author: MR. CHIEF JUSTICE BRANTLY,

text:
    STATE, Respondent, v. PEEL, Appellant.
    [No. 1,407.]
    [Submitted October 30, 1899.
    Decided December 4, 1899.]

      Criminal Law — Homicide—Trial—Jury—Peremptory Challenge — Waiver — Insanity — Nonexperts — Opinion• — • Cross-Examination — Experts ■— Hypothetical Question■ — Instructions — Irresistible Impulse — Presumption of * Sanity — Burden of Proof — Reasonable Doubt — ■'•Heat of Passion

    L. Where the state waived its fourth peremptory challenge, whereupon defendant exhausted his peremptory challenges, it was not error, on the panel’s being filled and passed for cause, to permit the state to peremptorily challenge a juror who was in the box when the state waived its fourth challenge; since the state’s waiver of its fourth challenge was not a waiver of anv subsequent challenge it was entitled to.
    2. The opinions of nonexpert witnesses, touching the mental condition of the person on trial, or the validity of whose act is in controversy, must be founded upon their own observation; they cannot be permitted to give an opinion founded upon facts learned from other sources than their own observation, hence, a nonexpert witness, who was not present at a homicide, cannot express his opinion as to the sanity of the accused, based both on his previous knowledge of accused and hearsay knowledge of facts attending the homicide.
    s. A nonexpert witness should always speak as of the time of his own observation, he should not be permitted to express an opinion as to the temporary or permanent ■ nature of mental disease.
    1. On a trial for homicide, a nonexpert witness, giving his opinion as to the sanity of defendant, may be asked on cross-examination what he means by “insanity” and “unsoundness of mind,” where there is no attempt to confuse him with technical distinctions.
    >. Where defendant had unfriendly feeling towards deceased, and, failing in an attempt to procure decedent’s prosecution, went into the street, and killed him, and insanity was pleaded as a defense, it was proper for the state to ask an expert his opinion of one’s consciousness and knowledge of right and wrong and unlawfulness of his act, “if he had a grudge against another, and had rationally conversed with officers about it, and should go from them, and lie in wait for his enemy until he came within the vicinity, and should shoot him, saying, ‘Take that,’ and, having shot him, should turn and say that he would go to the jail, and give himself up, and within twenty minutes after the shooting should talk in a reasonable manner, apparently as conscious as he had ever been,” since the state, in putting the hypothetical question, had a right to assume that the evidence tending to support its theory was true.
    6. A question on the subject of insanity, put to an expert in a criminal trial, need not embrace all the elements of the law of insanity, but may limit the inquiry to the degree of intelligence possessed by defendant under the circumstances of the act.

      7. In a prosecution for homicide, a charge “that if defendant knew, when committing the act, that it was wrong, and that he was mentally capable of choosing to do or not to do the act, and to govern his conduct accordingly, that he was guilty, even though he was not perfectly sane at the time of the act; and that, if his mental powers were so deficient that he had no will, conscience, or controlling mental power, or if, from violence of mental disease, his intellectual power was at the time obliterated, then he was not criminally responsible, the question being whether, at the time of the act, he had mental capacity to entertain a criminal intent, and whether he did in fact entertain it,” is not erroneous in failing to charge as to irresistible impulse, where the only evidence of such impulse was defendant’s statement that a few minutes before the homicide he was attacked by a dizzy spell, but had no recollection what occurred thereafter until the next day; since from his statement his act must have been the result of unconsciousness or delirium, while irresistible impulse implies knowledge of right and wrong in some degree.
    8. When one commits an act, otherwise criminal, under an irresistible impulse, which is the result of overpowering mental disease, and which he cannot control, he is not criminally responsible.
    9. The legal presumption of sanity is rebutted and disappears whenever sufficient proof is introduced to raise a reasonable doubt as to defendant’s sanity.
    10. The burden of establishing the defense of insanity by a preponderance of the evidence is never cast upon the defendant. If at the end of the state’s case no proof has been introduced upon this subject, the legal presumption of sanity prevails, and the burden then devolves upon the defendant to produce some proof of his insanity, but he is not bound to produce any more than is sufficient to raise a reasonable doubt of his sanity, and the moment this appears the burden is at once upon the state to establish the guilt of the defendant beyond this reasonable doubt, since a reasonable doubt of the sanity of the defendant is, in a legal sense, a reasonable doubt of his guilt.
    11. Where instructions on a material point in a criminal case are inconsistent, some correct and others incorrect, a conviction will be reversed.

      Appeal from District Court, Madison County/ M. II. Parker, Judge.

    Martin Peel was convicted of murder in the first degree, and he appeals.
    Reversed.
    Statement of the Case.
    The defendant herein was found guilty of murder in the first degree in the district" court of Madison county on December 16, 1898. Thereafter a motion for anew trial was made. This was heard and overruled on March 15, 1899. The court thereupon pronounced judgment fixing the death penalty.
    The main facts leading up to the homicide are the following: William Ennis, the deceased, lived at Ennis, a village in Madison county, and kept a store there. The defendant resided near the village on a farm. The two had not been on friendly terms for two years or more. The origin of this unfriendliness is not revealed by the proof. In May or J une of 1897 a public hall at Ennis was burned. The deceased and his son William and others, at the instance of the deceased, met at the store shortly after the burning of the hall, and had some talk about going and hanging the defendant, whom they charged with burning the building. Nothing came of the meeting; no action was agreed upon. The deceased, the next morning, declared that they would wait until the defendant went to his mines in the mountains, when he could easily be disposed of with safety. During the early spring of 1898 rumors of the charges made against him by the deceased and associates came to the ears of the defendant; he was also told of the meeting at Ennis’ store, and that, the tracks of some man had been followed by Ennis and others from the scene of the fire to a point near defendant’s house. The defendant thereupon became anxious to punish Ennis and his associates, insisting that they were guilty of a conspiracy to murder him, claiming also that his life was in danger. He talked of this with his neighbors and acquaintances. He several times visited the county attorney about prosecuting the deceased and his son. Being unable to obtain redress, as he thought, because this officer was in the employ of Ennis, he wrote to Hon. Wilbur F. Sanders, who resides in Helena, soliciting his services. Failing again to get the prosecution started, he went to Virginia City, the county seat, where court was in session, intending to see the district judge and lay his complaint before him. This was on June 18, 1898, the day of the homicide. He sought out Hon. M. H. Parker, the presiding judge, at the court house, but the judge refused to talk with him on the subject of his complaint, telling him he must seek advice elsewhere. Thereupon he turned, and went down the street to a point a short distance from the Madison Hotel, where he and the deceased had taken lunch on that day. While sitting there on a box, he saw the deceased leave the hotel, and pass down the street on the opposite side. After proceeding a short distance, deceased beckoned a friend across the street, and entered into conversation with him, standing with his side toward defendant, and apparently not seeing him. Defendant arose, crossed the street, drew his pistol, and shot him, saying, “You will hang me, will you, you s-o-b-?” or similar words. The deceased died on July 4th thereafter. Defendant, after firing the shot, went immediately to the county jail, and delivered himself up to the sheriff. It does not appear whether, when the defendant went to Virginia City, he knew that the deceased was there. Tüe defendant has appealed from the judgment of the district court and the order denying him a new trial. He alleges prejudicial error in many particulars.

      Mr. S. V. Stewart and Messrs. Hartman do Hartman, for Appellant.

