Mont.)

TERRITORY v. PENDRY.

that in the investigation of any charge for en animal. Only such do nestic animals the purpose of finding an indictment the are enumerated by the statute as are unigrand jury shall receive none but lega. evi-versally acknowledged to be valuable, and dence. In the very nature of things, the the same punishment is meted out to the statute must be directory, and not man- offender, without any regard to its value. datory. When we consider that the inves- That the property was of some value may tigations before grand juries are often nec-be inferred by the jury from the facts and essarily conducted by men not skilled in circumstances in the case, even though the law, and who are ignorant of the rules of evidence, it would be an impossibility to prevent evidence of this character from sometimes getting before the jury. It was never the intention of the law-makers that an indictment should be set aside for any such reason, else it would have been enumerated as one of the grounds for such a motion in section 206, Crim. Prac. Act. The statute merely directs the jury to conduct their investigations by means of legal evidence, and this they are to do to the best of their knowledge and information. The last ground in the motion to set And it is the duty of the jury to reject illegal evidence in their deliberations when- aside the verdict is evidently frivolous. Deever they become aware of it. But the law fendant insists that the court erred in deof this territory does not annul an indict-nying the motion, “for the reasons stated ment for such a cause, and the trial judge in open court." Doubtless the reasons was correct in refusing to allow the question; it was irrevelant.

there be no direct testimony upon the point. There was no error in this instruction. Houston v. State, 13 Ark. 66; Lopez v. State, 20 Tex. 781; People v. Townsley, 39 Cal. 405; State v. Wells, 25 La. Ann. 372; State v. Thomas, 28 La. Ann. 827; 1 Bish. Crim. Proc. § 315; Whart. Crim. Pr. (8th Ed.) § 215; Bish. St. Crimes, § 427, and authorities there cited. There are some decisions to the contrary effect, but they can all be readily reconciled upon some special reason or rule which does not apply in this case.

in the order appealed from, which is therefore affirmed, at cost of appellant.

BLAKE, C. J., and DE WOLFE, J., concur.

given by his counsel in open court why the verdict should be set aside were very This brings us to the fifth ground in the convincing and conclusive to both the demotion for a new trial, and which con- fendant and his counsel, but, not having tains the only serious reason why it found them reduced to writing and conshould be granted. The defendant asked tained in the motion, the court is relieved the court to instruct the jury that the pros-from considering them. There is no error ecution should prove the value of the stolen animal, but the trial judge refused to do so, and instead thereof instructed the jury as follows: "In the crime of stealing a steer it is not necessary to prove that it BACH, J., (dissenting.) I agree with the reis of any special value whatever, to constitute grand larceny, and this you may infer sult in this case, but I am forced to dissent from any facts and circumstances which from the reasoning of the majority opinion may be proven, in the absence of any direct upon the fourth objection raised upon the .evidence upon that point." Defendant appeal. The majority opinion seems to decomplains that this instruction misstates cide that an indictment cannot be quashed the law. By the laws of the territory, lar-upon the ground that it was founded on ceny is divided into grand and petit. The illegal testimony, under any circumstances, theft of property under $50 in value is petit and declares: "It was never the intention larceny, while to steal property of that or of the law-makers that an indictment greater value than that sum constitutes should be set aside for any such reason, the crime of grand larceny. But whoever else it would have been enumerated as one steals a steer or certain other enumerated of the grounds for such a motion in section animals, of whatever value, commits the 206 of the criminal practice act." I am of crime of grand larceny; the punishment the opinion that said section permits the for which is particularly specified in the quashing of the indictment when it is not section defining the crime. Crim. Laws, properly found, and when that fact is § 72; Rev. St. Mont. 366. It is undoubted-brought to the notice of the court through ly the common-law rule that the property legal means. The majority opinion constolen must have some appreciable value fines such a motion to the grounds of into be a subject of larceny, and prior to the dorsement and presentment of the indicttime of George IV. it was always neces-ment, under subdivision 1, § 206. On the sary to state the value of the stolen prop-other hand, I find three grounds contained erty in the indictment, in order to distin-in that subdivision: (1) When the indictguish between the two offenses of grand and petit larceny, the punishment for the two crimes being different, and this is the reason for the rule as stated by East, Hale, and Blackstone. But when the distinction between grand and petit larceny was abolished, during the reign of George IV., it is not necessary to state or prove the value of the article stolen. Archb. Crim. Pl. & Pr. marg. p. 364. See "Form," Id. 354.

