Page images
PDF
EPUB

llowing decisions of United States caprice of the jury, has been convicted of a
supreme court.

lower grade, or even acquitted, cannot affect
9. As the supreme court of the United the question of his guilt or innocence. State v.
ites has decided that it has authority to re

Bogue, 34 P. 410, 51 Kan. followed.-State
imine the judgment of a state court as to the

v. Patterson, (Kan.) 34 P. 781.
ver of national banks under the act of con- Former jeopardy.
ss, a state court should follow its decisions 9. On the second trial of a criminal case,
the question.-First Nat. Bank v. Andrews, the record of the first trial, showing that the
ash.) 34 P. 913; Young y. Same, Id.

jury had been discharged on their statement

that they could not agree, after deliberating
CRIMINAL LAW.

only six hours, will not support a plea of for-

mer jeopardy, as Pen. Code, $ 1140, providing
2, also, “Bail;” “Habeas Corpus;” “Indict. that the jury may be discharged "at the expira-
nent and Information;" “Jury;" "Witness."

tion of such time as the court may deem prop-
rticular, crimes and prosecutions, see "Ar- er,”, if it satisfactorily appears that there is no
jon;" "Burglary;" "Contempt;" "False Pre-

probability that the jury can agree," does not
enses;” “Forgery;" "Homicide;" “Intoxica- require the record to show that it satisfactorily
ing, Liquors;". "Larceny;": "Obstructing Jus- appeared to the judge that there was no such
ice;" "Receiving Stolen Goods;" "Robbery." probability.- People v. Greene, (Cal.) 34 P. 630.
jnd on appeal, see "Bail," 1.

10. Pen. Code, § 1159, provides that defend-
sts in criminal cases, see "Costs,” 9–11.

ant may be found guilty of any offense, the
structions as to possession of stolen property, that with which he is charged. Defendant was

commission of which is necessarily included in
province of jury, see "Burglary," 3, 4.
fenses against election laws, see Elections convicted of an assault under an information
ind Voters," 9, 10.

charging him with an assault with intent to
United States, by what law governed, see kill. Held to bar a trial on an indictment for
*Courts," 8.

mayhem.-People y. Defoor, (Cal.) 34 P. 642.

11. The doctrine of merger does not apply
elonies and misdemeanors.

in such case, for a conviction of mayhem could
1. An offense which may be punished by not merge a prior conviction and judgment for
infinement and hard labor for a term not ex- the same assault; but, if the information for
eding two years is a felony.-In re Stevens, mayhem had been the only one filed, a convic-
Tan.) 34 P. 459.

tion would have merged the lower included of.
2. If the act constituting an offense against fense of assault.-People v. Defoor, (Cal.) 34
law of the United States was not criminal P. 642.
common law, and is not wrong per se, it is Venue-Proof.
be deemed a misdemeanor, unless the law 12. Where an indictment charges the of-
*pressly denominates it a felony. – United fense to have been committed in the county of
ates v. Vigil, (N. M.) 34 P. 530.

Los Angeles, evidence showing the crime to
3. Under Supp. Rev. St. U. S. c. 144, § 1, have been committed in the city of Los An-
oviding that persons embezzling any money geles is sufficient proof of venue, since the

the United States shall be deemed guilty of court will take judicial notice that the city of
felony, a postmaster convicted of embezzling Los Angeles is the county seat of Los Angeles
om the money-order funds is guilty of a fel, county. People v. Etting, (Cal.) 34 P. 237.
uy, such money belonging to the United
ates; Rer. St. $ 4045, providing that all such Time of trial.
inds shall be deemed to be in the national 13. Code Proc. $ 1369, provides that if de-
easury.-United States v. Swan, (N. M.) 34 fendant in a criminal case, whose trial has not
. 533.

been postponed on his own application, be not
urisdiction.

brought to trial within 60 days after the indict-
4. Where a defendant is convicted in the ment, the court must order it to be dismissed,
iperior court of petit larceny, on an informa- unless good cause to the contrary be shown.

