Fair v. Howard.

of the security." (Rigney v. Lovejoy, 13 N. H. 252; Great Fall Co. v. Worster, 15 N. H. 444; Smith v. Moore, 11 N. H. 61; Ib. 221; Hutchings v. King, 1 Wallace, [U. S.] 57; Presbyterian fc. v. Wallace, 3 Rawle, 130; Clark v. Beach, 6 Conn. 163; Ewen v. Hobbs, 5 Met. [Mass.] 3.)

To consider the plaintiff the owner in fee for the purposes of this case, is to carry out what Shaw, C. J., in Ewen v. Hobbs, says are the two great objects of a mortgage: First, in the form of a conveyance in fee is given to the mortgagee an effectual security. Second, there is left to the mortgagor, and to purchasers, creditors, and all others claiming direct through him, the full and entire control, disposition and ownership of the estate, subject only to the paramount purpose, that of securing the mortgagee. It cannot be objected that the plaintiff is himself asking relief in equity, because "for the purpose of the question whether a Court of Equity will interfere against a purchaser for a valuable consideration without notice, a foreclosure is not relief at all." (Colyer v. Finch, 2 Leading Cases in Equity, 59, 14.) Armstrong occupies the position of the plaintiff in Plumb v. Fluitt, seeking equitable relief, viz: the enforcement of his trust against a bona fide purchaser.

That the plaintiff is a purchaser within the meaning of and protected by the recording acts and Statute 27 Eliz., is well settled. (James v. Morey, 2 Cowen, 290; Pierce v. Faunce, 47 Maine, 514; Porter v. Green, 4 Iowa, 571; Martin v. Jackson, 27 Penn. 504; Gere v. Cushing, 5 Bush, [Ky.] 304; Snyder v. Hett, 2 Dana, 204; Ledyard v. Butler, 9 Paige, 136; Chapman v. Emery, Cowper, 280.)

The judgment and order appealed from should be affirmed, and it is so ordered.

By LEWIS, C. J., and WHITMAN, J.:

Without indorsing the proposition that a mortgagee for an antecedent debt occupies the position of a bona fide purchaser for value, we concur in the opinion of Justice Garber.

The State of Nevada v. Chapman.

THE STATE OF NEVADA, RESPONDENT. v. J. E. CHAPMAN, APPELLANT.

CRIMINAL LAW-EVIDENCE TO CORROBORATE ACCOMPLICE. Where on appeal in a criminal case it was claimed that certain evidence given for the purpose of corroborating that of an accomplice was not sufficient: Held, that the question before the Supreme Court was not as to the weight of the evidence, but as to whether it was corroborative within the meaning of Sec. 365 of the Criminal Practice Act. INDICTMENT-COUNTS SETTING OUT OFFENSE IN DIFFERENT FORMS. Where an indictment for robbery contained two counts, the only difference being that one charged the property taken as that of Wells, Fargo & Co, and the other as that of their messenger in custody thereof at the time: Held, authorized under Sec. 238 of the Criminal Practice Act, and not amenable to the objection of charging more than one offense.

WAIVER OF OBJECTIONS TO AFFIDAVITS FOR CONTINUANCE. Where in a criminal case, on motion for continuance on the ground of absence of witnesses, no objection was made that the affidavits did not set forth the materiality of their testimony; but it appeared that the Court assumed its materiality: Held, that it would be unfair to allow the objection to be made for the first time in the Supreme Court.

CONTINUANCE WITHIN DISCRETION OF COURT. A continuance in a criminal case is within the discretion of the court, and unless there is an abuse of its discretion, its action will be sustained.

DILIGENCE TO PROCURE CONTINUANCE. Affidavits for continuance in a criminal case on account of the absence of witnesses for defense should show diligence in attempting to procure their attendance, that at least reasonable means had been taken to ascertain their whereabouts, and that there was some reasonable probability that their attendance could be procured within a proper time. CHALLENGE TO JUROR MUST SPECIFY GROUNDS. Where the only specification of ground of challenge to a juror was "for cause": Held, entirely insufficient, and that on appeal no objection would be entertained.

ACCESSORY BEFORE THE FACT SAME AS PRINCIPAL. An accessory before the fact to a crime, though not present and in fact out of the State at its commission, may under our statutes (Stats. 1861, 57, Sec. 10; 462, Sec. 252,) be charged in an indictment, and tried, convicted and sentenced in all respects as a principal.

ROBBERY BY ABSENT PERSON. Where several persons combined to rob Wells, Fargo & Co's stage, in Washoe County; and one named Chapman, in pursuance of the combination, went to San Francisco and telegraphed when a large amount of money would be on the stage, and the others did the robbery; Held, that Chapman was an accessory before the fact, and as such properly charged and convicted with the others as having committed the robbery in Washoe County.

The State of Nevada v. Chapman.

VENUE IN TRIAL OF ACCESSORY. There seems to be an incongruity between Sec. 91 of the Criminal Practice Act, which requires an accessory before the fact to be tried where his offense is committed, and Sec. 252, which places him on the same plane with the principal; but the former clearly does not apply in a case where the acts of the accessory are done out of the State. DOCTRINE OF AGENCY AS TO ACCESSORIES BEFORE THE FACT. An accessory be

fore the fact aiding, abetting or counselling a crime, is, under our laws, to be treated as a principal; in the same manner as in the civil law what a principal does by an agent he is to be regarded as doing by himself.

