with making an assault with intent “to kill and murder” sufficiently charges the intent, to murder.</p> <p>2. Practice in Criminal Cases — Continuance—Diligence.</p> <p>A defendant who at his examining trial is hound over to appear and answer the charge at the next term of the district court is not required to prepare for trial before an indictment is found or an information filed. And where an application for continuance for material witnesses is duly verified and shows sufficient diligence after the information was filed it is error to deny the application on the ground that defendant had not used diligence to procure his witnesses between the time of his examining trial and the filing of the information.</p>

<p>1. Divorce — Place of Trial.</p> <p>The provision of section 27 of the code, that in certain circumstances civil actions shall be tried in the county of the defendant’s residence applies to actions for divorce.</p> <p>2. Divorce and Alimony — Change of Place of Trial — Appearance — Waiver. ' -</p> <p>In a suit for divorce plaintiff applied for temporary alimony and served notice on defendant of the time the application would be heard. The day preceding the one set for hearing the application defendant‘by his counsel entered a general appearance and procured the postponement of the hearing for three days and on the following day filed a motion to change the place of trial to the county of his residence and in which he was served with summons. The motion to change the place of trial was the first pleading filed by defendant in the case. Held that the motion was in apt time and that defendant had not waived his right to have the place of trial changed to the county of his residence.</p> <p>3. Practice — Change of Place of Trial — Jurisdiction.</p> <p>Where an application for change of place of trial is made by a defendant based upon a ground which entitles him to the change as a matter of right, the court to which it is addressed has no discretion except to grant the application, and is ousted of jurisdiction to proceed further with the cause than to enter the order of removal.</p> <p>4. Divorce — Change of Place of Trial — Prohibition.</p> <p>Where a defendant in a divorce suit made application for a change of the place of trial to the county of his residence under circumstances which entitled him to the change as a matter of right, and the application was denied, the supreme court will Issue a writ of prohibition to prevent the court denying the change from proceeding further in the cause and directing that all proceedings had in excess of jurisdiction be quashed and that an order be entered removing the cause to the proper county, notwithstanding the erroneous action of the court in denying the change of venue was reviewable on appeal or writ of error.</p>

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

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

County. Caroline Alpenfels and Thomas F., Lynch,' appellee’s, .as plaintiffs below, brought separate actions, against the defendants, appellants here, to recover, possession of certain parcels of land in the city of Denver. The facts of the two cases are in all material respects the same, and the same legal principles govern each. By consent of. parties they were consolidated and tried as one action.

<p>1. Negligence — Pleading—Evidence.</p> <p>In an action against a gas company for injuries sustained from an explosion alleged to Rave been occasioned'by defendant’s negligence where the specific allegation of negligence was' that the defendant having been employed by plaintiff to furnish gas from its pipes for heating a stove in plaintiff’s house sent an employee to make connection from said pipes to the stove and that said employee negligently turned gas from defendant’s pipes into the pipes fitted into the house leading to the stove without making any examination or test to ascertain whether there was any obstruction of said pipes, the allegation was sufficient to charge the company with whatever negligence its employee was guilty of, and it was not error to admit evidence that said employee made no test of the pipes before or after he turned on the gas.</p> <p>2. Expert Evidence — Admissibility—Objection.</p> <p>Objections to the admissibility of expert testimony that merely go to the form of the question and on the ground that it is not covered by the pleading do not present to the court the objection that expert testimony is inadmissible.</p> <p>3. Negligence — Instructions.</p> <p>In an action against a gas company for injuries caused by an explosion alleged to have been occasioned by defendant’s negligence in connecting its pipes with the pipes in plaintiff’s house and turning in gas without having examined or tested the pipes, defendant requested an instruction that “the defendant is not responsible for the condition of the pipes in the cellar if, after its servants put them in, changes were made without its knowledge” was refused and instead the court instructed the jury that “the defendant, if it put in the pipes and left them in proper condition, was entitled to presume that they remained in that condition when it was asked to turn the gas on and connect the range, in the absence of notice that changes had been made in the meantime.” Held not error to refuse the instruction asked and that the instruction given was as favorable to defendant as should have been given.</p> <p>4. Negligence — Evidence.</p> <p>In an action against a gas company for injuries caused by an explosion where defendant’s own testimony shows that its employee sent to connect the pipes of the company with those leading into the house where the explosion occurred, discovered that the gas burned with an unusually feeble flame but failed to make an examination of the pipes and failed to turn off the gas, and that another employee sent by the company to examine for the leak negligently failed to turn off the gas or to warn the inhabitants of the house of the danger of an explosion, the company was responsible for the negligence of its employees, and its negligence being shown by its own testimony, expert testimony introduced by plaintiff as to tbe necessity of an examination of tbe pipes leading into tbe bouse before connecting them with tbe pipes of tbe company and turning in tbe gas, even if erroneous, was without prejudice.</p>

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

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

Plaintiff in error, as petitioner, commenced an action in the district court to condemn a piece of land for a reservoir site. To this proceeding defendants in error were made respondents. On the trial of the issues made by the pleadings, the court rendered judgment denying the right of petitioner to condemn the premises sought to be taken. From this judgment, petitioner brings the case here for review on error.