on which charges him with grand larceny, he Held, that where a conviction of defendant was
5.ay be confined in the county jail under such set aside on his own motion, and a new trial

ordered, the running of the 60 days should not
inviction, though the superior court has no

commence until the date of that order. Dun-
trisdiction of petit larceny, since the charge bar, C. J., and Stiles, J., dissenting. – In re

grand larceny gave the court jurisdiction, Murphy, (Wash.) 34 P. 834.
ad Pen. Code, š 1159, authorizes å conviction 14. Gen. St. 8 1609, provides that if any per-
* petit larceny when grand larceny is charged. son shall be committed for a criminal matter,
-Ex parte Bell, (Cal.) 34 P. 641.

and not admitted to bail, and shall not be tried
5. A trial and conviction at a time when on or before the second term of the court hav.
le court cannot be legally held is a nullity.-

ing jurisdiction, he shall be set at liberty by
1 re Terrill. (Kan.) 34 P. 457; In re Mc- the court, unless the delay shall happen on the
laskey, Id. 459.

application of the prisoner. Held that, where
'rincipals and accessories.

two full terms of court passed without any in-
6. On the trial of one, who was jointly dictment being returned against a prisoner who
harged with another with the crime of man-

was committed in default of bail, he was en-
aughter, the evidence tended to show that titled to an absolute discharge.-Cummins v.
ne latter was guilty as principal, and that the People, (Colo. App.) 34 P. 731.
efendant

before the fact, Consolidation of prosecutions.
"eld, that the acquittal of the alleged principal

15. Where two indictments, alike in sub-
'as not a bar to the prosecution of the acces-

stance and form, are returned against one per-
ory.-State v. Bogue. (Kan.) 34 P. 410.

7. Under the statutes of this state, one who son, charging him with obtaining money from
i-rocures, counsels, or commands a criminal of two different persons at two different times, the
ense may be considered as principal, and be two cases cannot be consolidated, and tried as
unished as such, and it is not necessary to

one case.-Cummins v. People, (Colo. App.) 34

P. 734.
ame the real principal in the indictment.
tate v. Patterson, (Kan.) 31 P. 781.

Separate trial of joint defendants.
8. Since an accessory before the fact may 16. Under Crim. Pr. Act, $ 302, providing
e tried and convicted in the same manner as that two or more defendants, jointly indicted

he were principal, it follows that he may be for a misdemeanor, shall be tried jointly or
onvicted of that degree of the crime which the separately, in the discretion of the court, er-
vidence against him establishes; and the fact ror cannot be predicated on the refusal of a
hat the principal, through failure of proof or separate trial to one of three defendants joint-

was

accessory

ly charged with conspiracy, (a misdemeanor,) other time forged his father-in-law's Dape,
in the absence of the showing of an abuse of also asked the captain of police (telling
discretion.-State v. Davis, (Mont.) 34 P. 182. not to answer until defendant had an op
Conduct of trial-View by jury.

tunity to object) if one S. had not come to L

and reported about defendant wanting his to
17. On a criminal trial the jury may, by con- tell H. to skip, though the questions are not
sent of parties, be permitted to view the place en out, since the asking of them was prej
of the alleged crime without defendant's pres, cial and inexcusable, and made evidents to
ence, as such view is no part of the trial, and the purpose of taking an unfair advantages
as defendant's constitutional right to be pres-defendant.-People v. Wells, (Cal.) 34 P. 15
ent at the trial is not thereby violated.-State
v. Lee Doon, (Wash.) 34 P. 1103.

Evidence.

26. In a prosecution for robbery, evide.ee 13
Reception of evidence.

to the disappearance and present whereabh
18. It is no ground for excluding a witness of prosecuting witness' daughter, who had let:
for defendant that, without defendant's fault, home the day of the robbery, was immaters.
he disobeyed an order for the exclusion of wit- where it appeared that one defendant that cas
nesses during the trial.-State v. Lee Doon, called on prosecuting witness, at her home ed
(Wash.) 34 P. 1103.

