company, planthat had taken

scheme to rob an. express ning such robbery like. one place in Missouri. On the 9th day of April he returned to Kansas City, and, on meeting Marshall again, he told him that he had a friend in New York who knew a messenger who ran out of Denver, and from whom he could get a letter to such agent; that he had written for the letter, and it would be in Denver in a few days. That Marshall expressed a hope that it was on the Denver & Rio Grande. That he obtained the letter of introduction to James Connor, and agreed with Marshall to let him know where he was stopping in Denver, and to wire him before the robbery, so he could come on and take part. On his arrival in Denver, and on the 12th of April, he presented his letter of introduction to James Connor, and stated to him the same in reference to a letter to an agent. That he, (Connor,) expressed the hope that it was over the Denver & Rio Grande. That on the 13th of April he met Farley, who was then resident manager of Thiel's Detective Agency in Denver. "Told Farley I had a talk with Connor.

Up to this time I had done what I did from instructions from the St. Louis office. After this I was under instructions from Farley. Question. When did you first discuss the plan of the robbery, and with whom did you first talk about the plan of operations to rob this road? Answer. I think it was with Mr. Farley at 31 and Curtis. We discussed the D. & R. G. road, when I told him what I had learned from the defendants." That a letter was prepared in Mr. Farley's office, with the consent of the officers of the company, purporting to be written by one William S. Buell, of New York, to Icon, an express agent in the employ of the Denver & Rio Grande Express Company, introducing to him Mr. Holliday as Joe Ward. That plans were devised between Holliday and Connor to carry out the robbery. Mr. Farley testifies that on the night of the 13th of April, after meeting Holliday, he saw Mr. Gillooly, treasurer of the Denver & Kid Grande Railroad Company, and told him what Holliday had said; and, it appears from the evidence, from that time on, the company, through its officers, not only consented that their property might be taken, but co-operated with the witness Holliday, through Farley, in perfecting plans by which such taking might be accomplished. Mr. Gillooly testifies that "Holliday was in the employ of Thiel's Agency. Thiel was in our employ. Whatever Mr. Holliday did was being done with the full knowledge and consent of the company. This scheme was being worked for nearly a month."

To constitute the crime of larceny at common law there must be a trespass,—that is, a taking of property without the consent of the owner, coupled with an intent to steal the property so taken. It is therefore evident

that the crime is not committed when, with the consent of the owner, his property is taken, however guilty may be the taker's purpose and intent. This is the accepted doctrine, as laid down by the various text writers on criminal law. Mr. Bishop, discussing this principle in the fifth edition of his work on Criminal Law, (section 262,) says: "The cases of greatest difficulty are those in which one, suspecting crime in another, lays a plan to entrap him. Consequently even if there is a consent, it is not within the knowledge of him who does the act. Here we see, from principles already discussed, that supposing the consent really to exist, and the case to be one in which, on general doctrines, the consent will take away the criminal quality of the act, there is no legal crime committed, though the doer of the act did not know of the existence of the circumstance which prevented the criminal quality from attaching." 2 Archb. Crim. Pr. & Pl. 1181; 2 Russ. Crimes, 190; 3 Chit. Crim. Law, 925; 1 Whart. Crim. Law, § 914. To the same effect is the uniform current of the decisions. In the case of Reg. v. Johnson, 41 E. C. L. 123, it was held that, where a servant pretended to concur with two persons who proposed to rob his master's house, and acting under the advice of the police he opened the door for them to enter, there could be no conviction of burglary. Of the same purport is the case of Allen v. State, 40 Ala. 334, wherein it is said: "Where the proof showed that the prisoner proposed to a servant a plan for robbing his employer's office by night; that the servant disclosed the plan to his employer, by whom it was communicated to the police; that the master, acting under the instructions of the police, furnished the servant with the keys of his office on the appointed night; that the servant and the prisoner went together to the office, where the servant opened the door with the key, and they both entered through the door, and were arrested in the house by the police,-held, that there could be no conviction of burglary." In the case of Speiden v. State, 3 Tex. App. 153, the defendant was indicted for burglary by breaking into a bank with intent to commit theft. The court say: "In the case at bar the detectives cannot be considered in any other light than as the servants and agents of the bankers, Adams & Leonard. They (the detectives) had the legal occupancy and control of the bank Two of them made arrangements with defendant to enter it, and defendant, when arrested, had entered the bank at the solicitation of those detectives, who were rightfully in possession, with the consent of the owners. This cannot be burglary in contemplation of law, however much the defendant was guilty in purpose and intent." In Dodge v. Brittain, Meigs, 83, it is said: "Receiving goods, with the owner's consent, from his servant, is not larceny, it being of the essence of the offense that the goods be taken against

the will of the owner, invito domino." Of the same purport are Kemp v. State, 11 Humph, 320; State v. Chambers, 6 Ala. 855; Zink v. People, 77 N. Y. 114; U. S. v. Whittier, 5 Dill. 35; State v. Covington, 2 Bailey, 569; and numerous other cases that might be cited.

