source: Caselaw Access Project

author: HUNT, J

license: Public Domain

text:
    STATE, Respondent, v. GEDDES, Appellant.
    [No. 1308.]
    [Submitted Jan. 5, 1899.
    Decided Jan. 23, 1899.]

      Homicide — Evidence—Testimony of Accomplice— Corroboration — Indictment—Issues and Proof — Instructions— Witness, Accomplice as — Complaint in Another Case as Evidence.

    Testimony oe Accomplice — Corroboration—Testimony of the accomplice, who committed the murder during the absence of defendant in the State of Illinois — (where defendant had been for nearly three weeks prior to the killing, during which time he in no way communicated with the accomplice, or did any act or made any declaration in furtherance of any concerted plan to do the deceased violence) — that defendant had, in conversations with him prior to defendant’s departure, said; that deceased had had him indicted, and he wanted deceased killed, and desired the accomplice to get the deceased “out” so that he (defendant), or others, could kill the deceased, is not sufficiently corroborated to sustain a conviction — assuming that this testimony implicates defendant at all, — by evidence that defendant had been informed against by the County Attorney for an assault upon deceased, and was sued in damages by deceased for the assault, and that defendant had told several persons that he, had committed the assault, and was sorry that he did not kill deceased; that when he presented his side of the case it would appear in a different light; that he would get even with deceased, and if he did not stop talking about defendant, something would happen.

      Indictment — Issues and Proof — Under Penal Code, Sec. 3852, providing that persons aiding and abetting a crime, although not present, must be prosecuted as principals, “and no other facts need be alleged in any indictment or information against such an accessory, than are required in an indictment or information against his principal,” an indictment for murder, charging defendant as principal, is sustained by proof that he was guilty of advising and encouraging the crime.

      Same — Constitution.—Penal’Code, Sec; 1852, providing that no other facts need be alleged in an indictment against an accessory Ilian are required in an indictment against a principal does not violate Constitution, Art. Ill, Sec. 16, guaranteeing to an accused the right to demand the nature and cause of the accusation.
    Instructions — An instruction should follow the language of the statute, and state that accessories are those who “advise and encourage,” instead of “advise or encourage,” the commission of crime.

      Witness — Accomplice as. — Under Penal Code, See. 2443, permitting an accomplice to be a witness for or against an accused, an accomplice is a competent witness against an accused, although his testimony .was obtained by threats or inducements. Such facts only hear upon his credibility, and not upon his competency; and his testimony is not subject to the rules governing admissions by a prisoner accused and on trial.

      Same — Same—Cross-Examination o/. — Very great latitude should he allowed in the cross-examination of an an accomplice.
    Evtd eitce- Complaint in Another Case as — In a prosecution for murder, a complaint filed against accused by deceased is admissable in evidence to show motive.
    Where a complaint filed by deceased against accused is admitted in evidence, the court should charge that the evidence could be considered only as bearing on the question of motive.

      Appeal from District Court, Custer Cownty; C. U. Loud, Judge.

    George S. Geddes was convicted of murder in the second degree, and appeals.
    Reversed.
    The statement of facts appears in the opinion.

      O. F. Goddard, C. D. Middleton and Wm. II. De Witt, for Appellant.
    The question is presented to this court, whether an information charging one simply as principal is sustained by testimony showing, without contradiction, that he was, if anything, only an accessory and was in fact not a principal. This question has not been passed upon by the Supreme Court of this State. The court approached its consideration in State v. Gleim, 17 Mont. 17. We now ask the court to take one step further than the Gleim case, and to hold that such an information as was considered in the Gleim case is not only proper but necessary. We are fully aware of the force of Section 1852, Penal Code, which provides that accessories shall be tried as principals, and that no further facts need be alleged in any indictment or information against an accessory, than are required against a principal, but we contend that this statute is in direct contravention of Section 1832, Penal Code, and also of the Constitution, Art. Ill, Sec. 16. [People v. Trim, 39 Cal. 75; People v. Campbell, 40 Cal. T41; see, also, Shannon v. The People, 5 Mich. 71; Smith v. State, 32 Ark. 274; Wiliams v. State, 41 Ark. 173.) It is not competent for the Legislature to authorize any information which does not substantially inform the defendant of the nature and cause of the accusation against him. (Constitution, Art. Ill, Sec. 16; Brown v. People, 29 Mich. 233; Chapman v. The People, 39 Mich. 357; Mervin v. The People, 26 Mich. 298; Hall y. The People, 43 Mich. 417; Sneed y. The People, 38 Mich. 248; Bruñes v. The People, 37 Mich. 515; Durand v. The People, 47 Mich. 332; The People y. Marion, 28 Mich. 255; The People y. Goldberg, 39 Mich. 545; see, also, State y. Flaherty, 7 Nev. 153; The People y. Schwartz, 32 Cal. 160; The People y. Bunmar, 106 N. Y. 502, 510; a thoroughly well considered and reasoned case is State y. Gifford., from the State of Washington, 53 Pac. Eep. 709.)
    In the instruction the court departed from the statute. The Statute, Section 41, states: “have advised and encouraged its commission.5’ The instruction states: “it is sufficient if they (that is to say, the defendant or defendants) are cognizant of the purpose to commit the offense or aid or abet or encourage, etc.” This instruction was duly excepted to. Appellant contends that the word “and” occurring in the statute between the words “advised” and “encouraged,” cannot by the court be converted into the word ‘ ‘or. ’5 The statute provides that, in order to constitute one an accessory, that he shall have advised and encouraged the crime. It is quite true that the word “and” may sometimes be read “or,” but it is held in the case of the United States v. Ten Cases of Shawls, 28 Fed. Cases, No. 16448, that in a penal statute “and” can never be read as “or.” Commenting upon the convertibility of the words “and” and “or,” Bishop, in New Criminal Law, Vol. 1, Sec. 941, says: “Where the words of the statute are fine and imprisonment, both must be inflicted; otherwise where the conjunction is or, then only one of them can be imposed.” -In the case of Lebcher v. The Commissioners of Custer County, 9 Mont. 315, this Court in the civil case held that the word “and” must be read “and.”
    First: The whole testimony of Dixon was incompetent, because he confessed in the course of his own cross-examination that it was given under threats and inducements. Second: The court erred in not allowing the defendant’s counsel to first ascertain whether or not Dixon’s testimony was given under threats or inducements. (3 Rice on Evidence, pp. 195, 591; People v. Fox, 121 N. Y. 153; People v. Barrie, 19 Cal. 315; 1 Greenleaf on Evidence, Chap. 12; Territory v. Me Clin, 1 Mont. 391; Territory v. Underwood, 8 Mont. 133.) The reading of the information and the civil complaint to the jury was error. (State v. Donyes, 11 Mont. 75; Rice on Evidence, Chap. 25, Yol. Ill; State v. Corbin, 56 N. Y. 363; State v. Raymond, 53 N J. Law, 260; State v. Gay, 18 Mont. 51; see, Binns v. State, 53 Ind. 16, 26 Am. Rep. 18; also same case on former appeal, 16 Ind. 311; Pinkford v. State, 13 Tex. App. 168-178.)

      C. B. Rolan, Attorney General, and T. J. Porter, for the State.
    Without a certificate expressly declaring that the record contains all of the evidence, the evidence cannot be considered as insufficient to sustain the verdict. (Am. and Eng. Ency. of “ Pleading and Practice, Vol. 3, page 123; Ohio cé Mis. Valley Co. v. Rufus Cope, 36 Ills. App. 97; Grimley v. Donahue, 36 Ills. App. 551; City of Mt. Vernon v. Lee, 36 Ills. App. 21; Fellenzer et al. v. Van Valzah, 95 Ind. 128; Fortner v. Meyers, 6 Neb. Ill; Townley v. Chicago R. R. Co., 53 Wis. 626; LIowardY. Bowman, 23 Pac. 68.), There was sufficient corroboration of the testimony of the accomplice. (U. S. v. Babcock, 3 Dillon, 585; Marler v. State, 67 Ala. 55; Com. v. Snow, 111 Mass. 116; Malachy v. State, 89 Ala. 110; Com. v. LLolmes, 127 Mass. Ill; Com. v. Sawory, 10 Cush. 535; Rex v. Wilkes, 7 Car. & P. 272; Regina v. Birkett, 8 Car. & P. 732; Reginas. Mullins, 3 Cox C. C. 531; People v. Melvane, 39 Cal. 616; People v. Clough, 73 Cal. 351; People v. Barker, 111 Cal. 619; Peoples. McLea/n, 81 Cal. 180; People v. Kunz, 73 Cal. 313; People v. Cloonan, 50 Cal. 119.)
   HUNT, J

The defendant appeals from an order denying his motion for a new trial, and from a judgment of conviction of the crime of murder in the second degree.

