Code would be upheld.-Smithers v. Fitch, (Cal.) | quirements of the statute as to notice and the re- 22 P. 935. port of the reviewers.-Smithers v. Fitch, (Cal.) 22 P. 935.
Establishment by proceedings.
12. In an action for an obstruction of a highway 4. A notice of a petition for laying out a high- so as to interfere with the approach to plaintiff's ay, posted at a railroad depot about 600 or 700 lots the complaint alleged "that defendant has con- feet from where the proposed road connects with tinuously obstructed said Tenth street by stand- the main highway, at which point there is no suit- ing cars thereon, to the exclusion therefrom of all able place for posting it, is posted at a public travel thereon, and has cut off all access to and place in the vicinity of the proposed road, with- from plaintiff's said lot and premises by vehicles in the meaning of Comp. St. Mont. div. 5, § 1809, of every kind, so that his said dwellings have re- providing that such notice shall be so posted.mained vacant, whereby," etc. Held, sufficient as Territory v. Lannon. (Mont.) 22 P. 495. against a general demurrer to show a right of re- covery for injuries to his property by the opera- tion of the railroad.-Jackson v Kiel, (Colo.) 22 P. 504.
5. The Oregon statutes require a petition for laying out a county road to specify the place of beginning, the intermediate points, if any, and the place of its termination.. Held, that the descrip- tion of the course of a road from a certain point or "thence north-westerly" to its termination 10 miles distant, is sufficient without giving any in- termediate points, and does not mean that the road shall run in a direct line to the point of ending.- Ames v. Union County, (Or.) 22 P. 118.
6. Where the viewers are appointed by a coun- ty court to view the route of a proposed county road, and assess the damages for opening it, they must all meet for deliberation concerning the mat- ter, but two of them may execute the authority conferred.-Beekman v. Jackson County, (Or.) 22
13. One whose only means of ingress and egress to his lots is by means of the intersection of two public streets, one of which passes in front of the lots, but extends but a short distance beyond, can recover of a railroad company for keeping the intersection blocked with cars, so as to interfere with the approach to the lots, and injure the rent of the houses thereon.-Jackson v. Kiel, (Colo.) 22 P. 504. HOMESTEAD.
Entries, see Public Lands, 2, 3. Lien on, see Mechanics' Liens, 5. Allotment.
7. The general road law of Kansas, 1868, pro- vides that before a highway can be laid out and opened it is necessary that viewers be appointed, 1. Under Code Civil Proc. Cal. § 968, subd. 3, whose duty it is to determine whether the road which makes appealable an order confirming a re- prayed for is necessary, and also to assess and de- port of an appraiser setting apart a homestead, a Lermine the amount of damages sustained by any decedent's heirs, by failing to appeal from a decree person through whose land the road may run. setting apart a homestead to the widow absolute- Laws 1867, c. 67, as amended by Laws 1868 and 1869, ly, as her separate estate, out of decedent's sepa- declare section lines in certain counties to be pub-rate property, lose their right to have the decree lic highways, and provide that the provisions of set aside where they had notice of the application, the general road law shall be applicable where the estate has been fully administered, and it does damages are claimed under the act. Held, that not appear that they have been prevented by fraud the opening of a highway under the provisions of from making the proof as to the character of the the latter act could be enjoined where no viewers property from which it was selected.-Gruwell. were appointed, and no notice given to the land- Serholt, (Cal.) 22 P. 935. owners of the laying out of the road.-Hughes v. Milligan, (Kan.) 22 P. 313.