      Mr. G. B. Nolan, Attorney General, and Mr. W. F. Sanders, for Respondent.
    The burden of proving insanity as a defense, in a murder case, rests on the defendant — not to prove it beyond a reasonable doubt — but by such a preponderance of the evidence as to satisfy the jury of the truth of the plea. The legal presumption of sanity must be rebutted by the defendant, and the whole evidence must satisfy the jury by such a preponderance that, if the single issue of sanity or insanity was submitted to them in a civil case, they would find that he was insane. This is a rule adopted in a majority of the states, as well as in England, by well considered opinions. (People v. Sehryver, 42 N. Y. 1; People v. Travers, 88 Cal. 233, and cases cited; Peoples. Bawden, 90 Cal. 195; Boswell v. State, 63 Ala. 307; McKenzie v. State, 26 Ark. 334; State v. Hoyt, 46 Conn. 330, S. C., 47 Conn. 518; State v. Lewis, 20 Nev. 333; Westmoreland v. State, 45 Ga. 225; Stated. Bruce, 48 la. 530; Brown v. Commonwealth, 14 Bush. 398; State v. Lawrence, 57 Me. 574; Commonwealth v. Fork. 9 Mete. 93; Commonwealth v. Fddy, 7 Gray 583; State v. Grear, 29 Minn. 221; State v. Tirb, 74 Mo. 199; States. Payne, 86 N. C. 609; People v. Allender, 117 Cal. 82; State v. La/rkins, (Idaho) 47 Pac. 945; Bergin v. State, 31 Oh. St. Ill; Kelch
      v. State, 55 Oh. St. 146; Myers v. Commonwealth, 83 Pa. St. 141; 'Jones v. State, 13 Tex. App. 1; Dejarnettev. Commonwealth, 75 Ya. 867; Strander v. State, 11 W. Va. 745; Section 2081, Penal Code; People v. Hong Ah Duck, 61 Cal. 394; People v. Knapp, 71 Cal. 1; People v. Dillion, 8 Utah 92.)
    The same principle has also been laid down in this state, in the case of Territory v. Edmonson, 4 Mont. 141, when it was held that in cases of homicide, the true and better rule, according to both principle and statute, is that matters of justification, excuse or mitigation should be proven, as any ordinary fact, by a preponderance of testimony.
   MR. CHIEF JUSTICE BRANTLY,

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

During the selection of the jury, 12 men being in the box, and both parties having passed them for cause, counsel for state waived their fourth peremptory challenge. The defendant thereupon exhausted his seventh and eighth peremptory challenges, the box being filled again after each challenge. Both parties then having passed for cause, counsel for the state were permitted, over the objection of defendant, to peremptorily challenge one Connor, who was in the box at the time the state’s fourth challenge was waived. Connor was ordered to stand aside, and another juror was called to take his place. He was found satisfactory to both sides, and thereupon, the defendant waiving further challenges, the jury were sworn. The action of the court in permitting the challenge of Connor is assigned as error. In State v. Sloan, 22 Mont. 293, 56 Pac. 364, we held that the parties must exercise their right of peremptory challenge alternately, the state exhausting one challenge and the defendant two, until both are satisfied, or their challenges have all been used. The corollary to this rule is that, where either party fails to challenge in his turn he is deemed to waive the challenge or challenges he might use at that time. But the rule goes no further than is necessary to preserve the alternation required by the statute. (Code of Civil Procedure, Section 1059; Penal Code, Section 2057.) It does not follow that either party waives any other challenge he may still have. His refusal to challenge may be taken by the court as an announcement that he is satisfied with the jury as then constituted but not that he will be satisfied with it when differently constituted by the change wrought by challenges exercised by the other side. There is no provision of the statute prohibiting either party from thereafter using a challenge upon any juror in the box so long as he has one to use. He may use it as he pleases at any time before the jury is finally accepted and sworn. We think the court was clearly right in overruling the objection, both upon principle and authority. (1 Thompson on Trials, Section 94; People v. Ah You, 47 Cal. 121; Fountain v. West, 23 Iowa 9; People v. Carrier, 46 Mich. 442, 9 N. W. 487; Hamper’s Appeal, 51 Mich. 71, 16 N. W. 236; Kennedy v. Dale, 4 Watts & S. 176; People v. Montgomery, 53 Cal. 576; State v. Pritchard, 15 Nev. 74.)

The defense relied on at the trial was insanity. Itiblett, a witness for defendant, was his nearest neighbor, having lived upon a farm adjoining the defendant’s for several years. He was permitted to detail fully his acquaintance and intercourse with the defendant, and his observation of his conduct and condition during his acquaintance with him, particularly with reference to the two years immediately prior to the shooting. This narration included an account of two attacks of illness suffered by defendant — one during the winter of 1896 — 97, and the other during the winter following; his incomplete recovery, and his subsequent feeble and nervous physical condition during the spring of 1898. It also included several conversations with defendant about the behavior of Ennis and his son towards himself, and defendant’s attempts to bring them to punishment, one of which took place two days before the homicide. He also stated that he had heard of the shooting two days after it occurred. He was then asked: “After hearing of the shooting, and taking into consideration the facts that you have testified about, and your long knowledge and acquaintance with Mr. Peel, did you have any opinion then, taken in connection with the shooting, as to the condition of his mind at the time of the shooting?” Upon objection by the state, the court refused to permit the witness to answer, on the ground that the opinion of a layman as to the mental condition of the defendant, based in part upon facts not derived from his own observations, is incompetent. To this ruling the defendant excepted. The question is awkwardly expressed, but it was evidently intended that the witness, in giving his opinion, should base it upon his own observation as detailed by him, and also upon his hearsay knowledge of the facts attending the shooting. As the witness was not an expert, the ruling of the court was clearly correct. While the opinions of nonexpert witnesses are often the best and only evidence at hand touching the mental condition of the person on trial, or the validity of whose act is in controversy, the opinion expressed must be founded upon their own observation. (Territory v. Hart, 7 Mont. 489, 17 Pac. 718, and authorities cited; Territory v. Roberts, 9 Mont. 12, 22 Pac. 132; 1 Clevenger, Med. Jur. of Insanity, p. 580.) It is only a person skilled in the particular science, art, or trade concerning which the investigation is had who can be permitted to give an opinion founded upon facts learned from other sources than his own observation. (Code of Civil Procedure, Section 3146.) If he has had an opportunity to observe, he may speak from observation. When he has had no such opportunity, he may hear facts detailed by other witnesses, and express an opinion thereon; or the question may be put to him in hypothetical form, founded upon facts thus detailed. (Lawson on Expert Evidence p. 221, rule 42.) And herein lies the distinction between the office of an expert and that of a layman when called upon in such case for an opinion. If a lay witness may be permitted to include one material fact, or group of facts, learned by hearsay among those derived from his own observation, as in the question under consideration, and to express an opinion thereon, there is no reason why any number of such facts may not be so included. In such case the opinion of the witness, in so far as it would be based upon the extraneous facts, would in no respect be different from that of an expert witness, and the important and substantial distinction between the offices of the two would be entirely destroyed. , (Lawson on Expert Evidence, p. 538.) The witness was afterwards permitted to express his opinion as to the mental condition of defendant, basing it upon his own observation. This was within the rule and the defendant has no cause for complaint.

In this connection the court instructed the witness to express the opinion formed by him with reference to his observations of defendant up to and including the time he last saw him. The witness answered in conformity with this direction, expressing the opinion as still retained by him. Fault is found with this action of the court, counsel for defendant contending that the witness should have been allowed to state his opinion as to the mental condition of defendant at the time of the shooting. Here again we think the court was right, because the nonexpert witness should always speak as of the time of his observation. To have allowed this witness to do otherwise would be equivalent to permitting him to give an opinion upon the character of the mental disease, and as to whether it probably continued up to the date of the shooting. The witness could not speak of a condition he did not observe, nor should he be permitted to express an opinion as to the temporary or permanent nature of the disease. This is the province of the expert. (1 Clevenger Med. Jur. of Insanity 588; Blake v. Rourke, 74 Iowa 519, 38 N. W. 392; Denning v. Butcher, 91 Iowa 425, 59 N. W. 69.)

On cross-examination the witness was asked to tell the jury what he meant by “insanity” and “unsoundness of mind.” The court directed him to answer. This he did, explaining in his own way what meaning he attached to those terms. There was no attempt to compel him to , give a technical definition of them, nor to confuse him by questions pertaining to technical distinctions. This was clearly within the range of proper cross-examination.

