text:
    FORRESTER and MacGINNISS, Respondents, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO. et al., Appellants. IN THE MATTER OF THE PETITION OF CERTAIN OF THE APPELLANTS TO PROVE EXCEPTIONS.
    [No. 1,385.]
    [Submitted June 12, 1899.
    Decided July 10, 1899.]

      Bill of Exceptions — Original Proceeding for Leave to Prove Exceptions — Immaterial Amendments — Contempt • — ■ Mandamus.

    1. An original petition in the supreme court for leave to prove exceptions, under Sec. 1157 of the Code of Civil Procedure and the rules of the Supreme Court, — the ground of the application being that certain amendments, not in accord with the facts, were allowed by the trial judge to the bill of exceptions as served — will be dismissed, where the amendments allowed are immaterial.

      Obiter. — There is no necessity of including in a bill of exceptions an order appealed from, which merely denied a motion to vacate the appointment of a receiver; such order is deemed excepted to, and may be presented as part of the record proper by a copy certified as correct by the clerk.
    2. A bill of exceptions, as presented for settlement, contained a copy of the order appealed from, which merely denied the motion to vacate the appointment of a receiver. The amendment to the bill, proposed and allowed, set out that the court refused to grant the motion to discharge the receiver because defendants had refused to comply with the order appointing the receiver, and had violated it, and stood charged with contempt of court, to which the juage directed to be added a statement corroborating such alleged facts. No such reasons were announced, either by express words or by implication, at the time the order was made. Held, that the reasons for the refusal of the order were immaterial, since the court, having “heard” the motion involving substantial rights, could not punish for contempt by deciding against the movants, and hence the Supreme Court cannot strike out such amendments from the bill, under Code Civ. Troc. § 1157, though it may disregard them,
    3. A writ of mandate will not issue to a trial judge, commanding him to hear and determine an application to vacate an order appointing a receiver, where he makes it appear to the Supreme Court by his return that the movants are in contempt.
    Action by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. Original proceeding by certain of defendants for leave to prove exceptions.
    Denied.

      Mr. Wm. U. De Witt, Mr. Wm. Scdllon, Mr. W. W. Dixon, Mr. Ransom°Cooper, Messrs. Forbis & Fvans, Mr. Wm. Wallace, Jr., and Messrs. Carpenter db Ca/rpenter, for Appellants.
    In some of the decisions the Court may find that the question of mandamus as against a district judge to compel him to sign a bill of exceptions is discussed. We think mandamus is an ordinary law remedy which could be applied in the absence of a statute, such as 1157 C. C. P. and Rule IY of this court.
    If the mandamus were issued against a district judge, apparently it would go simply to the extent of compelling him to act in some way, without designating how he should act and without correcting any of such judge’s wrongdoings. But our statutory and court rule goes farther. It allows this court to review an action of the district judge when he has not allowed an exception in accordance with the facts, and it furthermore provides that the Supreme Court shall ascertain the facts, and then, by its chief justice, settle the bill of exceptions.
    We contend that the case of Hale v. Hitch Go., 2 Mont. 489, is not in point in this case. If the Court, however, should disagree with us, and hold that that decision is in point, we submit to the deliberate consideration of this Court the statement that the Hale-Ditch Co. case ought not to be sustained. The Court can readily understand the conditions out of which that decision arose. At that time there were- no court stenographers in the state; evidence was taken hastily and imperfectly by counsel or their long-hand clerks. If controversies arose between counsel on settling a bill of exceptions, such controversies must have been resolved in some way, and probably the only safe way was by dependence upon the judge’s recollection. We think both the members of this court and counsel can remember very unsatisfactory contentions of this sort. But we have changed all this. The proceedings are now all taken by skilled stenographers and the statute of the state goes so far as to enact that the report of the stenographer shall be prima facie evidence of its correctness. (C. C. P., Sec. 377.) The record is here certified by the official reporter. Therefore, the Hale-Ditch Co. case ought not to apply to present conditions.
    Assume a case with a stenographer and five respectable counselors at law, or a greater number of creditable witnesses, who testify, not from recollection, but positively, that certain facts occurred on a trial, and, on the other hand, the judge should state that his recollection was to the contrary. We submit that a party should hot be prejudiced by such a situation. If the Hale-Ditch Co. case is to prevail, then a judge with a faulty memory, or a judge who is unfair, could absolutely ruin an appeal where the testimony was overwhelming that the facts were different from those certified by the judge.
    The Hale-Ditch Co. case, however, has no support in any authority. It is unsupported by ‘ ‘In re Thompson, ’ ’ 9 Mont. 388, because in tbe Thompson case there had been no attempt in any way to correct what was certified as the judge’s recollection. The case is not supported by any other state, and the decisions of California, under a similar statute, are directly opposed to it.
    It cannot be claimed that this statute confers upon the appellate court no power other than to compel the trial judge to settle the bill of exceptions. Such power is inherent in the absence of any statute, and is exercisable through mandamus. The Court may at any time, by its own order, command the judge to settle the bill, but it may not advise him how to settle unless empowered by some legislative measure. Clearly the purpose of the legislators was to supplement the Court’s jurisdiction and enable it to review for adjudication the bill incorrectly settled by the judge below. Otherwise the statute is mere impotent surplusage on the books. It gives nothing, means nothing, and for the careless, defective ruling of a trial judge there is no remedy. As early as 1866, Justice Sander-son, of the California court, defining the practice authorized by this statute, said:
    “A motion to correct a statement of exceptions where the court below refused to make the same conform to the facts is an original proceeding in this court, and must be instituted by a petition in writing setting forth at length the exceptions which were taken at the trial and not allowed by the judge, and so much of the evidence as may be necessary to illustrate them.”
    This doctrine is sustained in the estate of W. W. Hill, 62 Cal. 186.
    It is the duty of the judge in settling the bill to make it conform to the facts. 89 Cal. 592. If he does not do so, the appellate court will interfere. 49 Cal. 263, 76 Cal. 284, 75 Cal. 230.
    In the case of a refusal by the judge to allow an exception the Supreme Court will interfere to correct the bill. 86 Cal. 352, 87 Cal. 392, 89 Cal. 590.
    The correction in a bill of exception is to be sustained by the preponderance of the evidence. 85 Cal. 214.

      The case of Baird et al. v. Gleeldar, South Dakota, 52 Northwestern 1097, discusses at length the questions herein involved.
    The settlement of a bill of exceptions is reviewable before the Supreme Court. Severson v. M. M. Mutual Ins. Go. (S. D.), 53 Northwesteim 860.
    The California cases are overwhelmingly favorable in the construction Of the statute as above discussed. The practice upon which we insist, while not declared in positive terms, is implied and recognized as a matter of course in the following cases: 19 Cal. 510, 68 Cal. Ill, 72 Cal. 227, 73 Cal. 1, 75 Cal. 230, 85 Cal. 211, 108 Cal. 32.

      Messrs. Cullen, Bay da Cullen, Mr. JR. B. Smith, Messrs. Clayberg da Corbett, and Messrs. Mellatton da Colter, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

This is an original proceeding for leave to prove certain exceptions which the petition states the judge of the Second judicial district court has refused to allow in accordance with the facts. The petitioners are the Boston & Montana Consolidated Copper & Silver Mining Company, John F. For bis, G. H. Hyams, and Frank Klepetko, the answering defendants in Forrester & MacGinniss v. Boston & Montana Consol. C. & S. Mining Co. et al., several phases of which case have been before this court in 21 Mont. 544, 55 Pac. 229; 21 Mont. 565, 55 Pac. 353; 22 Mont. 220, 56 Pac. 219; 22 Mont. 241, 56 Pac. 281; 22 Mont. 376, 56 Pac. 687; 22 Mont. 438, 56 Pac. 865; 22 Mont. 352—430, 56 Pac. 1135, 868. The petition purports to be drafted under the provisions of section 1157 of the Code of Civil Procedure, and of subdivision 11 of Rule IY., now Rule Y, of this court. It appears that the petitioners moved the district court to vacate the order of December 15, 1898, appointing a receiver for the property of the defendant company, and to discharge him; that a hearing was had in obedience to the mandate of this court (State ex rel. Boston & Mont. Consol. C. & S. Mining Co. v. Second Judicial District Courts 22 Mont. 438, 56 Pac. 865); that on April 10, 1899, the court denied the motion, and defendants appealed to this court (Forrester et al. v. Boston & Montana Consol C. & S. Mining Co., 22 Mont. 430, 56 Pac. 1134, 868), where the cause is now pending. It further appears that the defendants served a draft of their bill of exceptions, co which plaintiffs proposed 10 amendments. Upon presentation for settlement, the judge allowed nine of the amendments, besides making an addition of his own, and ordered that the bill, as so amended, be engrossed and settled. Four of the amendments allowed are asserted to be discordant with the proceedings had upon the hearing of the motion, and one is said to be contrary to the facts attending the making of the order appealed from. Defendants therefore contend that the judge refused to allow their exceptions in accordance with the facts, and pray that the facts touching the matters to which the amendments are directed, and the refusal of the judge to allow the bill as presented, may be proved and certified under the provisions of section 1157 and the rules of this court. A referee was appointed ex parte, and without notice to the plaintiffs, and he has reported the testimony taken by him in support of the petition.