8. Where a board of county commissioners grants a petition for the opening of a section line road pursuant to the provisions of Laws Kan. 1872, c. 181, and directs the township officers to cause
the road to be opened, an owner of land over which
the road is established, cannot, without asking for damages, appeal from the decision of the board. Kent v. Board of County Com'rs, (Kan.) 22 P. 610. 9. Where it appeared from the verdict and the exceptions, in a case of assessment of damages for taking the lands of plaintiff for a county road, that the jury had allowed, in reduction of the damages, benefits of a general nature, and the trial court had refused to give certain instructions requested by plaintiff's counsel, which properly defined that special benefits were only allowable in such a case, such refusal was error, although the court has in general terms properly instructed the jury upon that point.-Beekman v. Jackson County, (Or.) 22
10. Where, at the request of a non-resident owner of land, a board of county commissioners has reconsidered its action in ordering a road to be opened through the land of such non-resident, and has located only a part of the road, the non- resident agreeing to waive all damage caused by such location, the latter cannot urge, upon appeal, that the waiver was by parol, and not bind ng up- on him.-Butler v. Board County Com'rs, (Kan.) 22 P. 421.
11. In an action for an injunction and damages for entering on plaintiff's premises and removing s gates, a finding that the locus obstracted by plaintiff is not a public highway established under Acts Cal. 1861, p. 389 et seq., as amended by St. 1862, p. 525, as claimed by defendants, is proper, where they fail to prove compliance with the re
2. The law in force at the time of death of a person, and not that in force at the time of a pre- vious declaration of homestead on his land, gov erns as to homesteads and rights of survivors.- Gruwell v. Seybolt, (Cal.) 22 P. 938. Nature and extent of right.
3. Decedent, who had not made any declara- tion of homestead during his life, left an estate worth $500,000. The homestead occupied by the family at his death was worth $18,000, and was in- divisible. Held, that it was not an abuse of the court's discretion to set it apart for the family, though liberal provisions had been made for them by the will.-In re Walkerly's Estate, (Cal.) 22 P. 888; Id. 859.
4. Code Civil Proc. Cal. § 1476, provides that where a homestead has been selected during the marriage, and it is sought to have it set apart to the family after the death of the husband, there shall be a sale of the property, and payment of $5,000 to the family in lieu of the homestead, where it exceeds that amount in value, and cannot be di- vided; but, in determining whether it is worth more than $5,000, the value is to be fixed as of the time when it was selected. Sections 1465 and 1468, authorizing a homestead to be set apart to the fam- ily of a decedent where none has been selected be- fore his death, contain no limitations as to the value of such homestead; nor is there any author- ity for paying money in lieu of a homestead, where none has been declared. Held, that where no homestead has been declared it is in the discretion of the court to set apart one worth more, at the time of decedent's death, than $5,000.-In re Walk- erly's Estate, (Cal.) 22 P. 858; Id. 889.
5. Where a mortgage upon the homestead and other real estate is being foreclosed, the mortgagor has the right, as against the mortgagee and all other creditors and lienholders whose rights are not prior or superior to those of the holder of the
mortgage, to require that before the homestead shall be resorted to for the purpose of satisfying the mortgage debt all the other mortgaged proper- ty shall first be exhausted.-Frick Co. v. Ketels,
6. Const. Cal. art. 17, § 1, provides that "the legislature shall protect by law from forced sale a certain portion of the homestead and other prop- erty of all heads of families." Civil Code Cal. § 1237, provides that "the homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated," selected according to law. Held, that where a lot and house are legally held as a homestead, a second house subsequently erected on the lot, which does not in- crease the value of the entire property beyond the amount exempted as a homestead, is, with the land on which it stands, within the homestead exemp- tion, though it is used for renting.-Lubbock v. McMann, (Cal.) 22 P. 1145.
Rights of widow and children.
7. After the homestead has been set apart to the widow, the court has no jurisdiction over it for the purpose of distribution.-In re Gilmore's Es- tate, (Cal.) 22 P. 655.
8. Code Civil Proc. Cal. 1465, authorizing a court to set apart for the surviving wife or hus- band the homestead already selected, if any, or, if none, to designate a homestead for the use of the "surviving husband or wife and the minor chil- dren," when construed with section 1468, which provides that a homestead set apart shall be the property of the surviving wife or husband where there is no minor child, entitles a widow to such homestead, though her husband died childless.- In re Armstrong's Estate, (Cal.) 22 P. 79.
