gross was not sufficient to give the stockhold- | Members and stockholders. ers notice that an unauthorized note was in- cluded therein, so that by their inaction they should be held to have ratified it, or to be estopped to deny its validity.-Edwards v. Car- son Water Co., (Nev.) 34 P. 381.
20. In an action to foreclose a mortgage made for a corporation by its president with- out authority, where the complaint states facts showing ratification of the president's act, and the answer simply denies the "due execu- tion" of the mortgage for want of authority. but does not deny the facts stated, showing a ratification, plaintiffs are entitled to judgment without proof of authority.-Gribble v. Colum- bus Brewing Co., (Cal.) 34 P. 527.
26. Where a corporation sold some of stock for nonpayment of assessments, and h the same in, in which the stockholder quiesced, it cannot on its own motion treat the sale as invalid, and reinstate the stockholder. so as to render him liable for the assessment- Patterson v. Brown & Campion Ditch Co., (Colo. App.) 34 P. 769.
Liability for corporate debts.
27. The liability of corporate stockholders to the creditors of the corporation is several, and not joint, and, when proceeded against by se tion, each must be sued separately. Abbey 1. Dry Goods Co., 24 P. 426, 44 Kan. 415, for lowed.-Howell v. First Nat. Bank, (Kan 34 P. 395.
21. A resolution by the board of directors See "Burglary," 2. "that the president and secretary are hereby ordered to commence suit for the collection of assessment" on stock sufficiently shows a waiv er of further proceedings under the chapter for the collection of delinquent assessments.-San Gabriel Valley Land & Water Co. v. Dennis, (Cal.) 34 P. 441.
Actions on subscription.
22. Code 1881, § 2421, as amended by Acts 1886, p. 84, declaring corporations, and the members thereof, liable to all the conditions and liabilities "herein imposed and to none others," and providing (section 2430) for the forfeiture and sale of stock for unpaid subscriptions, does not relieve stockholders from liability to be sued by the corporation on their subscription, and limit the remedy against them to forfeiture and sale of their stock.-Puget Sound & C. R. Co. v. Ouillette, (Wash.) 34 P. 929; Same v. El-
23. When the trustees of a corporation, su- ing on a subscription to its capital stock, show that they have taken steps which the law au thorized them to take, the presumption is that they have taken them regularly; and, if there is any by-law which renders their action irreg- ular, it is matter of defense, and should be so pleaded.-Puget Sound & C. R. Co. v. Ouillette, (Wash.) 34 P. 929; Same v. Elwell, Id.
the recovery of goods, he is entitled to es 1. Where plaintiff recovers in an action for though the goods were converted, and the pr ceeds deposited with the officer of the court- Mansfield v. First Nat. Bank, (Wash.) 34 P.
2. A habeas corpus proceeding by a moth- er against a father to obtain possession of their child is a "special proceeding in the na ture of an action," within the meaning of Code Civil Proc. § 495, providing that costs shal be allowed in such proceedings to plaintiff or a judgment in his favor.-State v. Newell, (Mont 34 P. 28.
trial because of the repeal of the statute under 3. Where an action is dismissed before which it was brought, defendant is not entitled to costs, though Code Proc. § 827, provides that, "in all cases where costs and disburse fendant shall be entitled to have judgment in ments are not allowed to the plaintiff, the de his favor for the same."-Thurston County t Scammel, (Wash.) 34 P. 470; Same v. Beebe,
Petitioner for writ of habeas cor-
4. No costs are taxable against the state in an action which it has permitted to be brought 24. Code 1881, § 2429, provides that a trans- against itself to enable plaintiff to quiet tie fer of corporate stock shall not be valid, ex- to certain land, but when it appeals from a de cept between parties, until the same is record- cision in plaintiff's favor, and thereby puts - ed in the books of the corporation. Section self in the wrong, the costs of appeal are tax 2432 provides that "any stockholder may pledgeable against it.-Romine v. State, (Wash.) 34 his stock by a delivery of the certificate, P. 924. but may, nevertheless, represent the same at all meetings, and vote as a stockholder." chapter further provides that the books contain- ing the record of shareholders shall be open for the inspection of any of the "stockholders or creditors of such corporation." Held, that the title of the pledgee of stock is superior to that of the purchaser on execution against the pledg- ing stockholder, though the transfer to the pledgee is not recorded.-Port Townsend Nat. Bank v. Port Townsend Gas & Fuel Co., (Wash.) 34 P. 155.
