鶏塩 SUPREME COURT OF MONTANA. TERRITORY v. BURNS. Filed January 6, 1886. LAW-CARRYING CONCEALED WEAPON-INDICTMENT.-An indictment for ncealed weapon upon the person need not contain an averment negativing A contained in the statute, providing that the act shall not apply to peacee discharge of their official duties. MENT NEED NOT NEGATIVE AN EXCEPTION contained in the statute, unless on be necessary to a complete definition of the offense. from first district court of Gallatin county. The opinion facts. H. Blake, district attorney, and William H. Hunt, attorneyor the appellant. aats, for the respondent. AITH, J. This is an appeal from a judgment rendered in conof an order sustaining a demurrer to the indictment. The arged in the indictment was that of bearing a deadly weapon. upon the person. This offense is prohibited by the following e enactment: "Section 1. It shall be unlawful for any person e limits of any city, town, or village in this territory to bear upon his person any dirk, dagger, pistol, revolver, or other eapon. 2. Any person violating any of the provisions of this act shall d guilty of a misdemeanor, and upon conviction thereof shall ed by a fine not less than ten dollars nor more than one hun ars. . This act shall not apply to peace-officers in the discharge of al duties." The demurrer was only upon the ground that the ed in the indictment did not constitute a public offense. The part of the indictment was as follows: "That Patsey Burns, e county of Gallatin aforesaid, on the fifth day of February, > thousand eight hundred and eighty-five, at the county of aforesaid, did unlawfully bear concealed upon the person of said Patsey Burns, a deadly weapon, to wit, a certain revolver e limits of the town of Timberline, county of Gallatin aforetrary to the form of the statute in such case made and prod against the peace and dignity of the territory of Montana." aimed by the respondent that the failure to aver that he was ce-officer in the discharge of his official duty, and thus to the exception contained in the statute, renders the indictment jectionable to the foregoing demurrer. rule of pleading in criminal law that the indictment should all that is necessary to constitute a complete description of se charged. This is especially true of statutory offenses, which aracter of the misdemeanor alleged in the al ve indictment. etment in such case should state all the ingredients of which People v. Shotwell, 27 Cal. 400. But we are not aware of any class of cases where courts have allowed a conviction for a higher offense, or grade of offense, than that charged, except in murder cases, and we cannot accept the doctrine that a party tried for any crime can be convicted for an offense of which he is not fairly charged. Respondent contends that this indictment is sufficient under the amendment to the criminal practice act, Thirteenth Session Laws, p. 97, which is as follows: The indictment shall contain the title of the action, and the name of the court to which the indictment is presented, and the names of the parties, and shall be sufficient if it charge the offense substantially in the language of the statute prohibiting the crime, and in such a manner as to enable a person of common understanding to know what is intended." By this statute the legislature has not undertaken to dispense with the averments necessary to inform the party of the offense charged, but has only simplified the manner of charging the facts. Before the party is placed upon trial for a felony or other offense he is entitled to have the offense pleaded, not necessarily in the technical language of the common law, but substantially in the language of the statute defining the offense, and in such a manner as to enable a person of ordinary understanding to know what is intended and for what offense he is to be tried. This statute modifies the intricate and exacting common-law rules of criminal pleading and seeks to establish a plain rule more in harmony with the advanced notions of criminal jurisprudence. This the legislature had the power to do, and this, in our judgment, is what was intended. The appellant asks that the instruction given by the court of its own motion be reviewed. The instructions thus given are not here by bill of exceptions, and cannot be reviewed by this court: People v. Biles, 5 West Coast Rep. 829. The verdict in this case was for murder of the first degree, as charged, and there is no claim that the evidence does not support the verdict. Section 483 of the criminal practice act provides: "The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial." The indictment sufficiently charges murder in the second degree, and we are of the opinion that under and in virtue of the general power given to modify, we should sustain the verdict and treat it as a verdict of murder of the second degree, which is included in the first, and modify the judgment accordingly. We are not without precedents and authority in reaching this determination: Fouts v. State, 4 G. Greene, 500; State v. McCormick, 27 Iowa, 414; Johnson v. Commonwealth, 24 Pa. St. 387. This case is distinguished from Hagan v. State, 30 Wis. 428, and People v. Campbell, 40 Cal. 129. In these cases the jury found the defendants guilty as charged, but did not find the degree. Hence the court could not say whether they were found guilty of murder or manslaughter. In the case at bar the defendant was found guilty of murder, and the evidence sustains the verdict, and we do not think justice would be promoted by ordering a new trial or by remanding the case. It is therefore considered and adjudged by the court here that the judgment of the court below be and is hereby modified so as to say that the defendant, E. J. O'Callaghan, be confined in the territorial prison of the territory of Idaho, at hard labor during his natural life. HAYS, C. J., and BUCK, A. J., concurred. JONES v. QUANTRELL ET AL. Filed January 25, 1886. MORTGAGE-FORECLOSURE-NOTICE OF APPEAL-SERVICE ON CO-DEFENDANT.