The defendant, George S. Geddes, and Thomas Welch and Richard Dixon were jointly informed against for the crime of murder. The information charged that on November 4, 1897, at Custer county, this defendant and the other persons above named shot and killed Clemence W. Brown, who is spoken of throughout the record, and whom we shall designate as Winnie Brown. The information is in the usual form of a charge of murder in the first degree. Geddes, this defendant, was given a separate trial. It appeared that on the afternoon of November 4, 1897, Winnie Brown and a brother of his, named Clarence, were returning with a four-horse team to their home, at a ranch on Lay creek, some 50 miles from Miles City. On their way they passed the ranch of defendant, Geddes, on Tongue River road, in Custer county, and went to the mouth of Lay creek, about two miles beyond Geddes’ ranch. There the two brothers met a third brother, Hersey Brown, who was on horseback, and who joined Winnie and Clarence. All three brothers continued their journey homeward and, when about a mile and a half from their ranch, Dixon, a co-defendant, rode up behind them with a gun in his hand, deliberately pointed the gun at Winnie and shot him through the body. Winnie fell out of the wagon and Dixon rode off towards the hills. The brothers of Winnie carried him to a washout and thereafter took him to what is called “Jackson’s House,” where he died the following morning as the result of his wounds. Dixon is a colored man and confessedly the person who killed Winnie Brown. He was the principal witness for the State and, so far as it is necessary to state his testimony upon the final issue involved in this trial, it was as follows:

“My name is Richard Dixon. Am 22 years old and have lived in Custer county since 1884. About August 19th I went to George Geddes’ ranch, on Tongue river. Had worked for Geddes before. Mrs. Geddes wrote me a letter to come up. When I got to the ranch I found George Geddes, Mrs. Geddes and Phil. White there. 1 was at Geddes’ ranch about a week. I told Geddes I had come to town to fetch a horse back. Stayed in town two days. When I got back to Geddes’ ranch, I found Mr. Geddes, Mrs. Geddes, Tom Welch and Phil. -White there. When I was in Miles City on that trip I saw Winnie Brown. When I got back Tom Welch asked me if 1 saw that Brown boy in town, and I told him I did. I had no talk with Geddes after I got back to the ranch. Three or four days after I got back I went with a team and a light spring buggy to Rosebud. A conversation occurred then with Mr. Geddes. Mr. Geddes said: ‘It is a good thing my arm is hurt.. I was just getting so that I could ride or 1 would have killed him (Winnie Brown) long ago. I intended to kill him and roll him up in a canvas and throw him into a burning coal bank. ’ This conversation occurred on the drive, before we reached Rosebud. Geddes went from Rosebud to Miles City. I next saw him at the ranch — think about a week afterwards. I did not have any conversation with him relating to Winnie Brown when he came back to the ranch. Did at a later date at the ranch. Geddes said he saw the Brown boy in town and he guessed he was sick; he saw the doctor write him out a prescription for medicine. I then asked Geddes how his (Geddes’) arm was getting along and he told me that the doctors had been at work at it some. After he came back there to the ranch I did not hear Geddes mention Winnie Brown’s name at the ranch, nor until he went to Rosebud again. When he came up from town the first time, he came up on the Tongue River stage and stayed about a week or ten days at the ranch and then I took him to Rosebud again. He came down to see about his arm and there he told me that if Tom Welch would ever catch that boy out he would kill him. He told me that when we were passing Goodwin’s place. He said that if Tom Welch would catch that boy out in the hills he would kill him and make way with him and they wouldn’t find him. He did not make any further statement about the Brown boy at that time for a little while. When we got to Rosebud, Geddes slept in Beach’s saloon. I saw Geddes about ten days after that in Miles City, in Smithy’s saloon; I said, ‘I thought you had left for Chicago.’ ‘No,’ he said, ‘haven’t left.’ We drank together. He said, ‘I want to see you in the wine room in a minute;’ and we went back into the wine room and he said, ‘t^at Brown boy is in town and he has had three or four indictments served on me;’ and he wanted to know if I could get anybody I could trust; and I asked him what for; and he said, so as they could get him out so they could kill him; and I says, T can’t,’ and he says, ‘if you can’t, I will myself;’ and I left him and went down to the store and got my things. Geddes said this about ten or fifteen minutes before train time. He had his pass and everything to go east. He wanted to know if I could get anybody that I could trust and if I could trust Fred. Rogers; and I asked him what for, and he told me, and I told him. He said he wanted that Brown boy killed. That is what he said to me. I told him that I could not do it and he says, ‘you get him out and I’ll do it.’ I saw Geddes at the train that evening. He was going to Rosebud to see his wife. Saw Geddes the next day. When I left for Rosebud, Geddes and his wife were in Miles City. Mrs. Geddes stayed in town that night and the next day. I went to the ranch. Left Rosebud on Friday. Remained at the ranch Saturday and left the ranch again for Rosebud on Saturday morning. I think it was two days after I had the conversation with Geddes in Smithy’s saloon. In September or October I heard a conversation in the front room of Geddes’ house. Mr. Geddes says, ‘if I can get that Brown boy in the hills, I will put his foot in the stirrup and let the horse drag him to death.’ He said that to Tom Welch and his wife. He said he would do it himself. After I got back from Miles City, when I took the horse down there, I had a conversation with Tom Welch. Welch told me that the horse he had he rode down there to rope that-on. He says, T intended to get him to running, and rope him and take my dallies and turn the other way and jerk him off his horse and drag him to death; and he will never know what hurt him.’ This conversation occurred immediately after I got back from taking the horse back to Miles City, as testified to. Welch then asked me if I saw the Brown boy in town, and what he was doing. I told him he was breaking horses. He wanted to know when he was coming up the river and I told him I didn’t know; he told me he was afraid of Tom Welch and George Geddes and he was not coming up. About that time Mrs. Geddes asked me if I thought he was coming up, so I told her I didn’t know. So I stayed down at the ranch two days, and then she wanted me to come up and see if he had come up the river, on Lay creek; see if he was there at the ranch. Mrs. Geddes afterwards said that she did not want the Brown boy to get back to town again; she wanted to catch him before he got back; did not want him to get on the witness stand and swear against George Geddes, for the boy had sued him for $1,500; and Mrs. Geddes wanted him kept away so he would not get the money, and keep him from going to town. Mrs. Geddes mentioned the subject again about two days afterwards. She says, ‘Dick, there is fifty dollars or more for you or anybody else that will get away with that Brown boy;’ and I told her I could not 'do it. I don’t think Mrs. Geddes ever again mentioned the subject to me.
“Thursday, when 1 killed the boy, about 2 o’clock, Mrs. Geddes was ironing in the kitchen; and she went into the front room and took the field glasses and looked out and she says, ‘Dick, there comes the Brown boys;’ and she came back into the kitchen and wanted to know if I was not going to do that for George Geddes, and I told her, ‘no;’ and she says, ‘go on and kill him, ’ so he would not go on the witness stand and swear against George Geddes; and I went and got the gun, and got on my horse and went up the river, inside the fence and the irrigating ditch and went to the mouth of Lay creek and stayed there in a canyon and waited for the boys to come past. 1 shot and ran around a big butte. When I got to the ranch 1 says, ‘Mrs. Geddes, I done it;’ and she says, ‘lam not a damn bit sorry. He put us to a lot of trouble. ’ I said, T have done something I am sorry for, Mrs. Geddes;’ and she said, ‘I am not.’ Mrs. Geddes spoke to me about their comijng along about half past eleven or twelve o’clock, when they went up the river. She asked me if I was not going to kill that Brown boy, for to' keep him from swearing against Mr. Geddes; and I told her I wouldn’t, and she wanted to know why, and I told her I could not kill him just for that. I got the gun, a Winchester. When I went to get it, Mrs. Geddes was right in the dining room, and watching me. I took six cartridges with me. They were right on the shelf above the gun. I went to the stable and got the horse. When 1 was getting the horse, Mrs. Geddes was at the kitchen, standing at the kitchen door. She could see me. I got on the horse, and crossed the river. When she spoke to me at the house, and took the glasses and looked at the Brown boys, they were right in front of the house, in the main wagon road, about a quarter of a mile from the house. They were in a wagon, driving four horses. After shooting the first shot, I ran up on a hill, and got off my horse and laid down there. They took a shot at me, and I fired two back. I got back to the ranch between half past four and five o’clock. I fetched the gun up to the house. I wore a black silk handkerchief over my face. I cut two holes in it, so I could see, with a penknife. When 1 got back to the ranch, and showed Mrs. Geddes the handkerchief, she took it and burnt it up in the kitchen stove — in the range. That was just after I got back from killing the boy. When I got back in the house first, I cleaned the gun and set it in the closet; and Mrs. Geddes went and got the gun, and put it in the case, and put it up between the ceiling and the stair landing. 1 took it out afterwards, and set it in the closet again, and she went and got the gun and put it in her bedroom. I used three shells out of the gun on that trip. The shells were taken out of the cartridge belt and out of the gun; and all of the cartridges we could find around the house, we took them and put them into a tomato can, and I took and buried them in a manure pile right in front of the barn door. About the day of the killing, Mrs. Geddes asked me what I had done with the shells, and 1 told her I left them up there. These cartridges for the gun were gathered up the next day by I and Mrs. Geddes. After getting back that day from the shooting, I left the house to go over to the postoffice after the mail. Mrs. Geddes and I-stayed at the ranch that night, leaving there the next morning to go to a ranch nine miles down the river. After I went to the Geddes ranch in August, Geddes and I had a conversation concerning the whipping of Winnie Brown. He asked me if I saw the Brown boy. 1 told him I did, and Geddes said he whipped him for tearing down his fence and talking about his wife. He said he went down to Terrett’s, and fetched him up to the ranch; wanted him to help him put the fence up. The boy stayed there that night; and the next morning the boy was sitting in the kitchen, peeling some potatoes, and Geddes came in and put a gun at his head. He made him walk down to the stable and lay down on his stomach, and he tied a rope to him, and tied him up to the reach log of the barn, and he was swinging there, I suppose; and he took the whip and whipped him awhile, and then he sat down on the sill of the barn, and rolled a cigarette, and took a little rest, and said, ‘As soon as I smoke, I will whip you some more. ’ Then he whipped him again, and then let him down, and then, taking him up to the house, ordered him off the place. When I had this conversation I was sitting outside, right in front of the kitchen door. This conversation was the second or third day after I got to Geddes’ ranch. I have stated everything that Geddes said to me while sitting there. Mrs. Geddes told me she wrote a letter to Mr. Welch, and in it she told him of a note that the Brown boy had placed into the hands of a lawyer. She read the letter to me. She told him in the letter that she could not write to him what she wanted to tell him. She told me before the killing that she had written to Welch, that the note that he had written to the Brown boy, and the five dollars that he left for him to come up there on the O. W. range and get the cow was to pay his expenses up, and to go to Geddes and get a horse. That is the note the Brown boy had placed into the hands of the lawyers. Before the killing I took a letter out there to the mail for Mr. Welch. The letter contained, as Mrs. Geddes told me, she wrote to Tom Welch for fifty dollars. That wasn’t any more than three or four days before the killing. I gave the letter to the mail carrier. This is the gun that I had at the time of the shooting, and that is the case in which I placed the gun after cleaning it.”