Purchase by corporation of its own stock-Conditions of rescission.
25. In an action by a corporation against a former stockholder to recover money paid him by its president for his stock on an ultra vires purchase thereof for plaintiff, the latter is not excused from tendering a return of the stock on the ground that its purchase of its own stock extinguished it, since the stock was not actually extinguished, the only effect of the purchase being to lessen the amount of sub- scribed capital stock, leaving plaintiff free to issue the same number of shares to new sub- scribers, and therefore it could have issued a new certificate to defendant.-Bank of San Luis Obispo v. Wickersham, (Cal.) 34 P. 444.
5. Costs may be properly taxed against one invoking the writ of habeas corpus without meritorious cause.-State v. Reynolds, (Mont) 34 P. 613. Taxation of costs.
6. When the case was set for trial, plain tiff waived a jury, and defendant stated that while he did not demand a jury, he did not er pressly waive it. On the day set for trial a announced that they had agreed to try the jury was in attendance, and the parties thes case without a jury. Plaintiff did not pay of become liable for any jury fees. Held, that be could not recover the jurors' attendance fees as costs.-Freshour v. Hihn, (Cal.) 34 P. ST.
7. Code Civil Proc. § 509, provides that if any party shall include in his verified orandum of costs and disbursements neves sarily incurred any item to which he is not entitled, and his adversary shall prevail with a motion to retax, "there shall be taxed as a part of the cost of such motion, a docket fee of twenty five dollars." Held mandatory in favor of the party moving to retax, and t within the court's discretion.-First Nat, Bank v. Neill, (Mont.) 34 P. 180.
9. Mills' Ann. St. § 699, providing that s in criminal cases shall be paid by the nty when the defendant shall be convicted shall be unable to pay them, and when de- lant is acquitted, "unless the prosecuting ness be adjudged to pay them," refers only the costs of the prosecution, and not to se of defendant. Board Com'rs Fremont inty v. Wilson, (Colo. App.) 34 P. 265.
10. Act March 14, 1889, (16 Sess. Laws, p. .) $$ 8, 9, provided that the county attorney uld be compensated by a salary and certain s. the total not to exceed $3,000. Act rch 6. 1891, (2 Sess. Laws, p. 235,) § 1, vides that the fees of all county officers ned therein shall be turned into the county asury, but the county attorney is not named one of such officers. Section 3 provides that "officers named in section 1 of this act ll be allowed to receive as annual compen- * * as follows:" and the list giv- includes the county attorney and his salary. 'd, that the fees of the county attorney tax- e under Act 1889 cannot be taxed against defendant convicted in a criminal case for
purpose of being collected and turned into county treasury. - State v. Middleton, ont.) 34 P. 184.
11. Act March 6, 1891, (2 State Sess. Laws, 3.) requiring the clerk of the supreme court collect "in advance" from the appellant a cket fee of $10 on filing the transcript, ap- es to criminal cases appealed by the state.- ate v. Northrup, (Mont.) 34 P. 608.
express trust.-McClure v. Board Com'rs La Plata County, (Colo. Sup.) 34 P. 763.
3. Const. art. 11, § 5, empowers the legis- lature to provide for the election in all coun- ties of district officers, and to prescribe their terms of office. Section 6 provides that the board of county commissioners shall fill all vacancies in any road district office by ap- pointment. Code, vol. 1, § 1937, provides that such boards shall divide such counties into suit- able road districts, and may change the boun- daries thereof not oftener than once a year. Section 1938 provides for elections in the sev- eral counties of an elector of each road district as road overseer, to hold office for two years, or until his successors are elected and qualified. Section 342 provides that every office shall be- come vacant on the incumbent's ceasing to be an inhabitant of the district for which he was elected, or within which the duties of his office are to be discharged. Held that, where a per- son had been elected road overseer of a cer-
tain district, the commissioners could not create a vacancy in the office of road overseer in such district by so changing its boundaries as to leave out that part in which such person re- sided, and adding it to another district.-State v. Nelson, (Wash.) 34 P. 562. County board-Meetings.