The petition must be dismissed upon the ground that the amendments allowed are immaterial; hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect of the power and right of the supreme court, under section 1157 and Rule •V., to alter or remodela bill of exceptions allowed by the trial judge; nor, on the present application, is it necessary either to interpret or construe the section. The avowed purpose of incorporating the amendments was to show that the defendants, and particularly the Boston & Montana Consolidated Copper & Silver Mining Company, were in contempt of the district court during the hearing of the motion, and at the time it was denied; for example: the bill, as presented for settlement, contains a copy of the order appealed from, which merely overruled and denied the motion to vacate the-appointment of the receiver, — in passing, we may say that there was no necessity of including the order in the bill, for it is deemed excepted to, no bill of exception is required, and it may be presented as part of the record proper by a copy certified as correct by the clerk; the amendment proposed and allowed in that regard sets out that “the court refused to-grant the motion to discharge the receiver upon the ground and for the reason that the defendants in the case had refused to comply with the court’s order contained in the order appointing the receiver, and'had resisted and violated the same, and that the said defendants stood charged with contempt of this court, and therefore were not entitled to be heard or to» have said motion granted, and thereupon said court overruled said motion,” to which the judge directed to be added the-following: “The court being of the opinion that on account of the contemptuous conduct of the defendants aforesaid, and their position before the court, they were not entitled to any relief asked, or to a consideration of their motion by the-court, and the court denied the same for that reason; it appearing clearly from the evidence presented on the hearing of' the motion.that defendants had violated the order of the court, appointing the receiver, and were during the course of the-hearing violating the same', and doing everything in their power to avoid a compliance therewith, and were avoiding-service of the process of this court issued in this action. ’ ’ The testimony taken and returned by the referee shows very clearly that no such reasons were announced, either by express words or by implication, at the time the order was-made, and that, if they existed, they were known only to the judge of the court, who omitted to reveal or confide them to-those whose interests were, as he evidently believed, seriously affected thereby. But the reasons so given are not material to any issue or question presented on the appeal, and this court, although it may disregard, has no power, by virtue of: section 1157 or otherwise, to strike out such matter from a. bill. It may be conceded that the trial court might justly-have refused to entertain the motion to discharge the receiver on the ground that the defendants were then in, or perhaps even charged with, contempt of its order or process, or to decide it until the moving parties had purged themselves of a contempt brought to the court’s knowledge after the beginning of the hearing. In this case, however, the court did not refuse to hear the motion, neither did the court decline to decide. Both a hearing and a determination were had and made, respectively; and in a matter not of mere favor or privilege to a litigant, but involving substantial rights, a court cannot, without committing gross - and palpable error, punish a party charged with contempt by deciding against him the cause or proceeding in which the contempt is alleged to have occurred. If it could, then, for instance, a demurrer interposed to an insufficient complaint may properly be overruled because the demurrant is in, or is charged with, contempt. If it could do so, then the court can rightly direct the jury to find against a party in contempt, although he would, except for the contempt, be entitled to recover. Such practice would be a travesty of justice. It will not be tolerated in a land where the fundamental principles of the common law are the rules of action.

Counsel for the plaintiffs suggest, tentatively, that the district court and judge were compelled by our writ of mandate to hear and determine the application to vacate the order appointing the receiver while the defendants were in open defiance of said order, and that the-judge “preferred, rather than to make answer to the alternative writ setting forth as a ground of his refusal to hear the application, the facts showing the defendants to be in contempt, to proceed with the hearing under the writ of mandate, and to deny the application for that reason.” Reference to the opinion in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., 22 Mont. 438, 56 Pac. 865, shows that the district judge stated the reasons in detail why he had not heard the motion, and declared that in any event he intended to hear the motion on April 3, 1899, without regard to whether or not this court should ‘issue a peremptory writ. Now, it appears that the answer to the alternative writ was made on April 1, 1899, and that the proceedings against the defendants for contempt were instituted in the district court, and before its judge, on the 13th and 15th days of March, 1899, — some two weeks theretofore. The pretended excuse attempted to be made in behalf of the judge for the omission of the reasons mentioned from his answer and return is not even plausible. Moreover, instead of making the return to the peremptory writ show that he declined to decide the motion to discharge the receiver because the defendants’ contempt had been proved since his answer to the alternative writ, he made a final return on April 10th that he had determined the motion. Had he made it appear to this court that the defendants were in contempt, it is hardly necessary to say that he would not have been commanded to entertain or to pass upon the application while that condition of affairs existed. The conduct of the judge to which we have adverted is unworthy of emulation.

No one of the amendments by which the draft of the bill of exceptions is changed is either material or relevant, for the question to be considered upon the appeal will be whether or not the order appointing the receiver should have been vacated, and that officer discharged. The proceedings as for contempt, of which the defendant company has been subsequently adjudged guilty, are wholly foreign to the question.

The prayer • of the petition is therefore denied, and the petition dismissed, at the costs of the applicants.

Dismissed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY,

license: Public Domain

text:
    STATE ex rel. LAMBERT, Respondent, v. COAD, Appellant.
    [No. 1,386.]
    [Submitted July 3, 1899,
    Decided July 12, 1899.]

      Ma/ndamus — Issuance by Justices of Su/preme Court — Board of Cou/nty Commissioners— Contract — Lowest Bidder.

    1. Ii it is necessary (under Section 1961 of the Code of Civil Procedure of 1895) that two Justices of the Supreme Court should concur in the issuance of an alternative writ of mandamus, where the application is made to two Justices, and the order directing the clerk to issue the writ is signed by only one of them, the other concurring, the writ is properly issued.
    2. Session Laws of 1897, page 48, Section 12, provided that the commissioners of B county should contract with the lowest responsible bidders for transcribing and indexing certain records. The hoard, without advertising for bids, or any notice of its intention to let a contract, entered into an agreement with relators, whereby they agreed to do the indexing at a stipulated wage per month. Held, that the contract was void for want of compliance with the law, in that the county commissioners disregarded its requirements, both in failing to let the contract to the lowest bidder and in severing the work to be done and letting it under separate contracts to different parties.

      Appeal from District Court, Broadwater County/ F. II. Armstrong, Judge.

    Application for a writ of mandamus by George Lambert against B. S. Coad, as clerk and recorder of Broadwater county. From a judgment granting a peremptory writ, respondent appealed.
    Reversed.
    Statement oe the Case.
    Application for a writ of mandamus to compel the defendant, as clerk and recorder of Broadwater county, to permit relator to have access to the public records of said county for the purpose of indexing the same.
    The material allegations of the affidavit are: That relator is engaged in the business and work, as hereinafter set forth, of indexing certain of the public records of the property in said county of Broadwater. That B. S. Coad, the defendant, is, and at all times hereinafter mentioned was, the clerk and recorder of said county of Broadwater, duly elected, qualified and acting, and that it is his duty, as such officer, under the laws of this state, to have the custody of the public records of the property lying in said county, and to grant access to such records, under reasonable restrictions, to all persons authorized pursuant to law to perform public service or duties which require such access to be had. That by Section 12 of an act passed by the Fifth Legislative Assembly, approved February 9, 1897, creating the county of Broadwater, and providing for its organization and government, the board of commissioners thereof were empowered, and it was made their duty, to let a contract for the indexing of the records of the property lying in said county that were in said act required to be transcribed from the original records thereof. That on the 3d day of January, 1899, the said board, finding that those engaged in the work of indexing said records were unduly and unseasonably prolonging the work, and said employes being hired by the month, called a special session of the board to meet on the 11th day of January, 1899, for the purpose of discharging the employes then engaged in indexing the records, and employing affiant and one G. R. McDonald to do the work in their stead, they being the lowest responsible bidders. That said meeting was also called for the transaction of any other business that might come before the board. ■ That the call for the meeting was published in the Townsend Star, a newspaper of general circulation in the county of Broadwater, for five days preceding the 11th day of January. That on that day the said board, by the authority of said Section 12 of the act creating Broadwater county, contracted with the relator and the said McDonald for the doing of the indexing aforesaid yet remaining undone. That said action of the board was evidenced by a resolution of the board passed on that day as follows: “In accordance with the provisions prescribed in the order which calls for the special session, it is ordered that Mr. Combs, Mr. Long and Mr. Depew, now engaged in indexing the county records, be discharged this afternoon, and the clerk is instructed to settle the balance of wages due them by issuing warrants for the same; also that George Lambert is engaged as indexer, and G. R. McDonald as assistant indexer, to do the remainder of the county indexing, unless otherwise ordered by the board. George Lambert’s wages is fixed at $100 per month, and G. R. McDonald’s at $80 per month The clerk is instructed to allow George Lambert and G. R. McDonald free access to all books necessary to the performance of their duties. Said new employes are to take up their work on Thursday, the 12th inst., and conduct such work in the office of the county clerk. ” That thereupon the relator and the said McDonald accepted the terms of said resolution, and on the 12th day of January, 1899, pursuant to their engagement under the same, applied to defendant, as clerk and recorder aforesaid, for access to the records of said county of Broadwater for the purpose of doing said indexing. That said defendant, disregarding his duties in the premises, then and there refused, and has ever since refused, to permit relator to have access to said records for the purposes named in the resolution, thereby depriving rela tor of his rights in the premises, and preventing him from the performance of his engagement, to his damage in the sum of $1,000; and that relator has no other plain, speedy and adequate remedy at law for the redress of the injury thus done him by defendant. The affidavit closes with a prayer that an alternative writ of mandate issue commanding B. S. Coad, defendant, to allow relator access to the records of Broad-water county for the purpose of indexing the same, or to show cause why he should not do so.
    On February 7, 1899, on application to two of the justices of this court, the clerk of the court was directed to issue the alternative writ, but to make the same returnable before the Honorable Frank K. Armstrong, judge of the Ninth judicial district, at such time and place as he might fix for the hearing. The Honorable Frank K. Armstrong fixed the time for the hearing of the same, and made it returnable before him at the city of Bozeman, Mont., on the 18th day of February, 1899, at the hour of 10 in the forenoon. Thereafter, on the 13th day of February, 1899, the defendant entered his appearance to said writ, and filed a motion to quash the same, alleging as grounds for his motion, among other things, which are not material to notice: (1) That the writ was not issued by the supreme court, or a majority of the justices thereof, as provided by law, but by a single justice thereof; and (2) that relator’s affidavit fails to state facts sufficient to entitle him to a writ of mandate. On the 18th day of February this motion was heard by the said judge and overruled. The defendant was then given until the 23d day of February, 1899, to file his answer, which was done on the 21st day of that month. Defendant therein denies all of the material allegations set forth in the affidavit, and then sets up various matters by way of affirmative defense, which we shall not notice beyond stating that upon the hearing had before said judge at chambers on the 13th day of March, 1899, they were, on motion, stricken out. At the same time the said judge proceeded to hear the proofs, and after such hearing, entered judgment that a peremptory writ of mandate issue, directed to the defendant, commanding him to ‘allow the relator herein, George Lambert, and G. R>. McDonald, to have access at reasonable hours to the public records of said Broadwater county for the purpose of indexing the same,” and adjudging defendant to pay the costs of this proceeding. From this judgment defendant has prosecuted his appeal to this court.