Counsel for the people concede the soundness of the doctrine as above announced, but seek to escape its application upon the ground that the plaintiffs in error were not prosecuted for stealing from the railway company, and therefore the attitude of the company made no difference. In other words, it is contended that the conspiracy to do an act constitutes a crime, although the act to accomplish which the conspiracy is formed would not be unlawful if committed. To state the proposition is to refute it. We think the law applicable to this case is clearly and correctly stated. In the case of Johnson v. State, 3 Tex. App. 593, the court say: "The fact of such conspiracy once being established, the subsequent consent of the owner (or those acting for him) for the conspirators to enter the building will not affect their guilt in the least, unless the evidence shows that Higgins and Garwood, or the detective employed by them, suggested the offense, or in some way created the original intent or agreement to commit the offense as charged." In the case of Saunders v. People, 38 Mich. 218, the defendant was convicted of breaking and entering by night a court room, and feloniously taking therefrom certain bonds. The defendant Saunders was a lawyer, and it was shown in evidence that he asked Webb, a policeman, to leave the door of the court room unlocked in order that he might get the bonds, and that Webb, after consulting with his superior officer, consented, and then lay in wait, and caught one Moylan removing the papers. The supreme court of Michigan, composed of Judges Campbell, Cooley, Marston, and Graves, reversed the conviction, and severely denounced the conduct of the officers in conniving with persons suspected of criminal designs, for the purpose of arresting them in the commission of the offense. Judge Marston, concurring in a separate opinion, (pages 221, 222,) says: "The course pursued by the officers in this case was utterly indefensible. Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to ren der such assistance, and to take such steps as would be likely to prevent the commission of the offense, and tend to the elevation and improvement of the would-be criminal, rather than to his further debasement. Some courts have gone a great way in giving encouragement to detectives in some very questionable methods adopted by them to discover the guilt of criminals, but they have not yet v.33P.no.4-11

gone so far, and I trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parties to commit crime, in order that they may arrest and have them punished for so doing. The mere fact that the person contemplating the commission of a crime is supposed to be an old offender can be no excuse, much less a justification, for the course adopted and pursued in this case." Campbell, C. J., also concurring, (at page 223,) said: "Assuming that there is not in the record full evidence of such an invitation to enter the clerk's office as would conclusively show there was no breaking, the encouragement of criminals to induce them to commit crimes, in order to get up a prosecution against them, is scandalous and reprehensible." We feel warranted in quoting thus fully from these opinions because the views therein expressed are specially pertinent to the facts in this case, and because of the universally jurists who announced them. In the case recognized learning and ability of the eminent under consideration, the only evidence of the inception of the scheme to rob the express company is that of Holliday, who states that it was instigated by his superiors at St. Louis, and by him suggested to the plaintiffs in error. It further appears that before the consummation of the conspiracy the officers of the express company were informed of and consented to the scheme; hence, under the foregoing authorities, the prosecution cannot be sustained. We do not wish to be understood as intimating that the services of a detective cannot be legitimately employed in the discovery of the perpetrators of a crime' that has been, or is being, committed, but we do say that when, in their zeal, or under a mistaken sense of duty, detectives suggest the commission of a crime, and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked, rather than encouraged, by the courts. And, accepting the version of the witness Holliday as true, it shows a state of facts that can have no place in the decent administration of justice.

The witnesses Farley and Newcome were permitted, over objection, to testify to statements made to them by the witness Holliday, not made in the presence of plaintiffs in error, or either of them. This was hearsay evidence, and clearly inadmissible. Counsel for the people attempt to justify the admission of this testimony upon the ground that the testimony of Holliday was attacked on crossexamination, and his credibility questioned, and therefore the people had a right to corroborate him in this manner; asserting that such procedure was in conformity to wellestablished authorities. No authority is cited, and upon a full and careful research we feel safe in asserting that no authority can be found that will sanction the admission of this