told her that her daughter was at his bar
19. Where several defendants are tried to that thereupon witness went with him tu 3
gether for crime, and each has separate coun- house, and there, as she and others swore, u
sel, it is error to limit the cross-examination robbed of her money and jewels. Not ea
of the witnesses of the prosecution to one of there be prejudice when another with ss test
the counsel for the defense.--State v. Davis, fied that he had at that time taken said dează-
(Mont.) 34 P. 182.

ter away to a correct and lawful resident
Remarks and misconduct of judge. People v. Chuey Ying Git, (Cal.) 34 P. 1
20. Where a witness for the state, in a crim- \ involved the taking of money, the fact that

27. On a prosecution for a burglary ud
inal case, is absent when wanted, and is
brought in by an officer, it is error for the hibited in court was no ground for exceeds

money recovered from defendant was not ex
court, in the presence of the jury, to hold a

Moon
colloquy with such witness, which tends to dis- testimony concerning it. — State
credit defendant and his counsel, and lead the (Wash., 34 P. 932.
jury to believe that, if they were not guilty of the murder is admissible, though he had be

28. Evidence that a third person is guilty a
a grave offense in procuring the absence of the previously acquitted of the offense.-People i.
witness, they were in the opinion of the court, Mitchell.*(Cal.) 34 P. 698.
capable of committing it, and that such conduct

29. The parties being Chinese, and the gens
on their part could only be induced by consecuting witness having testified that the case
sciousness of defendant's guilt.—People v. Ab- took place on a certain Chinese date; that ce
bott, (Cal.) 34 P. 500.
21. In a criminal prosecution, where the jury it was the day before she made complaiat-

knew nothing of the American dates, but the
return into court some time after the case has the district attorney, in order to fix the date
been submitted to them, and state that there is
no prospect for an agreement, it is prejudicial may put in evidence the complaint.-People *.
error for the judge to state that, in view of the Chuey Ying Git, (Cal.) 34 P. 1080.
evidence, he is at a loss to understand why the given on a previous trial may be real agais

30. Testimony of a defendant voluntaris
jury should disagree, since such remark cannot him.-State v. Sortor, (Kan.) 31 P. 103
fail to create the impression that in his opinion
the evidence required a conviction; and such read only that part of the testimony gired by

31. In such case the state is required to
error is not cured by his afterwards telling the defendant which relates to the particular
them that they are sole judges of all questions subject before the jury.-State v. Sortor, (KL
of_fact, and of the credibility of the witnesses. 34 P. 1036.
- People v. Kindelberger, (Cal.) 34 P. 852.

Indorsing names of witnesses on
Argument and remarks of coun-

information.
sel.

32. Under Code Proc. § 1230, providing that
22. A trial for robbery lasted five days, the prosecuting attorney shall indorse on the
three of which were occupied in hearing 24 information names of the witnesses known to
witnesses. The evidence was circumstantial him at the filing thereof, and, at such time be
and conflicting. Held, that an order of the fore the trial as the court may preseribe be
court limiting the time of argument of counsel shall indorse thereon the names of such othe
to one hour exceeded the discretionary power witnesses as shall then be known to him, the
of the court.-People v. Green, (Cal.) 31 P. 231.

name of a witness not known to the prosecuting
23. Where, on a trial for an assault, it was attorney at the time of filing the informata
in evidence that defendant,, a deputy sheriff, may be indorsed thereon during the impape.is
finding the prosecuting witness at work on of the jury, before it is sworn and acceptel-
land which defendant claimed to own, unnec State v. Lee Doon, (Wash.) 34 P. 1103.
essarily assaulted and insulted him, it was not
an abuse of privilege for the prosecuting at-

Constitutional right to confront
torney to say to the jury that defendant, be witnesses.
cause he was deputy sheriff, thought he was a

33. Rev. St. $ 4046, providing that on tria!
big man, and had a right to bulldoze and over- for an indictment for embezzlement of roc-
ride all the people in the neighborhood.—Chacon order funds a transcript from the moneroris
v. Territory, (N. M.) 34 P. 448.

account books of the sixth auditor shall be
24. It is defendant's duty to object to im- prima facie evidence of a balance due, is set
proper language in the opening statement of the in violation of Const. U. S. 6th Amend., per
prosecuting officer, and to secure a ruling there. viding that in all criminal cases the aer
on; and ordinarily, if this is not done, no review shall enjoy the right to be confronted with the
of the ruling can be had.-State v. Sortor, witnesses against him.-United States v. S
(Kan.) 31 P. 1036.