      Mr. E. II. Goodman and Messrs. Sanders c& Sanders for Appellant.

      Mr. J. E. Kanouse and Mr. E. A. Carleton, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of. the court.

Counsel for appellant seriously urge in their brief that the motion to quash the writ should have been sustained on the first ground laid therein. They insist that the conclusion reached by this court in State ex rel. Leech v. Board of Canvassers of Choteau Co., 13 Mont. 23, 31 Pac. 879, that an alternative writ of mandate may be issued by any one of the justices of the supreme court, is not now controlling for the reason that the Code of 1895 (Code of Civil Procedure, .section 1961) expressly provides that two justices shall concur in issuing this kind of writ. This contention, however, is made upon a misapprehension of the facts touching the issuance of the original writ in this case. The order of February 7th, directing the clerk of this court to issue the writ, was signed by the chief justice only; but this was done after consultation with Mr. Justice Hunt, and he concurred in the order. It was not deemed necessary that both justices should sign it. It is therefore not necessary to notice this contention further. But we are not to be understood, from what is here said, as expressing any opinion as to whether the conclusion reached in State ex rel. Leech v. Board of Canvassers of Choteau Co., supra, is now obsolete in view of the provisions of the section of the Code just mentioned. This question is left for future consideration, when it properly arises.

The second ground of the motion brings in question the power of the board of commissioners of Broadwater county under the act of the legislative assembly creating that county and providing for its government. The territory erected into this county consisted of portions of Jefferson and Meagher counties. The act, after creating the new county, and providing for its government until the next general election, provides for the transcribing and indexing of the records of property within its limits, as follows:

“The county commissioners ofOsaid county of Broadwater are empowered and it is hereby made their duty to contract with the lowest responsible bidder for transcribing and indexing all records of property lying and being within the limits of the county of Broadwater, which transcripts when compiled shall be compared with the original records by the county clerk of the county from whence they are respectively taken, and when correct shall be by him so certified under his official seal, and thereafter the records so transcribed and certified to shall be received and admitted in evidence in all courts of law in this state, and be in all respects entitled to like faith and credit as said original records. The county clerks of Jefferson and Meagher counties shall receive for their services in comparing and certifying to the correctness of the copies of said records six ($6.001 dollars per day, respectively, while engaged in said labor, which amounts shall be paid by the county of Broadwater on the completion thereof. ” (Sess. Laws 1897 p. 48, sec. 12.)

We observe that the object of this section is to secure to the new county complete records of the instruments in any way affecting the title of property lying within its limits by means of azzthenticated copies from the original records of J efferson and Meagher counties. It specifically provides that it is the duty of the commissioners to have these records transcribed and indexed. It leaves them no option in the matter. It provides how they shall be obtained, and the mode of their authentication. The design was thus to serve the convenience of citizens in the examination of titles, and in the production of evidence in their local courts. In order that the work might be done as cheaply as possible, it was made the duty of the board to let the whole matter of transcribing and indexing to the lowest responsible bidder. It was desired that the county should have the benefit of competition among those bidding for the work, and the fact that competition is provided for implies that the letting of the contract should be so conducted by the board that those caring to enter into the competition should have notice of the time and place the contract would be let. Evidently, also, it was intended that the price of the work should be a sum fixed in the contract, either by naming a lump sum, or by fixing a price per folio and entry, and that a time should be agreed upon on or before or within which the copied records wozzld be in the hands of their own officers for the use of the citizens. The facts set forth in the affidavit show that the transcribed records were already in the hands of defendant, and that a contract was made between the board and plaintiff and G. E. McDonald on the 11th day of January, 1899, by which the latter were to do the indexing at the rate of §100 and §80 per month, respectively. In other words, the board, by that contract, hired these persons as indexer and assistant indexer at a fixed wage for such time as it would require to do the indexing. There was no notice of the letting of such or any contract, and there was, therefore, no competition, such as the provision of the statute contemplates. The question presented here, then, is: did the board, in hiring the plaintiff and McDonald to do the indexing, pursue their authority under the statute, and make a valid contract? Under our statute a county is a body politic and corporate, and has such powers as are Conferred by the code and special statutes. (Political Code, section 4190.) Its powers are exercised through a board of commissioners, and this board has jurisdiction and power, under such limitations and restrictions as are provided by law. (Id. section 4230.) A county is not, in a strict sense, a municipal corporation. In the sense, however that its board of commissioners has no power other than is derivable expressly or by necessary implication from the provisions of the statute defining their powers, it comes within the rules and principles of law applicable to such corporations. In either case the executive body of the municipality must pursue the authority vested in it by statute. It is the general rule that, when the authorities of a municipality are required by statute to let contracts to the lowest bidder, a contract not so awarded is illegal. (Tiedeman on Municipal Corporations, section 172.) Bids need not be called for unless the statute requires it; but if notice, advertising, and similar preliminaries are required, a contract entered into without attention to these preliminaries will be held invalid. Id.; (Zottman v. City and County of San Francisco, 20 Cal. 97; Nicolson Pavement Co. v. Painter, 35 Cal. 699; Maxwell v. Board of Supervisors, 53 Cal. 389; Carter v. Kalloch, 56 Cal. 335; Mappa v. City Council, 61 Cal. 309; Brady v Mayor, etc., 20 N. Y. 312; McDonald v. Mayor, etc., 68 N. Y. 23; Dickinson v. City of Poughkeepsie 75 N. Y. 65; In re Manhattan R. Co., 102 N. Y. 301, 6 N. E. 590; People ex rel. Coughlin v. Gleason, 121 N. Y. 631, 25 N. E. 4; Board of Commissioners v. Gillies, 138 Ind. 667, 38 N. E. 40.) The same rule applies to the letting of contracts on behalf of the state; and, before a contract can become valid and binding upon the state, the statutory formalities must be complied with. (State ex rel. Woodruff-Dunlap Printing Co. v. Cornell, 52 Neb. 25, 71 N W. 961; Dement v. Rokker, 126 Ill. 174, 19 N. E. 33.) In the latter case the court say: “Letting by contract to ‘the lowest responsible bidder’ necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to compete at the bidding. No one may be compelled to bid at such a letting, but there must be entire fairness and freedom in competition. * * * The manifest purpose in requiring the contract to be let to ‘the lowest responsible bidder’ is to protect the state against imposition and extortion. ’ ’ In State ex rel. Woodruff-Dunlap Printing Co. v. Cornell, supra, it was also held that where the statute provided that one part of the state printing should be let in one contract, and then proceeded to designate several other classes of work, each of which it directed to be let in another contract, it was not within the power of the printing board to sever any of the classes, and let the work to seperate bidders. The action on the part of the board in severing the work and letting it to different bidders was no more than an attempt to award the contract in a manner not allowed by law. In the case at bar the commissioners were not only not guided by the provisions of the statute, but they disregarded its plain provisions and requirements, both in failing to let the contract to the lowest bidder and in severing the work to be done and letting it under seperate contracts to different parties. The county thus fails to get the benefit of the competition provived for in the statute, and the purpose of this provision is defeated.