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

<p>1. Appellate Practice — Exceptions—Judgments.</p> <p>In order to have an appellate court consider the question as to whether or not the evidence is sufficient to sustain a judgment an exception to the judgment must be taken by bill of exceptions. Such exception entered on the journal of the clerk is not sufficient.</p> <p>2. Appellate Practice — Instructions.</p> <p>Where there is no certificate by the trial judge or the clerk and no recital in the record or bill of exceptions from which the appellate court can conclude that the instructions contained in. the record proper or in the bill were all the instructions given by the court, the appellate court will not consider assignments of error which relate to giving or refusing instructions, but will presume that the court properly applied the law to the facts upon the trial.</p> <p>3. Appellate Practice — Instructions—Exceptions."</p> <p>Where an instruction contains more than one proposition of law a general exception thereto does not entitle the party to have the instruction reviewed in the appellate court.</p> <p>4. Appellate Practice — Instructions.</p> <p>Where the record recites that the instructions which appear therein were filed in the clerk’s office, but the instructions were not signed by the judge, and no indorsement appeared thereon indicating the action of the court, it will not be presumed that the judge filed all the instructions given and refused.</p> <p>5. Same.</p> <p>The appellate court can review instructions which appear either in the record or bill of exceptions with proper indorsements and bearing the signature of the judge, if proper objections and exceptions are preserved thereto, but' where it does not appear either from the record or bill of exceptions that the instructions contained therein are all the instructions given the appellate court will not consider exceptions or objections thereto,</p> <p>6. Pleading — Damage—Wrongful Attachment.</p> <p>In an action for damages for malicious prosecution and wrongfully attaching plaintiffs’ property, a complaint which alleged that defendant having unlawfully come into possession of plaintiffs’ note after maturity and after it had been paid, maliciously and for the purpose of injuring plaintiffs caused an action to be brought on said note against plaintiffs and maliciously and without cause levied an attachment upon plaintiffs’ property, whereby plaintiffs were compelled to incur expense in resisting said action and in procuring a dissolution of the attachment, and were prevented from selling or disposing of said property, and were damaged and injured in their reputation and business credit, was sufficient to state a cause of action.</p> <p>7. Malicious Prosecution — Damage to Reputation and Credit-Evidence.</p> <p>In an action for damage for malicious prosecution and attachment of plaintiffs’ property, it is competent to show as an element of damage, injury to plaintiffs’ reputation and business credit.</p> <p>8. Malicious Prosecution — Incumbrance of Property — Evidence.</p> <p>In an action for damage for malicious prosecution and attachment of plaintiffs’ property, it is competent to show damages sustained by reason of plaintiffs being unable to dispose of the property attached.</p> <p>9. Malicious Prosecution — Evidence — Defendant’s Financial Standing.</p> <p>In an action for damages for malicious prosecution and attachment of plaintiffs’ property, It is competent to show defendant’s ability to respond to judgment, and evidence as to defendant’s wealth and financial standing is admissible.</p> <p>10. Evidence — Reputation.</p> <p>To prove injury to business credit and reputation by reason of a wrongful attachment, it is competent for a witness to testify as to what he has heard other people say in reference to the attachment suit as affecting the reputation and business standing of the attachment defendants.</p> <p>11. Evidence — Discretion of Court.</p> <p>It is within the discretion of the trial court to admit or reject evidence offered after the case is closed.</p>

George W. Clayton, late of the eonnty of Arapahoe, departed this life on the 15th of August, 1899. Afterwards a document purporting to be his last will and testament was presented to the county court of Arapahoe county, and, on the 3rd of October, 1899, the said document was admitted to probate and record1 as the last will and testament of the said George W. Clayton, deceased. Moses Hallett was appointed sole executor, 'William M. Clayton not having survived his brother.

<p>Constitutional Amendments — Injunction—Jurisdiction.</p> <p>The supreme court has no jurisdiction to restrain the secretary of state from publishing notices of proposed- amendments to the constitution, prior to their being voted upon by the people, on the ground that such proposed amendments have been submitted without authority and are invalid even if adopted by the vote cf the people.</p>

<p>1. Practice in Criminal Cases — Argument of Counsel — Improper. ' Remarks — Exceptions.</p> <p>Ordinarily the failure of cpunsel to' object to improper com?. ments of opposing counsel in addressing the jury, at the time it occurs, precludes a review of the alleged improper conduct in’ the appellate court. .</p> <p>2’. Same.</p> <p>The use of improper language by the prosecuting attorney' in addressing the" jury is not sufficient to reverse a verdict' ,óf. guilty where it appears that the only time defendant’s counsel' objected and called the court’s attention ■ to- the improper remarks, the court reprimanded the prosecuting attorney in the presence of the jury and requested him to. desist iron; further improper remarks, in such manner as to remove from the minds ■ of the jury any improper impression which such language was-calculated to produce. _ ~</p> <p>3. Same.</p> <p>In the address of a prosecuting attorney to the jury, a com-, ment on the failure of defendant to prove good character is not sufficient to reverse a verdict of guilty, where it does not appear from the record whether or not such comment was pertinent in reply to something said by defendant’s counsel in their argument, and where such remarks were not objected to at the time.</p>