9. Only such land as could have been selected during the marriage will be assigned by the court, and therefore the widow is not entitled to a tract 50 miles distant from that on which she and her
lleve the killing was without any malice, delibera- 1. It is error to charge the jury that, if they be- vict of murder of the second degree; and such tion, or premeditation whatever, they should con- charge must be considered erroneous, even when the conviction is murder of the first degree.-Bab- cock v. People, (Colo.) 22 P. 817.
2. In a murder trial, an instruction that, "if violence of the prisoner, his guilt is not extenuated the death of the deceased was accelerated by the because death might and probably would have been the result of any disease with which the deceased was afflicted at the time of the violence," is erro neous, where there is evidence that the only blows the fists, and in self-defense, and that deceased given to deceased by defendant were given with died of injuries received otherwise than at the hands of defendant; as the violence of the pris oner may not have been unlawful.-People v. Lan- agan, (Cal.) 22 P. 482.
3. Deceased was the mistress of accused, with whom she had quarreled. She was last seen alive with the accused, leaving her house. Her body was discovered under a pile of rocks in an old prospect hole some weeks afterwards. Her watch had been torn from the chain, and was afterwards pawned by the accused, who also disposed of de- ceased's wearing apparel, and moved to another part of the city, living under another name. He made contradictory statements as to the disap- pearance and whereabouts of deceased. Held, that a verdict of murder in the first degree would not be disturbed.-Territory v. Bryson, (Mont.) 22 P. 147.
4. On a trial for murder, defendant's own tes timony showed that he did not know deceased; that on the night of the homicide he had been warned to beware of an assault; and that he bor- rowed a revolver at a certain saloon; and the evi- husband resided, though the united value of the dence showed that thereafter, with two compan- tracts is less than $5,000.-In re Armstrong's Esions, he entered another saloon, placed the revolver tate, (Cal.) 22 P. 79.
10. A homestead is extinguished by peaceable adverse possession for more than five years. - McCormack v. Silsby, (Cal.) 22 P. 874.
11. Civil Code Cal. § 1242, provides that the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and ac- knowledged by both the husband and wife. Section 1243 provides that such homestead can be aban- doned only by a declaration of abandonment, or a grant thereof executed and acknowledged by the husband and wife. Section 1244 provides that such declaration of abandonment is effectual only from the time it is filed in the office in which the home- stead is recorded. Held, that a mortgage of a homestead executed by the husband alone is void from its inception, and it is of no avail that the homestead is afterwards abandoned.-Gleason v. Spray, (Cal.) 22 P. 551.
12. Civil Code Cal. § 1265, provides that, if the selection of a homestead is made from community property, the land, on the death of either spouse, vests in the survivor. Section 1401 declares that on the death of the wife the entire community property, except such as has been set apart to her by judicial decree, belongs to the husband without administration. Code Civil Proc. Cal. § 1474, pro- vides that the homestead of married persons, on the death of one of the spouses, goes to the sur- vivor. Section 1475 makes it the duty of the su- perior court to set it apart to the survivor. Pe- titioner is the surviving husband of a wife who died without issue. During her life-time a home- stead was selected from community property, After her death the petitioner sold the land, and now asks that a homestead be set apart to him from her separate estate. Held, that the land, which vested in petitioner absolutely on the death of his wife, was still a homestead, and, having dis- posed of it, he has exhausted his homestead right. -In re Ackerman's Estate, (Cal.) 22 P. 141.
on the bar, and said "that somebody was going to lick him and fight him, and that he did not care if he got killed or any one else;" that he afterwards returned to the first saloon; that he there sought to quarrel with another, though he denied this; that deceased, who had been asleep and was in- toxicated, being aroused thereby, approached one of defendant's companions, and a slight altercation ensued between them. There was also evidence that defendant attempted to interfere, though he denied this. It appeared that deceased resented this by telling defendant that "it was none of his business," and by attempting to push him away, which effort caused deceased to stagger backward; that defendant walked a few steps away, and then shot deceased, continuing to point his pistol at him until he fell, whereupon he left and escaped under an assumed name. Held, that a verdict of murder in the first degree was warranted.-Territory v. Johnson, (Mont.) 22 P. 346. Manslaughter.