The allegation in the affidavit that the plaintiff and McDonald were the lowest responsible bidders imports nothing, in view of the other facts stated, from which it appears that they were hired at a fixed rate of Wages per month.

Nor do we think the defendant is precluded from asserting the illegality of the action of the board in defense of his action in refusing plaintiff access to. the records for the purpose, of indexing them. The board’s action in letting the contract was simply void for want of compliance with the law. Under the authorities cited, the execution of such a contract, or payment for work done under it, will be enjoined at the instance of a taxpayer, and, when mandamus is resorted to to compel recognition of it by the auditing officer whose duty it is to audit the accounts of the municipality and pay them, no relief will be granted. The court below should have sustained the motion to quash on this ground, and dismissed the application.

In reaching the conclusions we have in this case we have not overlooked the general statute touching the transcribing of records for new counties when created by the legislature (Political Code, Sections 4166 — 4172, inclusive); nor have we overlooked the provision of our Constitution (Article V, Section 26) prohibiting special or local legislation. No question has been raised here as. to the validity of Section 12, supra, upon which this application is based. Neither the general provisions touching the transcribing of records cited, supra, nor Article Y, Section 26, of the Constitution, have been referred to either in brief or argument by counsel on either side. Indeed, the relator, in founding his claim upon Section 12, supra, asserts its validity, and we have not felt warranted, under these circumstances, in going into an investigation of its constitutionality.

The judgment of the court below in directing the peremptory writ to issue will be reversed, and the cause will .be remanded, with directions to dismiss the application.

Reversed a/nd remanded.


author: PER CURIAM.

text:
    In re WELLCOME.
    [No. 1,401.]
    [Submitted June 12, 1899.
    Decided July 12, 1899.]

      Attorney — Disbarment—Accusation — Bribery emd Conspiracy— Crimes Committed Outside of Official Capacity ■— Jurisdiction of Court.

    1. Where an accusation preferred by a private person in a disbarment proceeding, is for a cause named in Code of Civil Procedure, Section 402, Subdivision 5, providing that an attorney and counselor who is guilty of deceit, malpractice, crime, or misdemeanor arising after his admission to practice, may be removed or suspended, an objection that such accusation is preferred by a person not authorized by law to inform the court oí the matters therein charged, is without merit.
    2. Proceedings under the fifth subdivision of Section 402 of the Code of Civil Procedure, may be instituted and maintained in the same manner as may those brought under the other subdivisions of said section.
    3. Charges in an accusation against an attorney, in disbarment proceedings, which are indefinite, vague, as well as uncertain, will, on motion, be stricken out.
    4. Under Code of Civil Procedure, Section 402, Subdivision 5, providing that an attorney who is guilty of any deceit, malpractice, crime, or misdemeanor arising after his admission to practice may be removed or suspended, the jurisdiction of the court is not confined to crimes or misdemeanors committed by an attorney while acting in his official capacity. 1

      Obiter: Bribery and conspiracy are heinous crimes involving moral turpitude, and the perpetration thereof by an attorney proves his unfitness to practice the honorable profession of the law.
    5. Under Code of Civil Procedure, Section 402,’ Subdivision 5, providing that an attorney and counselor who is guilty of any deceit, malpractice, crime, or misdemeanor, arising after his admission to practice, may be removed or suspended, it is discretionary with the court whether it will exercise its jurisdiction to remove or suspend an attorney in such cases, and, where the accused is charged with bribery and conspiracy, the court will refuse to inquire into the truth of the charges, unless cogent reasons be furnished by the accusation, or by a showing in support of it, why jurisdiction should be entertained in advance of a criminal prosecution and conviction.
    Petition to disbar John B. Wellcome.
    Dismissed.

      Mr. C. B. Afolan, Attorney General, amicus curies.

      Mr. Wm. Wallace, Jr., Messrs. Carpenter da Carpenter, and Mr. J. B. Boote, for Wellcome.
   PER CURIAM.

— On the 5th day of May, 1899, there was presented to this Court an accusation in writing, verified by the oath of one Fred. Whiteside, charging John B. Well-come, an attorney and counselor at law of the courts of Montana, with having bribed, and offered to bribe, certain members of the Sixth Legislative Assembly of the State to vote for one William A. Clark, of Butte, a candidate for the office of Senator of the United States from Montana. It is, in substance, alleged, among other things, that Wellcome paid to the members named in the accusation the sum of §120,000; that he bribed other members, whose names are not given, because at present unknown to the affiant, to support Clark, by paying to them large sums of money; that he conspired with other persons named to secure, by the corrupt use of money, the election of members of the Legislature who would favor the candidacy of Clark, and to influence the official action of the members in voting for a Senator; and that, by means of said briberies, Clark was chosen Senator. The object of the proceeding is to have the accused disbarred, and his name stricken from the roll, upon the ground that the acts charged are crimes, and were committed with the corrupt and wicked purpose of influencing the action of the Legislature in favor of the candidacy of Clark, and that such conduct is incompatible with the dignity and honor of the profession of the law, and proves the unfitness of Wellcome to remain a practitioner. The accused has answered by filing objections to the sufficiency of the accusation (Section 423, Code of Civil Procedure), in which he asks that certain parts be stricken out as uncertain, indefinite, vague, and ambiguous, and by which he moves the dismissal of the accusation because: (1) it is not preferred by any person by law authorized to prefer such charges; (2) the Court has no power to consider charges looking to the disbarment of an attorney of this Court where the accusation is based upon alleged felonies or misdemeanors involving moral turpitude not committed while acting in his official capacity as an attorney; (3) the Court has no jurisdiction in a proceeding of this kind to adjudge an attorney guilty of a crime not perpetrated while acting in his official capacity; (4) the accusation is in particulars specified vague, ambiguous, unintelligible, uncertain, and indefinite.

So much of Section 402 of the Code of Civil Procedure as concerns this proceeding reads: “An attorney and counselor may be removed or suspended by the Supreme Court or by the district courts of the state, for either of the following causes, arising after his admission to practice: (1) His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction is conclusive evidence. (2) Willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with, or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney and counseloi. (3) Corruptly or willfully and without authority appearing as attorney for a party to an action dr proceeding. (4) Lending his name to be used as attorney and counselor by another person who is not an attorney and counselor. (5) Who is guilty of any deceit, malpractice, crime or misdemeanor.”

There is no merit in the objection that the accusation, which is for a cause named in the fifth subdivision of section 402, is preferred by a person not authorized by law to inform the court of the matters therein charged. True, Section 418 of the Code of Civil Procedure, in providing that proceedings under the second, third or fourth subdivisions of Section 402 may be taken by the court for matters within its knowledge, or may be taken upon information of another, omits reference to the fifth subdivision; yet subsequent sections, notably sections 420 and 428, contemplate that accusations may be brought for the causes mentioned in the fifth subdivision; and, in any event, the mere failure expressly to prescribe the medium through which the court may be informed of conduct constituting cause sufficient for disbarment or suspension will not be permitted to deprive the court of the right to adopt some appropriate method enabling it to take cognizance of the offenses denounced. It is not reasonable to presume that the legislature solemnly enacted a law, and then intentionally sought to destroy its efficacy and force by omitting to provide a remedy. We think the proceedings under the fifth subdivision may be instituted and maintained in the same manner as may those brought under subdivisions 2, 3 and 4.

So much of the accusation as charges a conspiracy to secure by the corrupt use of money the election of members of the legislature who would be favorable to Clark, and also that part of the accusation alleging that Wellcome and his co-conspirators paid out large sums of money to aid in the election of such members, with the understanding that the money should be used corruptly to influence the action of the electors at the polls in voting for such members, are severally indefinite and vague, as well as uncertain. The motion to strike is granted as to these averments, which are made in the first and second paragraphs of the sixth division of the accusation; in other respects the motion is denied.