<p> Error to District Court of Pueblo County. </p>

<p>1. Quo Warranto — Jurisdiction of Supreme Court.</p> <p>The supreme court has original jurisdiction to grant writs of quo warranto, hut only where questions publici juris are involved and where extraordinary and imperative reasons exist, will such jurisdiction be entertained.</p> <p>2. Same — Corporations—Issues of Fact.</p> <p>The supreme court will not entertain original jurisdiction in an action of quo warranto to forfeit the franchises of a corporation and to appoint a receiver therefor, where the facts are controverted, as the district courts have jurisdiction in such actions and have better facilities for trying issues of fact.</p>

<p>Appellate Practice — Jurisdiction.</p> <p>The supreme court has no jurisdiction to review a cause transferred from the court of appeals unless it would have jurisdiction of the same cause if brought to the supreme court direct from the trial court by the same procedure adopted in taking it to the court of appeals.</p>

<p> Error to the County Court of Weld County. </p>

The plaintiff, appellee here, began suit in the district court for the foreclosure of a deed of trust.

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

<p> Error to the District Court of Arapahoe Countyi </p>

<p>.1. Conveyances — Notice—Innocent Purchaser.</p> <p>One who purchased property from a husband who had separated from his wife knowing that the wife was in possession of and occupied the premises claiming to own the same, was not ‘an innocent purchaser.</p> <p>•2. Husband and Wife — Antenuptial Contract — Oral Promise to Convey Real Estate — Specific Performance.</p> <p>Where a wife was induced to enter into the marriage relation by an oral promise on the part of the husband to convey to her Certain real estate, a refusal by him to keep his promise is such a fraud upon her as will take the promise out of the statute of frauds, and equity will enforce specific performance of the agreement as against him, or his vendee with notice of the wife’s claim.</p>

In ber complaint sbe alleged, in substance, that she was the owner and in possession of the premises in question, and that the defendant claimed an estate or interest therein adverse to her, but had none. The defendant answered, admitting the possession of plaintiff, and set up title in himself.

<p>1. Statutory Construction — Borrowed Statutes.</p> <p>The rule that courts are bound to adopt the prior judicial construction given á borrowed statute in the state from which it is taken, is not inflexible, and should not control where such’ construction is clearly erroneous and has been repudiated and abandoned by the supreme court of that state.</p> <p>2. Jurisdiction — Justice of the Peace — Corporations—Penalties.</p> <p>Justices of the peace have jurisdiction of actions to recover penalties under section 508, 3 Mills’ Ann. Stats., making it the duty of corporations to keep a book containing a list of stockholders for the inspection of the stockholders and creditors of the company, and providing that for any refusal to exhibit said list or to allow the same -to be inspected and extracts taken therefrom, the corporation shall forfeit and. pay to the injured party a penalty of fifty dollars and all the damages resulting therefrom. ' ......... ■.</p>

<p>1. Change of Venue — Discretion of Court.</p> <p>An application for change of venue on the ground of the prejudice of the judge, or the prejudice of the inhabitants, or of the undue influence of the adverse party over the minds of the inhabitants, is within the discretion of the trial court to grant or refuse, and unless there is a manifest abuse of such discretion, the action of the trial court in refusing such application is not reviewable.</p> <p>2. Change of Venue — Prejudice of Judge — Second Trial.</p> <p>The fact that a judge has once before tried a cause without a jury and rendered a judgment against the party who applies for a change of venue, is not sufficient to establish prejudice of the judge and to require a change of venue on that ground.</p> <p>3. Change of Venue — Prejudice of the Inhabitants.</p> <p>Where an application for a change of venue on the ground of prejudice of the inhabitants of the county was supported by the affidavits of the applicant and six residents of the county, and counter affidavits were filed of ten citizens of the county who stated that they had never heard of the controversy between the parties and denied that the inhabitants of the county were prejudiced, it was. not an abuse of discretion of the trial court to deny the application.</p> <p>4. Continuance — Discretion of Court.</p> <p>Applications for continuance are addressed to the discretion of the trial courts and their rulings thereon are not reviewable except in cases where there appears to have been an abuse of discretion.</p> <p>5. Same — Absence of Material Witness. ■ -</p> <p>It is not an abuse of discretion to deny an application for continuance on the ground of the absence of a material witness where there is no showing that the witness will probably be present at the next term of court if the cause is continued.</p> <p>6. Contracts — Public Lands — Public Policy.</p> <p>A contract to convey land made before the issuance of a patent therefor by the United States government, but after final proof has been made and the land entered and paid for in-, the United States land office, is not illegal as in violation of -the laws of the United States.</p> <p>7. Conveyances — Possession and Improvement — Notice.</p> <p>Defendant entered into possesison of land under an agreement to convey from the entryman, paid the consideration therefor, and continued to occupy said land and made valuable improvements thereon. The entryman went to work at plaintiffs ranch and subsequently deeded the land to plaintiff Plaintiff and defendant knew each other and lived in the same neighborhood and the plaintiff knew that defendant was in possession of the land and making improvements thereon when he took hid deed. There was evidence that defendant having heard that plaintiff was about to buy the land sent him word that if he did so he'would kill him. Held'that the facts were sufficient to put the plaintiff upon inquiry and that he purchased with notice of the claim of defendant to the property.</p>

Action to have canceled as fraudulent certain deeds of real property and to have title thereto adjudged to be in plaintiff. On the’ 19th of June, 1890,’' David K. Wall and John T. Pursel owed the plaintiff, Martin Reynolds, certain sums of money, evidenced by promissory notes.