In prosecutions for cattle stealing, under the statute which declares the theft of certain animals, whatever their value, to be grand larceny, it is unnecessary to allege or prove any particular value for the stol

ment is not found as prescribed by this act; (2) when the indictment is not indorsed as prescribed by this act; (2) when it has not been presented as prescribed by this act. In other words, I think that a comma should be placed between the word "found" and the word “indorsed." I reach this conclusion because (1) the expression "found indorsed," as it occurs in the subdivision of section 206, means nothing more than “indorsed," the word "found" adding nothing to the word "indorsed." (2) The expression "found" has a well-defined meaning in the criminal law regarding indictments. (3) The section is evidently taken from the

Code of California, and has been so con- | could not the court grant the motion? strued. See section 995, Deer. Pen. Code If the defendant in the case was innocent, Cal., and case cited in the notes. (4) In great injustice was done to him by the the case of Territory v. Hart, 7 Mont. 42, law, and a useless expense was thrown 14 Pac. Rep. 768, Mr. Justice MCLEARY ex-upon the people. On the other hand, if the presses the opinion which would seem to defendant was guilty, great injustice was limit the meaning of the subdivision to the done to the people, for the defendant is safe two grounds of indorsement and present- from further prosecution. It is the pracment; but it will be seen that the learned tice and the law to indorse upon the indictjudge held that a motion would lie when ment the names of all material witnesses. based upon the improper finding. A refer-This does not mean only the names of ence to the California authorities sustains those who were before the grand jury. the result in the Hart Case, and further it were shown to the court that there were proves that the proper remedy was a mo- absolutely no witnesses before the grand tion to quash, upon the ground that the jury, or if it were shown to the court that indictment was “not found as prescribed the only witness before the grand jury was by this act." See People y. Southwell, incompetent, could not the court grant a 46 Cal. 141; People v. Colby, 54 Cal. 37. motion to quash the indictment upon the ground that "it was not found as prescribed by the act?" I think that it would be the duty of the court to grant the motion.