On cross-examination, witness testified as follows:

“After I was put in jail I talked with Mrs. McGurk and Harry Wright about this case. They asked me if I did it, and I told them, ‘No. ’ Did. not tell who did do it. I told them I did not know anything about it. I did not tell them in that conversation that Tom Welch killed Winnie Brown. Nothing of that kind. A day or two after I was put in jail I had a conversation in the.presence of Mr. Porter, the County Attorney, and Johnnie Stafford, l.told them, in substance, that, on the evening of the day of the killing, Tom Welch came to the Geddes ranch; that I saw him there. But I did not tell them that Mrs. Geddes told me that Welch had shot Winnie Brown. I did tell them, though, in that conversation, that Welch himself had told me that he himself had shot and killed Winnie Brown, and that when he told me that he pulled a handkerchief out of his pocket, which he had worn as a mask, and in my presence that he put the handkerchief in the stove. That was not true. I told them that Welch was there the same day of the shooting, and that I saw him. I did not mean to say that Welch put the handkerchief in the stove. I told them tía at Mrs. Geddes put it in the stove, and that I saw her do it, and I saw Welch give it to her. That she put the handkerchief in the stove is true, but the other ain’t. It is not true about Welch being there at the time at all, but it is true about her putting the handkerchief in the stove. I gave it to her. I wore it myself. Mrs. Geddes gave it to me a week or two before the killing. Mrs. Geddes and I were alone at the ranch the evening of the day of the shooting. George Geddes was east then. I told Johnnie Stafford, Welch was the man who did the killing. That was not true. I told Judge Strevell that Welch killed Winnie Brown, and that he had been at the Geddes ranch on the evening of the killing. I said in that conversation that Welch in my presence took out of Ms pocket a handkerchief, and said that he had used that as a mask when he shot Winnie Brown, and that he gave the handkerchief to Mrs. Geddes, and that she put it in the stove. That was not true. Mr. Porter told me in the presence of certain persons that Tom Welch could prove that he was not anywhere near the place where Winnie Brown was killed on the day of the shooting; and Stafford told me that there were seven men in the roundup on Otter creek that would swear that Welch was on the range with them on the day that Winnie Brown was shot, about forty miles away. The sheriff then told me that it would seem that I had been lying about this case. I said I would stick to what I had said, and I said, in substance, that, if Welch was not man enough to take his medicine, I would not care a--whether they hung me, or what they did with me. I made a statement in the office of Strevell & Porter as to this case, and as to the killing of Winnie Brown. That was taken down by Miss Kennedy. I was sworn that day to tell the truth. Mr. Strevell, Mr. Porter, Mr. Gibb and Miss Kennedy were present. I had been in jail pretty nigh two weeks when the statement was made. In that statement I swore that Tom Welch had killed Winnie Brown. I swore that Welch came to the Geddes ranch the evening of the killing, and told Mrs. Geddes that he had shot Winnie Brown, and that he took out of his pocket a handkerchief that he said he had used as a mask, and that Mrs. Geddes burnt the handkerchief; and that Welch had used Geddes’ new gun to kill Brown. I said that 1 had buried the cartridges, so they could not find any cartridges for that gun; that I did not have anything’to do with the shooting or killing of Winnie Brown. I did not claim that I saw Welch shoot Brown. I did not think of swearing that I did the shooting myself until after Stafford told me that Welch could prove where he was on the day of the shooting, and that he was not anywhere near where it occurred. I knew that I would be found out that I killed the boy. I done it to kind of defend myself at first. I don’t know whether I am doing it now to shield myself or not. I was not told that I would not be hung if I went on the witness stand and made this statement. Nobody told me that nothing would save my neck. John Gibb, the sheriff, did tell me that I had better tell all I knew about it; that, if I did not, they would find it out on me, and that I would be hanged for it. They did not say who I should testify against, at all; left that to my own judgment. Mr. Merrill, my attorney, told me to go on the witness stand and tell the truth about this killing. I made a new story altogether, without being advised by anybody, which was taken down by Mr. Kreidler, the court stenographer. Some of it is like the statement I made in the office of Strevell & Porter; most of it is not. I put myself in place of Tom Welch at this time. I told them that I killed him. I don’t think Tom Welch’s name was mentioned in that room. * * * George Geddes was at the ranch at the time Mrs. Geddes talked to me about the $1,500. I do not know whether Geoi’ge heard it or not, but he was there. I am not sure whether it was the first time, or after he came back from Rosebud, 1 am sure that it was a $1,500 lawsuit that she spoke about to me. The third time that I saw Welch at the Geddes ranch was when Johnnie Stafford was there. George Geddes was there. Mrs. Geddes and I and George were there, and no one else. It was Welch that asked me first if I had seen the Brown boy; and Mrs. Geddes, nest. No one else asked me. I reckon George Geddes could hear the conversation. He was there in the front room when we were talking. I think he could hear it, but he did not join in the conversation between Welch and I. Geddes wasn’t doing nothing. He was sitting in a chair. I said Mrs. Geddes read the "letter to me, wherein she asked him to send her fifty dollars; that she was in need of it. That was after she had offered me fifty dollars if I would get the Brown boy out of the way. 1 had not told her that I would do it for fifty dollars. Never told her that at all, and never told Welch that I would do it for him. I do not know what Mrs. Geddes wanted the fifty dollars for at the time she wrote the letter to Welch. I had been to Rosebud with her shortly before that. She borrowed fifteen dollars in Rosebud, and put up her watch; and gave me the fifteen dollars to come to Miles City and buy things for her. She did not tell me that she wanted the fifteen dollars to redeem that watch. I do not know whether she used a part of that fifty dollars to redeem that watch. I was in jail when she got the money. George Geddes was crippled when I first went up there this summer; his arm was hurt, broke. I do not think he was very lame. His arm was not in splints when I went there. He had a pillow along, so that it would be easier for his arm. He said he was going east to have it fixed. ’ ’

The material parts of the redirect examination of the witness were as follows: “Mrs. Geddes gave me the black silk handkerchief I wore about a week or two before the killing." I was always friendly with Winnie Brown until I went up to Mr. Geddes’ ranch.”

W. W. Neeley testified: “That he met George Geddes about July 4th at Forsyth. That he was well acquainted with Geddes, and that Geddes told him that he had been at Miles City on some trouble; had been down there and given a bond for whipping a boy; that during the Indian trouble he tore or left down his bar, and tore down his fences, so that cattle got in and destroyed his crops, and he whipped him, and whipped him right. Geddes told me that he tied the boy up and whipped him. ’ ’

J. C._ Anderson testified: “That he conversed with the defendant about October 12th. That he asked defendant how he was getting on with his case in regard to whipping Brown and defendant said he had got it put off until the next term of court; that he had not presented his side of the case yet and, when he had, it would show up in a different light; that Brown had been talking about him and that this talk had got to stop; that if it did not there would be something - happen, or words to that effect. In talking about the whipping of Brown, he said he was sorry that he did not kill him; that, if he had it to do over again he would. He said that Winnie had been talking about his family and he did not know why people did not leave his business alone, as he did not interfere with anybody else and that if this talk did not stop there would something happen, or words to that effect.” Witness said, “he did not know whether any one heard it or not. There was a man standing about six feet to the right of where Geddes and witness were standing at the time. • Witness thought it was Dixon. ’ ’

James Campbell, a deputy sheriff, testified that in October he served papers upon the defendant Geddes in the damage suits of Brown against Geddes and had a conversation on that day with Geddes. “Geddes brought up the matters of the suits — the damage suit in particular — and said he thought they were taking unfair advantage of him that day, when they 'knew that he was going away, and he said: ‘Never mind, I will get even with the-. ’ ”

There was also introduced in behalf of the State, an information charging the defendant Geddes with the crime of assault in the first degree, committed on the 9th of June, 1897, upon the person of Winnie Brown, by whipping him with a blacksnake whip and striking him with a revolver. This information was filed July 20, 1897, and it .appears the case was pending and undetermined at the-time of the trial of the defendant herein. There was also introduced a complaint wherein W innie Brown was plaintiff and this defendant, defendant, wherein plaintiff prayed for $5,000 damages by-reason of the in]uries received by the whipping referred to in the information.