v. Parker, 3 Doug. 244,) "it is now settled that what a witness said, not upon oath, would not be admissible to confirm what he said upon oath." Greenleaf, in his work on Evidence, (volume 1, § 409,) says: "But evidence that he has, on other occasions, made statements similar to what he has testified in the cause, is not admissible." In Robb v. Hackley, 23 Wend. 50, Bronson, J., in a very exhaustive opinion on this subject, says: "But as a general, and almost universal, rule, evidence of what the witness has said out of court cannot be received to fortify his testimony. It violates a first principle in the law of evidence to allow a party to be affected, either in his person or his property, by the declarations of a witness made without oath. And, besides, it can be no confirmation of what the witness has said on oath, to show that he has made similar declarations when under no such solemn obligation to speak the truth. It is no answer to say that such evidence will not be likely to gain credit, and consequently will do no harm. Evidence should never be given to a jury which they are not at liberty to believe." The only exception to this rule, as stated by Greenleaf in the section above cited, is "where a design to misrepresent is charged upon the witness in consequence of his relation to the party or the cause, in which case it seems it may be proper to show that he made a similar statement before that relation existed." At the time of the admission of the testimony the plaintiffs in error had made no attempt to impeach the witness Holliday, nor did they at any time do more than to deny his statements, when on the stand as witnesses in their own behalf. The witnesses Farley and Newcome testified that they had no personal knowledge of the facts stated by Holliday, and were simply repeating the story told by him. The harmfulness of this can be readily seen. The witness Farley was at the time holding an important official position. He was a respectable citizen, and possessed the confidence of the community, and the repetition by him of Holliday's story might give it a weight and credibility greater than would have attached to it when told alone by Holliday. However this may be, the admission of this testimony was so violative of every rule of evidence that in itself it would compel a reversal of the case, and it becomes unnecessary to notice the further objections so fully argued by counsel. For the reasons given, the judgment will be reversed.

is a proper remedy to compel obedience to such mandate: but the reversal of a cause with directions for further proceedings in accordance with the opinion of the supreme court is not necessarily equivalent to a reversal with directions to enter a particular judgment.

2. The writ of mandamus will not be allowed to usurp the office of a writ of error, nor will it be made use of to anticipate an erroneous decision by a subordinate court.

3. A subordinate court may be required to proceed to judgment by writ of mandamus, but such writ will not be awarded unless it appears that the lower court refuses, or is unwilling, to proceed with the determination of the matter before it.

(Syllabus by the Court.)

Original application in the name of the state, at the relation of Henry N. Coffey, Nelson K. Smith, and John W. Blackburn, for mandamus to Sylvester S. Downer, judge of the eighth judicial district. Writ denied.

Belford & Galloway, for petitioners. L. C: Rockwell, for respondent.

ELLIOTT, J. Relators were plaintiffs in error in the action for specific performance reviewed in Coffee v. Emigh, 15 Colo. 184, 25 Pac. Rep. 83. They now ask for a writ of mandamus from this court to compel the district court of Boulder county to enter a decree requiring the specific performance of the written agreement considered in that cause, in conformity to the decision and opinion rendered therein by this court.

1. When this court reverses and remands a cause with directions to the lower court to enter a particular judgment, and the lower court, either from mistaking the meaning of the mandate, or for other cause, refuses or unreasonably delays entering such judgment after proper demand therefor, a writ of mandamus from this court is a proper remedy to compel obedience to such mandate. High, Extr. Rem. § 255; Merrill, Mand. § 189; Ex parte Dubuque & P. R. Co., 1 Wall. 69; Duffitt v. Crozier, 30 Kan. 150, 1 Pac. Rep. 69; Gray v. Saginaw Judge, 49 Mich. 628, 14 N. W. Rep. 666; Freem. Judgm. § 249; Railroad Co. v. Hull, 24 Neb. 740, 40 N. W. Rep. 280. The Coffee-Emigh Case, 15 Colo. 193, 25 Pac. Rep. 83, was not remanded with directions to enter a particular judgment; it was remanded for further proceedings in accordance with the opinion of this court as expressed in the judgment of reversal. Neither the opinion nor the judgment contained any other or further speciflc mandate. According to such opinion, petitioners were entitled, upon the remanding of that cause, to have a decree entered requir ing the specific performance of the written agreement upon which the action was founded, unless some new matter affecting the substantial rights of the parties, and not inconsistent with the opinion thus rendered, should be properly brought before the court for consideration before the final determination of the controversy. Such decree would doubtless have been rendered if petitioners

had demanded the same in reasonable time, without doing or allowing anything to be done which could be considered as impairing or clouding their rights in the premises, as declared by the former opinion of this court; but it appears that more than two years .were suffered to elapse before petitioners made any specific demand for the rendition of such decree. It is now claimed, by the answer in this proceeding, that, in the mean time, petitioners so dealt with the property in controversy that one Lewis C. Rockwell acquired an interest in such property adverse to petitioners; and also that, before petitioners made any specific demand for the rendition of the decree, said Rockwell appeared in said district court, and, upon due notice to petitioners, presented his petition of intervention setting forth his claim to the property, and that for such reason the district court now declines to render the decree indicated by the former opinion of this court.