If

I accept, then, the conclusion that a motion to quash an indictment may be based upon the ground that the same was not found as prescribed by this act." It is necessary now to determine what is meant by The following cases are in point: State v. the expression, "the finding of an indict- Fellows, 2 Hayw. (N. C.)340. The opinion is ment.' The finding of an indictment is a short, and is herein given in full, (TAYLOR, proceeding which commences by an inves-J.:) "The person who is to be entitled to tigation undertaken by a grand jury, and a restitution of possession, in case of a conbased only upon legal testimony, and viction on an indictment of forcible entry, which ends by an indictment voted for by cannot be a witness on the trial; and, if at least 12 members of the grand jury. It the indictment has been found on his single is the legally declared result of an investi- testimony, it ought to be quashed." In gation based upon legal evidence. If 12 State v. Froiseth, 16 Minn. 296, (Gil. 260,) a members of the grand jury do not vote in motion to set aside (or quash) an indictfavor of the indictment, the indictment can- ment was granted because the defendant not be found; if there is not legal evidence was required by the grand jury to testify before the grand jury on which an indict- before them, and did so testify, concerning ment can be based, an indictment cannot a charge against himself pending before be found; and if it is made to appear to them. The statute of Minnesota regulat. the court, at the proper time and through ing the practice on and enumerating the the proper channel, that less than 12 grand grounds for a motion to quash an indietjurors voted for the indictment, or that ment is similar to the said section 206 in the there was no legal evidence before the grand Montana Compiled Statutes. In People v. jury upon which to base the indictment, Moore, 65 How. Pr. 177, a motion to quash then, in my opinion, the court should an indictment was granted upon the ground sustain a motion to quash the indictment that it was improperly found. The motion upon the ground that "it was not found was based upon affidavits showing that as prescribed by this act." There are the wife of the defendant was introduced many reasons why such a motion should as a witness before the grand jury, withbe granted. The finding of an indictment out the consent and against the will of her raises a presumption of guilt in the minds husband, the defendant, and that her testiof the people, especially when the grand mony was vitally material. The opinion jury is directed not to return an indictment of OSBORN, J., in People v. Briggs, 60 How. unless in their opinion there is evidence be- Pr. 17, seems to present the proper rule.— fore them sufficient to warrant the trial one which preserves the presumption of the jury in a conviction. Great expense is validity of an indictment to the fullest exthrown upon the defendant, and upon the tent warranted by law, and one which propublic, in defending and prosecuting the vides a remedy against the illegal action of action. In my own short experience upon a grand jury. The learned judge says, (see the bench, I had occasion to direct a jury page 41:) "The law requires, and the to bring in a verdict "Not guilty" in a case grand jury are always charged, that no inwhere the defendant was charged with the dictment should be presented unless the crime of murder. The foreman of the grand guilt of the accused is clearly established jury afterwards told me: "We knew that by credible, legal, and competent testithere was no evidence before us to sustain mony. It may be said, and truthfully, that the indictment, but we were told that evi- no indictment could ever stand if it was to dence would be furnished at the time, if we be set aside because some illegal evidence would find the indictment." The prosecut- was admitted. The grand jurors are not ing attorney was not present at the investi- lawyers, and it often happens that quesgation before the grand jury, and when the tions are put and evidence elicited that prosecution rested, and the motion was would not be allowed in court. Shall evmade by the defendant that the court di-ery indictment, therefore, be set aside? 1 rect the jury to return the verdict "Not guilty," the prosecuting attorney rose and declared that he could not resist the motion. Suppose that a motion to quash the indictment was made upon such a showing, admitted by the prosecuting attorney,

answer, by no means. Where there is sufficient legal evidence to warrant the finding of a bill, no court would set it aside for technical illegalities, which it is apparent did not and could not have irtluenced the action taken."

nedy caused the masonry around the boil- of the creditor, not only to sell such real ers to be torn down, with a view to remov-property and fixtures as may be mentioned ing the same, and actually removed the en- in the act, but also any improvements and gine, first cutting the 16-inch bolts by which personal property permanently attached it was moored to its foundation, taking to the realty, in such a way as to make it a also two joints of steam-pipe and other fit- fixture, and not excepted by the terms of the tings connected with the engine, the drums, act. Sands v. Pfeiffer, 10 Cal. 259; Merritt the pump, and a lot of wire cable used for v. Judd, 14 Cal. 60; Water Co. v. Fluming hoisting. The present suit of claim and de- Co., 22 Cal. 621; 2 Kent, Comm. 346; 2 Hil. livery was instituted to recover this ma- Mortg. p. 382, § 11. Whenever the mortgagor chinery, and damages for unlawfully with- endeavors to remove the fixtures or imholding the same, and resulted in a judg-provements upon mortgaged property, he ment for the defendants. From an order may be enjoined, or the creditor may have denying a motion for a new trial, as well his choice of an action for damages, or one as from the judgment, the plaintiff prose- of claim and delivery after he has become cutes the present appeal. the purchaser of the property at sheriff's sale, as in the present instance. Our conclusion is that the plaintiff was entitled to recover the machinery or its value, except the pump, which does not appear from the evidence ever to have been attached to the freehold in such a way as to enable us to say that it was a fixture.