4. The acts of a board of county commis sioners between its regular meetings are void where its records show that the preceding reg- ular meeting was adjourned sine die, and fail to show a compliance with the provisions of Gen. St. § 1945, for calling special meetings.- State v. Board Com'rs Washoe County, (Nev.)
Duty to furnish space for law library.
5. The setting apart by the county board of supervisors of a few feet, for shelf room for a law library, in a large room occupied by the principal county officers, and by the board of supervisors when in session, where access to the books is obstructed, and rendered great- ly inconvenient, by furniture and other articles occupying the room, and where the books can- not be consulted or used with reasonable con-
guments of, see "Criminal Law," 22-24; venience, is not providing such a library room 'Trial," 8, 9.
e, also, "Highways;" "Irrigation;" "Schools and School Districts."
elegation of power to tribunal transacting county business, see "Constitutional Law," 4. scretion of district attorney, see "Manda- mus," 6.
forcing lien against courthouse, see "Me hanics' Liens," 6.
position of license tax, see "License."
1. Under Const. art. 11, § 5, declaring that e legislature, by general and uniform laws, all provide for the election or appointment in e counties of supervisors, sheriffs, clerks, and ch other county and municipal officers as pub- convenience may require, and shall prescribe eir duties and fix their terms of office, a coun- cannot create the office of license tax col- etor, and make appointments therefor.- El orado County v. Meiss, (Cal.) 34 P. 716.
2. A county treasurer, whose bond is con- tioned that he shall faithfully perform the ties of his office, pay, according to law, all oneys which shall come into his hands as easurer, render true account thereof whenev- required by the commissioners or by law, d deliver to his successor, or any person au- orized by law to receive them, all moneys, boks, papers, etc., of his office, and whose stat- ory duty it is to receive all moneys belonging the county, and pay them out only on the ders of the board, except where otherwise ecially provided by law, is a trustee of an
for the use of the law library as is contem- plated by Act March 31, 1891, providing for the establishment of law libraries in the dif- ferent counties of the state.-Board of Law Li- brary Trustees v. Board Sup'rs Orange County, (Cal.) 34 P. 244.
Statutes applicable at option of county -Effect of acceptance.
6. After the board of supervisors of a county has voted that Act March 31, 1891, es- tablishing law libraries, shall be applicable to such county, it cannot evade the force and ef- fect of the statute by repealing the adopting ordinance, since the county, after once coming within the provisions of the act, is there for had passed directly under the provision of the all purposes, as fully and completely as if it
act at the date of its enactment.-Board of
Law Library Trustees v. Board Sup'rs Orange County, (Cal.) 34 P. 244. Contracts.
7. Under Gen. St. § 3136, which requires the county auditor, at the county's expense, to procure a full set of weights and measures for his county, it is not necessary that the county commissioners authorize the purchase by the county auditor, or subsequently ratify it, to make it binding on the county. - George D. Barnard & Co. v. Wahkiakum Čounty, (Wash.) 34 P. 920.
8. Act March 14, 1883, (County Govern- ment Act,) authorizes the county board of supervisors to issue bonds, and provides that the bonds shall be delivered to the county treas- urer, by whom they shall be sold to the highest bidder. Section 25 further authorizes the board to do "all other acts and things *
which may be necessary to the full discharge | Term-Time. of the duties of the legislative authority of the county government." Held, that the board did not have authority, under section 25, to em- ploy an agent to procure_bids to be made for such bonds. Smith v. Los Angeles County, (Cal.) 34 P. 439.
9. Printers who publish a delinquent tax list, and fail to transmit to the county treasurer the affidavit required by Gen. St. 1889, c. 107, $108, cannot recover pay for such publication from the county.-Moriarty v. Board Com'rs Morris County, (Kan.) 34 P. 781.
Allowance by county board. 10. Gen. St. 88 521, 523, provide that the powers of an organized county shall be exer- cised by the county commissioners. Section 538 provides that such board shall have power to examine and allow all accounts chargeable against the county. Section 545 provides that no account shall be allowed by the board unless it is made out in separate items, and, where no specified fees are allowed by law, the time ac- tually given to the service charged in such ac- count shall be specified. Held, that such board has a reasonable discretion in the administra- tion of county affairs and in the allowance of claims for services performed for the county by a county officer, for which no specified fees are allowed by law.-Board Com'rs Garfield County v. Leonard, (Colo. App.) 34 P. 583.