The Boulder Railway and Utility Company is a corporation organized under the general laws of this-state for the purpose of maintaining and operating a street railway in the city of Boulder. Becoming indebted it executed*- in 1899, twenty-eight negotiable promissory notes in the aggregate amount of about fourteen thousand dollars, and to secure their payment gave to W. H. Allison, as trustee,-a mortgage or deed of trust on all of its property and franchises.

<p> Error to the County Court of Weld County. </p>

Action by appellee, as plaintiff,-to recover from appellant, as defendant, damages resulting from injuries claimed to have been caused by the negligence of the appellant. From a-judgment-for'plaintiff, the defendant brings the case here for review on appeal.

<p>Towns — Incorporation—Contesting Validity — Quo Warranto.</p> <p>A contest of the validity of the proceedings incorporating a town cannot be inaugurated by filing objections thereto in the county court in which the incorporation proceedings are had, but such contest must be made by qüo warranto.</p>

<p>•Contributory Negligence — Evidence—Findings.</p> <p>In an action against a city for injuries received by falling from a defective sidewalk, where tbe evidence showed that the sidewalk where the injury occurred was elevated three or four feet above the ground; that a rail which had been placed to prevent persons from falling off was down; that plaintiff was an old man and his eyesight very much impaired; that he knew of the condition of the sidewalk; that the accident occurred at night when it was quite dark; that when he approached the place where the rail was down he walked slowly and felt about with his cane very carefully for the’ purpose of definitely locating the walk; but notwithstanding these precautions fell; a finding by the trial court that plaintiff was guilty of contributory negligence will not be disturbed by the appellate court.</p>

<p>Appellate Practice — Instructions—Taking Question from Jury-Harmless Error.</p> <p>In an action upon notes and accounts for money loaned where defendant answered by a counter-claim in which he set out certain alleged unjust charges for office rent, livery and express, and it appears that plaintiff and not defendant paid the alleged wrongful charges, and the theory upon which defendant claimed an offset for said charges was that his dividends from a mine were thereby reduced, and it further appeared that defendant would not have been entitled to any dividend even if these alleged wrongful charges had not been made, an instruction which took from the jury the consideration of said offset was not prejudicial error.</p>

<p>1. Informations and Indictments — Murder.</p> <p>An information or indictment for murder which sets forth the crime in the language of the statute is sufficient,</p> <p>2. Same.</p> <p>Where an information or indictment for murder gives the. name of the person killed .it imports that deceased was a human', being and it is not necessary to allege that he was a human-being.</p> <p>3. Instructions.</p> <p>On appeal from a conviction for murder an assignment of error based on a refusal to give the ordinary instructions upon-the presumption of innocence and reasonable doubt as requested,, will not be considered where the record fails to show that any such instructions were requested or refused, and does show that5 the; court'of its own motion gave approved instructions upon these points........' -</p>

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

<p>Elections — State Senators — Redistrioting State — Vacancies—Jurisdiction — Official Ballots.</p> <p>Where by act of the legislature the state was reapportioned into senatorial districts, fixing the number of senators for each district, and the act did not provide in which districts senators should be elected at the next general election, but did provide that the act should not work the removal of any senator from office for the term for which he may have been elected, and it appears that if senators are elected from each district, the newly elected senators together with the hold over senators will exceed by one the number limited by the constitution, neither the secretary of state nor the courts have authority to determine which district shall not be entitled to elect a senator, but that question can be determined only by the senate itself. And the secretary of state has no authority or right to refuse to place upon the official ballot the name of any candidate for senator on the ground that no vacancy exists in the district in which he is a candidate.</p>

The plaintiff in error, H. F. Parsons, was convicted of illegal voting. Held: that there was then and there a place for voting called election precinct numbered nine; that said defendant did then and there vote and offer to vote in said election precinct; that he was then and there of the age of twenty-one years ; that he came to said Jefferson county in the month of September, 1899, for the sole purpose of…

In the month of December, 1897, Rudolph Jankowsky began suit in the district court of .Teller county against W. L. Smith, J.' H. Parker, Joseph Homer, and Nora Foley to recover possession of certain real estate in Teller county, to cancel certain deeds of trust appearing of record, and for an accounting, and praying that he be decreed to be the owner of the premises free and clear of all incumbrances.

