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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

P. 1074.

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.

Damages.

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

P. 1074.

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.

Obstruction.

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

What law governs.

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,

(Kan.) 22 P. 580.

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

Murder.

HOMICIDE.

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.

Abandonment.

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.*

Opinion evidence.

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.

132.

Evidence.

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.

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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)

22 P. 596.

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.

Conveyances.

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

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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.

INDEMNITY.

The contract.

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.

Recovery on bond.

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.

INDIANS.

Sale of liquor to Indians.

*

TION.

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.

Verification.

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.

INFANCY.

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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Information.

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