(N. M.) 34 P. 533.
Misconduct of prosecuting attor Confessions and admissions.
ney.

34. The fact that defendant testified in ga
25. Where, on a prosecution for forgery, the insolvency proceeding in obedience to a citation
chief evidence against defendant was the tes. did not deprive him of his right to refuse to a
timony of H., the principal in the crime, and swer questions tending to criminate him; and
in his own behalf his own testimony, a an admission made by him in such proceedios 's
viction will be reversed where the prosecuting voluntary, and competent evidence in a crimisal
attorney asked defendant if he had not at an- prosecution subsequently inaugurated. where be

con-

was not in custody, or charged with a criminal it was deliberate and premeditated.-People v.
offense, when he made such admission.-People Lane, (Cal.) 34 P. 856.
v. Weiger, (Cal.) 34 P. 826.

44. On a prosecution for embezzleinent, evi-
35. Under Code Proc. $ 1308, which provides dence that defendant, two months after the of-
that confessions made by inducement, with all fense charged in the information embezzled an-
the circumstances, may be given in evidence, ex other sum of money from defendant, is not ad-
cept when made under the influence of fear pro- missible to show his intention in taking the first
duced by threats, it is proper to admit evidence sum.--People v. Hill, (Cal.) 34 P. 854.
of inculpatory declarations made by defendant Instructions.
to the officers having him in custody, if no
threats were made, and the declarations were

45. Instructions telling the jury of their duty
free and voluntary.-State v. Munson, (Wash.) | to convict if the evidence satisfies them of de
31 P. 932.

fendant's guilt, though not erroneous, are better

omitted.--People v. Crowl, (Cal.) 34 P. 860.
Of accomplices and codefendants.

46. Where there is even slight evidence that
36. The uncorroborated testimony of an ac- the offense committed may have been of a
complice is legally sufficient to sustain a ver- lower degree than the one charged, it is proper
dict, and the degree of credit which ought to for the trial court to give to the jury the law
be given to his testimony is a matter exclusive of such inferior offenses.-State v. Patterson,
ly within the province of the jury; but it is (Kan.) 34 P. 784.
the duty of the trial judge, if requested so to 47. Defendant, having admitted subsequent
do, to advise the jury not to convict upon the knowledge of the crime, was entitled to an in-
testimony of an accomplice alone, unless cor-struction that such confession was not evi-
roborated by other evidence as to some ma- dence of actual participation, but went to show
terial fact. --State v. Patterson, (Kan.) 34 P. that he was an accessory after the fact, and
781.

was no basis for his conviction as principal or
37. Where the only evidence to convict de active participant; and an instruction that
fendant of a robbery is that of an accomplice, such admission, taken alone, and without oth:
who testifies that defendant planned the rob er testimony of actual participation, "would
bery, and received part of the proceeds, and not be sufficient" to convict him, was mislead-
that of two witnesses, that they had seen de ing_and erroneous.-State v. Payne, (Wash.)
fendant and the accomplice together on two 34 P. 317.
occasions before the robbery, there is no such 48. The fact that on the refusal to give an
corroboration of the evidence of the accom- instruction on the ground that the substance
plice, as required by Pen. Code, $ 1111, as to thereof had already been given the instruction
justify conviction.- People v. Larsen, (Cal.) 34 was simply marked “Refused," without stating
P. 514.