<p>Elections — Official Ballots — Review—Jurisdiction.</p> <p>It is entirely a matter of discretion whether or not the supreme court will assume jurisdiction to review the action of the district court in directing the secretary of state to certify a name as a candidate to be printed upon the official ballot, and that discretion will not be exercised in favor of a review where such review is sought only four days before election.</p>

<p>1. Corporations — Summons—Return—Service Upon Agent.</p> <p>In an action against a corporation, a return of summons served upon a person as the agent of the corporation which shows that the only information the sheriff had that the person was such agent was the declaration of the person himself, does not show a valid service upon the corporation.</p> <p>2. Same — interest in Suit.</p> <p>In an action against a corporation upon a claim for services by an agent assigned by such agent to pláintiff, service of summons upon the agent who assigned the claim is not a sufficient service on the corporation.</p> <p>3. Summons — Motion to Quash — Appearance—Appeal.</p> <p>Where a defendant in the county court appeared specially to move to quash service of summons which was overruled and judgment entered aga'ist him, the filing of an appeal bond by defendant, whereby he sought to appeal the case to the district court was not such appearance in the cause as would waive objection to the service of summons.</p>

<p>1. Divorce — Practice—Pleading—Amendment.</p> <p>Where the complaint in an action for divorce alleged that plaintiff was and had heen for more than one year immediately preceding the commencement of the action a bona fide resident and citizen of the state but failed to allege that either party resided in the county in which the' action was brought, the court might permit an amendment after verdict inserting in the complaint an allegation of plaintiff’s residence in the county, where the proof showed such residence.</p> <p>2. Pleading — Amendment.</p> <p>The court has authority to grant leave to amend any pleading or proceeding in any cause, before final judgment, so long as it retains jurisdiction of the cause.</p> <p>3. Divorce — Pleading—Amendment—Arrest of Judgment.</p> <p>Where after verdict in an action for divorce defendant filed a motion in arrest of judgment on the ground that the complaint failed to allege that either plaintiff or defendant resided in the county where the action was brought, which motion was granted, but plaintiff’s complaint was not dismissed, the court could afterwards permit an amendment of the complaint and enter a decree for divorce thereon without having made any formal order setting aside the motion in arrest of judgment.</p>

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

<p>Water Rights — Pleading.</p> <p>Where plaintiff alleged an appropriation of a certain amount of water at a certain time from a creek, and its continuous use for irrigating purposes and that it was necessary for the proper irrigation of her lands and that defendants had shut off and obstructed the water from her ditch and asked that they be restrained from diverting the waters of the creek, and defendants answered by alleging that since a date two years prior to plaintiff’s appropriation they had diverted the water of the creek for the purpose of irrigating their land and that during part of the irrigating season the water flowing in the stream was not more than enough to properly irrigate their land, the answer was sufficient to state a defense and it was error to sustain a' general demurrer thereto.</p>

<p>•1. Contracts — Compounding Crime — Public Policy.</p> <p>A contract whereby a defendant agreed to return certain property alleged to have been stolen by his brother-in-law and to pay a debt owed by the brother-in-law to plaintiff, in consideration that plaintiff would not prosecute the brother-in-law for the larceny is illegal and will not be enforced by the courts. 2. Contracts — illegal Consideration.</p> <p>Where a contract is based partly upon an illegal consideration and it is impossible to sever the illegal from the legal part of the consideration the entire contract is void.</p>

<p>Estates of Decedents — Distribution by Heirs — Administrators.</p> <p>If a decedent has no creditors the heirs may distribute the estate without the appointment of an administrator. And where a decedent left no debts and no estate except some money, and the heirs, all being of age, agreed amongst themselves as to the distribution of the money, and one of the heirs who agreed to the distribution afterwards died, her heirs could not object to the distribution and no cause existed for the appointment of an administrator.</p>

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

<p>1. Liens — Sale for Charges — Notice—Replevin.</p> <p>Where an agent of the Colorado Humane Society who knew the owner of an animal taken up hy him, took steps to enforce his lien for charges for caring for said animal by posting notices of the time and place of sale of such animal, but failed to give notice to the owner, although up to the time of the attempted sale his acts may have been legal, the attempted sale without notice to the owner was a trespass which related back to the inception of the transaction, and rendered the whole proceeding void from the beginning, and the owner could recover the animal by replevin without paying or tendering the agent’s charges. And the fact that the owner knew of the proceeding to sell, would not relieve the agent of the necessity of giving him the notice as required by statute.</p> <p>2. Appellate Practice — Question Not Raised in Trial Court.</p> <p>Appellee or defendant in error may urge any question presented by the record, in support of the judgment below, whether or not such question was raised in the trial court. If a judgment is correct, it will not be reversed because it was based upon wrong reasons.</p>