We are of the opinion that the design of the legislature in enacting the first subdivision of section 402 was to make it incumbent upon the court to remove an attorney and counselor upon receipt of a certified copy of the record of his conviction in this state, subsequently to his admission to the bar, of either a felony or misdemeanor involving moral turpitude, whether such felony or misdemeanor was committed while acting in his official capacity or not. (Sections 417, 418, Code of Civil Procedure.) In such case, the court has no discretion, but must adjudge that the name of the offending attorney be stricken from the roll, and that he be precluded from practicing in any of the courts of the state (Section 428, Code of Civil Procedure; In re Bloor, 21 Mont. 49, 52 Pac. 779); and it seems immaterial whether the felony was perpetrated before or after his admission to practice. On the other hand, under the section last cited (428), if an attorney be found guilty of an act falling within the purview of subdivision 5, the judgment may be either removal or suspension, according to the gravity of, the offense charged. This subdivision does not make conviction a prerequisite to the removal or suspension of the offender, nor does it require that the crime or misdemeanor must be one involving moral turpitude; neither is its operation limited to offenses committed in the state, nor is it confined to crimes or misdemeanors committed by an attorney while acting in his official capacity. Dueling, and accepting or sending a challenge to fight a duel, are denounced as felonies, but moral turpitude is not necessarily involved in either. Every libel is declared to be a misdemeanor, but not every libel involves moral turpitude; and so with many other offenses. It is apparent that the court could not,- under the first subdivision of Section 402, disbar an attorney upon inspection of the record of his conviction of any of the crimes named; nor would the court, in a proceeding brought for the cause stated in that subdivision, have the right to examine the evidence for the purpose of determining whether or not the circumstances of the particular case disclosed the presence of such turpitude; for moral turpitude must inhere in the nature of the crime, and not depend upon the ethical quality of the acts constituting such crime. But by virtue of Subdivision 5 the court is empowered, not commanded, to remove or suspend in such cases, according to the gravity of the offense as shown by the proofs, adduced. Subdivision 1 has to do with public offenses necessarily involving moral turpitude, of - which convictions are had in the courts of Montana, and to none other; whereas, Subdivision 5 is broad enough in its language, and sufficiently comprehensive in substance, to embrace all public offenses, wheresoever committed, by attorneys, and to clothe the court with jurisdiction of an accusation imputing to an attorney the commission of any crime or misdemeanor wherever the offense of itself involves, or the circumstances of its perpetration reveals the existence of, moral turpitude, or the facts attending it evince such gross misconduct as exhibits his unfitness to remain in the profession. The fifth subdivision, notwithstanding its ungrammatical construction, seems to have been enacted ex industria, to the end that the court may* purge the bar of those attorneys whose characters, as illustrated by the evidence establishing the truth of the charges preferred, lack the attributes of morality which are an essential to admission, and which should be required as a continuing condition of the right to practice.

Bribery of a member of the Legislature is a felony. (Title VI, Part 1, Penal Code [Sec. 160 et seq.J) If the accused be guilty of the conspiracy and many briberies charged against him in this proceeding, it is manifest that he has perpetrated heinous crimes involving moral turpitude, thereby proving his unfitness to practice the honorable profession of the law.

Whether this Court will exercise its jurisdiction in cases of crime or misdemeanor falling within the purview of Subdivision 5 is discretionary. Unless cogent reasons be furnished by the accusation, or by a showing in support of it, why jurisdiction should be entertained in advance of a criminal prosecution and conviction, we shall refuse to act. The presumption is that the ordinary machinery of trial courts will be adequate for the investigation and determination of such cases, and it is but just and fair to the accused that the usual proceedings be employed and exhausted before bringing the matter here. That such a rule should guide the Court is apparent, when we reflect upon the result of holding otherwise. This member of the bar might be charged with manslaughter; another with gambling in his own home; that one with assault with intent to do great bodily harm; another with making a bet on the result of an election; another with killing a deer out of season; another with renting a building knowing that it is to be used for a lottery drawing; another with having given intoxicating liquors to a person who is in the habit of getting drunk or intoxicated; another with knowingly permitting Canada thistles to go to seed upon lands under his control. Thus the calendar of the Supreme Court might be crowded with accusations against lawyers, not for wrongs done while acting in their professional capacities, but who may have violated the Penal Code of the State in other respects, yet who may not have been officially charged with crime. The accusation before us states nothing suggesting a reason why Wellcome cannot be prosecuted, and, if guilty, convicted, upon the very charges the truth of which this Court is asked to try and determine. We decline to inquire into the truth of the charges, and place our refusal on the ground that the accusation fails to state any facts warranting the exercise of the jurisdiction sought to be invoked, which should be exerted in extraordinary cases only, and even then sparingly.

The objections to the sufficiency of the accusations are overruled. The attorney general, who appears as amicus curice, may, if he desires, within five days, amend the accusation, or file affidavits disclosing grounds for the interposition of this Court, or both, and the accused will answer to the accusation within five days after service upon him or his attorneys of record of a copy of such amendment or affidavits. In default of the filing of such amendment or affidavits, the proceeding will be dismissed.


author: MR. JUSTICE HUNT

text:
    STATE, Respondent, v. BROOKS, Appellant.
    [No. 1,413.]
    [Submitted July 3, 1899.
    Decided July 13, 1899.]

      Criminal Law — Homicide — Insanity— Character — Evidence Instructions■ — Burden of Proof — New Trial — Conduct of Jury.

    1. Where there is no evidence showing that a defendant charged with murder was insane, evidence of his declarations and conduct is inadmissible to prove insanity, unless the purpose of such evidence is disclosed.
    2. Evidence that a defendant had preached in a church at divers times is inadmissible to prove his good character.
    3. On a murder trial, where instructions upon the law of justifiable homicide are unnecessary, it is not error, that defendant can complain of, to give such instructions.
    4. Where evidence proved murder in the first degree, an instruction that, to make the killing manslaughter, it must be done “upon the instant, — that is, at the time the provocation is given, and under the influence of it, before the blood has had time to cool, and before the mind has had time to consider the character and gravity of the act about to be done, and not from hatred or pre-existing revenge,” is not prejudicial to defendant.
    5. It is not error to instruct the jury that a homicide would not be manslaughter if committed in an unreasonable fit of passion.
    6. An instruction that, “if defendant was so far in possession of his mental faculties as to be capable of knowing that the act of killing was wrong, any mental defect which might cause him to more readily give way to passion than a man ordinarily reasonable could not be considered,” is not prejudicial to a defendant who claimed to be insane and was convicted of murder in the first degree.
    7. A new trial will not he granted for newly discovered evidence which is cumulative merely.
    8. Where jurors in a capital case agreed upon a verdict of guilty on the third ballot, to which all agreed, when polled, it will not be set aside because one of them stated in the jury room, before the informal ballot was taken, that he was “willing a majority should rule.”
    9. On a trial for murder, it is proper to charge “that, upon proof of the commission of the homicide by the defendant, the burden of proving circumstances of mitigation or excuse devolves upon him, unless the proof on the part of the prosecution tends to show that the crime only amounts to manslaughter, or that he was excusable,” under Penal Code. Section 2081, regulating the burden of proof in such cases.
    10. It is not error to refuse to instruct, in a murder case, that defendant should be acquitted if a fair preponderance of evidence shows his insanity; the correct rule being that he is entitled to an acquittal where the evidence' raises a reasonable doubt of his sanity when the crime was committed.

      Appeal from. District Court, Yellowstone County; C. H. Loud, Judge.

    Dependant, William C. Brooks, was convicted of murder in the first degree, and he appeals.
    Affirmed.

      Mr. Charles L. Harris, for Appellant.
    The court’s action and ruling regarding the admission of evidence was clearly erroneous under the following authorities: State v. Mewherter, 46 la. 88; State v. Hays, 22 La. Ann. 39; State v. Hell/y, 57 N. H. 549; State v. Bauerman (Kas.), 53 Pac. Bep. 874; State v. Brooks, 4 Wash. 328; State v. Hurst (Idaho), 39 Pac. Bep. 554; People v. W. Wreden, 59 Cal. 392; People v. Sanford, 43 Cal. 29; State v. Erb, 74 Mo., 199; State v. Baldwin, 12 Mr. 223.
    The trial court erred in the instructions given, and for this reason the case should be reversed under the following authorities: State v. Bolla, 21 Mont. 582. 56 Pa'c. 523; State v. Sloan, 22 Mont. 293, 56 Pac. 364; Bishop’s Crim. Law, Vol. 11. Secs. 697, 712, 713.