the ground of the refusal, is not an error of
35. Testimony of a woman that she gave to which advantage can be taken on appeal.-Peo
defendant, who was charged with being her ple v. Douglass, (Cal.) 34 P. 490.
accomplice, money which she admitted having 49. An instruction that “where there are
stolen from one G., and that defendant had two presumptions, one in favor of innocence,
advised her to "work" some money out of G., and the other in favor of a criminal course,
is not corroborated by evidence that, when the the former must prevail, is properly refused, as
woman was arrested for the larceny, defendant there can be but the one presumption of inno-
asked to see her, told the sheriff that he had cence in a criminal case. - People v. Douglass,
arrested the wrong woman, and told the under- (Cal.) 34 P. 490.
sheriff that he did not know her, though there 50. An instruction that, "where the evi-
is also evidence, which defendant contradicted, dence is entirely circumstantial, yet is not only
that the woman had been bis mistress.-People consistent with the guilt of the defendant, but
v. Koening, (Cal.) 31 P. 238.

inconsistent with any other rational conclu-
39. Two persons, jointly charged by infor- sion, the law makes it the duty of the jury to
mation with the crime of manslaughter, de convict, notwithstanding such evidence may not
manded separate trials. On the trial of one be as satisfactory to their minds as the direct
there was evidence tending to show that he testimony of credible eyewitnesses would have
was merely accessory before the fact, while been." is correct. People v. Cronin, 34 Cal.
the other committed the crime. Held, declara- 202, followed.-People v. Daniels, (Cal.) 34 P.
tions made by the principal offender, in the ab- 233.
sence of the accessory, long after the consum 51. An instruction, in a prosecution for as.
mation of the alleged criminal acts, were in- sault with intent to commit rape, that a pre-
admissible against the latter.-State v. Bogue, sumption is a deduction which the law expressly
(Kan.) 34 P. 410.

directs to be made from particular facts, and
40. Where two persons are charged as prin- unless this is controverted by other facts the
cipals in the commission of a felony, and, at presumption will control, and that among such
their request, separate trials are had, before presumptions is one that an unlawful act was
the conviction of either, one defendant is a done with an unlawful intent, is proper, the in-
competent witness for the other. – State v. struction not relating to deductions of fact to
Bogue, (Kan.) 34 P. 410.

be drawn by the jury.-People v. Crowl, (Cal.)

34 P. 860.
Character.

52. On a trial for arson an instruction that
41. Defendant, on a prosecution for assault | malice, within the meaning of the law, in-
with intent to commit murder, who testifies includes not only anger, hatred, and revenge,
his own behalf, cannot have his character im- but every other unlawful and unjustifiable
peached by evidence that he had a pistol on motive," is correct; Pen. Code, $. 7, subd. 4,
his person at the time of his arrest.---People v. providing that “the words 'malice' and 'mali-
Wong Ah Leong, (Cal.) 34 P. 105.

ciously' import a wish to vex, annoy or injure
Other crimes.

another person, or an intent to do a wrongful
42. During a struggle between defendant and act.”—People v. Daniels, (Cal.) 34 P. 233.
deceased in a house to which defendant had Invading province of jury.
come to arrest deceased and another person, the 53. An instruction that an intention is mani-
fatal wound was given. Held, on prosccution fested by the circumstances connected with the
for the homicide, that the shooting of defendant offense, and the sound mind and discretion of
at the other person outside the house, where the accused, does not assume any fact.-People
such person followed defendant a few minutes v. Crowl, (Cal.) 34 P. 860.
after the homicide, was not part of the res ges 54. On a criminal trial the court properly
tae.--People v. Lane, (Cal.) 34 P. 856.

charged the jury that they were the exclusive
43. Such subsequent offense is not admissible judges of the evidence, the facts proven, and
on the issues of whether the homicide was acci- the credibility of the witnesses; that, if they
dental or intentional, and, if intentional, whether believed any witness had sworn falsely to any

material fact, they were at liberty to disregard | The jury were sent out again, and returned be
the whole of his testimony; that, if any wit- an hour, rendering the verdict as written er
ness had been guilty of perjury in testifying by the court. Held, that the separation of the
previously concerning the facts at issue, they jury entitled defendant to a new trial-toit
ought to carefully consider such evidence, and States v. Swan, (N. M.) 34 P. 533.
compare the statements testified to with all Verdict.
the other evidence; and if, having done so, they
were unable to say whether the witness had or ants are jointly prosecuted, that reads."