<p>1. Appellate Practice — ¡Bill of Exceptions — Evidence.</p> <p>Where it does not appear from any recital- in a bill of exceptions, nor from tbe certificate of tbe judge thereto attached, that it contains all of the evidence upon which the judgment was rendered, the appellate court is precluded from passing upon the alleged insufficiency of the evidence to sustain the judgment.</p> <p>2. Appellate Practice — Final Judgment — Parties.</p> <p>In an action by two plaintiffs to enjoin a judgment creditor from -receiving, and the sheriff from, issuing, a sheriff’s deed to plaintiffs’ property under an execution sale, where the decree recites that the issues are found in favor of one of the plaintiffs and against the other, and then proceeds to restrain the sale of any of the property of the plaintiff in whose favor the issues were found, but no -further order was made as to the other plaintiff either dismissing his complaint or directing the sheriff to proceed to the sale of his property,' there was no judgment against said plaintiff to which a writ of error would lie.</p> <p>3. Injunctions — Cloud on Title — Execution Sale — Sheriff's Deed.</p> <p>In an action against an execution creditor and the sheriff to restrain the issuing of a sheriff’s deed to plaintiffs’ property on the ground that the judgment under which sale was made was void, and that the deed would create a cloud on plaintiffs’ title, where the sheriff filed a separate answer, which stands admitted, in which he stated that he had refused to issue a deed to the holder of the certificate of sale for the property of either of the plaintiffs and that he would continue to refuse to issue such deed unless ordered by the court to issue the same, no cause of action was established and no relief could be awarded to plaintiffs.</p>

<p>Costs — Sureties—Liability—Judgments—Motion to Retax.</p> <p>Plaintiffs in an action were required to give a cost bond, and afterwards their complaint was dismissed and judgment for costs was entered against them, and a fee bill or execution for costs was issued against plaintiffs and the sureties on their bond, and the sureties filed a motion to retax the costs and to quash the fee bill which was overruled, from which order overruling their motion the sureties appealed. Held that the liability of the sureties was fixed by the judgment against their principal and that any review of such liability must be had by an appeal from or error to such judgment, and could not be had by a motion to quash the fee bill and retax the costs and an appeal from the order denying the motion.</p>

<p>1. Instructions.</p> <p>Where the trial court adopted the theory of appellant and gave to the jury instructions, requested, appellant cannot complain of the instructions on appeal, whether they are right or wrong.</p> <p>2. Mines and Mining — Default in Assessment Work — Relocation.</p> <p>A failure to perform the required annual labor upon a mining claim does not render it open to relocation, if the owners have resumed work upon the claim before it is relocated by any one else.</p> <p>3. Mines and Mining — Assessment Work — Work on one Claim for Benefit of Others.</p> <p>Assessment work can be performed on one claim for the benefit of. several when there is a community of interest in all the claims for the benefit of which such work is done.</p> <p>4. Same — Instructions—Burden of Proof.</p> <p>In an adverse suit the court was requested to instruct the jury to the effect that although the burden of proof of forfeiture was always on the party relying on the same, yet if it appeared ■that the annual assessment for any year was not done on the claim, and it was claimed that the assessment work was done on another claim for the benefit of the claim in controversy, then the burden was on the owners of the claim to establish that the work done on another claim was intended as assessment work for the claim in controversy and tended directly and approximately to its development. The court refused the instruction, but gave substantially the same instruction, but instead of the word “forfeiture” used the word “abandonment.” Held that the change in the instruction was not prejudicial error.</p> <p>5. Instructions — Responsive.</p> <p>In an adverse suit the jury asked for further instructions as to whether an amended survey of another claim belonging to the same parties taking in all the workings of the claim in controversy was an abandonment of the other portions of the controverted claim not included in the amended survey. The court instructed that the amended survey taking in workings of the controverted claim did not. of. itself amount to an abandonment. Held responsive to the question, and that the omission by the court from its instruction of the word “all” before the word workings was not reversible error in the absence of a request to supply the omission.</p> <p>6. Instructions — Mines and Mining — Assessment Work.</p> <p>An instruction in substance, that annual labor may be'performed outside of a mining claim where it' is shown that such labor is intended for the annual assessment upon such "claim, and is of a character inuring to its benefit, is sufficient to inform the jury that it must be shown that the labor was intended as the annual assessment, and also that it was of a character that would inure to the benefit of the claim for which it was performed.</p> <p>7. Instructions — Considered as a Whole.</p> <p>Instructions must be considered as .a whole, in determining what the trial judge has directed on any given subject.</p> <p>8. Evidence.</p> <p>Error committed in excluding evidence was cured by subsequently admitting the same evidence on cross examination of the witness.</p> <p>9. Evidence — Immaterial—Harmless Error.</p> <p>In an adverse suit, where the issue was as to whether or not the original location had been abandoned, over objection a witness was permitted to testify that he notified the employees of the re-locator while at work on the discovery shaft that they were upon ground of the original location and had better get off and that they replied that they were being paid for their work and did not care whether they were sinking on ground subject to location or not. Held that while the evidence was immaterial it was not prejudicial.</p>