5. Deceased died, as the evidence tended to show, from peritonitis caused by a cut on her womb. Defendant, a physician and surgeon, several months before her death had made an examination of her, with a "surgeon's sound;" and there was evidence that defendant had had sexual inter- course with deceased; but there was no evidence of malice on the part of defendant, or that he used the "surgeon's sound" in the commission of an un- lawful act; and the evidence tended strongly to show that the wound on the womb was inflicted several months after the examination made by de- fendant, and by another instrument than a "sur- geon's sound." Held, that a conviction of man- slaughter could not be sustained.-State v. Rey- nolds, (Kan.) 22 P. 410. Justifiable homicide.
6. It is error to charge the jury, upon a trial for murder, that to justify homicide, on the plea of self-defense, it must appear that the slayer had no other possible, or at least probable, means of escap- ing.-Babcock v. People, (Colo.) 22 P. 817.
7. Criminal Code Colo. $$ 81, 32, 33, and 89, de- fining justifiable homicide, and prescribing upon whom the burden of proof rests to show that a homicide was excusable, may be given as instruc- tions when the killing is in an open manner, and the plea of self-defense is relied on.-Babcock v. People, (Colo.) 22 P. 817.
8. Where defendant, being in the actual and peaceable possession of land under a claim of title, is opposed in his entrance thereto, for the pur- pose of harvesting grain sown by him, by one whose wife has actual title thereto, and is, on ad- vancing, fired at and wounded, as is also his son, who seized the opposing party when he drew his pistol, the killing of the opposing party by the de- fendant in firing at him is justifiable homicide.- People v. Stone, (Cal.) 22 P. 975.
9. Under Pen. Code Cal. § 1105, providing that "upon a trial for murder, the commission of the homicide by the defendant being proved, the bur- den of proving circumstances of mitigation * devolves upon him, unless the proof on the part of the prosecution tends to show that the crime com- mitted only amounts to manslaughter, or that the defendant was justifiable or excusable," where the proof for the prosecution tends to show a killing in self-defense, an unqualified instruction that after proof of the homicíde the burden of proving miti- gating circumstances is upon the defendant, is er- roneous.-People v. Elliott, (Cal.) 22 P. 207.
10. An instruction that defendant must show such mitigating circumstances by "a preponder ance of evidence" is erroneous.-People v. Elliott, (Cal.) 22 P. 207.
Assault with intent to kill.
11. Pen. Code Cal. § 217, provides that "every person who assaults another with intent to com- mit murder is punishable" as therein provided. On a trial for that offense, the court instructed the jury that, "if the testimony showed that, had the prosecuting witness been killed, one of the defend- ants would have been guilty of murder, then that one should be convicted." Held, that this was error, as the intent is an essential ingredient of the crime, and must be proved.-People v. Mize, (Cal.) 22 P. 80.
12. In such case the question of intent is one of fact, and a charge which, in effect, withdraws that question from the jury is error.-People v. Mize, (Cal.) 22 P. 80.
Insanity as defense.