-Where joint makers of a mortgage were sued, and one appeared generally and the other specially and sought a dismissal of the summons as to him, judgment being entered against them jointly, and the defendant who appeared specially alone appealing: Held, that the other defendant was an adverse party within the meaning of the code, and that the appellant should serve notice of appeal on him. For want of such service his appeal is dismissed. APPEAL from the second judicial district court of Alturas county. The opinion states the facts. A. F. Montandon, for the appellant Ward. Kingsbury & McGowan, for the respondent. HAYS, C. J. This was an action brought to foreclose a mortgage given by defendants to respondent on property situate in Alturas county. The complaint, among other things, sets out that the defendants gave their joint notes to respondent for eight hundred and fifty dollars, with interest thereon. To secure the payment of said notes, they made, executed and delivered their joint mortgage on property therein described. It appears that this action to foreclose the mortgage was duly commenced, and defendant Quantrell appeared in the court below. Defendant Wall, through his attorney, appeared specially and moved the court to vacate the service of the summons on account of alleged defective service, and also filed and served a demurrer to the complaint. The motion and demurrer were each overruled, and judgment of foreclosure entered; also judgment entered for any deficiency that might be found due after applying the proceeds from sale of mortgaged premises. The defendant Ward appeals from said judgment and from the whole thereof. Quantrell does not appeal, and did not appear in this court. The notice of appeal was addressed to the plaintiff alone. Upon the hearing of the case, respondent asks to have the appeal dismissed, and denies the jurisdiction of this court, on the ground that Quantrell was an adverse party to appellant, and that no notice of appeal was given to him. The code provides that any party aggrieved may appeal. By the term "any party" we understand any person who is a party to the action. The party or person appealing is known as the appellant, and the adverse party as the respondent. The appeal is taken by filing with the clerk of the court in which judgment is entered a notice stating the appeal from the judgment or some specified part thereof (Sec. 643, Code), and serving a similar notice on the adverse party. The question now arises, Is Quantrell an adverse party within the meaning of this section of the code, under the circumstances of the case? It was held in Senter et al. v. De Bernal et al., 38 Cal. 637, that every party whose interest in the subject-matter of appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken is an "adverse party" within the meaning of the code, irrespective of the question whether he appears on the face of the record in the attitude of plaintiff or defendant or intervenor. Such, in substance, has been held by many other authorities. Such being the law, we must hold that Quantrell is an adverse party from the facts as they appear in this case, as he may be seriously affected by the reversal or modification of the judgment. He should therefore have been served with the notice of appeal. As it was not so served, and he has not appeared in this court, the appeal must be dismissed: Parker et al. v. Denny, 7 West Coast Rep. 545; Luco v. Commercial Bank of San Diego, Id. 710; Papio v. Center et al. 5 Id. 79; Mills v. Brown, 16 Pet. 525. It is so ordered. BUCK, A. J., and BRODERICK, A. J., concurred. SUPREME COURT OF MONTANA. TERRITORY v. BURNS. Filed January 6, 1886. CRIMINAL LAW-CARRYING CONCEALED WEAPON-INDICTMENT.-An indictment for carrying a concealed weapon upon the person need not contain an averment negativing the exception contained in the statute, providing that the act shall not apply to peaceofficers in the discharge of their official duties. AN INDICTMENT NEED NOT NEGATIVE AN EXCEPTION contained in the statute, unless such exception be necessary to a complete definition of the offense. APPEAL from first district court of Gallatin county. The opinion states the facts. Henry H. Blake, district attorney, and William H. Hunt, attorneygeneral, for the appellant. J. L. Staats, for the respondent. GALBRAITH, J. This is an appeal from a judgment rendered in consequence of an order sustaining a demurrer to the indictment. The offense charged in the indictment was that of bearing a deadly weapon concealed upon the person. This offense is prohibited by the following legislative enactment: "Section 1. It shall be unlawful for any person within the limits of any city, town, or village in this territory to bear concealed upon his person any dirk, dagger, pistol, revolver, or other deadly weapon. "Sec. 2. Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not less than ten dollars nor more than one hundred dollars. "Sec. 3. This act shall not apply to peace-officers in the discharge of their official duties." The demurrer was only upon the ground that the facts stated in the indictment did not constitute a public offense. The charging part of the indictment was as follows: "That Patsey Burns, late of the county of Gallatin aforesaid, on the fifth day of February, A. D. one thousand eight hundred and eighty-five, at the county of Gallatin aforesaid, did unlawfully bear concealed upon the person of him, the said Patsey Burns, a deadly weapon, to wit, a certain revolver within the limits of the town of Timberline, county of Gallatin aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Montana.' It is claimed by the respondent that the failure to aver that he was not a peace-officer in the discharge of his official duty, and thus to negative the exception contained in the statute, renders the indictment fatally objectionable to the foregoing demurrer. It is a rule of pleading in criminal law that the indictment should set forth all that is necessary to constitute a complete description of the offense charged. This is especially true of statutory offenses, which is the character of the misdemeanor alleged in the al ve indictment. The indictment in such case should state all the ingredients of which |