11. Where one board of commissioners al- lows and pays duly itemized and verified ac counts of a county officer for services in the line of official duty, for which no specified fees are allowed by law, a subsequent board can- not recover back from such officer the whole sum so paid him, on the ground that it was for overcharges, and paid by mistake, in the absence of fraud on his part in obtaining pay- ment.-Board Com'rs Garfield County v. Leon- ard, (Colo. App.) 34 P. 583.
12. A county can maintain an action for a license tax, though the provision of the ordi- nance of its supervisors imposing the license tax, which creates the office of license tax col- lector, and appointing a person to fill it, is void; since, the amount of the tax being fixed and declared by the ordinance to be a debt due the county, to be collected by action in the name of the county, its general power to sue is not af- fected by the provision that the action shall be by direction of the license tax collector. El Dorado County v. Meiss, (Cal.) 34 P. 716.
See, also, "Judge:" "Justices of the Peace." Adjournment by clerk, see "Clerk of Court." Admiralty jurisdiction of state courts, see "Ad- miralty.'
Compelling courts to entertain appeal, see "Man- damus," 3, 4.
Control of executive department, see "Consti- tutional Law," 6.
Trial by court without jury, see "Trial," 22-25.
Submission of questions by governor and legislature.
2. In the absence of a statute preserving the term in such a case, the nonattendance f the judge on the day fixed by law for opening the term results in the lapse and loss therest. In re Terrill, (Kan.) 34 P. 457; In re Me Claskey, Id. 459.
When judge acts as court.
3. Under the present constitution, when- ever a judge of the superior court is present at the place designated for the transaction of act such business, his acts are the acts of the judicial business, and there assumes to trans "court;" and therefore an order dispensing with an undertaking on an appeal, made a signed by a judge of the superior court of Saz of the departments of the court at its cont Francisco county while holding a session of oce il Proc. § 946, providing that the "court" be room, is a sufficient compliance with Code Cir- low may dispense with an undertaking on ap- peal in certain cases.-Von Schmidt v. Widber. (Cal.) 34 P. 109.
Jurisdiction-Of appellate courts.
4. Const. art. 8. § 11, which provides that the district court "shall have appellate jurie diction in all cases arising in justice's and ferior courts, in their respective districts, as may be provided by law, and consistent with this constitution," does not limit the appellate jurisdiction of such court to appeals from jus tices' and inferior courts only, and prohibit the legislature from providing for appeal to the district court by the party aggrieved by the se tion of the state board of medical examines in revoking the license of a physician to me tice medicine and surgery.-State v. District Court of First Judicial District, (Mont.) 34 P. 298.
5. Sess. Laws 1891, p. 118, provides that no writ of error from the supreme court shall lie to review the final judgment of an inferior court unless the construction of a provision of the state or federal constitution is necess ry. Held, that where an inferior court has found the determination of a constitutional question necessary, the supreme court, on writ of error, has entire jurisdiction, not only of the constitutional question raised, but of all matters necessary to a complete determination of the case.-Trimble v. People, (Colo. Sup.) 34 P. 981.
6. Under the act of 1891, creating the court of appeals, and depriving the supreme court of jurisdiction of writs of error and ap peals, unless the judgment exceeds $2,500, or the matter relates to a franchise or freehold. or requires a construction of the federal or state constitution, error does not lie to a dis- trict court's judgment of dismissal in an a tion for usurpation of a public office.-People v. Carver, (Colo. Sup.) 34 P. 576.
7. A county court, having by statute full control of the estates of decedents and the persons administering them, and also having. as to matters within its jurisdiction, the pow ers of a court of equity, may order an admin istrator, who is wasting the assets of the es tate, to turn over the funds in his hands, till his affairs can be investigated, or until he can be removed, and his successor appointed.-P 1. Under the constitutional provision re-ple v. County Court of Arapahoe County, (Cola App.) 34 P. 166. quiring the supreme court to answer questions propounded by the legislature and governor, Offenses against United States-By what a question as to the priority of appropriations where their aggregate exceeds the constitution- law governed. al limitation. involving claims of private par- ties against the state, should not be answered, as this would be a mere ex parte adjudication, in violation of Const. art. 2, § 25, providing that no one shall be deprived of property with- out due process of law. In re Priority of Leg- islative Appropriations, (Colo. Sup.) 34 P. 277.