13. Insanity as a defense to crime must be es- tablished by a preponderance of evidence.-State v. Lewis, (Nev.) 22 P. 241.*
14. A man who has sufficient reason to know that the act he is doing is wrong and deserves punishment, is legally of sound mind, and is crim- inally responsible for his act.-State v. Lewis, (Nev.) 22 P. 241.*
15. An insane delusion is an incorrigible belief, not the result of reasoning, in the existence of facts which are either impossible absolutely or are im- possible under the circumstances of the individ- ual.-State v. Lewis, (Nev.) 22 P. 211.*
16. An insane delusion is not a defense to a prosecution for crime unless it would excuse the crime if the facts about which it exists are true. -State v. Lewis, (Nev.) 22 P. 241.*
17. When insanity has been pleaded in defense to a prosecution for murder, acts of defendant sub- sequent to the homicide indicating insanity are ad- missible only when they tend to prove that he was insane at the time of the homicide.-State v. Lewis, (Nev.) 22 P. 241.*
18. A person who had known accused for four months, had seen him every day during that time, had observed his manner of speech, had seen him the evening before the homicide, and had had con- siderable conversation with him on the day after, is a competent witness as to sanity of accused. State v. Lewis, (Nev.) 22 P. 241.
19. Witnesses who are not experts may testify to their belief as to the sanity or insanity of ac- cused without giving the facts upon which their belief is based.-State v. Lewis, (Nev.) 22 P. 241.*
20. It is not error to admit non-expert testimony s to the mental capacity of defendant, where the witnesses stated that they were well acquainted with him, and that their opinions were based on observations made during the period of their ac quaintance.-Territory v. Roberts, (Mont.) 22 P.
21. A refusal to allow defendant to ask a wit- ness whether there was not a good deal of enmity between her husband (prosecutor) and one D., who directed the assault by defendant, was not errone- ous, as it had no bearing upon the guilt or innocence of defendant, or as to how the witness felt towards him.-Territory v. Campbell, (Mont.) 22 P. 121.
22. Defendant and three others got guns from the stable of D., who was one of their number, and fired them off in the direction where prosecutor was erecting a fence between his farm and that of D. The party then came to prosecutor, and D. claimed title to his land, which prosecutor denied, whereupon D. began firing at him, and called out, "Fire, boys!" Defendant then fired four shots at prosecutor, and wounded him. Held, that what D. said at the time was part of the res gesto, and was admissible, as the evidence tended to show a con- spiracy.-Territory v. Campbell, (Mont.) 22 P. 121.
23. Defendant's divorced wife lived upon a ranch belonging to her, but he was allowed to visit his child in the custody of its mother. Held, that evidence that deceased, who was the uncle of the wife, was, at the time of his death, upon said ranch for her protection and that of her child from defendant, was irrelevant, and prejudicial to defendant.-People v. Elliott, (Cal.) 22 P. 207.
24. In order to show that the killing constituted murder under Pen. Code Cal. § 189, which enumer- ates the class of homicides to which the law "su- .
peradds the intent to kill," it was competent to show that it was done in the commission or attempt to commit a felony, whether such felony was com mitted or attempted as the result of a conspiracy lonious intent accompanying the crime contemplat or not; and in such case the law attaches the fe- ed to the act of killing, and constitutes it murder, whether it be one of those enumerated in section 189 or not.-People v. Olsen, (Cal.) 22 P. 125.
25. Where defendant claims to have killed de- ceased accidentally he is only bound, under Pen. Code Cal. 1105, which provides that, "upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of prov- ing circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged, and it was error to charge that, "when the killing is proved beyond a reason- able doubt, the defendant must make out his case in mitigation to excuse or justify it by some stronger proof in some appreciable degree than the proof of the prosecution. The burden of proof changes, and the proof on the part of the defend- ant must be in some degree stronger than the proof on the other side. "-People v. Bushton, 22 P. 127, 80 Cal. 160; People v. Lanagan, 22 P. 482, 81 Cal. 142.
26. There was evidence that defendants had con- spired to steal the property of deceased, and in carrying out the conspiracy one or more of defend- ants killed deceased. The evidence was not in the record. The jury were instructed that if defend- ants conspired to commit a felony, and killed de- ceased in prosecuting the design, it was murder in all, though only one may have inflicted the fatal blow, the others being present aiding and abetting, and that in such homicides the law superadds the intent to kill to the original felonious intent. Held that, though defendants were not being tried for grand larceny or conspiracy, the fact that the murder was the result of a conspiracy to commit another crime, and the attempt to carry it out, were material for the jury to consider, and the instruc- tion stated the law correctly.-People v. Olsen, (Cal.) 22 P. 125.