      Mr. C. B. Holán, Attorney Generad, for the State.
    The affidavits in support of the ground of newly discovered evidence cannot be considered for the purposes designed. There does not appear in a single affidavit presented a fact or circumstance or occurrence which would warrant the deduction that the defendant was insane. Instead of giving the conclusion of the affiant that the defendant in his judgment was insane, it was incumbent upon him to set forth the acts or conduct of the defendant which occasioned the belief on the part of the affiant that the defendant was mentally unbalanced. It is a settled law in this state that nonprofessional witnesses who are. acquainted with the defendant, and have observed his actions and manner of life, may give in evidence their opinions as to his sanity or insanity on a trial for murder. Before this opinion is admissible it is essential that the facts upon which it is predicated must be submitted. {Territory v. Hart, 7 Mont. 489; see, also, State v. Bauer man, 53 Pac. Rep. 874; Baughmans. Baughman, 32 Kan. 538; Carpenters. Hatch, 64 N. H. 573; Insurance Co. v. Lathrop, 111 U. S. 612; State of Washington v. C. Brooks, 4 Wash. 328; States. Erb, 74 Mo. 199; State s. Klinger, 46 Mo. 229; Bishop, New Crim. Pro. Yol. II, Sec. 678.) The affidavits failing to disclose facts upon which an opinion is based must be disregarded.
    Assuming that the affidavits are sufficient in form, is the newly discovered evidence sufficient to warrant a new trial? Thompson in his work on trials, Section 2762, discusses what is'essential when application is made for new trial on the ground of newly discovered evidence. He says that the affidavit should state:
    1. That the applicant has been vigilant in preparing his cause for trial. (2.) That new and material facts have been discovered since the trial, which could not by reasonable diligence have been produced at the trial; stating what the evidence is. (3.) That such evidence will tend to prove facts, which were not directly in issue on the former trial, or were not then known or investigated by proof, or that it will produce a different result at a second trial. (4.) Such affidavits should give the name or names of the witness or witnesses, by whom such facts can be proved.
    The affidavits tested by this standard are wholly insufficient. The evidence at best is cumulative, no reasonable excuse is offered why the evidence could not be secured upon a former trial, and it does not appear that if a new trial were granted a result different from that obtained would be secured. Newly discovered evidence is tolerated rather than favored because of its liability to abuse and its tendency to mislead. (Erskine A Go. v. Duffy, 76 Ga. 103.) As to the insufficiency of the showing made, reference is made to the following authorities: (Chandler v. Smith, '70 111. App. 658; Sister v. Shaffer, 43 W. Ya. 769; Albright v. Hannah, 103 la. 98; Turner v. State, 37 Tex. Crim. Rep. 451; Lafevre v. De Brule, 71 Ills. App. 263; Williams v. The People, 164 111. 481; Newton v. Cook, 33 S. W. Rep. 934; Territory v. Bryson, 9 Mont. 33; Harris v. The State, 97 Ga. 408; Hill-man v. White, 46 Pac. Rep. Ill; Ha/yne v. Chandler, 99 Ga. 214; Smith v. The State, 143 Ind. 685; Outcalt v. Johnson, 9 Colo. App. 519; Bobinson v. The State, 35 Tex. Crim. Rep. 19; People v. Ah Ton, 53 Cal. 741; Lukins v. Garrett, 2 Kan. App. 722; Brown v. Mitchell, 102 N. C. 347; Wis. Cen. B. B. v. Boss, 142 111. 11; People v. Baker, 50 N. Y. Sup. 771; State v. Davis, 53 Pac. Rep. 678; Wright v. Southern Express Co., 80 Fed. 85; Flint A P. M. B. B. Co. v. Marine Ins. Co., 71 Fed. 310; People v. Goldenson, 76 Cal. 330; Madison Coal Co. v. Beam, 63 111. App. 179; McLeod v. Shelby Mfg. A Imp. Co., 108 Ala. 81; 111. Cent. B. B. Co. v. Truesdell, 68 111. App. 324; Cropper v. The City of Mexico, 62 Mo. App. 385; Linscott v. Orient Ins. Co., 88 Me. 497; Beid v. Flanders, 62 111. App. 106; Gran v. Houston, 45 Neb. 817; O'Hara v. N. Y. C. A H. B. B. B. Co., 36 N. Y. Sup. 67; Bobinson v. The State, 32 S. W. R. 900; Bichardson v. Huff, 43 S. W. Rep. 464; Conlan v. Mead, 172 111. 13; Stewart v. Pattengall, 91 Me. 173; Bradley v. Norris, 67 Minn. 48; Norfolk v. Johnakin, 94 Ya. 285; Fall v. Chapman, 56 Mo. App. 581; Hammond v. Phillips, 89 Mo. 70; Lewis v. Newton, 67 N. W. Rep. 724; State v. Lcune, 44 W. Ya. 730; Sullivan v. The State, 101 Ga. 800; Sayer v. King, 47 N. Y. Sup. 422; State v. Bohrer, 34 Kan. 427; Bishop’s New Crim. Pro. Section 1279.)
   MR. JUSTICE HUNT

delivered the opinion of the Court.

Defendant, William C. Brooks, was convicted of murder in the first degree, for the killing of Jennie Brooks. He appeals from the judgment sentencing him to death, and from the order of the district court denying his motion for a new trial.

The evidence of the state disclosed these material facts: Jennie Brooks was the wife of the defendant. The couple had not lived together for some time. On November 18, 1898, between á and 5 o’clock in the afternoon, a cry of murder was heard in the neighborhood where Mrs. Brooks lived. Defendant was seen running, at the time this cry was heard, across the street, after his wife; he fired a shot as he got to the gate of the house in which she lived, and followed the woman until they reached the middle of the street, where she stopped, and they had a scufile, in which she was down on her knees part of tfie time, reaching out in the- direction of the defendant’s hand. While in this position he pushed her back and got away from her, and fired another shot at her, asking her if she was shot. She said something in a low tone, then ran away from him and fell dead. The defendant then fired several shots, apparently at himself, and, after doing this, went up to the body of his wife, lying on the face, close to the house, reached over and looked at it, took the revolver, put it down to her ear and fired, saying, “Nowyou are dead.” Defendant then said he would go and give himself up, and again said, “No, I wont; I’ll just shoot myself,” — and again shot the revolver off, but, as he did so, dodged his head to the side and avoided the bullets. Defendant then told the officers to come and take him, anti said he would give himself up and did so.. Mrs. Brooks had no weapon. Defendant, after the shooting, told a witness that it was unnecessary to go through any preliminaries; that they could just take him out and hang him, as he was ready to die, — and handed a bunch of keys to witness, telling him that they were the keys to his place of business, and he desired that his things should be taken and sold.

A boy named Charley Powers, who lived with Mrs. Brooks, testified that, just before the shooting, Brooks went to Mrs. Brooks’ house and was standing there, holding the bill of a little live black pigeon in his mouth. Brooks at that time asked his wife what men had been doing about the house about 1 o’clock on Tuesday or Wednesday night. Mrs. Brooks denied that there had been any men about there at that time, and thereupon the defendant called her a “big whore,5 ’ threatened to kill her and struck at her. She then struck him with a small stick, and then they had a scuffle in which Brooks knocked her down and shot off his pistol, but missed her. This was just before the occurrences out of doors when she was killed.

The substance of the testimony in defendant’s behalf was that he and his wife had quarreled a great deal, and that the seperation just before the killing was at least the third that had occured between them. They had had a quarrel on the evening of November 14th. Defendant himself did not go on the witness stand, and relied upon insanity as a defense. To sustain this plea he called a witness named Scott, who testified: That he had known defendant for about four years. That he had never paid much attention to the actions, speech, appearance, and peculiarities of the defendant, but that on one day defendant called witness, and wanted him to rent a church “down there.” Witness told him, “Yes;” that, if they rented it out in the winter, they could make money enough out of it to fix it up; that the rental was to be six dollars a month. That defendant went off to fix up the contract, and when he returned, ‘ ‘he had it fixed up for six dollars for six months. So I told him: ‘You must be out of your head. A man that would have sense would know better than that.’” Witness said he did not think that he noticed anything peculiar in defendant’s action just prior to the homicide; that the defendant was a trustee of the African Church, and a member thereof. This witness was recalled, and gave the following testimony in support of the defendant’s plea of insanity: “I testified here this morning that I was present at the • colored church in Billings about the month of September, 1898, at which time there was a disturbance came up in the’ church, and in which Mr. Brooks was one of the parties engaged. After the preaching was over, they had a minister here, and he wanted to collect some money to fixup the church; and Mr. Brooks drawed out a paper there, and proceeded to the altar to collect some dollar money and Sunday school money to represent our church, and I told him that it wasn’t necessary to do that, ’cause we had no church, we simply had the building there, and we had no means, and it was no use to send any money away until we got straight on our feet here. At that time Brooks got excited, you know, because he had everybody up telling him to behave and sit down, or else go home, — one of the two. In regard to his actions he was like any one else, I suppose, — when he would get angry or mad he looked like he was crazy. I couldn’t reason with him. I went to his home afterwards and tried to reason with him, but I couldn’t do it. This was about an hour after the disturbance that occured at the church. He would not listen at that time to us at all. When he gets mad he is excited. He was mad- that night. He seemed to want to be the leader of our church, and he also wants to be the leader of the colored people of this town. At that time I did not think him crazy. He was excited and strong-headed, and you could not reason with him.”

Dr. J. H. Rinehart testified as an expert on insanity. Defendant’s counsel put a long hypothetical question to him, based upon every circumstance that could have possibly been deduced from the testimony bearing at all upon the plea of insanity, and then asked him this question: “Would you say that this question contained evidences of insanity?” The doctor’s reply was, substantially, that there were a great many evidences of insanity under certain circumstances, which under other circumstances would hardly pass as evidences of insanity, and that there were quite a number of things, in the proposition put, involving symptoms of insanity. It so happened that Dr. Rinehart was a witness of the homicide itself, and saw everything that occurred after the defendant and his wife left the house. The state called him in rebuttal, and he said that he was not prepared to say whether the defendant was acting like a crazy man or not; that he was “plowing around there in a terribly excited condition,5 ’ and that while he never had been well enough acquainted with him to form any opinion as to his sanity at that time, yet he had no reason to think that he was insane, from his actions, because he was not intimately enough acquainted with him to decide whether he was or not; that he always considered him a sane man, from what he knew of him, and had no reason to think for a moment that he was insane.

Another witness, who had known the defendant for four or five years, and had seen him frequently, testified on rebuttal that he would say that defendant was a sane man, and that at the time of the killing the thought never entered his head that Brooks was insane.