The foregoing evidence was substantially that upon which the State relied for a conviction of the defendant Geddes, and upon which the jury must have predicated their verdict of guilty of murder in the second degree.

The defendant offered no testimony. It is conceded that Dixon was an accomplice and upon his testimony the State chiefly relied for a conviction. Section 2089 of the Penal Code provides as follows: “A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof. ’ ’ Whatever difference of opinion formerly existed as to what particular facts should be corroborated and the extent of the corroboration required, where convictions were asked for upon an accomplice’s testimony, it is settled in this State by the statute quoted, that the corroboration must be evidence from an independent source and it must be such that this independent evidence in itself, without considering the testimony of the accomplice at all, tends to connect the defendant with the commission of the crime charged. Furthermore, it is not a satisfaction of the statute to coi’roborate an accomplice upon immaterial matters, or to prove merely that the crime charged has been committed, or the circumstance under which it has been committed; for there may be all such proof, and yet the additional essential evidence be lacking, which, independently of the evidence of the accomplice, leads to the inference that the defendant is connected in a criminal way with the commission of the crime. The statute is conformable to the rule laid down by Rose. Cr. Ev. p. 122: “That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.” (State v. Spencer (Utah) 49 Pac. 302; People v. Plath, 100 N. Y. 590, 3 N. E. 790.)

Now, by the law, Geddes could not be convicted of advising and encouraging the murder of TV innie Brown, upon the uncorroborated evidence of Dixon; nor could he be convicted upon corroborative evidence merely going to show motive to murder. A man may be shown to bear malice in his heart towards another who is subsequently murdered, but that alone falls far short of proof sufficient to justify the conviction of one who bore the malice of the murder of the other. It was indispensable that there be corroboration which legitimately tended to show the material facts, necessary to authorize a conviction of Geddes as an accessory to the murder of Brown. To validate the testimony of the accomplice, Dixon, it was also requisite that the corroboration must be to the person of the accused. ‘ ‘Any other corroboration would be delusive, ’ r. says Whart. Cr. Ev. Sec. 442, “since, if corroboration in matters not connecting the accused with the offense were enough, a party who, on the case against him, would have no hope of escape, could by his mere oath transfer to another the conviction hanging over himself.”

To apply these rules accurately we must eliminate altogether the evidence of the accomplice, Dixon. Doing so, we have the following independent facts and circumstances:

1. Geddes was informed against by the County Attorney for an assault upon Winnie Brown, committed several months before the homicide, and was sued in damages by Brown for the assault.

2. Geddes, in conversation with certain persons weeks before the killing, admitted that he had whipped Brown and said that he was sorry he did not kill him.

3. Geddes had his trial for the assault postponed and stated in a conversation that he had not yet presented his side but that when he did the case would appear in a different light.

4. Geddes said, that if Brown did not stop talking about him, ‘ ‘there would be something happen. ’5

5. Geddes said, that by serving papers upon him in the civil suit for damages upon the eve of his departure for Chicago, they were taking unfair advantage of him and added: “Never mind, I will get even with the-. ”

6. Brown was shot and killed by Dixon.

Fully conceding the law to be that the corroborating evidence required, where an accomplice is the main witness for the State, need not be sufficient of itself to prove the guilt of an accessory, still, after a close examination of this record, we are forced to conclude that, unless resort be had to the testimony of Dixon, there is not sufficient evidence tending to connect Geddes with the crime of advising and encouraging this murder. Geddes was away iff Chicago when Dixon killed Brown, having left Miles City nearly three weeks before November éth. There is no evidence of a conspiracy or union of purpose to kill Brown between Geddes and Dixon. The- remarks of Geddes do not of themselves prima facie establish a conspiracy; nor is theie a scintilla of evidence that Geddes ever communicated with any person in the time of his .-absence, or did any act or made any declaration in furtherance of any concerted plan to do Brown violence; nor do we find a word of independent testimony that Geddes intended to have him killed by Dixon or any one else, or that he was killed by Dixon at Geddes' instigation or direction; and, ■finally, there is no evidence whatever, apart from Dixon’s, which goes to connect Geddes with the murder or with having advised or encouraged it. Three of the several statements of Geddes to others than Dixon, included in the six independent bits of evidence as set forth above, coupled with the fact that he was charged with an assault, do show • an ill will towards the deceased and might furnish motive for murder; but they utterly fail to corroborate the material statements of Díxod, .as required by the law heretofore discussed, assuming that Dixon’s testimony implicates Geddes at all.

The measure of proof is insufficient under the statute. There is not enough to sustain a reasonable inference that ‘Geddes is implicated; wherefore the conviction is against the law and this Court must set aside the judgment and award the ■defendant a new trial, and it will be so ordered.

Geddes is charged as a principal. The information contains no allegation that he advised and encouraged, or aided .and abetted Dixon in committing -the crime. The admitted fact is that Brown was murdered by Dixon, and that Geddes, if connected with the homicide at all, was what the law once regarded as an accessory. Appellant raises the question whether an information charging one simply as a principal is ■sustained by evidence showing that defendant, if guilty of anything, advised and encouraged the commission of the crime. We hold such an information to be sufficient. The common law was otherwise, so far as it pertained to felonies (except high treason), though in misdemeanors all the guilty persons were principals, and could be charged and proceeded against as such. (1 Bish. New Cr. Law, Sec. 685 et seq.) Bishop also writes, (Sec. 674, Bishop’s New Cr. Law) that, this distinguishing of the accessory before the fact from the principal'is apure technicality. “For in natural reason,” he-writes, “the procurer of a crime is not chargeable differently from the doer, and a familiar rule of the common law is that, what one does through another’s agency is regarded as done by himself. Even the common law of crimes makes no distinction in the punishment between a principal and an accessory —the offense of each being felony, of which the penalty was-originally death. Likewise, in morals, there are circumstances-wherein we attach more blame to the accessory before the fact, than to his principal; as, where a husband commands his wife, or a master his servant, to do for his benefit a criminal thing, which, in his absence, is done reluctantly, through fear or affection overpowering a subject mind. We can only conjecture how this distinction came into the law; probably from the same confused apprehensions whence sprang the now exploded distinction between principals and accessories at the-fact. Having, however, become established as a technical rule, it cannot be removed by the courts. ’ ’

Penal Code, Sec. 1852, expressly abrogates the common-law distinctions referred to, and provides that “all persons-concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no other facts need Re-alleged in any; indictment or information against such an accessory, than are required in an indictment or information-against his principal. ’ ’ Clearly, this explicit language is determinative of this feature of the case, and shows that the object of the Code was to put the principal and the agent upon the same legal ground, and to authorize the principal to be-charged as if he himself had committed the felony in fact perpetrated by his agent by his advice and encouragement. {Peo ple v. Bliven, 112 N. Y. 79, 19 N. E. 638; State v. Kent, (N. D.) 62 N. W. 631.)

Constitutional rights guaranteed by Section 16, Art. Ill, of the Constitution, to the accused, to demand the nature and cause of the accusation, are not violated by the statute permitting an accusation against one as principal who is in fact an agent, for the reason that the old distinction between principal and accessory before the fact was merely arbitrary, and £ ‘without existence in natural reason or the ordinary doctrines of the law.” (Bishop’s New Criminal Law, Sec. 673.) ‘‘Qui Jaoit per alium, Jaoit per se, ’ ’ is the principle pervading the criminal as well as the civil law, and underlies the statute abolishing distinctions ‘ ‘more fanciful than real. ’ ’ (People v. Bliven, supra.) So, by abrogating these distinctions the statute has but done away with ‘ ‘pure technicality, ” in order to simplify the practice to harmonize with the advanced thought of the Codes, and we believe a charge against one formerly known as an “accessory before the fact” is good against him as principal. (State v. Kent, supra.)

The late decision of the Supreme Court of Washington in State v. Gifford, 53 Pac. 709, overruling an earlier decision of that court (State v. Duncan, 7 Wash. 336, 35 Pac. 117), is against the current of recent authorities, and the reasoning thereof seems to us to involve a nonsequitur in this: It being true that he who perpetrates a crime through another’s agency thus does it himself, proof that he advised and procured another to do it, is proof that he has done it himself; therefore, the charge against him as principal does not exclude an inference that he has done it through a third person, even though on the face of the pleading, by regarding the accused as a principal actor, an impossible state of affairs may appear — as, for instance, the charge of rape - by a woman. The contrary argument leads to this: If one could not be a principal in the crime of rape, she could not be a principal if she advised and encouraged rape. But the law declares she shall be a principal, and why may not the law make a woman who aids and abets rape, guilty of rape, as well as the principal actor ? The Legislature had power to abrogate certain criminal distinctions, and establish others; and, though from certain aspects an absurdity may appear, from others a perfectly plain and specific charge is made, to which defendant must plead. (State v. Rowe, 104 Iowa, 324, 73 N. W. 833; State v. Comstock, 46 Iowa, 265; U. S. v. Snyder, 14 Fed. 554; People v. Chapman, 62 Mich. 280, 28 N. W. 896; Boggus v. State, 34 Ga. 275; States. Jones, 83 N. C. 605.)