30. There being some evidence of a hostile act by deceased immediately before the commission of a homicide, evidence of threats by deceased against the accused is competent, though it does not appear that the threats were communicated.-Babcock v. People, (Colo.) 22 P. 817.
31. A refusal to allow defendant to prove cer- tain threats which prosecutor had made against his life, and communicated to him, was not erro- neous where the evidence of the prosecution re- futes the intention of prosecutor to carry them in- to execution at the time the crime was committed. -Territory v. Campbell, (Mont.) 22 P. 121.* Instructions.
32. An instruction defining murder in the first and second degrees, in the words of Comp. St. Mont. division 4, § 21, and concluding, "and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty there- of, designate by their verdict whether it be murder in the first or second degree," is proper, where supplemented by a charge on manslaughter, and that the jury could not convict of a higher crime unless proved beyond a reasonable doubt, and that they must acquit unless satisfied of defendant's guilt beyond a reasonable doubt.- Territory v. Johnson, (Mont.) 22 P. 346.
33. A request to instruct that "In determining whether or not the defendant acted upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, as de- fined to you by the court, and without malice or de- liberation, you must take into consideration all the circumstances existing at and about the time of the shooting; whether or not the deceased was making an attack upon the defendant; the nature of the attack, if any; the relative size and strength of the parties; and the character of the deceased for vio- lence, "was properly refused, as it assumes that the character of the deceased for violence had been proved.-Territory v. Johnson, (Mont.) 22 P. 346. 34. An instruction that, if the jury found "from the evidence, beyond a reasonable doubt, that the homicide was committed by defendant at the time and place mentioned in the indictment," he could not be excused unless they found "that such homi- cide was committed by accident and misfortune, in lawfully correcting a child or servant, or in do- ing any other lawful act, by lawful means, with usual and ordinary caution, and without any un- lawful intent, or that such homicide was commit- ted by the defendant by accident and misfortune, in the heat of passion, upon any sudden and suffi- cient provocation, or upon a sudden combat, when no undue advantage was taken, or any dangerous weapon used, and when the killing is not done in a cruel and unusual manner, "was in the language of Pen. Code Cal. § 195, and was proper.-People v. Bushton, (Cal.) 22 P. 127.
35. An instruction that if the jury find defend- ant guilty of murder in the first degree, and also find that there is some extenuating fact, it is within their discretion to pronounce such a sen- tence as will relieve defendant from the extreme penalty of the law,-the jury being invested with that discretion, which is not an arbitrary one, but is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed, and that if the evidence shows any of the defendants to be guilty of murder in the
first degree, but does not show some extenuating fact or circumstance, the jury must find such de fendant simply guilty of murder in the first de- gree, and leave it to the law to affix the punish- ment, is not erroneous or misleading, though open to criticism.-People v. Olsen, (Cal.) 22 P. 125. 36. The court instructed the jury that, if they believed that defendant did knock, kick, and stamp deceased, as charged, and if they believed that, at the time of such kicking and stamping, de- ceased was, and for some time prior thereto had been, suffering with peritonitis, occasioned by bruises received 32 hours prior to his death, still, if the jury further believed that the death was hastened by the knocking and stamping, the fact that deceased was suffering from peritonitis a the time would not extenuate defendant's guilt Held, that the instruction was not objectionable, as assuming defendant's guilt, and was correct.- People v. Lanagan, (Cal.) 22 P. 482. New trial.
87. Newly-discovered evidence in a murder trial that deceased was seen near the place where she was afterwards killed, with a man other than de- fendant, is no ground for a new trial when, if de fendant committed the murder, he did it some days after she was so seen.-Territory v. Bryson, (Mont.) 22 P. 147.