In rebuttal the state introduced Dr. Miller as an expert upon the question of defendant’s insanity. Among other hypothetical questions, he was asked the following: “Where a party has a grudge against another, and had avowed it, and had in a rational way conversed with lawyers and judges about it, and he should go from them, and lie in wait for his enemy, or remain in the vicinity until he appeared on the sidewalk, and then should get up and go across the street from where he was, and draw a revolver, and shoot him, saying, ‘Take that,’ or words to that effect, and, having shot his enemy, should turn around again, and say, ‘I will go to the jail and give myself up, ’ and within twenty minutes or half an hour should talk the matter over in a reasonable manner, apparently as conscious as ever he had been immediately before the shooting, what would you say as to the fact of his consciousness and knowledge of right and wrong and knowledge of the unlawfulness of his act at the time of the shooting, from these circumstances?” Defendant objected on the ground that the hypothesis assumed that the defendant entertained a grudge against deceased, and that he was lying in wait for deceased at the time of the homicide, an assumption not justified by the proof; and also on the ground that it involved an erroneous statement of the law of insanity as a defense in criminal prosecutions. The objection was overruled, and the witness answered, “I should consider he was conscious of what he was doing.” The objection was without merit. The evidence had shown without contradiction that there had been unfriendly feeling between defendant and deceased for some time, though the cause of it did not appear. It had also shown, as set forth in the statement of facts leading up to the homicide, that the defendant had been charged by deceased with burning the public hall at Ennis; that there had been some talk by deceased and others of hanging defendant for this crime; that he had heard of this talk, and was so wrought up by it that he sought to have deceased and his son punished for a conspiracy to murder him; that, having failed to get the prosecution under way,-he had, as a last resort, gone to the judge then engaged in holding court at Virginia City; that, upon being told by the judge that he must go elsewhere for advice, he bad gone at once to a point near the hotel where deceased was stopping, and remained there; that he was armed; and that, when he saw deceased leave the hotel, and proceed down the other side of the street, he immediately went toward him, and shot him. It further appeared from the defendant’s own statement that, though he was entirely innocent of the charge made against him by deceased and his son, he believed they intended to take his life when a suitable opportunity presented itself. In another part of his testimony he had also stated that he had sought out the deceased because he was the only one that he feared of those who attended the meeting at Ennis, where the hanging was discussed, and that he was on friendly terms with everybody in the community except deceased. Can any reasonable person doubt for a moment that the defendant, under these circumstances, if he was sane, entertained towards the deceased and those associated with him the strongest feeling of resentment and ill will? If he did not, he surely was not subject to the passions that ordinarily sway mankind, or else had schooled himself to such a degree of self-control and Christian forbearance as to have become a remarkable instance in proof of the possible attainment by mankind of absolute moral perfection. The state’s theory of the case was that defendant was and is so far a reasonable moral agent as to be responsible under the law. Upon this assumption counsel were proceeding, and it was necessary that they be allowed to proceed in this way in order to properly try the case. In putting the hypothetical question to the expert, they had a right to assume as established, for the time being, all the facts in evidence tending to support their theory. It was a legitimate inference from the evidence, under this theory, that the defendant retained a grudge against the deceased, and that, prompted by a desire to gratify his feelings of revenge, he lay in wait for the opportunity to strike the fatal blow. It was for the jury to say, after considering all the evidence introduced by both sides, whether the facts, thus assumed as established for the time being, were really established, and whether the opinion of the witness was worthy of consideration. (Lawson on Expert Evidence, 152, 153; 1 Thompson on Trials, Sections 607 — 610, and cases cited.)

Counsel were not compelled to so frame their question as to embrace in it a statement of all the elements of the law of insanity. Capacity to distinguish between right and wrong with reference to the particular act in controversy is certainly a prerequisite to legal responsibility, and whether or not the defendant possessed such capacity was necessarily a subject of legitimate inquiry in the trial of this case. If he did not possess it, he could not properly be convicted of any degree of homicide. Counsel were properly permitted to direct their inquiry in such a way as to develop proof tending to show the degree of intelligence possessed by the defendant under the particular circumstances. If they choose to limit the inquiry to .this particular point, and there stop, it was not error in the court to permit it. It was for the court to state the law applicable to this defense upon the facts as they were presented.

In this connection complaint is made that the court failed to properly instruct the jury on the law applicable to-this defense, the particular criticism being that the instructions are not sufficiently specific as to irresistible impulse. In this, we think, counsel are in error.- The court, with the exception hereafter noticed, instructed the jury fully and fairly, and the law, as stated in the charge, is the more logical rule, if not based upon the weight of authority in this country. Of the several paragraphs of file charge on this phase of the case, we quote two as illustrative of the court’s view:

No. 36. “You are instructed that if, from all the evidence-in the case, you believe, beyond a reasonable doubt, that the defendant committed the crime of which he is accused, in manner and form as charged in the information, and that at the time of the commission of such crime the defendant knew that it was wrong to commit such crime, and was mentally capable of choosing either to do or not to do the act or acts constituting such crime, and of governing his conduct in accordance with such choice, then it is your duty, under the law, to find him guilty, even though you should believe from the evidence that at the time of the commission of the crime he was not entirely and perfectly sane.”
No. 37 “You are instructed that, in order to be criminally responsible, a person must have intelligence and capacity to have criminal intent and purpose; and if his mental powers are so deficient that he has no will, or no conscience, or no controlling mental power, or if, from the overwhelming violence of mental disease, his intellectual power is, for the time, obliterated, he is not criminally responsible, — the question to be determined being whether, at the time of the act, he had the mental capacity to entertain a criminal intent, and whether in point of fact he did entertain it. ’ ’

Mr. Bishop (1 Cr. Law, Sec. 381, subd. 2) says: “Insanity, in the criminal law, is any defect, weakness or disease of the mind rendering it incapable of entertaining, or preventing its entertaining in the particular instance, the criminal intent which constitutes one of the elements in every crime. ’ ’ From this definition of insanity, criminal responsibility is to be determined solely by the capacity of the defendant to conceive and entertain the intent to commit the particular crime. If there is no intent, there is no crime. In the formation of this intent there must concur knowledge or intellectual comprehension, and the power of choice. An absence of the former necessarily implies the want of the latter, for the latter cannot, in reason, exist without it. On the other hand, the former, as a scientific fact, may exist, in some degree at least, without the latter. It therefore follows that one may have mental capacity and intelligence sufficient to distinguish between right and wrong with reference to the particular act, and to understand the consequence of its commission, and yet be so far deprived of volition and self control by the overwhelming violence of mental disease that he is not capable of voluntary action, and therefore not able to choose the right and avoid the wrong. The second instruction quoted is taken from the text at page 126, Yol. I, of Dr. Clevenger’s recent work on Medical Jurisprudence of Insanity, heretofore cited. At another place the same author says: “To be criminally responsible, a man must have reason enough to be able to judge of the character and consequences of the act committed, and he must not have been overcome by an irresistible impulse arising from disease. ’ ’ (Id. p. 174.) Assuming, as we do, that Mr. Bishop’s definition of insanity is correct, and sufficiently broad to cover all cases where the question of . responsibility arises, the statement by Dr. Clevenger is a direct logical result therefrom, and the doctrine that when one commits an act, otherwise criminal, under an irresistible impulse, which is the result of an overpowering mental disease, and \which he cannot control, he is not criminally responsible, must be admitted. Mr. Bishop' recognizes the doctrine, basing it upon the law of necessity, and insists that it is the duty of every judge -to recognize q.nd apply it as a part of the fundamental law of the land. (1 Bishop, Cr. Law, Sec. 383b.) Mr. Wharton (Wharton’s Cr. Law, Sec. 45), after discussing the subject, states the law thus: “The conclusion we must reach, therefore, is that an irresistible homicidal impulse in an insane person is a good defense, though such insane person was able to distinguish between right and wrong. With a sane person, however, it is not a defense, as the law makes all sane persons responsible for their impulses. ’ ’ It is, we think, the more humane doctrine, and in accord with the more advanced state of medical science and judicial reason, though courts of high standing — as in New York, California, Kansas, Georgia, North Carolina, Missouri and others- — repudiate it, and adhere to the doctrine of the right and wrong test. The following authorities are cited: Taylor’s Med. Jur. 734; Com. v. Rogers, 7 Metc. (Mass.) 500; Stevens v. State, 31 Ind. 485; Walker v. State, 102 Ind. 502, 1 N. E. 856; Conway v. State, 118 Ind. 482, 21 N. E. 285; Parsons v. State, 81 Ala. 577, 2 South. 854; State v. Windsor, 5 Har. (Del.) 512; Ortwein v. Com. 76 Pa. St. 414; Taylor v. Com., 109 Pa. St. 262; Com. v. Mosler, 4 Pa. St. 264; Graham v. Com., 16 B. Mon. 587; Blackburn v. State, 23 Ohio St. 146; State v. Pike, 49 N. H. 399; State v. Jones, 50 N. H. 369; State v. Johnson, 40 Conn. 136; Anderson v. State, 43 Conn. 514; Dejarnette v. Com., 75 Va. 867; State v. Felter, 25 Iowa, 67; State v. Mewherter, 46 Iowa 88; Dacey v. People, 116 Ill. 555, 6 N. E. 165; Hoehheimer Law of Crimes, See. 20.