The court instructed, among other things, that under Section 41 of the Penal Code, which is the statute in regard to accessories, “it is sufficient if the accessories are cognizant of the purpose to commit the offense, and aid and abet or encourage or advise its perpetration, or, not being present, advise or encourage the commission of the offense,5 ’ etc. The statute provides for those who have ‘ ‘■advised and encouraged'1'1 the commission of the crime. The appellant contends that the word 1 ‘and’ ’ appearing in the statute between the words ‘ ‘advise” and “encourage,” cannot be converted into the word “or.” We think that the conjunctive “and” ought to have been used, although the use of the disjunctive may not have been fatal to the instruction. In People v. Dole (Cal.) 51 Pac. 945, the court disapproved of the use of “or” instead of “and,” although it doubted whether the use of the disjunctive misled the jury to defendant’s prejudice.

When Dixon, co-defendant, was asked to testify as to alleged statements of Geddes, defendant’s counsel objected until they had had an opportunity to examine Dixon as to what inducement had been held out to him to become a witness on the part of the State. The objection was overruled, and this ruling of court is assigned as error. It is strenuously urged that Dixon’s testimony was incompetent, because he confessed in the course of his cross-examination that it was given under threats and inducements, and to admit it was error, upon the principle that, before a confession can be received in evidence, the court must be advised, in advance of its introduction, whether or not it was voluntary. We find no error in this ruling of the court.# Section 2443 of the Penal Code permits. ■an accomplice to be a witness for.or against one jointly concerned in the commission of an offense; while Section 3161, Code of Civil Procedure, says that all persons (except certain ones not material to be here, considered) may be witnesses. Dixon was, therefore, a competent witness, and, no matter how ¡strong was the proof which tended to show that he was threatened or induced to testify as he did, all such facts could only bear upon his credibility, and not upon his competency. .Dixon’s testimony was not a confession. We believe that very .great latitude should be allowed in the cross-examination of an ¡accomplice, and that he should be subjected to a most severe •cross-examination as to his motives, inducements, and any contradictory statements made; but he is not rendered incompetent by reason of any immunity offered; nor is his testimony ¡subject to the rules governing admissions by the prisoner ac•cused and then on trial. (Vaughan v. State, 57 Ark. 1, 20 S. W. 588; Black v. State, 59 Wis. 471, 18 N. W. 457; People v. O'Neill, 5 N. Y. Cr. R. 302.)

The court allowed the State toread to the jury the information filed against the defendant Geddes, charging him with an ¡assault upon Brown on June 9th. This assault was described in that information as being a whipping administered to the •deceased, Brown, by the defendant Geddes, on June 9th, with ¡a horsewhip or mulewhip, and before the homicide, which is "the subject of the information in this case. The deceased, .Brown, had also commenced a civil suit for damages against Geddes on account of the whipping above mentioned. The State, against the objection' of the defendant, also read in evidence to the jury, the civil complaint in the assault case. This was duly excepted to, and is assigned as error. Appellant argues that the evidence of the whipping, being an offense •other than the one for which the defendant was being tried, was inadmissible upon this trial. While it is thoroughly well established that the commission of one crime cannot be proved on the trial of a defendant for another, merely for the purpose of inducing a belief in the minds of the jury that the accused is guilty of the crime for which he is being tried, on the other hand it is a part of the criminal law that whatever testimony directly tends to establish the guilt of the person on trial of the crime charged is proper, even though it tends to show guilt of another distinct offense. Courts should be careful always to exclude evidence of collateral facts, lest the defendant be prejudiced by allowing the real issue to be obscured, and verdicts of conviction rendered on extraneous issues; but, if the facts introduced logically sustain a pertinent hypothesis, they are relevant, and should be allowed to go before the jury. Judge Brewer, for the Supreme Court of Kansas, in State v. Adams, 20 Kan. 311, said: “A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him;” and the same learned Justice, in Thiede v. Utah Territory, 159 U. S. 510, 16 Sup. Ct. 62, has stated the rule that evidence of ill treatment by defendant of deceased, and of a state of bitter feeling, bears-on the question of motive, and may be admitted as proper to be considered by the jury. Now, proof of the existence of an element of motive on Geddes’ part was surely aided by showing what his feelings towards Brown were, as evidenced by the fact of the pendency of the information and civil action, wherein Brown necessarily would appear as a witness against him. (People v. Buchanan, 145 N. Y. 1, 39 N. E. 816; Gillum v. State, 62 Miss. 548.)

We believe, therefore, that the facts that Geddes had been charged with the assault and sued civilly for damages arising out it were competent and that the information and complaint could be produced and read for the purpose of showing a motive on Geddes’ part; but the papers belonged to a species of evidence regarded as dangerous, not only because it compels a defendant to answer other accusations than those against him, and for which he is not on trial, but for the further reason that such evidence may be the moving cause of a conviction, which subverts the fundamental rule that a man cannot be convicted of one crime by proof his guilt of another; and we here lay it down that, for the reasons given, it is of the highest importance to a defendant’s rights that, if such evidence is admitted, its operation and effect must be cautiously restricted by the instructions of the court to the end that its legitimate sphere may be understood by the jury. In Martin v. Com., 93 Ky. 189, 19 S. W. 580, the court, in discussing-a question exactly similar, well .stated the rule which we adopt, and that should have governed the trial in this case.

‘ ‘So it was competent to show in this case that the accused had been indicted for robbery at the instance of the deceased, but not to establish the offense by testimony of the facts necessary to show guilt, or to permit the entire record, including the affidavits for a continuance, to be read to the jury. The appellant was being tried for two offenses. His guilt of robbery was permitted to be shown in order to fix upon him the crime of murder, and must have been prejudicial to his. substantial rights. This character of evidence is likely to be wrongfully considered by a jury, and made to constitute apart, of the offense for which the party is being tried, as it might well be argued that one so depraved as to commit the crime-of robbery would not hesitate to commit murder; and we think, therefore, proof of the charge of robbery, on the facts, with a view of showing guilt, was error. Such evidence goes-to the jury as a matter of necessity, for the purpose alone of showing motive on the part of the accused to commit crime, and no more than is necessary to show motive should be allowed, and then the j ury tcld the purpose for which the evidence is to be considered by them. ’ ’ (See, also, Pinckord v. State, 13 Tex. App. 478; People v. Thompson, 92 Cal. 506, 28 Pac. 589; Underhill on Cr. Ev. Sec. 323.)

Many errors are assigned by the giving of certain instructions. We do not think it necessary to review them, inasmuch as, if a new trial is had, the charge of the court can be made to agree with' the discussion of the several matters considered in this opinion. The whole case is manifestly one where the law should be laid down as required by Section 3390, Code of Civil Procedure, which demands an instruction! that ‘ ‘the testimony of an accomplice ought to be viewed with ’distrust and the evidence of the oral admissions of a party with caution. ’ ’

The judgment is reversed and the cause remanded with directions to grant defendant a new trial.

Reversed and remanded.

Brantly, C. J., and Pigott, J., concur.


author: PIGOTT, J.

text:
    STATE, Respondent, v. WELCH, Appellant.
    [No. 1329.]
    [Submitted Jan. 5, 1899.
    Decided Jan. 23, 1899.]

      Homicide — Accomplice—Evidence —Argument of Counsel— Harmless Error — Hearsay—Corroboration of Defendant's Testimony — Corroboration of Accomplice — Directing Yerdict When There is Utter Failxtre of Proof.

      ^Evidence — Argument of Counsel. — 1.—Although a complaint filed by deceased against defendant’s accessory is admissible to show a motive for the murder, it is error for the State’s attorney to comment on the facts charged in such complaint as though they were true, although there has been incompetent evidence admitted tending to establish such facts.

      Same — Harmless Error.— %. — Where, on the trial of one charged as accomplice in a murder, a letter from defendant to deceased, asking him to meet him at a certain time and place is admitted, it is error to exclude evidence that defendant wished to meet deceased to settle a controversy between the latter and defendant’s accomplice. ’ •
    'The exclusion of material testimony is harmless error, where it is afterwards admitted on cross-examination of the witness.

      '•Same — Eoundation for Introduction of. — 3.—Where, on the trial of one charged with being an accomplice in a murder, the State proved that letters had passed between defendant and the wife of his co-defendant, and defendant testified that he had destroyed the letters received by him, and that he had no reason for destroying them, except that that was his usual custom, sufficient foundation is laid for defendant to prove the contents of the letters.

      Same — Hearsay.—i.—In a murder trial, testimony that a third person had told witness that defendant had told such person that he had tried on several occasions to kill deceased, and would try again, is hearsay and inadmissible.

      Same — Corroboration of Defendant’s Testimony. — 5.—Where the photograph of the wife of defendant’s alleged accomplice in a murder, found upon defendant, was admitted in evidence to raise an inference of criminal intimacy, it is error to exclude' evidence to corroborate defendant’s explanation of his possession of the picture.

      Same — Corro’boration of Accomplice. — 6.—Defendant, accused of having instigated a murder, was 50 miles away when it was committed. The murderer, between whom and defendant a hatred existed, testified that, some time before, defendant had told him that he was going to kill deceased. The only corroborating evidence was that defendant was very intimate with the person for whose benefit the murder was al-. leged to halve been committed, and particularly with the latter’s wife, with whom he corresponded, and to whom lie had sent money two days after the murder. Held insufficient, under Penal Code, Sec. 2089, providing that testimony of an accomplice-must be corroborated by evidence tending to connect defendant with the crime.
    Directing Verdict— Utter Failure of Proof.7. — Where there is a total failure of evidence to convict defendant, it is the duty of the court to direct a verdict of not. guilty. . •

      Appeal from, District Court, Custer County, C. H. Ioudy, Judge.