HUSBAND AND WIFE. See, also, Divorce; Homestead; Marriage. Privileged communications, see Witness, 1. Wife's separate estate.
1. Where land is purchased with the wife's earnings, the husband not making any claim there- to, and telling her that "everything you make is yours," it is the wife's separate property, and the husband need not be joined as plaintiff in eject- ment for such land.-Von Glahn v. Brennan, (ČaL)
2. The husband is not personally liable for taxes levied on lots owned by his wife, although occupied by them both as their homestead.-Rich- ards v. Tarr, (Kan.) 22 P. 557.
8. A woman before her marriage had a pos- sessory title to, and was in possession of, certain public land. After her marriage the United States government conveyed the tract of which said land formed a part to the board of town trustees, “in trust for the use and benefit of the occupants thereof." Subsequently thereto the husband made application that said land be conveyed to the wife, which was done, and the required sum was paid by the husband. Held, that the wife, under the conveyance from the government, had an equi- table interest, which was her separate property, the fact that the patent was issued after her mar- riage being immaterial, and that it was not made community property by the husband's advancing money to obtain the legal title thereto.-Morgan v. Lones, (Cal.) 22 P. 253.
4. Where a wife, with notice that condemna- tion proceedings by which her property is sought to be affected are wholly void, voluntarily accepts as compensation for her property a sum of money equal to the amount of a void award, she must be regarded as acting wholly independent of such proceedings, and she cannot thereafter recover possession of the premises, nor further compensa- tion for the taking; a married woman, under the laws of Colorado, having the power to do what she will with her own property.-Colorado Cent. R. Co. v. Allen, (Colo.) 22 P. 605.
5. Civil Code Cal. §§ 1093, 1186, 1191, making a certificate of a married woman's separate exam- ination and acknowledgment of a deed, and of the fact that it was explained to her, essential to its validity, does not except married women living separate from their husbands, and a conveyance by such a woman of land constituting her separate estate without such certificate is void, and this re- sult is not affected by section 162, providing that a
Gen. St. Nev. 42-15, provides that "a con- viction cannot be had upon the testimony of an ac- complice, unless he be corroborated by such other
ar exercise of police power, and is constitutional. -Territory v. Guyot, (Mont.) 22 P. 134.
2. Proof under an indictment for selling whis-. ky "to a certain Indian," that the Indian belonged to the tribe living on the Flathead reservation in charge of an agent, brings the case within the pur- view of Comp. St. Mont. div. 4, § 160, and Rev. St. U. S. § 2139, and the sale was not commerce "with the Indian tribes," within the meaning of Const. U. S. art. 1, § 8, subd. 3.-Territory v. Guyot, (Mont.) 22 P. 134.
evidence as shall tend to connect the defendant INDICTMENT AND INFORMA-
with the commission of the offense; and the cor- roboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof." On a trial for incest, it appeared that defendant was in the habit of taking the prosecut- ing witness, his daughter, with him to a certain ranch, and remaining over night; that there was but one bed at the ranch, and that one night, at least, defendant and his daughter occupied it to- gether; that the ranch was not provided with any extra bedclothes; that defendant knowing his daughter's condition placed her in a hospital, where she gave birth to a child; that he then sent her to a distant state; that, while the daughter was await- ing confinement in the hospital, she accused her father of being the father of her unborn child; and that she was afterwards persuaded by friends of the father to sign a letter retracting this charge. Held, that the testimony of the prosecuting witness was sufficiently corroborated to warrant a conviction.- State v. Streeter, (Nev.) 22 P. 758.
1. A contract to furnish a bond of indemnity will be treated as a contract of indemnity, if the bond is not furnished.-Showers v. Wadsworth, (Cal.) 22 P. 663.