But, while we believe this to be the better rule, we agree with Mr. Bishop where he further says, in speaking of the right and wrong test: “In a ease wherein beyond controversy the defect extends only to the intellectual powers, and there is no pretense that the party cannot control his own actions, — no proof tending to show any insanity except the partial, which veils simply the understanding and not the whole man, — this right and wrong test, thus seen to be the more common form of putting the question to the jury, is correct in legal theory, and practically not misleading. For it should be borne in mind that in all issues the charge to the jury should disclose the law applicable to whatever facts the evidence tends to establish, not to any which it does not.5 ’ (1 Bishop Cr. Law, Sec. 386, Subd. 2.)

Returning now to the test laid down in the instructions quoted, we see that they distinctly recognize the doctrine of irresistible impulse as the result of disease. In our opinion, they are well suited to the facts of this case. There was no proof tending to show in the defendant, at the time of the shooting, the existence of an irresistible impulse, except in so far as it might be inferred from the statement of the defendant himself, who testified in his own behalf, and stated that, as he left the court house, he was attacked by a “dizzy spell,” and had no recollection of what occurred thereafter until the following morning. Even this would seem to rebut the idea of any such condition, and tend rather to show that the shooting, if the result of any phase of insanity, was the act of unconscious madness or delirium; for, logically, the expression “irresistible impulse” implies knowledge of right and wrong in some degree, but, coupled with it, the absence of power, resulting from a disordered mind, to successfully resist the impulse to do the criminal act. The court could not instruct the jury on every phase or manifestation of insanity. The law was declared generally upon this, subject with such suggestions as were suitable to the facts of the case; and it was left to the jury, as was proper, to find from the proof upon the issue of insanity. (Stuart v. State, 1 Baxt. (Tenn.) 178.) 'The court was also careful to draw the'distinction between the impulse of anger or passion which does not relieve from responsibility and the phase of insanity which we are here considering. This should be done in all cases of this character, so that the wicked impulses of the evil passions, which every man is, under the law, bound to keep in restraint, may not be confounded with that phase of mental disease which the law, out of tenderness for human life and liberty, deems a sufficient excuse for crime. (State v. Brooks, 23 Mont. 146, 57 Pac. 1038.)

Upon the burden of proof under the plea of insanity' the following instruction was given:

“No. 42. You are instructed that the law presumes every person to be sane and responsible for his acts until the contrary be shown by -the evidence, and, when insanity is set up as a defense to an alleged criminal act, the burden of proof is upon the defendant to show by a preponderance of the evidence that he was affected by insanity, as explained in these instructions, at the time of the act, to such an extent that he did not know that it was wrong to commit such criminal act, and that he was not mentally capable of choosing either to do or not to do the act or acts constituting such crime, and of governing his conduct in accordance with such choice; but if, upon all the evidence in the case, the jury entertain a reasonable doubt as to the sanity of the defendant at the time of the commission of the act complained of, they must acquit him. ’ ’

This instruction was followed by another paragraph correctly defining “preponderance of evidence” as applicable to civil cases, thus emphasizing the necessity for the defendant to sustain his defense by a preponderance of the evidence. We think this was prejudicial error. The instruction is inconsistent with itself, in that, after telling the jury that the burden is upon the defendant to establish insanity by a preponderance of the evidence, it again tells them to acquit him if they have a reasonable doubt upon the whole case. It also conflicts in this regard with other instructions as to reasonable doubt. It is wrong in principle, because, under our view of the law, the burden of establishing this defense by a preponderance of the evidence is never cast upon the defendant.

As to the inconsistency of the instruction with itself and with others upon the sub3ect of reasonable doubt, it is sufficient to say that, wherever instructions are upon a material point, the one correct and the other incorrect, this court will not presume that the jury followed the correct instruction, but will reverse the judgment, and order a new trial. (State v. Rolla, 21 Mont. 582, 55 Pac. 523.)

The first part of the paragraph- states a wrong principle: The doctrine of reasonable doubt must be applied to every fact material and necessary to establish the defendant’s guilt. It should be applied in all criminal cases,- — to those in which insanity is the defense as well as others. Yet under this statement the defendant could be acquitted upon a reasonable doubt which might arise only after he. had produced proof sufficient to. incline the balance in his favor on the issue of insanity.1 If there should be an equipóse, he could not. be acquitted, because the proof would not have weight to the degree at which the reasonable doubt could come to his aid. Under the same condition of proof in a civil case, where the burden was upon the plaintiff to make out his case, the defendant would be entitled to a judgment in either instance. Nor is the fallacy of the position obviated by the statement that the legal presumption of sanity must be rebutted by the defendant. This presumption is rebutted and disappears whenever sufficient proof is introduced to raise a reasonable doubt as to defendant’s sanity. And it makes no difference from which side it comes. From the moment it appears the burden is at once upon the state to establish .the responsibility of, the defendant, and that beyond a resonable doubt; for legal responsibility is a necessary ingredient of guilt, and a reasonable doubt of the sanity of the defendant is, in a legal sense, a reasonable doubt of his guilt. If at the end of the state’s case no proof has been introduced upon this subject, — and the state is not bound to introduce any in the first place, — the legal presumption of sanity remains unimpaired, and prevails. The burden then devolves upon the defendant- to produce some proof tending to show that he was not responsible at the time the criminal act was committed, but he is not bound to produce any more than is sufficient to raise a reasonable doubt. If this is not then successfully rebutted by the state, he is entitled to an acquittal. It is only in this sense that the burden ever rests upon him under Penal Code (Sec. 2081), as was clearly explained by Mr. Justice Hunt in State v. Brooks, supra. In Davis v. U. S., 160 U. S. 467, 16 Sup. Ct. 353, 40 L. Ed. 499, Mr. Justice Harlan, in an able and lucid opinion, discusses the question under consideration, collating many of the adjudicated cases. This case is cited with approval in State v. Brooks, supra, and the final summing up of Justice Harlan is there quoted. The question under consideration here was not directly involved in that case, but the conclusion reached in Davis v. United States is so well supported by yea-son and authority that we here approve it again, and adopt it. In Territory v. Edmonson, 4 Mont. 146, 1 Pac. 738, and Territory v. Tunnell, 4 Mont. 148, 1 Pac. 742, a different construction was given a provision substantially the same as section 2081, supra, (section 40, Fourth Division, Rev. Stat. 1879.) We are satisfied that the interpretation there given to this provision was founded on an erroneous view of the law, and to the extent to which these cases conflict with our present conclusion as stated in State v. Brooks, supra, and this case, they are overruled.

It is contended that the court erred in defining the expression £‘heat of passion” in instructing the jury with reference to the crime of manslaughter. The definition given is the same in substance as the one which was disapproved in State v. Sloan, 22 Mont. 293, 56 Pac. 364. On another-trial this can be avoided. No harm resulted from it in this case, since, evidently, the jury did not have occasion to consider it, having found the defendant guilty of murder in the first degree. (State v. Brooks, supra.)

Let the judgment and order refusing a new trial be reversed, and the cause remanded, with directions to grant a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HAGGIN, Appellant, v. SAILE et al., Respondents.
    [No. 1,142.]
    [Submitted July 18, 1899.
    Decided December 4, 1899.]

      Water Rights — Equity — Injunction—Findings—Exceptions —Implied Findings — Abandonment—Riparian Rights— Instructions.