Several errors of law are assigned in the motion, but, under the view which we have taken of the case, it will only be necessary to examine one of them. The case was tried without a jury, and the judge found that the machinery, except the pump, were fixtures, and could not be removed without injury to the realty; that it would cost Had the plaintiff framed his complaint $500 to replace the same; that it was all properly, he would undoubtedly have been put upon the claim after the mortgage; entitled to a judgment for $500 on account and that the pump was worth $150; final- of damages; for that is the amount provly, that this machinery was not specified en to have been necessarily expended in rein the original decree of foreclosure, from placing the machinery at the mine. But, which he concludes that the title thereto upon examining his complaint, the dedid not pass by the foreclosure sale, and mand for damages is for unlawfully withthe sheriff's deed made in pursuance there- holding and detaining the goods, which is of. We agree entirely with the judge a quo nothing more than a demand to be paid in his findings, but his conclusions of law for the use of the property of which he has are erroneous, and the order and judgment been deprived. No evidence was adduced appealed from must be reversed. The trial under this demand, but the judge found judge misconstruued the scope and effect that the cost of replacing the machinery of the decree in the case of Dutro v. Schuer- was $500. Any judgment for damages man et al. Under the pleadings in that would therefore be outside of the issues, uncase it devolved upon the plaintiff to show less the proof supported the allegations in the power of attorney, the execution of the the complaint. The successful plaintiff in a note, and its consideration, the mortgage, claim and delivery suit, if in possession of its destruction, its terms, and the property the property, is entitled to a decree fixing on which it was imposed; and when this his title, and to a judgment for such damwas done the trial judge correctly found the ages as he may have been occasioned by property on which it was intended to op- the acts of the defendant. But where the erate, to-wit, the mining claim No. 5, and latter is in possession the plaintiff is entithe machinery upon it at the date of its ex- tled to a judgment for the specific property, ecution. And when, after his conclusions and, in default of its delivery, then to a of law, the judge decreed that the plaintiff moneyed judgment for the value of such ma"was entitled, by virtue of such mortgage, chinery as it stood upon the mine, and not to a lien upon the mining claim, and all the when severed from the realty. Rhoda v. machinery and buildings which were upon Alameda Co., 58 Cal. 357; Whitbeck v. Railand attached to the claim on the 12th of road Co., 36 Barb. 644. It is therefore orAugust, 1879," he merely reiterated the dered that the order and judgment apterms of the mortgage as it originally ex- pealed from be reversed, and the cause reisted, and ordered the sale of the real prop-manded for a new trial, respondents paying erty to satisfy the debt and mortgage. costs of this appeal. We have carefully searched the pleadings in that case, and can find no issue raised as to the right of the mortgage creditor to sell such machinery and buildings as may have been placed upon the real estate after the execution of the mortgage, in such a way as to become fixtures, and by designation a part of the real estate. Since the decree was silent in this respect, and no eral assembly to provide by general laws for or1. Const. Colo. art. 14, § 13, authorizes the gensuch issue having been made, the right to ganization and classification of cities and towns, sell such fixtures must be governed by the and to define by general laws the powers of each general rule which applies between mort-class, so that all of the same class shall possess the gagor and mortgagee under such circum- same powers, etc. Section 14 provides that the stances. Had the judge found and so de- general assembly shall make provision by general creed otherwise, the findings would have law whereby any city incorporated by special law been disregarded as being outside of the may elect to become subject to the general lawissues. Marks v. Sayward, 50 Cal. 57; Greg-rated under the general laws; but, on the contra The city of Denver never elected to be reincorpo, ory v. Nelson, 41 Cal. 279. In the foreclosry, its charter was often amended. Held, that ure of a mortgage it is the undoubted right Const. art. 7, § 12, providing that the general as

BLAKE, C. J., and BACH, J., concur.

PEOPLE ex rel. BARTON V. LONDONER. (Supreme Court of Colorado. Oct. 25, 1889.)

CONSTITUTIONAL LAW-QUO WARRANTO.

"Sec. 14. The general assembly shall also make provision by general law whereby any city, town, or village incorporated by any special or local law may elect to become subject to and be governed by the general law relating to such corporations." 2. Article 7, § 12, does not take away the rem- Art. 7: "Sec. 8. All elections by the peoedy by quo warranto authorized by article 6, § 3, ple shall be by ballot. Every ballot voted but provides a concurrent remedy, which is usu- shall be numbered in the order in which it ally instituted by or on behalf of an unsuccessful shall be received, and the number be recordcandidate for an office, to determine his righted by the election officers on the list of votthereto, while quo warranto proceedings are in the name of the people, to determine the right of