2. Under a bond of indemnity to a sheriff for a sale under execution, providing that the obligors will save him harmless from all damages, including counsel fees, which he may incur in consequence of the legal enforcement of payment of the penalty of the bond, the sheriff can recover of the obligors a reasonable amount which he paid as attorney's fees in an action on the bond.-Tunstead v. Nix- dorf, (Cal.) 22 P. 472.
3. A bond of indemnity to a sheriff for a sale under execution provided that the obligors would indemnify and save him harmless "of and from all damages, expenses, costs, and charges, including all counsel fees, which he may incur in consequence of the legal enforcement of payment of the penalty of this bond, and against all loss and liability which he shall sustain or in any wise be put to by reason of the levy," etc. Rely- ing on this bond, the sheriff refused to return the property, and sold it, and a judgment was obtained against him therefor. Held, that the fact that, before the original execution was executed, an alias was necessary and was issued after the bond was given, did not preclude the sheriff from recov- ering on the bond.-Tunstead v. Nixdorf, (Cal.) 22 P. 472.
Sale of liquor to Indians.
See, also, Arson, 1; Assault and Battery; Burglary; Counterfeiting, 3; Extortion, 1; False Pretenses, 1; Gaming, 1, 2; Larceny, 3- 5; Malicious Mischief, 1. Finding.
1. Crim. Prac. Act Mont. § 145, (Rev. St. 308,) directs that, in the investigation of any charge for the purpose of finding an indictment, the grand jury shall receive none but legal evidence. Held, that it was not the intention of the legislature that an indictment should be set aside on the ground that the grand jury had received illegal evidence, as that is not one of the grounds of such a motion as enumerated in section 206, and it is proper to refuse to allow a question to a grand juror, on mo- tion to set aside an indictment, as to whether he knows what legal evidence is.-Territory v. Pen- dry, (Mont.) 22 P. 760.
2. An information sworn to by the county at- torney on information and belief is sufficient to support a verdict, although the affidavits of wit- nesses filed with the information were sworn to two days after the verification thereof.-State v. Druitt, (Kan.) 22 P. 697. Description of offense.
3. An indictment, drawn under the Kansas crimes act, § 38, providing for the punishment of any person who shall assault another with intent to kill, maim, ravish, or rob such person, or in the attempt to commit any burglary or other felony, which sufficiently alleges an assault, but omits the allegation of intent, is insufficient to support a verdict of guilty of felonious assault. -State v. Child, (Kan.) 22 P. 721.
See, also, Adoption; Parent and Child. Actions, see Partition, 2. Contracts.
1. The contract of a minor cannot be disaf- firmed where, on account of his own misrepresen- tations as to his majority, or from having engaged in business as an adult, the other party has good reason to and does believe the minor capable of contracting.-Dillon v. Burnham, (Kan.) 22 P. 1016. Action on,
2. In an action to enforce such a contract, an order of attachment may be obtained for the same reasons as in other cases, and the judgment ren- dered thereon may be enforced as in ordinary judg- ments.-Dillon v. Burnham, (Kan.) 22 P. 1016. Service on minor.
1. Comp. St. Mont. div. 4, § 160, which provides that "if any person shall, directly or indirectly, that service of summons upon a minor may be made 3. Under Code Civil Proc. Cal. § 411, providing sell intoxicating liquor, whether fermented, vinous, or spirituous to any Indian or half-breed by delivering a copy "to such minor personally, Indian" in that territory, he shall be guilty of a and also to his father, mother, or guardian," a re- felony, etc., does not conflict with Rev. St. U. S. turn showing personal service upon both minor and $2139, providing that "every person (except an guardian is sufficient to confer jurisdiction, espe- Indian in the Indian country) who sells * **cially after appearance of the guardian.-Richard- any spirituous liquors or wine to any Indian under son v. Loupe, (Cal.) 22 P. 227. the charge of any Indian agent, shall be punished, etc., nor with Const. U. S. art. 1, § 8, subd. 3, which provides that congress shall have power to regu- late commerce with the Indian tribes, but is merely See Indictment and Information
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