    1. The Code of Civil Procedure, 1895, (Sec. 1111 etseq.) recognizes the system of implied findings, which applies to equity as well as law cases, under this system a judgment will not be reversed on appeal for defects in the findings unless the losing party has proceeded in accordance with the requirements of the provisions of See. 1114 et seq.

    2. A defective finding of an abandonment of a water right, in an injunction suit, is not on appeal, ground for reversal of the judgment when the losing .party has failed to follow Section 1114 et seq. of the Code of Civil Procedure.
    3. A person has no rights as a riparian holder as against one who actually diverts and appropriates water for beneficial uses under statutes recognizing the right of appropriation.
    4. The abandonment of a water right is a question of fact to be determined from the acts and intention of the party who is alleged to have abandoned the right; mere nonuser of a water right by itself does not constitute an abandonment; but a voluntary nonuser of water by a purchaser of a water right, without any intention to resume use thereof, and without the assertion of possession or title for a number of years after purchase, and where such purchaser has permitted the water to be taken, appropriated and used by others adverselyfor years, warrants an inference of abandonment.
    5. Since findings of a jury in an equity suit are advisory merely, a judgment will not be reversed on appeal for the giving of erroneouus instructions, where the court in making its findings of fact, approved some of those found by the jury, and made other findings, all the findings of the court being supported by the evidence.

      Appeal from District Court, Deer Lodge County/ Theo. Brantly, Judge.

    Injunction by James B. Haggin against Raimond Saile and another. From a decree in favor of defendants, and from an order overruling a motion for a new trial, plaintiff appeals.
    Affirmed.

      Mr. Wm. Scallon, Mr. J. K. McDonald and Mr. W. W. Dixon, for Appellant.
    The water right was an appurtenance of the land. (Sweet-land r. Oleson, 11 Mont. 27; Sloan v. Glancy, 19 Mont. 70, 76.) Upon the question of abandonment appellant refers the court to the following authorities: (Gassert v. Noyes, 18 Mont. 216; Smithy. Hope Min. Go., 18 Mont. 432.) This latter case is also an authority upon what is necessary to constitute adverse possession. And upon the question that the court must not instruct the jury upon questions of fact. See Wastl v. M. U. P. Co., 17 Mont. 213; Knotoles V. Nixon, 17 Mont. 473; McShane v. Kenkle, 18 Mont. 208. Appellant refers to the following authorities, as to what is necessary to constitute an adverse possession, and calls the attention of this Court to the fact that in all the instructions upon this point given by the court below, as well as in the finding upon this question made by said court, the necessity of the adverse possession being continued is nowhere mentioned, although this continuity is one of the essential elements of adverse possession: (San Francisco v. Fulde, 37 Cal. 349; Griggsby v. Clear Lake Water Co., 40 Cal. 396; LLanson v. Me Cue, 42 Cal. 303; Cave v. Crafts, 53 Cal. 135; Anaheim Water Co. v. S. T. Water Co., 64 Cal. 185; Paige v. Pocky Ford Co., 83 Cal. 84; Alta L. de W. Co. v. Hancock, 85 Cal. 219; Last Chance Co. v. Heilbron, 86 Cal. 1.) The court, erred in its instructions because it instructed the jury upon questions of fact and in regard to the credibility of witnesses, whereas all these matters are purely within the province of the jury and should not be commented upon by the court, nor should the court instruct the jury in relation to these matters. See Wastl y.M.TJ.P. 6o., 17 Mont. 213 and Knowles v. Nixon, 17 Mont. 473, above referred to.

      Mr. F. Adkinson and Mr. E. Scharnikow, for Kespondents.

      This action was one in equity, and so treated by the court below, and by both the plaintiff and defendant. Special issues having been submitted to the jury to make their findings thereon, such findings were advisory only, and therefore such instructions to the jury cannot be considered on appeal. (.Lcrnlor v. Kemper, 20 Mont. 19; Sweetser v. Dobbins, 65 Cal. 529, 4 Pac. R. 540; Evans v. Boss, (Cal.) 8 Pac. Rep. 89.) The lower court adopted the jury’s findings, and also added further findings of its own. These are sufficient to sustain the judgment as well as the conclusions of law, and the findings of the court are fully sustained by a clear preponderance of the evidence. The Montana water right laws are in complete derogation of the common law of riparian rights. (Black’s Pomeroy on Water Rights, Sec. 106.)
    The right of the first appropriator may be lost by the adverse possession of another; and where such other person has had the continued, uninterrupted and adverse enjoyment of the water, or some certain portion of it, for a certain length of time, the law will presume a grant. (Black’s Pomeroy on Water Rights, Sec. 98; Union Water Co. v. Cra/ry, 25 Cal. 504, 85 A. D. 145; Smith v. Logan, 18 Nev. 149, 1 Pac. Rep. 680; Woolman v. Carringer, 1 Mont. 544.) The burden rests on the party submitting to the adverse user, that the use was by license or permission, and further, that license or permission cannot be presumed, but must be proved. (Lem v. McDonald, 9 Hun. 23; White v. Chapin, 12 Allen 516.) Adverse possession having once begun, is presumed to continue, in the absence of evidence to the contrary. (Abbott v. Page, 92 Ala. 571, 9 So. Rep. 333; ■Clements v. LampMn, 34 Ark. 598; Bodfish v. Bodfish, 105 Mass. 319; Hesperia Co. v. Rogers, 83 Cal. 10, 23 Pac. Rep. 196; Walden v. Gratz, 14 U. S. (1 Wheat) 292; Elyton Co. v. McElrath, 53 Fed. Rep. 763.) Water held and used adversely for five years next before suit is brought, establishes title in the user. (Smith v. Green, 109 Cal. 228, 41 Pac. Rep. 1022; Com v. Clough, 70 Cal. 345, 11 Pac. Rep. 733; Davis v. Gale, 32 Cal. 35; American Co. v. Bradford, 27 Cal. 366.) Disseisin may be proven by evidence of open and exclusive possession, claiming title against all persons whomsoever, without proof of actual notice to the disseisee. (Samuels v. Borrowscales, 104 Mass. 207; Wilson v. Williams, 52 Miss. 493.) It is not necessary that the adverse ■ character of defendants’ possession should be brought home to the actual knowledge of plaintiff by affirmative proof. If the defendants’ possession is adverse to all others, open and notorious, it is sufficient in its character, whether plaintiff knew the facts or not. (Scruggs v. Scruggs, 43 Mo. 142; Warfield v. Lindell, 38 Mo. 562, 90 A. D. 443; Murrays. Hoyle, 92 Ala. 559, 9 So. Rep. 368; Glencoe v. Wadsworth, 48 Minn. 402, 51 N. W. Rep. 378.) A failure to use for a time is competent evidence of abandonment; and if such nonuser continues for an unreasonable period, it may fairly create a presumption of intention to abandon. (Sieber v. Frink, 7 Colo. 148, 2 Pac. Rep. 901; Dorr v. Hammond, 7 Colo. 79, 1 Pac. Rep. 693.) Ignorance of adverse holding by defendants, does not excuse the plaintiff. (Brownson v. Scanlan, 59 Tex. 222; Key v. Jennings, 66 Mo. 356; Close v. Samm, 27 Iowa, 503; School Dist. v. lynch, 33 Conn. 330.)
   PER CURIAM.

— Action for a perpetual injunction restraining defendants from the use and diversion of the waters of Glover’s canyon, in Deer Lodge county. Plaintiff claimed under an appropriation made by one Glover. Defendants denied plaintiff’s title, and pleaded title in themselves by appropriation, and also pleaded the statute of limitations. Special issues, including that of abandonment by plaintiff, were submitted to a jury, which issues were found in favor of the defendants. Thereafter the court made findings of its own, wherein certain findings of the jury were adopted, and others made to conform with the court’s own views. Conclusions of law were also stated, and upon these the court made a decree that the defendants were the owners of the right to the use of the water in controversy. Plaintiff thereafter moved for a new trial, which motion was overruled.. Plaintiff appeals from the judgment and order overruling the motion for anew trial. The action was commenced August 27, 1888, and has been before this court once before. (Haggin v. Saile et al., 14 Mont. 79, 35 Pac. 514.)