8. On the trial in a territorial court of an offense against the laws of the United States. the question whether such offense is a felony or misdemeanor is to be determined by reference to the laws of the United States, and not those of the territory.-United States v. Vigil (N. M.) 34 P. 530.
Following decisions of United supreme court.
States caprice of the jury, has been convicted of a lower grade, or even acquitted, cannot affect the question of his guilt or innocence. State v. Bogue, 34 P. 410, 51 Kan. followed.-State v. Patterson, (Kan.) 34 P. 784. Former jeopardy.
9. As the supreme court of the United States has decided that it has authority to re- examine the judgment of a state court as to the power of national banks under the act of con- gress, a state court should follow its decisions on the question.-First Nat. Bank v. Andrews, (Wash.) 34 P. 913; Young v. Same, Id.
CRIMINAL LAW.
See, also, "Bail;" "Habeas Corpus;" "Indict- ment and Information;" "Jury;" "Witness."' Particular crimes and prosecutions, see "Ar- son;" "Burglary;" "Contempt;" "False Pre- tenses;" "Forgery;" "Homicide," "Intoxica- ting Liquors;" "Larceny:" "Obstructing Jus- tice;" "Receiving Stolen Goods;" "Robbery." Bond on appeal, see "Bail," 1.
Costs in criminal cases, see "Costs," 9-11. Instructions as to possession of stolen property, province of jury, see "Burglary," 3, 4. Offenses against election laws, see "Elections
United States, by what law governed, see
Felonies and misdemeanors.
1. An offense which may be punished by confinement and hard labor for a term not ex- ceeding two years is a felony.-In re Stevens, (Kan.) 34 P. 459.
2. If the act constituting an offense against a law of the United States was not criminal at common law, and is not wrong per se, it is to be deemed a misdemeanor, unless the law expressly denominates it a felony. - United States v. Vigil, (N. M.) 34 P. 530.
3. Under Supp. Rev. St. U. S. c. 144, § 1, providing that persons embezzling any money of the United States shall be deemed guilty of a felony, a postmaster convicted of embezzling from the money-order funds is guilty of a fel- ony, such money belonging to the United States; Rev. St. § 4045, providing that all such funds shall be deemed to be in the national treasury.-United States v. Swan, (N. M.) 34 P. 533.
4. Where a defendant is convicted in the superior court of petit larceny, on an informa- tion which charges him with grand larceny, he may be confined in the county jail under such conviction, though the superior court has no jurisdiction of petit larceny, since the charge of grand larceny gave the court jurisdiction, and Pen. Code, § 1159, authorizes a conviction of petit larceny when grand larceny is charged. -Ex parte Bell, (Cal.) 34 P. 641.
5. A trial and conviction at a time when the court cannot be legally held is a nullity In re Terrill, (Kan.) 34 P. 457; In re Mc- Claskey, Id. 459.
Principals and accessories.
6. On the trial of one, who was jointly charged with another with the crime of man- slaughter, the evidence tended to show that the latter was guilty as principal, and that the defendant was accessory before the fact. Held, that the acquittal of the alleged principal was not a bar to the prosecution of the acces- sory.-State v. Bogue, (Kan.) 34 P. 410. 7. Under the statutes of this state, one who procures, counsels, or commands a criminal of fense may be considered as principal, and be punished as such, and it is not necessary to name the real principal in the indictment. State v. Patterson, (Kan.) 34 P. 784.
8. Since an accessory before the fact may be tried and convicted in the same manner as if he were principal, it follows that he may be convicted of that degree of the crime which the evidence against him establishes; and the fact that the principal, through failure of proof or
9. On the second trial of a criminal case, the record of the first trial, showing that the jury had been discharged on their statement that they could not agree, after deliberating only six hours, will not support a plea of for- mer jeopardy, as Pen. Code, § 1140, providing that the jury may be discharged "at the expira- tion of such time as the court may deem prop- er," if "it satisfactorily appears that there is no probability that the jury can agree," does not require the record to show that it satisfactorily appeared to the judge that there was no such probability.-People v. Greene, (Cal.) 34 P. 630. 10. Pen. Code, § 1159, provides that defend- ant may be found guilty of any offense, the that with which he is charged. Defendant was commission of which is necessarily included in convicted of an assault under an information
charging him with an assault with intent to mayhem.-People v. Defoor, (Cal.) 34 P. 642.
kill. Held to bar a trial on an indictment for
11. The doctrine of merger does not apply in such case, for a conviction of mayhem could not merge a prior conviction and judgment for the same assault; but, if the information for mayhem had been the only one filed, a convic- tion would have merged the lower included of- fense of assault.-People v. Defoor, (Cal.) 34 P. 642. Venue-Proof.