A witness for the defense, who testified that defendant and his wife quarreled a great deal, was asked if defendant ever stated to him anything in relation to his domestic troubles. Objection was made on the ground that this was hearsay testimony, and the court sustained the objection, defendant preserving his exception. We see no error in the ruling of the court. The witness to whom this question was put was the first called by the defendant. It was not stated to the court that the object of the question was to disclose the insanity of the defendant, nor had there been any offer of proof to that effect up to that time. The revelancy or materiality of the question did not appear by the question itself,— on the contrary, it appeared to call for incompetent testimony, and the court correctly sustained the objection at the time of the ruling.

The court declined to permit another witness for defendant to be asked if defendant ever delivered any discourses in the African Church. The object of this question defendant’s counsel stated to be to show that defendant ‘ ‘was a devoted Christian. ” We think that the court properly excluded this testimony. Defendant had a right to put his character in issue, but it was not competent to prove good character by showing that defendant had preached at divers times. If the object was to show insanity, that object was not disclosed by the question or statement of counsel.

The same witness was asked what, if anything, defendant had said to him on the streets of Billings at half past 1 o’clock on the day of the homicide. This was excluded, and we think properly so, upon the ground that it apparently called for hearsay testimony in defendant’s behalf. If its purpose was to show insanity, such purpose should have been disclosed.

Josephine Samples, called by defendant, after testifying that Brooks and his wife quarreled a great deal, was asked if she knew whether or not defendant ever charged his wife with infidelity. The court sustained ah objection to this question, and the witness was not allowed to answer. Counsel for defendant did not state to the court that the object of this question was to prove the issue of insanity of the defendant, nor was the question put to the witness as if .with the object of eliciting evidence that the defendant was insane when he killed his wife. Under the circumstances, therefore, we do not see how it became material; but, assuming it was a proper question upon any other issue, no harm could have resulted to defendant, because it appears by the testimony of witnesses for the prosecution, and it was not denied, that the defendant called his wife a ‘ ‘whore’ ’ a few minutes before he killed her, and had asked her who the men were that had been in her house at midnight on several evenings’ before the day of the killing. Thus evidence of an assertion of the infidelity of his wife, and accusations of such infidelity, were before the jury, and were afterwards embraced in a hypothetical question put to a physician called by defendant as an expert on insanity.

But, up to the point of the ruling just adverted to, no witness had testified that in his opinion defendant was of unsound mind; nor had defendant’s counsel stated that the object of his interrogatories was to prove insanity. ■ While it is clearly the right of a man charged with crime to plead insanity as a defense, and in support thereof to introduce evidence to prove conduct and speech showing a diseased mental condition, still the presumption of sanity cannot be overcome by the introduction of testimony wholly incompetent and irrelevant upon any issue except that of insanity, without first making it appear to the court, in an offer of proof or statement of counsel that the purpose of such testimony is to rebut the legal presumption of sanity which goes with the state’s prima facie case of guilt.

The court committed no error in instructing upon the law of justifiable a,nd excusable homicide. Not to have done so would not have been error in this case, but in doing so the court only gave to the jury the clearest understanding of the various kinds of homicide recognized by the law. We cannot see how this course could have confused the jury, or been otherwise than favorable to defendant; for it allowed the jury to consider defenses, which, if sustained on any theory, would have been greatly to defendant’s advantage.

Defendant complains of the following instruction:

“If you find that defendant is guilty of an unlawful homicide, but that the killing was done without malice aforethought, then the defendant would be guilty of the crime of manslaughter as defined in these instructions; and in this connection you are instructed that ‘heat of passion, ’ as used in that definition and in these instructions, means a condition of quick anger or sudden injury engendered by some real or supposed grievance suffered at the time, and amounting to a temporary dethronement of reason, which must be sufficient to rouse an irresistible and uncontrollable passion in a reasonable person; and, in order to reduce an unlawful homicide from murder to manslaughter, the killing must be done upon the instant, — that is, at the time the provocation is given, and under the influence of it, before the blood has had time to cool, and before the mind has had time to consider the character and gravity of the act about to be done, and not from hatred or pre-existing revenge. And you are instructed that no provocation by words only, however opprobrious or threatening, will mitigate an intentional homicide so as to reduce it to manslaughter. And it cannot ,be urged that the homicide was manslaughter if you find it was committed in an unreasonable fit of passion. The law makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion íñ a reasonable person. If the defendant was so far in possession of his mental faculties as to be capable of knowing that the act of killing was wrong, any mental defect which might cause him to more readily give way to passion than a man ordinarily reasonable cannot be considered by you in this connection. To reduce the offense to manslaughter, the provocation must at least be such as would stir the resentment of a reasonable man. ’ ’

■ Part of this instruction is not to be approved of. It is not a very clear definition of heat of passion. (State v. Sloan, 22 Mont. 293, 56 Pac. 364.) But in many respects the other portions state rules of law applicable generally to fundamental distinctions between manslaughter and murder. Particular objection is urged to the use of the language which told the jury that, to make the killing manslaughter, it must be done “upon the instant, — that is, at the time the provocation is given, and under the influences of it, before the blood has had time to cool, and before the mind has had time to consider the character and gravity' of the act about to be done, and not from hatred or pre-existing revenge. ’ ’ The criticism that this language makes the instruction ambiguous is not well'founded. There can be no reasonable misunderstanding of the principle announced by it, — that if a man is so aroused by a sufficient provocation, real or supposed, as to temporarily take away his reason, and he acts under the impulsive influence of the moment by killing a fellow being, he will not be held to account for murder, but that if there is an intervening time, in which his blood may cool, and the mind has had time to consider the fact that he is about to kill a man, and he acts by killing from hatred and out of revenge, he will be accounted guilty of murder, and not of manslaughter. We believe that to be the correct principle.

It is also said that it was error to say that the homicide would not be manslaughter if it was committed in an unreasonable fit of passion. Nor would it be. If, for example, a man, without provocation of any kind, works himself into a fit of passion over a most trivial affair of life, and in which he does not lose control of his reason, and kills another while in such condition of mind, it is an unreasonable fit of passion, and will not be sufficient to relieve him of guilt of murder. An unreasonable fit of passion is not such a one as a reasonable man under like circumstances would fall into or act under, — it is a condition of anger or passion without reason, whether real or believed to be real, for its existence. Such mental condition has but a remote relation to insanity, which confers irresponsibility; for it is too plain, generally, and was made plain by the instructions in this case, that if the defendant was insane (that is, incapable of distinguishing between right and wrong at the time of, and with respect to, the act which is the subject of inquiry), and if he killed his wife while under an uncontrollable impulse which overrode reason and judgment, or obliterated the sense of right and wrong as to the killing, and deprived the defendant of the power of choosing between them, he was not legally responsible, and must be acquitted. But the impulse of a heat of passion should not be confounded with a generally diseased mind, — the one reduces the grade of crime, thus presupposing some responsibility, while the other presupposes mental incapacity, which exempts the sufferer from criminal punishment altogether. The use of the expression ‘ ‘dethronement of reason, ’ ’ characterizing the mental condition necessary to be found in order that “heat of passion” exists, if taken by itself, might have been too severe a standard by which to distinguish between murder and manslaughter. (Clarke on Criminal Law, p. 167.) Nor is it necessary to extend the discussion into the somewhat refined distinction of the law of insanity which recognizes that a man may be impelled by some sort of irresistible power to kill another, knowing what he is doing, and knowing that it is wrong, and of the consequences of the act; for there was no evidence tending to prove that this defendant was in such a condition of mind when he killed his wife. Reverting, then, to the instruction, it is our opinion that the clause which stated that the temporary dethronement of reason must be sufficient to rouse an irresistible and uncontrollable passion in a reasonable .person was a qualifying one, specifying the extent to which the dethronement of reason needs only go, and so did away with the possibility of the jury’s believing that insanity amounting to a total dethronement of reason must exist, to constitute heat of passion.

Again, the court emphasizes its meaning by subsequently repeating that the law would make the offense manslaughter if committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person. We therefore believe that there was no misdirection to the jury which was calculated to mislead them in respect to the heat of passion.

The jury was not authorized to find that an irresistible passion might ensue from words of opprobrium, for they had been told that no provocation by words only, however opprobrious or threatening, would mitigate an intentional homicide so as to reduce it to manslaughter. Counsel’s error in arguing to the contrary lies in his inattention to the rule that the instructions should be considered and construed together. ‘ ‘A judge is not supposed to give all the law to a jury in one paragraph or in one sentence. If, then, the whole charge, taken together, presents the law applicable to the facts of the case correctly, without contradiction or material omission, it must beheld, for all practical purposes, to be correct.” (Territory v. Hart, 7 Mont. 489, 17 Pac. 718.)

Objection is made to that sentence of the instruction which told the jury that, if defendant was so far in possession of his mental faculties as to be capable of knowing that the act of killing was wrong, any mental defect that might cause him to more readily give way to passion, than a man ordinarily reasonable, could not be considered by the jury in this connection. This was, in effect, saying that though a man’s mind be defective to an extent that passion easily moves him, and he gives way to it much more easily than a reasonable man ordinarily would, that fact cannot be considered, provided he was sane enough to know that the act of killing was wrong. This is generally correct, with relation to the law of manslaughter, to which it pertained, and in no respect conflicted with the duty of the jury to consider all the evidence before them offered by defendant in support of his plea of insanity, the law of which was elaborately laid down in the charge.