    Thomas Welch was convicted of murder in the second degree, and appeals.
    Reversed.

      O. F. Coddard, C P. Middleton and Wm. II. DeWttt,. for Appellant.

      C. B. Nolan, Attorney General, and T. J. Porter, for the-State.
   PIGOTT, J.

Thomas Welch, George S. Geddes and Richard. Dixon, or Dickson, were accused, by information filed in the District Court of Custer County, of the murder of Clemence Winfred Brown. Upon his separate trial Welch was convicted of murder in the second degree, and was sentenced to imprisonment for 20 years. From the judgment of conviction, and from the order refusing a motion for a new trial, this appeal is prosecuted.

Most of the errors assigned by defendant were presented in. State v. Geddes, ante p 68, 55 Pac. 919, and are considered and disposed of in the opinion this day rendered in that case; hence only such points as are not determined in the Geddes case, and are likely to arise in the event a new trial be had of this case, will be discussed.

1. Over the exception of defendant, the court admitted in. evidence the information against George S. Geddes, filed July 20, 1897, charging him with assault upon decedent, .and also the complaint, filed October 18, 1897, in an action brought, by decedent to recover damages occasioned by the assault. If' the defendant had conspired with Dixon, or with Geddes, to accomplish the murder of Brown, these documents would doubtless have been relevant, as tending to disclose a motive^ for the killing, and for no other purpose. Counsel for the State, however, employed this evidence for another and improper purpose. It is evident from an inspection of the transcript that the .attorneys for the State were allowed, against the repeated objections of defendant, and over his exceptions, to comment on 'the information and complaint as if the allegations of each were true. This conduct was most prejudicial to defendant, and was error. Even in the heat of trial, and in the ardor of advocacy, county attorneys and their assistants ought to realize that their duty never requires them to disregard the rights of the defendant, and that when they seek, by deducing palpably unwarranted inferences from the proofs, to induce juries to return verdicts of guilty, the bound of official duty is overstepped.. Prosecutors should never permit themselves to forget the obligation imposed upon them to refrain from perverting the evidence, even unwittingly, to the detriment of the defendant. It is true that the court permitted the negro, Dixon, to detail a conversation which ■ he testified occurred between himself and George S. Geddes, at which the defendant was not present, and in which Geddes related the circumstances of the whipping administered by him to the decedent; and this is urged by the county attorney as warrant for the comments which have been mentioned; but, in the absence of a conspiracy, such evidence of the declarations of Geddes was hearsay; and, even had there been proof of a conspiracy, the declarations attributed to Geddes were mere recitals of a past act, done by Geddes prior to the time when the supposed conspiracy to kill Brown was formed, and therefore, as against Welch, would not be competent, as made in furtherance of the object sought to be accomplished by the conspiracy.

There, is not a dearth of instances disclosed by the record in which counsel for the State urged, and succeeded in adducing, inadmissible testimony against the defendant; nor is the transcript barren of instances where they were instrumental in excluding material and competent evidence offered by defendant. Observing, as we have, the many hyper technical and frivolous objections interposed by the State, we are indeed impelled to the belief that the attorneys prosecuting, in their strong desire and excessive zeal to convict, were unconsciously disposed to regard as inadmissible much evidence which it was clearly the right of defendant to lay before the j ury.

2. The State offered in evidence a letter, dated August 15, 1897, written by the defendant to the decedent, by which the decedent was requested to go to the O. W. ranch on the 21st of August, and in which the defendant said he wanted to see decedent on important business, and would depend upon him to be there, and that he would pay him well for his trouble, and would depend on him to go. The letter inclosed five dollars. The defendant offered to prove that he and George S. Geddes had had. conversations in relation to effecting a settlement of the controversy that existed between Geddes and the decedent, growing out of the alleged whipping, and that he wrote the letter of August 15th for the purpose of meeting the decedent and bringing about a compromise of the trouble. This offer the court denied, and refused to allow the defendant to give any reason for having written the letter, or any explanation in respect thereof. In this there was error. In view, however, of the fact that the defendant subsequently, on cross-examination, succeeded in getting the matter offered before the jury, we are inclined to think the error was not a material invasion of defendant’s rights.

3. The State having proved that letters passed between the defendant and Regina Geddes, both before and after the homicide, for the purpose of permitting the jury to infer that the letters contained something that might bear upon the murder, or as indicating a conspiracy between the correspondents to kill Brown, the defendant testified that he had destroyed the letters received by him, as was his universal habit as to letters that he received, and that he had no reason for destroying them, other than that such was his custom, and that none of the letters received by him could be produced. He then offered to prove the contents of the letters, and that they did not refer to the decedent or to the homicide. The court rejected the offer upon the ground that no foundation had been laid for their introduction. Secondary evidence was, under these circumstances, admissible, and its exclusion was error, which we cannot say was without prejudice to the.defendant;, for the jury was allowed to infer a correspondence in relation to decedent, and towards the consummation of a conspiracy to-take his life. It is true that the defendant voluntarily destroyed the best evidence of their contents, which was the letters themselves; but a reasonable explanation was given, which, if believed, would repel the inference of a design to-destroy that which might possibly contain evidence tending to prove guilt. Although the mere fact of a correspondence between the defendant and Regina Gedges would not seem to justify an inference by the jury that there was a conspiracy to take the life of Brown, yet the argument of counsel for the State, and their conduct of the case, indicate the purpose to have been as stated.

4. One of the gravest errors in the admission of evidence is found in the action of the court permitting Dixon to testify that Regina Geddes had declared to him that the defendant had told her, in a conversation concerning the decedent, that defendant had “laid four days at one time for that boy, and eighteen hours at another; that he was going to rig himself in a blanket, and play Indian on him, and kill him;” and that she told witness “that Tom Welch told her that, after he had killed one man, it was nothing to kill another one.” All this evidence was hearsay, and was well calculated to have weight against the defendant in the minds of men not.accustomed to sifting and weighing testimony.

5. When apprehended, there was found upon the person of defendant a photograph of Regina Geddes, which was introduced in evidence by the State. Although defendant was permitted to explain by his own testimony the circumstances attending his possession of the picture, the offer to corroborate his statement by the testimony of one Miller was denied. This was error. The sole purpose the State could have had in using the picture before the jury was that they might be afforded the privilege of inferring an intimacy, possibly criminal in its nature, between Welch and the wife of George Geddes. In admitting the photograph the court practically advised the jury that it was proper evidence for them to consider, and that they might place upon the circumstances of its possession by defendant any construction they saw fit, and then, by refusing to permit Miller to testify in the matter, tacitly intimated to the jury thát the defendant had not the right to explain it except by his own evidence, as to the weight of which in general the jury were given the usual instructions.

6. The principal witness for the State was the negro, Dixon, the self-confessed murderer of Brown. That Welch was not present when the murder was done is admitted. He was approximately 50 or 60 miles distant from the scene of the murder at that time; it follows, therefore, that unless he aided and abetted, or advised and encouraged, its commission, he is not guilty. Dixon testified that in a conversation between himself and Welch held about August 28, 1897, Welch, in answer to the remark of Dixon that the former was riding a fine horse, said, referring to decedent: “Yes; that is the horse that I rode down here to .rope that son of a bitch on. I am going to get him to run him, and rope him, and take my dallies, start the other way, and jerk him off.” This item of evidence, of itself, tends in no wise to connect Welch with the murder committed by Dixon in November, 1897. It does not tend to prove, in itself, that Welch aided, abetted, advised or encouraged Dixon to commit the crime; and there is no other competent testimony given by this witness which, by any reasonable interpretation; can be deemed to implicate Welch. It does appear that defendant was an intimate friend of Geddes and his wife; that he visited their home at unusual hours; that he corresponded with Regina Geddes; that two days after the homicide he sent a check to her for §50, which on November 8th, while in company with him, she cashed at a bank in Miles City; that on the 6th of the same month he asked for a letter written by him to Mrs. Geddes, and deposited in the postoffice; and that, after receiving it from the postmaster, he destroyed it, as was his custom in respect of other letters. It further appears that the negro, Dixon, disliked Welch, and that Welch entertained a hatred of him. Manifestly these facts fall far short of establishing, or tending to prove, the guilt of the defendant. Assuming, however, that the evidence of Dixon, his supposed accomplice, tends to show that Welch encouraged him to do the murder, still the declaration of Section 2089 of the Penal Code, that a conviction cannot properly be had “on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of. the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the com - mission of the offense, or the circumstances thereof” — would effectually prevent a conviction which could withstand the scrutiny of the courts, for the reason that the evidence other than that of Dixon fails to connect Welch with the commis sion of the murder. But it is unnecessary to place the determination of this question upon the absence of evidence corroborating the accomplice. The record consists of more than 600 pages. We have read it with the greatest degree of care. In the effort to discover the existence of some reason which may have led the jury to return a verdict against the defendant, the evidence has been analyzed, and it has been accorded every fair, and even liberal, inference against him. Mindful of the rule that the jury had the opportunity, not enjoyed by this Court, of seeing the witnesses, of hearing them testify, and of observing their bearing upon the stand; appreciating, also, the fact that the jury are the judges of the weight of the evidence and the credibility of the witnesses, and that their determination of an issue of fact ought not lightly to be disturbed — our earnest attention has been devoted to a painstaking examination of the testimony, the further recital of which would serve no useful purpose. We have searched the record in vain for proof of defendant’s guilt. It is the deliberate opinion of this Court that there was no competent evidence whatever upon which- to base a conviction. There was not even a scintilla of evidence having a tendency to induce reasonable and unprejudiced men to believe that Welch aided, abetted, advised or encouraged the murder of Brown, or that he conspired with either the actual murderer or with any other person to that end. The verdict was clearly the result of passion and prejudice, doubtless caused, or at least inflamed, in some degree, by the incompetent hearsay declarations testified to by the negro as having been made to him by Regina Geddes. The record presents, not a case of mere insufficiency of the evidence to warrant a conviction, but one of utter failure of proof; and therefore the court should have granted the motion to instruct the jury to find the defendant not guilty. There is a distinction between insufficiency of the evidence to justify a verdict, and no evidence at all upon which to base it.' (Louisville & Nashville R. Co. v. Woodson, 134 U. S. 614, 10 Sup. Ct. 628.) In the one case the court may advise the jury to acquit the defendant, which advice the jury is not bound to follow (Penal Code, Sec. 2096), whereas in the other case it is the duty of the court to direct a verdict of not guilty.