62. A verdict, in a case where two defead
had not testified truthfully, then they ought to the jury, and the defendant guilty as charge
discard the evidence of such witness entirely.- is void for uncertainty, and such a Ferdiet eu
State v. Patterson, (Kan.) 34 P. 781.

not be amended to show that it was intended
Instructions- Assumption of facts. to convict both defendants.-State F. Web

55. On a criminal trial the jury was instruct- (Or.) 34 P. 1095.
ed that if, prior to the commission of the crime

63. Crim. Laws, $ 60, provides that “an es
alleged, defendant had always borne a good sault with a deadly weapon, instrument, a
reputation, that is a fact to be considered in de other thing, with an intent to indict upon the
termining whether or not the witnesses who person of another a bodily injury, where Do CD
have testified to facts tending to criminate him siderable provocation appears, or where the air
have testified truthfully. Held erroneous, in as- cumstances of the assault show an abanda
suming the existence of criminating evidence.- ed and malignant heart," shall subject the
State v. Walters, (Wash.) 31 P. 938, 1098. offender to punishment as for a felony. Ben

56. Defendant and G. were charged with that on the trial of an information under toe
larceny, and on a separate trial of defendant on section, where the verdict found defeodast
the theory that he assisted G. in the offense the guilty of an assault with a deadly weapa,
jury was instructed that if defendant "was he could be sentenced only as for a misdecasa
not assisting in the theft of the horses stolen or, as the verdict lacked the elements of a te
by G., then he would not be guilty as charged ony: -State v. Eschbach, Mont.) 34 P. 179.
simply by assisting G. in shipping the horses out

64. Where an information charges burglary
of the country.Held erroneous, as it assumed in the first degree, such charge includes bar
the guilt of G., which was one of the issues glary in the second degree also; and it is a
on trial.-State v. Walters, (Wash.) 34 P. 938, ror for the court to receive a verdiet finding
1098.

the defendant guilty as charged, without spee
Custody and conduct of jury.

ifying the degree.-In re Black, (Kan.) 34 P.

414.
57. On a murder trial, one of defendant's 65. Pen. Code, $ 1157, providing that, she
principal witnesses was a woman who kept a

ever a crime is distinguished into degrees, the
disreputable place, and with whom he lived. jury, if thy convict, must find the destee of
During the trial, four of the jurors visited her which defendant is guilty, applies on a pros
place repeatedly, and their conduct became so ecution for burglary, of which there are bot
notorious that the judge reprimanded them, two degrees, though the court charge that, if the
and placed them in the custody of the sheriff, jury find defendants guilty, they can find then
and his comments were published in the news- guilty of no higher offense than burglary in the
papers. The sheriff also told the jury that, if second degree.-People v. Bannister, (Cal) 31
a disagreement was brought about by those of P. 710.
their number guilty of the misconduct, “there
will be hell to pay." Held, that a conviction Defective verdict — Discharge or new
would be set aside, since the freedom of action trial:
of the jury had been foreclosed by the notori 66. Where, on a prosecution for a crime of
ety attending their misconduct, and the only which there are several degrees, a Ferdiet of
way they could free themselves from suspicion "guilty” fails to specify the degree, defeodaat
was by a conviction.-People v. Mitchell, (Cal.) is uot entitled to a discharge, but merely to e
34 P. 698.

new trial. People v. Lee Yune Chong, 23 P.
58. In a criminal case it appeared that, 776, 94 Cal. 379; Same v. Travers, 15 P. 3.
after the jury had arrived at a verdict of guilty, 73 Cal. 580, followed.-People v. Bannister,
one of the jurors went into another room, and (Cal.) 34 P. 710.
had an officer write out the verdict, directed, in

Judgment.
substance, by the juror, who returned with it
to the jury room. Held. that the verdict should

67. Though an information charging bur-
not be disturbed, the harmlessness of the trans- glary in the first degree includes burglary in the
action to defendant's rights being apparent. second degree also, and it is error to receive e
Seeds and Fall, JJ., dissenting. 30°p. 831, af: verdict finding defendant guilty as charged
firmed. Mattox v. U. S., 13 S. Ct. 50, 146 Ủ. S. without specifying the degree, a judgment
140, distinguished.-Territory v. Edie, (N. Mj founded on such a verdict, though erroneous, is
34 P. 46.