<p>1. Cities and Towns — Elections—Filling Vacancies.</p> <p>The legislature has plenary power to provide how and when the successors of officers of cities whose terms shall expire at a' certain time shall he chosen, and the fact that, the time for choosing such successor is fixed at a date before a vacancy occurs by the expiration of the term does not invalidate the election of such successor.</p> <p>2. Same — City Council — Authority of Mayor to Vote.</p> <p>The mayor of a city is ex officio a member of the city council, and under an act of the legislature providing that vacancies in certain offices shall be filled by a majority vote of all the members of the city council the mayor is entitled to a vote as a member of the council.</p> <p>3. Cities and Towns — City Council — Quorum—Elections.</p> <p>Where a city council was composed of the mayor and eight aldermen and the official term- of fpur of the aldermen expired in April, 1902, the mayor and the four hold over aldermen then constituted the council and the mayor and two aldermen constituted a quorum and a majority of all the! members of the council and an election of the successor of one of the aldermen, whose term had expired, by the affirmative vote of the mayor and two aldermen was a valid election under Session Laws 1901, page 384.</p> <p>4. Cities and Towns — Elections—Statutory Construction.</p> <p>The act (Session Laws 1901, page 384) providing for biennial elections in cities of the second class to be held in April, 1901, and every two years thereafter, and providing that city officers whose terms would not expire until - April, 1902, should hold over for the term for which they were elected and until the second Monday after the election to be held in April, 1902, at which time vacancies should exist and that such vacancies should be filled by a majority vote of all the members of the city council, is not meaningless and incapable of enforcement because by the act itself no election could be held in April, 1902, but the clear purpose of the act as applied to aldermen whose terms expired in April, 1902, was-that their successors should be elected by members of the council whose terms would not expire until April, 1903.</p> <p>5. Constitutional Law — Title of Act — Cities and Towns.</p> <p>The title of the act (Session Laws 1901, page 384) is sufficiently broad • to include the provision for the election of the successors to aldermen whose terms expired April, 1902, by the city council composed of the mayor and aldermen whose terms would not expire until April, 1903.</p>

<p>1. Cities and Towns — Elections—City Council.</p> <p>The mayor of a city is a mémber of the city council and under the act (Session Laws 1901, page 384) was entitled to a vote in electing the successors to city officers whose terms expired in April, 1902. And where there were five hold over aldermen three of such aldermen did not constitute a majority of all the members of the city council and could not legally elect the successors to aldermen or other city officers whose terms expired.</p> <p>2. Same — City Attorneys.</p> <p>Under the constitution and statutes a city attorney holds his office until his successor is duly qualified.</p> <p>3. Same.</p> <p>Where a city had five hold over aldermen, and under the act (Session Laws 1901, page 384) three of such hold over aider-men proceeded to elect the city officers whose terms expired April, 1902, and elected relator as city attorney, and the mayor and the other two hold over aldermen also proceeded to fill vacancies in offices and re-elected respondent who had filled the office of city attorney for the past two years, relator’s election not being by a majority of all the members of the city council was invalid, and conceding that respondent’s re-election was invalid for the same reason, as no successor had been chosen respondent was entitled to hold the office under his former election.</p>

Action to recover damages for personal injuries on account of negligence of the defendant. Answer denying that defendant was negligent and averring contributory negligence of plaintiff. There was a judgment in plaintiff’s favor for $3,000, to reverse which this appeal is prosecuted.

Original Application for Writ of Prohibition. By the general registration act provision is made for a permanent list of qualified voters to be-prepared under the supervision of the county clerks of designated counties, including the county of Arapahoe.

On the 12th of February, 1874, The Colorado Springs -Company, being the proprietor of certain lands in El Paso county, caused to be executed and acknowledged, and filed for record, a certain plat of said lands which is entitled: “Map of Manitou, El Paso, County, Colorado. ’ ’ On this map no words are used by which the streets, alleys, avenues, parks, paths, or other public places are dedicated to the public, ’ although in the acknowledgment language is employed indicating an…

<p>1. Prohibition — Jurisdiction — Receivers — Matters Not Presented to Lower Court.</p> <p>A writ of prohibition will not be issued to prevent the district court from proceeding in a receivership matter on the ground that the court acted without and in excess of its jurisdiction in appointing the receiver, where none of the questions respecting the jurisdiction of the district court were ever presented to that court for determination.</p> <p>2. Jurisdiction — Application for Change of Venue.</p> <p>Filing an application for change of venue would not affect the jurisdiction of the court with re.spect to proceedings had Jjefore the application was filed.</p>

<p> Original Proceeding. </p>

<p> Error to the County Court of Logan County. </p>

<p>1. Divorce — Non-Support—Evidence.</p> <p>A decree for divorce on the ground that defendant had failed for a year last passed to provide a reasonable support for his family cannot be sustained where the evidence shows that the parties were dependent on their labor and that up to a time less than a year prior to bringing suit they were both employed and by their joint efforts provided ample support for the family.</p> <p>ON REHEARING.</p> <p>2. Divorce — Juries—Practice.</p> <p>An action for divorce cannot be legally tried before a jury of less, than six persons unless both parties consent thereto.</p> <p>3. Divorce — iVenue—Jurisdiction.</p> <p>An action for divorce can only be brought in the county where the plaintiff or defendant resides or in the county where the defendant last resided. The question of residence is jurisdictional and cannot be waived by the parties.</p> <p>4. Divorce — Marriage Pending Appeal.</p> <p>Where a decree for divorce was reversed and the cause dismissed, and pending the appeal the party in whose favor the decree was rendered married, by marrying pending the appeal she violated her marriage obligations, and is not entitled to a divorce,' and cannot be heard on a petition for rehearing to question the correctness of the decision, nor to ask that it be modified so as to remand the cause for a new trial instead of dismissing it.</p>