12. Where an indictment charges the of- fense to have been committed in the county of Los Angeles, evidence showing the crime to have been committed in the city of Los An- geles is sufficient proof of venue, since the court will take judicial notice that the city of Los Angeles is the county seat of Los Angeles county.-People v. Etting, (Cal.) 34 P. 237. Time of trial.
13. Code Proc. § 1369, provides that if de- fendant in a criminal case, whose trial has not been postponed on his own application, be not brought to trial within 60 days after the indict- ment, the court must order it to be dismissed, unless good cause to the contrary be shown. set aside on his own motion, and a new trial Held, that where a conviction of defendant was ordered, the running of the 60 days should not commence until the date of that order. Dun- bar, C. J., and Stiles, J., dissenting. In re Murphy. (Wash.) 34 P. 834.
14. Gen. St. § 1609, provides that if any per- son shall be committed for a criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court hav- ing jurisdiction, he shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. Held that, where two full terms of court passed without any in- dictment being returned against a prisoner who was committed in default of bail, he was en- titled to an absolute discharge.-Cummins v. People, (Colo. App.) 34 P. 734. Consolidation of prosecutions.
15. Where two indictments, alike in sub- stance and form, are returned against one per- son, charging him with obtaining money from two different persons at two different times, the two cases cannot be consolidated, and tried as one case.-Cummins v. People, (Colo. App.) 34 P. 734.
Separate trial of joint defendants.
16. Under Crim. Pr. Act, § 302, providing that two or more defendants, jointly indicted for a misdemeanor, shall be tried jointly or separately, in the discretion of the court, er- ror cannot be predicated on the refusal of a separate trial to one of three defendants joint-
ly charged with conspiracy, (a misdemeanor,) in the absence of the showing of an abuse of discretion.-State v. Davis, (Mont.) 34 P. 182. Conduct of trial-View by jury.
17. On a criminal trial the jury may, by con- sent of parties, be permitted to view the place of the alleged crime without defendant's pres- ence, as such view is no part of the trial, and as defendant's constitutional right to be pres- ent at the trial is not thereby violated.-State v. Lee Doon, (Wash.) 34 P. 1103.
Reception of evidence.
18. It is no ground for excluding a witness for defendant that, without defendant's fault, he disobeyed an order for the exclusion of wit- nesses during the trial.-State v. Lee Doon, (Wash.) 34 P. 1103.
19. Where several defendants are tried to- gether for crime, and each has separate coun- sel, it is error to limit the cross-examination of the witnesses of the prosecution to one of the counsel for the defense.-State v. Davis, (Mont.) 34 P. 182.
Remarks and misconduct of judge. 20. Where a witness for the state, in a crim- inal case, is absent when wanted, and is brought in by an officer, it is error for the court, in the presence of the jury, to hold a colloquy with such witness, which tends to dis- credit defendant and his counsel, and lead the jury to believe that, if they were not guilty of a grave offense in procuring the absence of the witness, they were, in the opinion of the court, capable of committing it, and that such conduct on their part could only be induced by con- sciousness of defendant's guilt.-People v. Ab- bott, (Cal.) 34 P. 500.
21. In a criminal prosecution, where the jury return into court some time after the case has been submitted to them, and state that there is no prospect for an agreement, it is prejudicial error for the judge to state that, in view of the evidence, he is at a loss to understand why the jury should disagree, since such remark cannot fail to create the impression that in his opinion the evidence required a conviction; and such error is not cured by his afterwards telling them that they are sole judges of all questions of fact, and of the credibility of the witnesses. -People v. Kindelberger, (Cal.) 34 P. 852.