We have repeatedly gone over the testimony had upon the trial of this case, giving it our close attention, while considering the argument of appellant that the evidence is insufficient to justify the findings of the court and jury; and our conclusion is that the evidence is sufficient to sustain the finding and conclusion upon the material point- that plaintiff abandoned any rights he may have had to the usufruct of the waters in controversy. To set forth the evidence contained in the record upon this question is unnecessary — we merely state the conclusion which we have reached.

It is said the court failed to find abandonment as a fact, but only so found as a conclusion of law. The jury expressly found abandonment, while the court found, as a fact, that, after the latter part of 1883 plaintiff never at any time made use for any purpose of any of the waters in controversy; and as a conclusion of law the court stated that plaintiff, prior to the bringing of this suit, abandoned whatever right he had to the use of the water.

Conceding that the finding that the plaintiff never used the waters in controversy after some time in 1883 is defective as a finding of an abandonment, still the plaintiff is in no position to ask a reversal in this Court, because he failed to follow the Code of Civil Procedure, by pointing out the defectiveness of such finding, and because he failed to preserve his exceptions, if there was a failure on the part of the lower court to remedy the defect. The statutes (Section 1114 et seq., Code of Civil Procedure) provide that in cases tried by the court no judgment shall be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings, and, in cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be ■ specifically and particularly designated, and, upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his. exceptions, and the same shall be settled by the judge as in other cases. This rule applies to equity as well as law cases. (Hayne on New Trial & App. Sec. 2M.)

It is our opinion that the present Codes (section 1111 et seq.) recognize the system of implied findings, and that, under that system, where there are defective findings the judgment appealed from will not be reversed unless requests and exceptions were made and saved: (Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.) Hayne on New Trial & App. Sec. 238, traces the history of the statutes of California upon the subject of implied findings, and notes the difference between such a system and one of express findings. He demonstrates that, as the Codes are now in this state, it is incumbent upon the losing party to take proper steps to except to the defects in the findings of fact, pointing out the particular omissions of which he complains, and that, if he does not proceed according to the statutory requirements in this respect, he cannot secure a reversal for defects in the findings'filed; “all omitted issues being presumed to have been found in favor of the party for whom judgment was rendered.” “In consequence of this presumption,” he continues (section 239), “the losing party could never have a reversal upon the findings unless they were entirely inconsistent with the judgment, and could not be reconciled with any state of facts which might have been proved, and upon which the judgment, might be supported.” The presumption then prevails that the omitted issues necessary to supply the defects in the findings upon the abandonment by plaintiff have been found in favor of defendants, so we will not reverse the judgment upon the finding which appears in the record.

The evidence also sustains the finding that during June, 1883, defendant Saile settled upon the land he claims, and made an appropriation of all the waters of Glover’s canyon flowing by his home, for agricultural and domestic uses, and that he has used such waters for beneficial purposes upon his land ever since.

These matters are determinative of the case, requiring an affirmance of the order and judgment appealed from. The suggestion that the plaintiff has rights as a riparian holder can have no force as against defendant Saile, who, in June, 1883, actually diverted and appropriated water for beneficial uses under the statutes of the territory recognizing the right of appropriation.

It is said the court erred in its view of the law as to what constituted an abandonment. We do not think so. If we could refer at all to the instructions to the jury, to ascertain the views entertained by the learned judge upon the law of abandonment, — and it is to them that plaintiff goes, — it is disclosed that he regarded it as a question of fact, to be determined from the acts and intention of the party who was alleged to have abandoned the rights in controversy, and such acts and such intention should be gathered from all the facts and circumstances in the case. He did not decide the point against plaintiff upon the theory that mere nonuser of a water right by itself constituted an abandonment, but he proceeded upon the line that a voluntary nonuser of water by a purchaser qf a water right, without any intention to resume use thereof, and without the assertion of possession or title fqr a number of years after purchase, and where such a purchaser has permitted the water to be taken, appropriated and used by others adversely for a period of years, warranted an inference of abandonment. This we believe is thoroughly correct on principle.

It is urged that certain instructions given to the jury were erroneous. But, if they were, we will not reverse a judgment in an equity case because of. erroneous instructions upon certain issues, where the court exercised its independent judgment in making its own findings of fact, and where such findings are supported by the evidence, without regard to the issues found by the jury. That is this case, for the verdict of the jury was not conclusive upon the questions submitted, —it was advisory only, — and the judge made his own findings, approving some of those found by the jury, and making some of his own. By this action, all the findings that he made, whether or not in harmony with those that had been made by the jury, became the court’s findings, and, if supported by the evidence, must be upheld, -notwithstanding an erroneous charge to the jury. It follows that an erroneous instruction could do plaintiff no injury, if the findings of the court were justified by the evidence, and the determination of that question is made by sifting the facts without regard to the action of the jury. (Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Sweetser v. Dobbin, 65 Cal. 529, 4 Pac. 540; Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965.) Possibly exceptional cases may arise where this rule should not be applied, but the present is not one of them. We therefore place our affirmance upon the issue of abandonment, which was decided by the court against plaintiff. This decision is sustained by the evidence.

Various errors are assigned upon rulings in the admission and exclusion of evidence, but we find no error affecting the issue of plaintiff’s abandonment.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly, being disqualified, took no part in this decision.


text:
    BANDMANN, Respondent, v. DAVIS, Trustee, Appellant.
    [No. 1,149.]
    [Submitted October 16, 1899.
    Decided December 4, 1899.]

      Contract — Damages for Breach — Lease — Pleading — Practice.

    In ari action to recover a judgment for damages occasioned by the breach of a certain contract: JHeid, that the particular contract upon which the action was based was not a lease.

      ON MOTION NOR REHEARING.
    1. The objections urged at the trial to the reception of evidence under a complaint were, that one of the causes alleged in it arose ex delicto, whereas the other arose ex contractu and was not separately stated and numbered: Held,, that a motion to exclude evidence, or an objection to receiving it, is not the remedy for the intermingling in one count of several causes of action.
    2. A demurrer is the only remedy by which a complaint may be attached upon the ground that causes of action are improperly united therein.

      Appeal from District Court, Missoula County; Frank EL. Woody, Judge.

    Action by D. E. Bandmann against A. J. Davis, as trustee of the First National Bank of Butte City, a corporation. From a judgment in favor of plaintiff and from an order denying a new trial, the defendant appeals.
    Affirmed.
    Copt op the Contract Upon Which the Action is Based.
    “This agreement, made and entered into this 18th day of April, 1895, by and between Daniel E. Bandmann, of Missoula, Montana, party of the first part, and A. J. Davis, Trustee, of Butte City, Montana, party of the second part:
    ‘ Witnesseth, That whereas, the said second party is trustee of certain bonds executed by the Canon Ditch Company, and is also lessee of the said Canon Ditch; and, whereas, the said first party is the owner of property through which said ditch has right of way, and resides near the head of said ditch;
    “Now, therefore, this agreement, said party agrees to repair the said ditch from its head to the lower end. of his ranch and .to put the same in good running order and to maintain the same during the season of 1895; that is to say, from the present time to the close of the irrigating season, for and in consideration of the sum of ($250) two hundred and fifty dollars, to be paid as he shall need from time to time during the said season; said second party to furnish at the Blackfoot Mills such lumber as shall be needed for repairs, and to supply such nails and oakum in Missoula as shall be necessary to keep up the said ditch; the said second party agrees to use all due diligence in apprehending and punishing any person or persons who in any manner without authority shall interfere with the operation of said ditch or any part thereof.
    “In addition to the above consideration, the said first party shall and receive without further consideration than above specified, not to exceed a one-tenth of the water of said ditch, according to'the measurement of the same; the first party to deliver in the flume of said second party nine-tenths of said waters.
    ‘ ‘And, further, said second party, or his representative or agent, shall at all times have access to any portion of said ditch, and have full charge of all head-gates or openings from said ditch, and the right to close the same, and open all waste-gates as he may see fit; provided, that at all times the said first party shall be entitled to receive the one-tenth of the waters of said ditch, as before provided.
    ‘ ‘In witness whereof, the parties hereto have set their hands and seals the day and year first above written.
    “Daniel E. Bandmann,

      “Party of the hirst Part.