But under no circumstances is appellant in a position to complain of this instruction, inasmuch as he has been convicted of murder in the first degree, and inasmuch as the jury were very fully and expressly charged that, in order to find murder, they must find that malice aforethought existed, while the instruction under discussion was premised upon an hypothesis that the killing was done without malice aforethought, but in the heat of passion. They were told that the presence or absence of malice was to be determined by them in arriving at the nature of the crime, and that, if the act of killing was done with malice aforethought, it was murder; if without malice, it was manslaughter. There was no way, therefore, for them to have found murder in the first degree without first finding malice, deliberate and premeditated, in the killing; and, having found' malice aforethought, deliberation upon a lesser crime, which expressly excluded the existence of malice, was immaterial, and could not have drawn them aside from the law pertinent to a malicious killing. A jury in a homicide case will generally advance with intelligence, and step by step, in the consideration of the law given them. In doing this they may go up or down the grades. If they go up, they will be apt to first determine whether the killing was lawful or unlawful, as defined by the statutes and the charge. If lawful, they will go no further; but, if they agree that it was an unlawful killing, they will move up a step, and determine whether there was an admixture of malice or not. If this is answered ‘ ‘no, ’ ’ manslaughter is the crime to be considered. But, if the result of the deliberations that malice in the killing did exist, then that there has been murder is the conclusion of their finding, and they must follow the law bearing upon a malicious killing, and need not consider that which distinctly eliminates the element of malice, for it no longer has relevancy. Then, having taken up malice in its bearing upon the killing, they will advance to the point of deciding whether the killing was done with or without the deliberation and premeditation necessary to constitute murder in the first degree, ■ as distinguished from murder in the second degree; and so they will move on gradually until they may reach the point where every essential of murder in the first degree is found to exist, and decide that the highest grade of the crime is necessarily established by the evidence. Throughout their deliberations in a case like this there also stands a charge upon the question of insanity, where they are told that their duty is to acquit, if they find the prisoner mentally irresponsible, no matter how shocking the homicide may have been. From all this it seems to follow as an inevitable proposition that where the jury find malice as it has been correctly defined, and where they have been clearly told what murder in its degrees is, what manslaughter is, and that they could find no murder without malice in the killing, the doctrine of error without prejudice obtains, as applied to an obscure definition of one' element of the crime of manslaughter, — the heat of passion. Particularly is this true where, as in this case, the evidence proved murder, and not manslaughter. There was no room for a verdict of manslaughter. It was a killing in malice aforethought, or it was the act of an insane man. (People v. O'Neal, 67 Cal. 378, 7 Pac. 790; State v. Talbott, 73 Mo. 347; Thompson on Trials, Sec. 2403; State v. Ward, 74 Mo. 253; State v. Kotovsky, Id. 247; State v. Ellis, Id. 207; State v. Erb, Id. 199; Kerr on Homicide, p. 578.)

Finally, in the light of the full charge given upon the law of murder and manslaughter, the obscurities in the particular charge upon an irresistible impulse and heat of passion were not prejudicial to the rights of the defendant, and the instruction complained of is not a sufficient ground for reversal of the judgment.

Newly discovered evidence was also a ground for asking a new trial. This point is easily disposed of by saying that the facts which defendant wished to prove by his newly discovered evidence were cumulative, tending to prove the allegation of mental incapacity which became an issue on the trial, and in support of which defendant had called witnesses who testified, and were not such as to make it clearly probable that a different result would follow another trial, nor did it appear that the testimony could not have been produced upon the former trial by the exercise of reasonable diligence. In People v. Demasters, 109 Cal. 607, 42 Pac. 236, the court well said: “We can see no abuse of discretion on the part of the court below in denying defendant’s motion for a new trial, made upon the ground of newly discovered evidence. As has been repeatedly held by this court, a motion for a new trial is addressed to the sound legal discretion of the trial court; and the action of the latter will not be disturbed, except in an instance manifesting a clear and unmistakable abuse of such discretion. This rule is peculiarly applicable to an application based upon the ground of newly discovered evidence, which not only involves an enlarged discretion in the trial court, but has never been looked upon with favor, but rather with distrust. (Hobler v. Cole, 49 Cal. 250; Arnold v. Skaggs, 35 Cal. 684.) To entitle the plaintiff to a new trial on this ground it must appear, among other things, that the new evidence be not cumulative merely; that it be such as to render a different verdict reasonably probable upon a retrial; and that the evidence could not with reasonable diligence have been discovered and produced at the trial. 1 Hayne on New Trials and Appeals, Sec. 88.”

Misconduct of the jury is also complained of. It appears by the affidavit of A. Gr. Bedding, foreman of the jury: That after the jury retired he was selected as foreman, whereupon the jury proceeded to take an informal ballot, ‘ ‘but that before the said ballot was taken one of the twelve jurors then and there being in the jury room suggested that ‘whatever two-thirds of the vote shows, that shall be the verdict. ’ That this deponent demurred to the suggestion of this juror, whose name this deponent does not remember, and that affiant then and there stated ‘that the verdict must be unanimous; all the jurors must agree.’ After this, and before the ballot was taken, this said juror again stated ‘that he was willing that a majority should rule.’ That thereafter this said jury took this said informal ballot, which said ballot resulted as follows: Ten ballots for murder of the first degree, one ballot for murder of the second degree and one ballot for manslaughter. That shortly thereafter the jury took a ballot upon the merits of the case, which resulted as follows: Eleven for murder of the first degree and one ballot in these words, ‘Murder degree;’ and this deponent says that this said ballot was passed as no ballot, and thereafter the jury took another ballot which resulted as follows: Twelve for murder of the first degree. And further the deponent sayeth not. ’ ’

Passing the proposition that, on grounds of public policy, a juror will not be allowed to impeach a verdict upon the ground stated in the affidavit quoted, we agree that the juror who said that he was willing that a majority should rule may not have had that deep sense of responsibility devolving upon him which every man ought to possess and feel when he weighs evidence and helps to determine the question of life or liberty of his fellow man. But the remark may have been mere idle speech, and presumably it was; for the jury were told that their verdict must be unanimous, and, upon a poll had after it was read in court, each answered that the verdict rendered was his true verdict. This Court cannot indulge in the presumption that a juror violated his oath to render a true verdict according to the evidence, by yielding his convictions to those of a.majority of his fellows merely because they outnumbered him. Every fair presumption is to the contrary, and we decline to hold otherwise. (State v. Harper, 101 N. C. 761, 7 S. E. 730.)

The court charged that upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime only amounts to manslaughter, or that the defendant was justifiable or excusable. The instruction is the law as laid down by section 2081 of the Penal Code, and was proper to be given in this case. The defendant, however, ought not to complain of the refusal to instruct, in connection with this particular charge, that defendant should be acquitted if a fair preponderance of the evidence showed his insanity when the crime was committed; for the better-considered rule is that, to entitle a defendant to an acquittal on the ground of insanity, he is not required to overcome the presumption of sanity by a fair preponderance of the evidence, or any greater amount of evidence than enough to raise a reasonable doubt whether at the time of the killing he was ‘ ‘mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing. ’ In the recent case of Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353, the supreme court review the authorities upon the question of where the ‘ ‘burden of proof’ ’ lies in criminal cases where insanity is relied upon as a defense, and Justice Harlan says:

“Strictly speaking, the ‘burden of proof,’ as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defense is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether, upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged. His guilt cannot be said to have been proved beyond a reasonable doubt, his will and his acts cannot be held to have joined in perpetrating the murder charged, if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he willfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence, beyond a reasonable doubt, that the accused was guilty, and was therefore responsible criminally for his acts. How,' then, upon principle or consistently with humanity, can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity, in law, of the accused to commit that crime?”

■ The learned judge sums up the discussion by approving of a part of the celebrated charge of Justice Cox in the Guiteau Case, 10 Fed. 161, where it was said:

“The crime, then, involves three elements, viz: The killing, malice, and a responsible mind in the murderer. But, after all the evidence is in, if the jury, while bearing in mind both these presumptions that I have mentioned (i. e. that the defendant is innocent until he is proved guilty, and that he is and was sane, unless evidence to the contrary appears), and considering the whole evidence in the case, still entertain what is called a ‘reasonable doubt, ’ on any ground (either as to the killing or the responsible condition of mind), whether he is guilty of the crime of murder, as it has been explained and defined, then the rule is that the defendant is entitled to the benefit of that doubt, and to an acquittal. ’ ’

The true principle,, therefore, is that the state must prove guilt beyond a reasonable doubt, and if, upon the whole evidence, no matter whether the state or defendant offers such evidence, the jury have a reasonable doubt whether, when defendant killed the deceased, he was sane or insane, it is their duty to give the defendant the benefit of the doubt and to acquit him. And upon this theory the judge charged — hence he was right in refusing the instruction offered.

We find no error in the record, and must affirm the judgment and order appealed from.

Affirmed.