Argument and remarks of coun-
22. A trial for robbery lasted five days, three of which were occupied in hearing 24 witnesses. The evidence was circumstantial and conflicting. Held, that an order of the court limiting the time of argument of counsel to one hour exceeded the discretionary power of the court.-People v. Green, (Cal.) 34 P. 231. 23. Where, on a trial for an assault, it was in evidence that defendant,, a deputy sheriff, finding the prosecuting witness at work on land which defendant claimed to own, unnec- essarily assaulted and insulted him, it was not an abuse of privilege for the prosecuting at- torney to say to the jury that defendant, be- cause he was deputy sheriff, thought he was a big man, and had a right to bulldoze and over- ride all the people in the neighborhood.-Chacon v. Territory, (N. M.) 34 P. 448.
24. It is defendant's duty to object to im- proper language in the opening statement of the prosecuting officer, and to secure a ruling there- on; and ordinarily, if this is not done, no review of the ruling can be had.-State v. Sortor, (Kan.) 34 P. 1036.
Misconduct of prosecuting attor-
25. Where, on a prosecution for forgery, the chief evidence against defendant was the tes- timony of H., the principal in the crime, and in his own behalf his own testimony, a con- viction will be reversed where the prosecuting attorney asked defendant if he had not at an-
other time forged his father-in-law's name, and also asked the captain of police (telling t not to answer until defendant had an oppor tunity to object) if one S. had not come to Lim and reported about defendant wanting him v tell H. to skip, though the questions are st en out, since the asking of them was prejud cial and inexcusable, and made evidently fr the purpose of taking an unfair advantage of defendant.-People v. Wells, (Cal.) 34 P. 13 Evidence.
26. In a prosecution for robbery, evidence is to the disappearance and present whereaborts of prosecuting witness' daughter, who had lef home the day of the robbery, was immateris where it appeared that one defendant that day called on prosecuting witness, at her home, ad told her that her daughter was at his house that thereupon witness went with him to house, and there, as she and others swore, was robbed of her money and jewels. Nor end there be prejudice when another witness testi fied that he had at that time taken said dang- ter away to a correct and lawful residere- People v. Chuey Ying Git, (Cal.) 34 P. 15) involved the taking of money, the fact that 27. On a prosecution for a burglary whid money recovered from defendant was not er testimony concerning it. State v. Munson. hibited in court was no ground for excluleg (Wash.) 34 P. 932.
the murder is admissible, though he ha! bes 28. Evidence that a third person is guilty of previously acquitted of the offense.-People v. Mitchell, (Cal.) 34 P. 698.
ecuting witness having testified that the crime 29. The parties being Chinese, and the pros took place on a certain Chinese date; that se it was the day before she made complaint- knew nothing of the American dates, but that the district attorney, in order to fix the date may put in evidence the complaint.-People v. Chuey Ying Git, (Cal.) 34 P. 1080. given on a previous trial may be read against 30. Testimony of a defendant voluntarily him.-State v. Sortor, (Kan.) 34 P. 103.
read only that part of the testimony given by 31. In such case the state is required to the defendant which relates to the partienkr subject before the jury.-State v. Sortor, (Kan.) 34 P. 1036.
Indorsing names of witnesses on information.
32. Under Code Proc. § 1230, providing that the prosecuting attorney shall indorse on the information names of the witnesses known to him at the filing thereof, and, at such time be fore the trial as the court may prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him, the name of a witness not known to the prosecuting attorney at the time of filing the information may be indorsed thereon during the impaneling of the jury, before it is sworn and accepted- State v. Lee Doon, (Wash.) 34 P. 1103.
Constitutional right to confront
33. Rev. St. § 4046, providing that on tris! for an indictment for embezzlement of money- order funds a transcript from the money-orier account books of the sixth auditor shall be prima facie evidence of a balance due, is not in violation of Const. U. S. 6th Amend., pre- viding that in all criminal cases the accused shall enjoy the right to be confronted with the witnesses against him.-United States v. Swan, (N. M.) 34 P. 533.
Confessions and admissions.
34. The fact that defendant testified in sa insolvency proceeding in obedience to a citation did not deprive him of his right to refuse to a swer questions tending to criminate him; and an admission made by him in such proceeding is voluntary, and competent evidence in a criminal prosecution subsequently inaugurated, where he
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