2. Under the circumstances, we are of the opinion that the writ of mandamus should not issue in this case. In arriving at this conclusion we must not be understood as determining, or even intimating, that Mr. Rockwell was or is entitled to intervene in petitioners' cause, or that his intervention petition states facts sufficient to entitle him to any relief in the action, or that he has gained any interest whatever in that portion of the mining property which, by the former opinion of this court, was declared to be, in equity, the property of petitioners; nor must we be understood as intimating that petitioners may not still be entitled to their decree of specific performance, as indicated by such former opinion, notwithstanding anything in said petition of intervention alleged. In other words, we do not now pass upon the status of the intervener, nor upon the sufficiency of his petition. To consider and determine such matters in a proceeding of this kind would be to allow a writ of mandamus to usurp the office of a writ of error. All we decide upon this application is that, inasmuch as the former opinion of this court did not contain a specific mandate to enter a particular judgment, and petitioners delayed securing their decree in accordance with such former opinion until the district court had taken cognizance of the petition of intervention, therefore, even though such petition may be entirely insufficient to affect petitioners' rights in the premises, the proper way now is for petitioners to proceed in the district court to a final determination of such intervention. High, Extr. Rem. §§ 257, 269. 3. The writ of mandamus may, in a proper case, take the place of the ancient writ of procedendo ad judicium, by which a subordinate court was required to proceed to judgment. But it does not appear that such writ is necessary in this instance, since it is not alleged that the district court refuses, or is unwilling, to proceed with the determination of the petition of intervention. People v.

District Court, 14 Colo. 398, 24 Pac. Rep. 260; People v. Graham, 16 Colo. 347, 26 Pac. Rep. 936. It does not appear that petitioners have ever challenged the sufficiency of the petition of intervention in the district court, nor that they have sought to have such petition disposed of in any manner, except to have the same ignored or treated as a nullity, and hence no obstacle to the entry of the decree which they demand. This the district court refused. If the district court, on final hearing, shall wrongfully sustain the intervention, its error may be corrected by the ordinary methods of appellate procedure; but an erroneous decision is not to be anticipated by a resort to the extraordinary writ of mandamus. The application for such writ is denied.

(18 Colo. 496)

CASTNER v. RICHARDSON. (Supreme Court of Colorado. May 29, 1893.) FACTORS AND BROKERS-CONTRACT-STATUTE OF FRAUDS-EARNING OF COMMISSIONS-REVIEWING EVIDENCE ON APPEAL.

1. To entitle a real-estate agent to commissions, a contract of employment is necessary. This is as true of an agency to find a purchaser as of an agency with power to sell.

2. When a broker asks and obtains from the owner the price at which he is willing to sell certain real estate,-this, without more, does not establish the relation of principal and agent between the owner and the broker.

3. When an action is tried by the court without a jury, the court is the judge of the credibility of the witnesses whom he sees and hears, and of the weight of the evidence which they give; and, where the evidence is conflicting, it is not the province of an appellate court to reverse findings of fact.

4. By the statute of frauds as amended in 1887, a binding contract for the sale of real estate cannot be executed by an agent unless the agent be authorized by writing.

5. Where the owner merely states to a broker, not employed as his agent, the net price which he will accept within a limited time, and the broker procures an offer of such price within such time, but does not procure the execu tion of a binding contract, nor a purchaser ready to pay the purchase price within the time limited, and the owner refuses to allow further time, the broker cannot recover commissions. (Syllabus by the Court.)

Error to Arapahoe county court.

Action by Charles H. Castner, real-estate broker, against Cyrus G. Richardson, for commissions. Action commenced before a justice of the peace. There being no written pleadings, the nature and cause of the action, as well as the grounds of defense, must be ascertained from the evidence. On appeal to the county court a trial was had, resulting in a finding and judgment for the defendant, Richardson. The plaintiff, Castner, brings the cause to this court by writ of error. The facts sufficiently appear in the opinion. Affirmed.

Hoyt & Brice, for plaintiff in error. Charles H. Burton, for defendant in error.