The other questions presented are covered by the opinion in the Geddes case, or are such as are not likely to arise upon a new trial.

The judgment of conviction and the order appealed from are reversed, and the cause is remanded to the District Court, with direction to grant a new trial.

Reversed and remanded.

Brantly, C. J., and Hunt, J., concur.


author: BRANTLY, C. J

text:
    ZION CO-OPERATIVE MERCANTILE ASSOCIATION, Appellant, v. MAYO, Respondent.
    [No, 1297.]
    [Submitted January 12, 1899.
    Decided January 23, 1899.]

      Foreign Corporations — Actions—Pleadings—Interstate Commerce.

    It is not necessary for a foreign corporation plaintiif, bringing action on a domestic contract, to allege that it has complied with the statutory conditions precedent to doing business in the state, where the petition shows_facts making the transaction prima facie interstate commerce.

      Appeal from, District Court, Silver Bow County, William Clancy, Judge.

    Action by Zion Co-operative Mercantile Association against Edwin L. Mayo. Erom a judgment -for defendant, plaintiff appeals.
    Reversed.

      Chas. Mattison, for Appellant.
   BRANTLY, C. J

The complaint herein alleges that the plaintiff is a corporation organized and doing business under the laws of the state of Utah. It then proceeds to allege, -as a cause of action against the defendant, that between the 22d day of August and the 2d day of September, 1896, the plaintiff shipped to the defendant from Idaho Falls, Idaho, four car loads of potatoes, of the value of $1,060.21, to be sold by him on commission at Butte, Silver Bow county, Mont.; that the defendant received and sold them for $1,060.21; and that, after allowing the defendant credit for his commission and for all proper disbursements, there is due from him to the plaintiff $522.98, which the defendant, upon demand refuses to pay. The answer admits the receipt of the potatoes, and alleges as a defense full payment of' everything due. It also denies generally all the other allegations of the complaint.

Upon the trial, after a jury had been selected, the plaintiff offered proof of its claim. The defendant thereupon objected to the introduction of any evidence by the plaintiff, on the ground ‘ ‘that it appeared that the defendant was a foreign corporation, organized and doing business under the laws of Utah, but that it did not appear that it had complied with the provisions of Division I, Part 1Y, Title XI, Sections 1030-1038, of the Civil Code of Montana.” This objection the court sustained, and thereupon, at the request of defendant, directed the jury to return a verdict for the defendant. From this action of the court the plaintiff appeals.

The court below, in the trial of this cause, evidently proceeded upon the idea that, in order to maintain a suit in the courts of this State to enforce a contract made within this State a foreign corporation must allege and prove that it has complied with the laws of this State entitling it to do busi-J ness here, and to make contracts of this character. We do not understand this to be the law. Mr. Thompson, in his Commentaries on the Law of Corporations, at Section 7965, after discussing this question fully, concludes as follows:

‘ ‘The best opinion, therefore, is that, in an action by a foreign corporation to enforce a domestic contract, it is not only not necessary for the corporation to aver and prove in the first instance its compliance with the domestic statutes entitling it to do business within the domestic State, but that, unless the defendant makes an averment of noncompliance in distinct terms, he cannot introduce evidence to show that such was the fact.” The following authorities support this view: 8 Am. and Eng. Ency. Law, 315, and note; S. P. R. R. Co. v. Purcell, 77 Cal. 69, 18 Pac. 886; Nelms v. Edinburg-American Land Mortgage Co., 33 Am. and Eng. Corp. Cases, 27, (Ala.) 9 South. 141; O'Reilly, Skelly & Fogarty Co. v. Greene (City Ct. N. Y.), 40 N. Y. Supp. 360; Nicoll v. Clark, (Com. Pl.) 34 N. Y. Supp. 159. We are aware that the authorities are somewhat in conflict upon this question, but this view seems to be so consonant with reason that we adopt it as establishing the better rule.

This conclusion may seem in conflict with the holding of this Court in Kent & Stanley Co. v. Tuttle, 20 Mont. 203, 50 Pac. 559, but such, in fact, is not the case. In that case it was alleged in the answer, and admitted in the reply, that the plaintiff was engaged in merchandising ' in the State of Montana, but had never complied with the laws of this State under which foreign corporations become entitled to do business here. Under this condition of the pleadings this Court held that it was the duty of the plaintiff to show upon what its claim was based, so that the character of the transaction could be passed upon. In other words, it appearing that it was a foreign corporation engaged in business in this State, it was incumbent upon it to show that at the time the contract was made it was engaged in interstate commerce. In the case under consideration it appears prima facie that at the time the contract was made the plaintiff was engaged in interstate commerce, and it, therefore, by its allegations, brings itself within the case of McNaughton Co. v. McGirl, 20 Mont. 124, 49 Pac. 651; for it appears that at the time the contract in question herein was made the plaintiff was doing business in the State of Utah, and was shipping the products of the State of Idaho into the State of Montana for sale.

The conclusions here reached are upon the record as presented in this Court. The defendant may so reform his answer in the court below, if he can do so, as to properly present the question, for adjudication when the cause is tried again.

The judgment of the District Court is therefore reversed, and the cause remanded, with directions to proceed in accordance with the conclusion announced herein.

Reversed and remanded.

Hunt and Pigott, JJ., concur.


author: PIGOTT, J

text:
    MAYER, Appellant, v. SWEENEY, Respondent.
    [No. 1293.]
    [Submitted January 16, 1899.
    Decided January 23, 1899.]

      Municipal Officer — Qualifications—Taxpaying Freeholder.

    Under Political Code, Sec. 4749, which requires the mayor of a city to be a “taxpaying freeholder,” a person who, at the time of his election, owned and paid taxes on personalty, and owned realty on which he was not liable for taxes for that year because acquired since the date of assessment, is eligible.

      Appeal from District Court, Cascade County; Dudley Du Bose, Judge.

    Proceedings by Isaac Mayer to contest the title of David Sweeney to the office of mayor of the town of Neihart. Judgment for contestee, and contestant appeals.
    Affirmed.

      Dyter c& Cormley, foi Appellant.

      Stanton & Stanton, for Respondent.
   PIGOTT, J

At a municipal election held in Neihart on April 4, 1898, David Sweeney received a majority of the votes cast for mayor of that town, and a certificate of election was issued. The contestant then instituted proceedings under Section 2010 of the Code of Civil Procedure, to contest the title of Sweeney to that office. The court found the issues in favor of the contestee, Sweeney, and adjudged that he was lawfully entitled to the office. Contestant appeals.

The statement of contest contains the averment that Sweeney ‘ ‘has no right to said office, and is ineligible to the same, for the reason that he was not at the time of said election, nor is he now, a taxpaying freeholder, within the limits of said town of Neihart.” Of this allegation denial was made; and, upon the issue thus framed, the court, after hearing evidence, found that Sweeney was not the owner of any freehold in Neihart in 1898 prior to March 19th of that year, on which day he acquired title to a lot of land therein; that he had paid no taxes, and was not subject to taxes, on any real estate for 1898; that in 1897 he owned, and paid taxes on, real and personal property situate in Neihart; and that on the first Monday of March, 1898, he was, and continued to be, the owner of personal property in Neihart, duly assessed and listed to him. •

The single question” presented is whether or not on April 4, 1898, Sweeney was “a taxpaying freeholder,” within the meaning of Section 4749 of the Political Code, which provides: “No person shall be eligible to the office of mayor unless he shall be at least twenty-five years old and a taxpaying freeholder within the limits of the city and a resident of the state for at least three years, and a resident of the city for which he may be elected mayor two years next preceding his election to said office, and shall reside in the city or town for which he shall be elected mayor during his term of office. ’ ’

Property is assessed to the person owning it on the first Monday of March in each year, and the taxes on real estate are due and payable in the December following; and appellant contends that the phrase “taxpaying freeholder within the limits of the city” or town, must be interpreted to mean a freeholder who is subject to the payment of taxes on his freehold at the time of his election to the office of mayor, — in other words, that the mayor, when ■ elected, must own, and have owned on the first Monday of March preceding his election, an estate of inheritance or for life within the limits of the town, so as to be a taxpayer upon that freehold, and that since Sweeney did not acquire the real estate mentioned until March 19, 1898, he was not subject to taxation on that property on the first Monday of March, and that hence he was ineligible. Respondent, on the contrary, maintains that if, at the time of his election, he owned a freehold within the limits of Neihart, and was subject to taxes upon property, either real or personal, situate in that town, he was eligible, under Section 4749.