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

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

<p>1. Practice in Criminal Cases — Information—Affidavit.</p> <p>Where an affidavit upon which a criminal information is based states that affiant has personal knowledge that the offense was committed and that he is a competent witness to testify in the case, the truth of such statement cannot be put in issue by defendant, and the fact that it was shown on the trial of the case that affiant had not personal knowledge of the commission of the offense but only such knowledge as he had gained from the report of others is not ground for reversing a conviction.</p> <p>2. Practice in Criminal Cases — Evidence—Incrimination of Witness.</p> <p>The rule that a witness cannot be compelled to testify to facts that would tend to criminate himself is a personal privilege of the witness and cannot be invoked by a defendant on objection to the evidence of an accomplice.</p> <p>3. Evidence — Joint Information — Testimony of Codefendant.</p> <p>Where two parties were jointly charged with the same crime in the same information, one of them being separately on trial, the other was a competent witness against him.</p> <p>4. Evidence — Competency of Witness — Testimony Favorable to Defendant.</p> <p>Assignments of error based on objections to the competency of a witness will not be considered where the testimony of the witness was entirely favorable to the plaintiff in error.</p> <p>5. Evidence — Competency of Accomplice — Promise not to Prosecute.</p> <p>The fact that the prosecuting attorney promised not to prosecute a defendant in consideration that he should testify against his codefendant with whom he was jointly indicted for the same offense, would affect his credibility but not his competency as a witness.</p> <p>6. Evidence — Testimony of Accomplice — Intimidation.</p> <p>Defendant, against whom an accomplice had testified, offered to prove by a witness that said witness was present and heard the district attorney tell the accomplice that if he would testify a certain way he would be given his liberty, and if he did not testify that way he would be sent to the penitentiary. Held that the evidence was incompetent and was properly excluded.</p> <p>7. Evidence — Identification—Exhibit.</p> <p>In a, prosecution for robbery, where the evidence shows that a pistol was used in the robbery, and a witness testified that he borrowed a pistol similar to the one shown him at the trial and gave it to defendant, and that defendant told him he had returned it, and the owner when shown the pistol testified that he believed it was his and the one he told the former witness to let defendant have, there was sufficient identity of the pistol to admit it in evidence as an exhibit.</p> <p>8. Instructions — Probability of Guilt — Identity.</p> <p>Where in a criminal prosecution the court instructed the jury in substance that the defendant was presumed to be innocent and that the presumption continued until they were satisfied beyond a reasonable doubt of his guilt, and that in order to convict the defendant upon circumstantial evidence alone, the circumstances must not only concur to show the defendant committed the crime but that they must exclude to a moral certainty every reasonable hypothesis except that of guilt, it was not error to refuse special instructions requested by defendant upon the questions of probability of guilt, identity and character of defendant.</p> <p>9. Instructions — Testimony of Accomplice.</p> <p>It is not error to refuse instructions requested by defendant concerning the testimony of accomplices, where the accomplice who testified in the case gave no testimony implicating defendant with the commission of the offense charged.</p> <p>10. Instructions — Burden of Proof — Alibi.</p> <p>An instruction that “to render an "alibi satisfactory the evidence must cover the whole of the time of the transaction in question” is not objectionable as placing the burden on defendant of proving to the satisfaction of the jury that defendant was not present, where in the following instruction the jury was told that the presence or participation of the defendant in the commission of the offense charged must be established by the prosecution beyond a reasonable doubt, and that if the jury had a reasonable doubt whether or not he was present and participated in the crime they should acquit him.</p> <p>11. Instructions — Exceptions—Appellate Practice.</p> <p>Objections to instructions will not be considered by the appellate court where no objection was made or exception saved in the trial court.</p> <p>12. Evidence — Statements by Accomplice in Presence of Defendant.</p> <p>A witness for the prosecution was asked to detail a statement made by an accomplice in the presence of defendant, which was objected to until it was first shown what response was made by defendant, if any. The objection was overruled and witness detailed the statement and testified that when he asked defendant what he had to say defendant replied that he had nothing to' say. The court then directed the jury not to consider the statement as evidence against defendant. Held not error to permit the witness to detail the conversation in its regular order, rather than to first require him to give defendant’s answer, and that the court was not required to pass upon its admissibility until he heard the statement and defendant’s response.</p> <p>13. Evidence — Practice in Criminal Cases.</p> <p>Where in a criminal prosecution incompetent evidence was stricken out and no error was committed in permitting the witness to detail the evidence before passing upon it, error cannot be assigned upon the misconduct of the district attorney in offering the evidence because at a former trial the same evidence was given and stricken out.</p> <p>14. Practice in Criminal Cases — Limiting Argument.</p> <p>It is not error to limit the time of argument for defendant’s counsel in a criminal prosecution, where sufficient time is allowed to discuss the issues of the case.</p> <p>15. Evidence — Directing Verdict.</p> <p>In a prosecution for robbery where one witness identified defendant as being present and participating in the robbery, it was not error to refuse to direct a verdict for defendant.</p>