not void.-In re Black, (Kan.) 31 P. 414.
59. The fact that a juror had in his posses-

Motion to arrest.
sion during the trial a paper which contained 68. Where what is termed a motion to set
articles which might influence his verdict is aside a verdict and to grant a new trial con-
not ground for the reversal of a judgment of tains a ground distinctly challenging the sub-
conviction, when it does not appear that he ciency of the information, it will be treated as
read such articles.State v. Dugan, (Kan.) 34 a motion in arrest of judgment, which requires
P. 409.

a determination of the sufficiency of the grer
Separation of jury.

ments contained in the information.-State F.
60. In a trial for a misdemeanor, the sep-

Decker, (Kan.) 34 P. 780.
aration of the jury, after retiring to consider Place of imprisonment.
their verdict, is, if no injury results, no cause 69. Gen. St. & 3190, (Mills' Ann. St. $ 4271.)
for a new trial.-State v. Dugan, (Kan.) 34 P. providing that any person stealing cattle stal
409.

be deemed guilty of a felony, and shall be pain.
61. A jury in a criminal case were instruct- ished by imprisonment, in effect prorides the
ed that if they agreed on a verdict in the night place of imprisonment, it being provided be
they could seal it up, give it to their foreman, Const. art. 18. $ 4, that the term "felony" shall
and separate, returning into court the follow- mean any offense punishable by death or in
ing morning. They did so. On opening the prisonment in the penitentiary.-In re Pratt,
verdict it was found to be so defective that no (Colo. Sup.) 34 P. 680.
judgment could be rendered on it. The court
thereupon wrote out a proper form of verdict, Correcting journal entry of conviction.
finding the defendant guilty. On polling the 70. A journal entry containing a recital that
jury, one of them said it was not his verdict. defendant was convicted of burglary in the

[ocr errors]

hird degree" may be corrected by the court | previous postponement of the trial was not as-
ter the term 80 as to read "first degree," sented to by defendant, nor that there was not
hen it appears that the information charged good cause shown for such refusal.-People v.
irglary in the first degree, the verdict was Douglass, (Cal.) 34 P. 490.
ruilty as charged," and the sentence imposed 79. When the defendant brings with the rec-
is for a term of imprisonment only author ord so much of the proceedings as discloses that
ed in case of a conviction of the highest de- he has not been accorded a trial by a legally
ee of the offense.-In re Black, (Kan.) 34 P. constituted jury, he is entitled to a reversal, un-

less something contained in the record shows
ppeal-From justice's court.

the error to be without prejudice.-State v.

Snodgrass, (Kan.) 34 P, 750.
71. Under Crim. Prac. Act, 8 516, providing
at on appeal from a justice's court the case

Decision.
all be tried anew in the district court, it is 80. On appeal from a conviction in a crim-
ror for the latter court to arrest the judgment inal case, where there has been no oral argu-

a cause tried before it on appeal from a jus- ment in the supreme court, and appellant has
ce on the ground that the justice was without filed no points or authorities, and no error ap-
risdiction. --State v. Deslauries, (Mont.) 34 P. pears in the record, the judgment will be af-
10.

firmed.-People y, Casteel, (Cal.) 34 P. 237.
Briefs.

81. A judgment sustaining a demurrer to an

indictment on the ground that it fails to state
72. Oljections, on appeal in a criminal case, facts constituting a crime will be affirmed on
‘hich are not made in the brief, are not enti, appeal where the assistant attorney general, ap-
ed to consideration.-State v. Doe, (Wash.) 34 pearing in behalf of the state, concedes on the
154.

argument that the demurrer was properly sus-
Record.

tained, and declines to prosecute the appeal.-
73. Affidavits and evidence offered upon a State v. Smith, (Wash.) 34 P. 915; Same v.
lotion for a new trial in a criminal cause are Tuttle, Id.
o part of the record unless they are incorpo-
ited in a bill of exceptions.--State v. Sortor,

Cross-Examination.
San.) 34 P. 1036.