The facts are undisputed. As has been said, Sweeney was a freeholder and a taxpayer on personal property, which personal property, as well as the freehold, was situate in Neihart; but on the first Monday of March he was not a freeholder, although he paid taxes the year preceding upon personal property within the limits of the town,, and on the first Monday of March, 1898, owned personal property in Neihart, assessed to him.

Necessity of inquiring whether the liability of Sweeney to a tax other than that assessed upon real or personal property (for example, a poll tax) would be a requisite to his eligibility, is obviated by the finding that he was at the time of his election a payer of taxes upon chattels; and for the purposes of this case we assume, but do not decide, that unless he was, when elected, subject to the payment of taxes on property situate in Neihart, he was ineligible.

The Legislature doubtless intended to prescribe such requisites for eligibility to mayoralty as would tend to prevent those having no substantial interest in the well-being and prosperity of a municipality from holding its chief executive office, and, to that end, provided that the mayor must be at least 25 years of age, a resident of the State for not less than three years and of the city for two years immediately prior to his election, and that he must, while mayor, reside in the town; and, also, that he must be ‘ ‘a taxpaying freeholder within the limits of the city’5 or town. When the meaning of the phrase quoted shall have been ascertained, the question in this case is solved. ‘ ‘Taxpaying freeholder within the limits of the city’ ’ or town, does not mean that the taxpayer must reside within the municipality, for another portion of the section makes such residence for two years essential to eligibility. The phrase must be interpreted, therefore, to mean either that the mayor must, at the time of his election, own a freehold within the limits of the town, for the payment of taxes whereon he is liable, or that he must, when elected, be the owner of a freehold situate in the town, who pays taxes, or is liable to the payment of taxes, upon property the situs of which is in the town.

The design of the Legislature is to be found in the language employed to give expression to its will; and while the phrase under consideration is not wholly free from ambiguity and uncertainty, and may be susceptible of two interpretations, yet the intention is reasonably manifest. It seems quite evident that the words “a taxpaying freeholder” signify a freeholder who pays taxes, and that ‘ ‘a taxpaying freeholder within the limits” of the town, clearly signify the owner of a freehold situate in the municipality, who is liable to the payment of a tax, which, as assumed for the present purposes, must be upon property lying within the limits of the town.

We are of the opinion that, in the expression “taxpaying freeholder, ’ ’ the word £ ‘taxpaying’ ’ is used to distinguish between a freeholder who is liable for the payment of taxes and one who is not, and that it qualifies “freeholder.” The intent is to describe a freeholder who is also a taxpayer; and we think that the phrase ‘ ‘a taxpaying freeholder within the limits’ ’ of the town does not contain the implication , that a. person, to be eligible, must pay, or be liable for, the taxes ow a freehold within the town; nor are we authorized to read the words as if they were written ‘ ‘a taxpayer on a freehold owned by him in the town.” We may not say that the phrase quoted is so limited in its meaning . as to include .a person paying, or liable for the payment of, taxes on one class of property only, to the exclusion of another. The meaning sought by contestant to be attached to the language of the section is somewhat strained, and is in disregard of grammatical construction. It is for the legislative department, not for the courts, to declare that he who pays taxes, no matter how small in amount they may be, on lands only, has thereby a stronger motive to advance the cause of good government, and greater fitness for an office, than has a freeholder who contributes to the support of the municipality by the payment of taxes assessed on personalty only. The District Court found that the contestee, at the time of his election, owned a freehold lying in Neihart, and was at that time subject to the payment of a tax on personal property therein situate, and this satisfies the requirement of the statute that the mayor must be a taxpaying^ freeholder, within the limits of the town.

The suggestion that the construction placed upon Section 4749, supra, by the court below, would permit the merely nominal acquisition of a freehold by a candidate for mayor, with an understanding that the paper title thereto would be reconveyed by him after election, so as to give color of eligibility, needs no comment. Such a condition is not presented here, and therefore consideration of the possible question as to whether that circumstance would be deemed an unsuccessful attempt to evade the statute is not involved.

The judgment of the District Court of Cascade County is therefore affirmed. Let remittitur issue forthwith.

Affirmed.

Brantly, C. J., and Hunt, J., concur.


author: PER CURIAM

text:
    KIMPTON, Respondent, v. JUBILEE PLACER MINING CO. et al., Appellants.
    [No. 980.]
    [Submitted January 17, 1899.
    Decided January 23, 1899.]

      Appeal — Judgment on Mandate.

    An appeal from a Judgment of the Court below entered in conformity to the Judgment and order of the Supreme Court on a former appeal will be dismissed, as being in effect an appeal from the Supreme Court’s own Judgment.

      Appeal from District Court, Jefferson County; Frank Showers, Judge.

    Action by Washington I. Kimpton against the Jubilee Mining Company and another. From a judgment in favor of plaintiff in obedience to the mandate of the Supreme Court (16 Mont. 379; 41 Pac. 137; 42 Pac. 102), defendants appeal.
    Dismissed.

      T. C. Bach and. Henry G. Smith, for Appellant.

      Walsh & Newman and Toole & Wallace, for Respondent.
   PER CURIAM

This action was brought to determine the rights of the respective parties in the waters of Crow creek, and to quiet title to the same. In February, 1894, the trial court adopted the special findings of the jury in favor of plaintiff, but rendered judgment thereon dismissing the action, with costs. The plaintiff appealed from the judgment, and on July 15, 1895, this Court reversed the judgment appealed from, and remanded the cause, with directions to enter judgment in favor of plaintiff, determining his title to the use of 160 inches of the water, and perpetually enjoining defendants from interfering therewith; and, on rehearing, its judgment of July 15th was affirmed. (Kimpton v. Mining Co., 16 Mont. 379, 41 Pac. 137, and 42 Pac. 102.) On July 31, 1895, there was entered in the court below the final judgment for plaintiff, in accordance with the order of this Court. Thereafter defendants filed a paper designated “A Statement on Appeal,” which the court settled. From the judgment so entered on July 31, 1895, defendants prosecute the present appeal.

Plaintiff has moved that the statement on appeal be stricken from the transcript, upon the ground that there is no authority of law for filing the same. Prior to the taking effect of the Codes (July 1, 1895,) one of the means of preserving alleged errors of the trial courts was by statements on appeal. The Codes,' however, do not recognize or make provision for such method or proceeding for review on appeal of rulings or decisions of District Courts. It would seem that the motion to strike is well interposed, under Sections 3455, 3482 and 3483 of the Code of Civil Procedure, and 5182 of the Political Code, and the authority of Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, and Kelly v. Larkin, 47 Cal. 58, notwithstanding the fact that the trial was had in 1894; for the reason that the supposed statement on appeal was prepared and filed subsequently to the’repeal of the statute providing therefor. We are in-dined to think that no “proceeding” had been taken in the matter of such statement, or in furtherance of an appeal from the judgment entered July 31, 1895.

It is deemed unnecessary, however, to decide the question raised by the motion, as the appeal must be dismissed because it is one which is, in effect, from the judgment of this Court. The decree was entered in obedience to, and in exact conformity with, the judgment and order of this Court. The District Court was commanded to enter judgment in favor of plaintiff. This involved the performance of a mere ministerial act and duty (McMillan v. Richards, 12 Cal. 467; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Matthews v. Houghton., 11 Me. 377; Fish v. Emerson, 44 N. Y. 376), and, when our mandate was obeyed by the court below, the decree it caused to be entered was the judgment of this Court; and by that judgment the questions which did actually arise on the trial, and those which could have been presented, as well as the rights of the parties in the subject-matter of the suit, were finally determined. They became res judicata, and all that remained for the District Court to do do was to enter the judgment rendered by the Supreme Court. The rule, with its qualifications, is well expressed in Stewart v. Salamon, 97 U. S. 361, as follows: “An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the case will be remanded, with appropriate directions for the correction of the error. The same rule applies to writs of error. This is not intended to interfere with any remedy the parties may have by mandamus. This is an appeal from a decree entered upon our mandate. No complaint is made as to its form, and it seems to be in all respects according to our directions. The effort of the appellant was to open the case below, and to obtain leave to file new pleadings, introducing new defenses. This he could not do. The rights of the parties in the subject matter of the suit were finally determined upon the original appeal, and all that remained for the circuit court to do was to enter a decree in accordance with our instructions, and carry it into effect. If, in the progress of the execution of the decree, after its entry, either party is aggrieved, he may appeal from the final decree in that behalf; but such an appeal will bring up for re-examination only the proceedings subsequent to the mandate. ’ ’ The following cases may be cited as in a greater or less degree supporting the views here expressed: Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31; Humphrey v. Baker, 103 U. S. 736; Kingsbury v. Buckner, 134 U. S. 650; Keller v. Lewis, 56 Cal. page 469; Argenti v. Sawyer, 32 Cal. 414; McDonald et al. v. State, 80 Wis. 407, 50 N. W. 185; Woolman v. Garringer, 2 Mont, page 408; Barkley v. Tieleke, ib. 435; Daniels v. Andes Insurance Co., ib. 500; Palmer v. Murray, 8 Mont., page 183; Davenport v. Kleinschmidt, ib. page 479.

The appeal in the case at bar is from a judgment rendered by this Court and entered by the District Court, and for that reason it must be dismissed.

Dismissed.