    “Andrew J. Davis,
    ‘ ‘Party of the Second Part. ’ ’

      Mr. F. hi. Harwood, and Mr. George A. Claris, for Appellant.

      Mr. Marcus L. Grouch, and Mr. F. G. Webster, for Respondent.
   PER CURIAM.

— The subject of this action is a contract, its cause is the breach thereof by defendant, and its object is to recover a judgment for the damages occasioned by such breach. From a judgment for §1,600 in favor of the plaintiff, and from an order denying a new trial, the defendant appeals.

The consideration of the many specifications of error has engaged our careful attention. We are satisfied that no error prejudicial to the defendant was committed by the district court, and that substantial justice under well recognized principles of law has been meted out by the judgment. To discuss and determine seriatim the points made by the defendant would serve no useful purpose, and we therefore refrain from encumbering the records and reports with comparatively useless matter. We may observe, however, that the contract upon which the action is based is not a lease.

[Decided January 29,1900.]

The judgment and the order refusing a new trial are affirmed.

Affirmed.

ON MOTION FOR REHEARING.

The earnestness with which counsel for the defendant have pressed the motion for a rehearing has induced us to reexamine the record and again consider their various assignments of alleged error. Further deliberation has served only to strengthen the conclusion announced in the former opinion. That the contract which was the subject of the action is not a lease is apparent; but, if it were a lease, the evidence offered by the defendant would, if received (and in his abstract he treats it as proof adduced), have been conclusive against him; for the plaintiff was ousted from the possession of the property let by the defendant to him by one Cook, who had title under a sheriff’s deed to the property, issued after a sale under a money judgment in his favor, which judgment had been duly docketed and was a lien prior to the inception of any right in the defendant to take possession. True, the defendant held a mortgage from the then owner of the real property which antedated the docketed judgment, but the mortgage was in the common form and contained nothing authorizing new dealings or agreements which would affect a lien subsequently acquired; and the lien by judgment, although inferior to the lien of the mortgage held by the defendant, attached prior to the making of the new agreement between the defendant and the mortgagor. It is plain that Cook was the owner of the real estate at the time he ousted the plaintiff therefrom, his ownership being subject to the defendant’s mortgage; and that the defendant is liable to the plaintiff for the breach of the covenant of peaceable possession and quiet enjoyment, implied in the lease.

One of the causes of action is not separately stated and numbered, and is not as well averred as it might have been; the objections urged at the trial'to the reception of evidence under it were that one of the causes alleged in the complaint arose ex delicto, whereas the other arose ex contractu, and was not separately stated and numbered. A motion to exclude evidence, or an objection to receiving it, is- not the remedy for the intermingling in one count of several causes of action; nor is there remedy other than demurrer, by which the complaint may be attacked upon the ground that causes of action are improperly united therein. Moreover, each cause of action arose out of the same contract, and they were such as may properly be united in the same complaint. In this Court the defendant urges, in addition to the objections made below, that the statement so attacked is insufficient in substance to constitute a cause of action. As has been said, it might have been better draughted, but it is an example of the defective statement of a cause of action, and not of a defective cause of action alleged.

If we assume that it was the duty of the defendant to prevent damage to his crops and trees if he could do so by a trifling expense, the position of the defendant is not bettered, for the reason that the evidence tended to show that the plaintiff made reasonable but unsuccessful efforts to obtain water, and the charge of the court upon this point, as well as upon the whole case, was at least as favorable to the defendant as the law warrants.

No error prejudicial to the defendant was committed, and the motion for a rehearing is denied.

Denied.


text:
    PURDUM, Appellant, v. LADDIN et al., Respondents.
    [No. 1,389.]
    [Submitted December 4, 1899.
    Decided December 5, 1899.]

      Mimes and Mining — Declaratory Statement — Location—Description.

    Political Code, Section 3612, providing that the declaratory statement containing a description of a mining claim filed with the county clerk must contain the location and description of each corner, with the markings thereon, is mandatory, and a compliance with its provisions is necessary to perfect a valid location, hence a statement describing a claim by metes and bounds, and giving no description of the corners or the markings thereon, is invalid.

      Appeal from District Court, Madison County; M. II. Parker, Judge.

      Action by James W. Purdum against A. Laddin and others. From an order sustaining defendants’ motion for a new trial, plaintiff appeals.
    Affirmed.

      Mr. R. B. Smith and Mr. L. D. Hall, for Appellant.

      Hr. J. E. Healey, for Respondents.
   PER CURIAM.

— The plaintiff, claiming ownership, except as against the United States, of the Cataract lode mining claim, situate in Madison county, brought this action to recover possession thereof from the defendants. The answer denies that plaintiff is the owner, and puts in issue the validity of the location under which the plaintiff asserts title; and avers that the defendants are owners of the Cliff lode mining claim, which embraces the ground alleged by the plaintiff to be included within the exterior boundaries of the supposed location of the Cataract lode mining claim. A ver die b for the plaintiff was set aside, and a new trial granted. The plaintiff appeals.

During the progress of the trial the plaintiff offered in evidence the declaratory statement of the location of the Cataract lode mining claim, containing the following reference to the corners: “This location is distinctly marked on the ground, so that its boundaries can be readily traced by a stake set at discovery shaft, where this notice and statement is posted this 15th day of October, A. D. 1895, and by substantial posts or monuments of stone at each corner of the claim, and the exterior boundaries of the claim, as marked by said posts or monuments, are as follows, to wit: Beginning at the N. E. corner, No. 1, a nut pine tree on the south bank of Cataract creek, about mile S. W. of Mammoth Lake, and extending 1,500 feet in a westerly direction to N. W. corner, No. 2, on the southwest bank of Cataract Lake, thence, southerly direction, 600 feet, to corner No. 3, thence easterly 1,500 feet to corner No. é, which corner is a balsam a fir tree; thence north 600 feet to place of beginning.” The defendants objected to the introduction of the declaratory statement for the reason, among others, that it does not comply with Section 3612 of the Political Code of Montana, in that it fails to show the location and description of each corner, with the markings thereon. The objection was overruled, the declaratory statement admitted in evidence, and the defendants excepted. The order sustaining the motion for a new trial was granted upon the sole ground that the court erred in admitting the declaratory statement.

In granting a new trial, the district court did not err. Section 3612 of the Political Code provides that, within 90 days from the date of posting upon the claim the location notice required by section 3611, there must be filed with the county clerk a declaratory statement, which must contain, among other things: “7. The location and description of each corner, with the markings thereon.3 3 The statute is mandatory, and substantial compliance with its provisions is necessary to perfect a valid location. UA location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations.3 3 (Belk v. Meagher, 104 U. S. page 284, 26 L. Ed. 735; Garfield M. & Mining Co. v. Hammer, 6 Mont. 53, 8 Pac. 153.) That the legislative assembly had power to enact sections 3610 to 3613 of the Political Code is, in this state, too firmly established to permit of serious discussion or doubt; and that the provisions of these sections are mandatory, reasonable and not in conflict with any act of congress, seems clearly within the principles announced or tacitly recognized in O' Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; McCowan v. McClay, 16 Mont. 234, 40 Pac. 602, and Sanders v. Noble, 22 Mont. page 119, 55 Pac. 1037.

The cases of Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 384; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728, and O' Donnell v. Glenn, supra, were decided prior to the adoption of the Political Code of 1895, and under statutes which did not require that the trees, stakes or monuments must be marked so as to designate the corners of the mining claim, nor that the declaratory statement must contain the description of, and the markings on, each corner,- — in other words, until 1895 the declaratory statement was sufficient, in that respect, if it described the claim in the manner provided by Section 2324 of the Revised Statutes of the United States. (Rev. St. Mont. 1879, page 590, Sec. 873; Comp. St. Mont. 1887, Fifth Division, page 1054, Sec. 1477.)

The order granting a new trial is affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT

text:
    HORST, Respondent, v. SHEA, et al., Appellants.
    [No. 1,155.]
    [Submitted October 17, 1899.
    Decided December 13, 1899.]

      Mines a/nd Mining — “Mining Claims’’’ — Placer Crou/nd— Adverse Possession — Actions—Statute of Limitations.