INDICTMENT AGAINST ACCESSORY BEFORE THE FACT. In an indictment against an accessory before the fact, it is not necessary to state the special act which the accused may have done in active or passive aid of the ultimate act; but only the ultimate act itself, the same as in case of a principal.

APPEAL from the District Court of the Second Judicial District, Washoe County.

The defendant, after his conviction, was sentenced to imprisonment in the State Prison for the term of eighteen years.

The charging part of the indictment, which is commended in the following opinion, was as follows: "That A. J. Davis, E. B. Parsons, J. C. Roberts, James Gilchrist, Tilton Cockerell, R. A. Jones, J. E. Chapman and John Squires, on the fifth day of November, A.D. 1870, and before the finding of this indictment, at Washoe County, in the State of Nevada, in and upon one Frank C. Minshull, express messenger of Wells, Fargo & Co, a corporation organized under the laws of the Territory of Colorado and doing business in the State of Nevada, did then and there willfully, feloniously, and violently make an assault, and him, the said Frank C. Minshull, express messenger as aforesaid, in bodily fear and danger of his life willfully, feloniously and violently did put; and gold and silver pieces, coins of the United States of the denominations of twenties, tens and five dollar pieces and fifty-cent pieces, and of the aggregate value of forty-one thousand, four hundred and thirtyfive dollars of the moneys belonging to said Wells, Fargo & Co., a corporation organized under the laws of the Territory of Colorado, from the person and against the will of the said Frank C. Minshull, express messenger as aforesaid, and without the consent of Wells, Fargo & Co. aforesaid, then and there willfully, feloniously and violently did steal, take and carry away; contrary to the form of the

The State of Nevada v. Chapman.

statute in such case made and provided, and against the peace and dignity of the State of Nevada."

Thomas E. Haydon, for Appellant.

I. All of the acts attempted to be proven against Chapman constitute no public offense under the laws of this State; all his acts being those of an accessory before the fact, and all having transpired in the State of California. (The State v. Wyckoff, 2d Vroom, 31 N. J., 68; State v. Moore, 6th Foster, N. H., 451; State v. Knight, 1 Taylor, 3 N. C., 44.

II. A person guilty only as an accessory must be specially charged as such, and cannot be convicted as a principal. (People v. Campbell, October Term, 1870, Cal.; People v. Trim, Jan. Term, 1870, Cal.; People v. Swartz, 32 Cal. 160; 1 Chitty, Crim. Law, 271; Wharton's Precedents of Indictments, 97; State v. Snow, 4 Dutcher, 519.)

III.

The Court should have granted the continuance. (People v. Dodge, 28 Cal. 449.)

IV. The evidence of the accomplice Jones was entirely uncor roborated on the only points that attached any criminality to Chapman first, on his agreement to the conspiracy and knowledge. that any robbery was to be committed; second, that there was any criminal covert meaning to an apparently innocent telegram.

V. An accessory is to be punished in the county where his offense was committed, notwithstanding that the principal offense was committed in another county. (Stats. 1861, 445, Sec. 91.) It is therefore necessary that the acts or facts of the accessory's participation should be shown, in order that it may be known in what county he should be tried; hence, it appears that the Legislature did not intend to abolish all distinction between principals and accessories, nor to subvert the fundamental rule that the indictment shall contain "a statement of the acts constituting the offense in ordinary and concise language."

VI. The robbery was not committed through any innocent or guilty agent of Chapman, nor by any other means proceeding directly

The State of Nevada v. Chapman.

from him; his part of the agreement was merely to advise Davis, Cockerell and Jones when, by committing the offense, they could acquire a large booty. The most that can be said is, that while not present, but absent in California, he advised and encouraged Davis, Cockerell and Jones to commit the offense by advising them of its probable profitable results. He was at most an accessory before the fact out of the State; and as our law has not prescribed it any offense for any accessory out of the jurisdiction of this State to advise and encourage the commission of an offense within the State, the conviction cannot stand.

Robert M. Clarke, for Respondent.

I. The affidavit for continuance was insufficient, and no abuse of discretion being shown, none will be presumed. The affidavit did not show the materiality of the witnesses, nor the exercise of legal diligence to procure their attendance. It was not diligence to issue subpoenas for witnesses residing beyond the reach of process; nor was it diligence to write Dr. Egery or Mrs. Sutton as to whereabouts of persons without writing the persons themselves; nor did it appear where the witnesses were, nor whether defendant would be able to produce them. (33 Cal. 641.)

II. Defendant was properly indicted and tried where the crime was committed, notwithstanding his absence in California at the time. (31 Cal. 114; 1 Wheaton, Sec. 115, 154, 278; 3 Denio, 190, 206, 610; 7 S. & R. 469, 477; 1 Comstock, 173; 22 Eng. Law & Eq. 607.)

III. The indictment was proper. At common law there are no accessories in treason or misdemeanor, and an indictment charging either offense is supported by proof that defendant counselled or advised, or aided and abetted in the commission of the crime. In this State, the distinction between principal and accessory before the fact in felony is abolished by statute; and the rules of pleading and evidence applicable to treason and misdemeanor at common law are consequently applicable to felony.

IV. The California case of People v. Campbell is against the whole current of authority, and the reasoning by which the conclusion arrived at is attempted to be enforced is unsound.