74. Where the record in a murder trial re- See “Witness," 9-13.
rites that the court read to the jury "instruc-
ons asked by the respective parties, and al-

Dam.
wed by the court, and those given by the
burt of its own motion," but does not contain Injunction against building, see "Waters and
lose given by the court of its own motion, or Water Courses,” 46.
equested by the people, the appellate court
ill not determine whether or not the trial
purt erred in refusing to give an instruction

DAMAGES.
sked by defendant, but will set aside a sub-
vission of the cause, and restore it to the cals | Caused by taking land for public use, see "Em-
ndar, to be heard when all the instructions For conversion, see “Trover and Conversion,”

inent Domain," 7-13.
re incorporated into the record. - People v.

3-5.
'ital, (Cal.) 34 P. 617.

For fraud, see “Deceit,” 3.
Bill of exceptions.

For vexatious appeal, see “Appeal,” 94.
75. Notice of the time when application In action for libel, see “Libel and Slander," 9.
yould be made to the judge to settle and sign In ejectment, see "Ejectment," 11.
he bills of exceptions was duly served on the Injuria absque damnum, see "Attorney and Cli-
istrict attorney, who filed objections and sug-

ent,” 4.
ested amendinents, and the settlement and In replevin, see “Replevin," 2.
igning were not had at the time desiguated.
Chereafter the judge was out of the state for

Proximate and remote.
ome time, but later he settled and signed the

1. In an action for the value of legal serv-
ills, with the district attorney's proposed ices, testimony that defendant was put to
mendments. No new notice of the time of some loss of time and expense of board, etc.,
ettlement was given, nor order made fixing by reason of the destruction by plaintiff of
uch time. There was no suggestion that the legal papers, is not sufficient to sustain a claim
ills were incorrect, and they were filed above of damages for such destruction.

The rea
a due time. Held, that appellant was entitled sonable worth of the papers destroyed is the
o review.--State v. Payne, (Wash.) 34 P. 317. proper measure of damage.-Bourke v. Whit-

76. Evidence introduced on the trial of a ing, (Colo. Sor.) 34 P. 172.
riminal action cannot be considered unless in. Liqidated damages.
orporated in a bill of exceptions, and merely 2. A clause in a lease of water power, that
ttaching a transcript of the testimony to the in default of a sufficient supply of water the
vill is insufficient.--State v. Gibson, (Kan.) 34 lessor shall forfeit a pro rata proportion of the
?. 408.

water rents accruing during the existence of
Review.

such deficiency, is not a provision for liqui-
77. Where all that was done or said to.de dated damages, such as will prevent recovery
Pendant in order to induce confessions, or said of other damages by the lessee, when it ap-
py him in reply, was stated in detail in the evi- pears that the deficiency was the result of the
lence, it was harmless error to permit the coun- lessor's failure to repair injuries to the race
y attorney to ask, and the witnesses to answer,

and dam caused by an unusual freshet, and
he question, “Did you make any threats to that the rental value of the lessee's mill, which
iim ?" even if such question was leading, and

was useless without the power, was $20 per
alled for an expression of opinion.-State v. day, while the rent of the

power was but $3.-
Munson, (Wash.) 34 P. 932.

Pengta v. Wheeler, (Or.) 34 P. 354.
78. Pen. Code, $ 1382, provides that a pros: certain land, and pay “$1,000 cash deposit,"

3. Plaintiff agreed with defendant to buy
ecution must, unless good cause to the con-
trary is shown, be dismissed if a defendant, and, on or before a certain date, $2,500, and
whose trial has not been postponed upon his then to give a mortgage back for $3,320; if
application, is not brought to trial within 60 plaintiff should fail to pay the $2,500 on said
days after the finding of the indictment of fil- date, the contract to be void as to plaintiff,
ing of the information. Held, that a refusal and the $1,000 to be retained by defendant as
to discharge defendant under such section liquidated damages. Plaintiff did not pay on
would not be reversed on appeal, when it did said date, but wrote defendant, a week later,
not appear from the bill of exceptions that a 'explaining why he had not been able to do so

« PreviousContinue »