ELLIOTT, J. 1. To entitle a real-estate agent to commissions, a contract of employ

ment is necessary. The term "commissions," thus used, means the amount allowed or paid to an agent or broker employed to manage the affairs of another as compensation for such services. Where, as in this case, the employment is denied, the relation of principal and agent must be affirmatively established by a preponderance of the evidence, though such relation may be implied from such facts and circumstances as satisfactorily establish its existence. This is as true in respect to an agency to find a purchaser as of an agency with power to sell. Whart. Ag. § 330.

2. When a real-estate broker asks and ohtains from the owner the price of certain real estate, or the price at which the owner is willing to sell, this, without more, does not establish the relation of principal and agent between the owner and broker; it does not establish a contract of employment. If the rule were otherwise, no one would be safe in stating the price of his own property in the hearing of a broker.

3. This action was tried by the court without a jury. If the finding had been in favor of plaintiff, we might not have felt at liberty to disturb it, since, from the facts and circumstances shown by plaintiff's evidence, a contract of employment might possibly have been inferred. But the trial court was the judge of the credibility of the witnesses, whom he saw and heard, and of the weight of the evidence which they gave. The evidence being conflicting, it is not the province of this court to reverse findings of fact. The testimony of the defendant was plain and positive to the effect that he did not employ the plaintiff as his agent in any capacity. Defendant testified that plaintiff came to his office, and inquired what he would take for his Welton street property; that he told plaintiff he would take $15,750 net; that he would accept that amount for one week, but that he never put any property for sale on commission, and never employed any agent; that he repeated these statements to plaintiff several times, on the occasion when he inquired the price of the property. Defendant also testified that afterwards, when plaintiff claimed to be defendant's agent in the transaction, he (defendant) told plaintiff that "he was no such thing." According to defendant's evidence, upon which the finding and judgment of the trial court were evidently based, plaintiff was never employed by defendant, and the services he rendered were entirely unsolicited. At most, plaintiff had but a naked verbal option, for which he paid nothing, and for which defendant received nothing. Defendant made a verbal offer for a limited period of time, by which he agreed to sell the premises for a specified sum of money, to be paid to him during that time, and that was the extent of the agreement between plaintiff and defendant. The sale was not consummated, nor did plaintiff, or any one pro

cured by him, offer to pay the price, or to execute a binding contract, within the time limited by defendant. The evidence shows that plaintiff received an offer for the property within the time limited, and upon the terms stated to him by defendant; that he communicated such offer to defendant; and that defendant gave plaintiff until the close of banking hours the second day thereafter in which to close the sale and pay over the purchase money. This not being done within the extended time, defendant afterwards refused to convey the property, and also refused to pay plaintiff any commissions.

4. The payment of $25 by the proposed purchaser to plaintiff, and plaintiff's receipt therefor, did not create a binding contract of sale, as plaintiff was not authorized by writing to execute such contract, as was then required by the act of 1887, Sess. Laws, p. 274.

5. It is contended that as plaintiff found a purchaser ready, willing, and able to buy within the time limited, and upon the terms stated by defendant, he had fully earned his commissions; and, further, that he was entitled to a reasonable time to procure an abstract, examine the title, and so close up the proposed sale. Such rule is not applicable in a case of this kind. It can only apply to a case where the contract of employment is admitted or established by the evidence, and where time is not of the essence of such contract. It may be conceded, where an owner engages the services of an agent to sell, or negotiate a sale of, his real estate, and by the contract the agent's compensation is made dependent upon a consummated sale, and time is not of the essence of such contract, that the agent is entitled to a reasonable time in which to consummate the same after he has found a purchaser ready, willing, and able to buy upon the very terms stated by the owner; but no such duty devolves upon the owner towards a person whom he has not employed as his agent, and certainly not in a case where the owner expressly limits the time in which a person not an agent may procure and pay over the purchase money. Watson v. Brooks, 11 Or. 271, 3 Pac. Rep. 679; Buckingham v. Harris, 10 Colo. 455, 15 Pac. Rep. 817; Wray v. Carpenter, 16 Colo. 271, 27 Pac. Rep. 248. The judgment of the county court is affirmed.

(18 Colo. 461)

HURD v. CARLILE, State Treasurer. (Supreme Court of Colorado. May 15, 1893.) SUPREME COURT-JURISDICTION - CONSTITUTIONAL QUESTIONS.

Under Laws 1891, p. 118, § 1, limiting the jurisdiction of the supreme court to cases where the amount involved exceeds $2,500 except, inter alia, where the construction of 4 constitutional provision is necessary to the determination of the case, in order to bring a case within such exception it must appear that the construction of the constitutional provision