    Code of Civil Procedure 1895, Section 494 (Compiled Statutes 1887, first Division, Section 40), providing that no action for the recovery of mining claims, lode claims excepted, or for the recovery of possession thereof, shall be maintained, unless it appears that the plaintiff or his assigns was seized or possessed of such mining claims within one year before the commencement of such action, is not applicable to 'real estate patented as placer ground, and hence adverse possession of such land for one year after the issuance of the patent is not sufficient to devest the owner of title, and such adverse possession does not bar an action for its recovery.

      Appeal from District Court, Silver Bow County/ John Lindsay, Judge.

    Action by Barbara Horst against Con.- Shea and others. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    Affirmed.

      Mr. J. L. Wines, and Mr. M. L. Wines, for Appellants.
    Whether a patented placer mining claim be called real estate or not, still respondent is estopped from denying the nature and characteristics of the ground embraced within the patent, or the nature of the title, and will not be heard to say in an action in which she relies upon such patent that the ground ceases to be placer ground as soon as the patent was issued. This applies to the grantee named in the patent and to all subsequent owners in privity with such grantee. (Bawle on Covenants for Title, 4th Ed. pp. 388-389; 3d Ed. p. 407; Gibson v. Chouteau, 39 Mo. 536.) The plaintiff cannot claim title, and thereby protection under such title, and at the same time deny its availibility to her contestants. (Robertson v. Pickrell, 109 IT. S. 608 — 617.)
    The officers of the land department judicially determined, in the issuance of a patent in this case, that the mining ground embraced in such patent was placer ground, and this determination is conclusive in this action. St. Louis Smelting & Refining Co. v. Kemp, 104 IT. S. 636, and in this case a mining claim is defined to be ££a parcel of land containing precious metals in its soil or rock. ’ ’ Our contention is that this action is barred by the provisions of the statutes and codes, by reason of the fact that the ground in controversy is, and was, a placer mining claim, and that more than one year had elapsed after the issuance of the patent, and before the commencement of this action, during all of which time appellants were in the actual, open, notorious, exclusive and adverse possession, by improvement and enclosure, and by claiming to be the owners thereof, as against all the world, including the government of the United States. Courts of eminent ability, and after an exhaustive examination of this question, have directly decided in favor of our contention. Without deciding the question now before the Court, this Court has upheld the one year statute of limitations by holding that the general law of limitations of actions for the recovery of real estate does not apply to placer mines and quartz lodes in construing Chapter 80, Laws of 1877. (Pams v. Clark, 2 Mont. 310.) We next desire to call the attention of the Court to a decision by the Supreme Court of the State of Nevada, that of Southend Mining Co. v. Tinney, 35 Pac. Hep. 89, 93-94.) It will be found upon page 93, above cited, that the statute of limitations in the state of Nevada, having relation to mining claims or mining ground, was identical with the Montana statutes now under examination, except that the period was two years instead of one. In that case the mining claim in controversy was a patented claim, and the same contention was urged as is being urged in the case now before the Court. What the Supreme Court of Nevada says in that case touching the definition of the word “seized or possessed” is applicable to the statute now under examination, as the same words are used in the Montana statute. Under the old definition of the words “seized or possessed,” these words usually applied only to a title in fee, and not to a mere possession. ‘ ‘Seized’ ’ or ‘ ‘possessed’ ’ of the fee was the form of expression generally used, and such words were usually supposed to exclude everything less than a fee simple title. In the state of California, the same as in Montana, they have a statute giving a material-man, who furnishes material or performs work or labor upon any mining claim, a lien for such materials or labor. In a case decided by the - Supreme Court of California, the very ridiculous position was taken that a party furnishing materials for, or labor upon, a mining claim, could not avail himself of the statute unless such mining claim was unpatented. (Bewich v. Muir, 83 Cal. 368-372.) If an argument can be based upon the fact that the Legislature of the State of Montana has more than once used the expression “mining claim,” giving such expression the same definition for which we contend, then such argument can be found in Sections 524 and 2130 of the Code of Civil Procedure. If the contention should be made that the term “mining claim,” as used in those two sections, would exclude patented claims, it would not be considered tenable for one moment by this Court. The same contention is equally untenable when made in the case, now under examination.

      Mr. F. T. McBride, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This action was brought to recover the- possession of a par-eel of land lying in the county of Silver Bow. From a judgment in favor of the plaintiff, and from an order denying a new trial, the defendants have appealed. The admitted facts ■are these: On the 10th day of January, 1891, the United States, by patent of that day, granted to one John Noyes and one Elmira Noyes certain placer mining ground, including the land in controversy, the title to which became vested by mesne conveyances in the plaintiff. For 3-]- years next before the commencement of the action, — January 7, 1896, — the defendants held adverse possession of the land for the purpose only of residence thereon. Chapter II of Title III of the First Division of the Compiled Statutes of 1887 prescribed five years’, and Chapter II of Title II of Part II of the Code of Civil Procedure prescribes ten years’, adverse possession of real property as necessary to defeat an action brought to recover it; and, since less than five years of adverse possession has been shown, the defendants do not now, although they -did in the district court, urge in defense the statute of limitations of either five or ten years applicable to real property in .general. They insist, however, that their adverse possession for one year after the issuance of the patent is sufficient to ■devest the plaintiff of, and invest them with, the title to the land in dispute. Counsel argue that Section 10 of the First Division of the Compiled Statutes of 1887, and Section 191 of the Code of Civil Procedure of 1895, which are in terms identical, are applicable to real estate patented as placer ground. If this be true the judgment is erroneous, and the court erred in refusing to grant a new trial. The plaintiff contends that the sections last cited treat of unpatented placer mining claims, and have no reference to the adverse possession of such land after the legal title thereto has passed from the United States. The single ultimate question, therefore, is: Does the adverse possession of real property for one year after it has been patented as placer ground bar the maintenance of an action for its recovery? The question in another form is: Do the words ‘ ‘mining claims, ’ ’ in sections 10 and 191, include lands patented as placer ground ?

Sections 486 and 494 of the Code of Civil Procedure are as follows:

“Section 486. In every action for the recovery of I’eal property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof, within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for ten years before the commencement of the action. ’ ’
“Section 494. No action for the recovery of mining claims (lode claims excepted), or for the recovery of possession thereof, shall be maintained, unless it appears that the plaintiff or his assigns was seized or possessed of such mining claims within one year before the commencement of such action. ’ ’

Aside from the change in section 2 hereinafter mentioned, which was wrought for a time by an act approved on January -11, 1872, these sections have been part of the statute law of the territory and state of Montana since the 9th day of February, 1866, when “An Act concerning Limitations” was approved; in that act they appear as sections 3 and 2, respectively, and are found on page 466 of the Bannack Statutes. Section 2 has, with the exception noted, been continually in force, by revisions, compilations, codifications and re-enactments, from the day it became a law until the present time, and is found incorporated in the Compiled Statutes of 1887, as Section 40 of the First Division, and in the Code of Civil Procedure of 1895 as Section 494. Section 4 of the act of 1865 has likewise been continued in effect from the 9th day of February, 1865, the only difference being in the time required to rebut the presumption attending the legal title; it is Section 32 of the First Division of the Compiled Statutes of 1887, and Section 486 of the Code of Civil Procedure of 1895.

Until the 26th day of July, 1866, persons exploring the public domain, and removing minerals therefrom, were, technically, trespassers. By the terms of an act approved on that day (14 Statutes at Large, Chapter CCLXII, page 251) congress declared the mineral lands of the public domain to be free to exploration and occupation, subject to such regulations as might be prescribed by law, and to such customs and rules of miners as might not conflict with the federal laws. The act also limited the extent of lode claims, and provided that the title to lode mines might be acquired. But not until the act of July 9, 1870 (16 Statutes at Large, Chapter CCXXXY, page 217; Revised Statutes, Secs. 2329-2331), did congress define the maximum area of placer claims, or permit locators to obtain patents for them. Intermediate the act of July 26, 1866, and the act of July 9, 1870, placer locations, if made in conformity with local rules and customs, were valid, whatever their form or area; by the act of 1866, the government granted a privilege and license for the exploration and occupation of its placer lands, but they could not. be patented. As has been remarked, prior to July 26, 1866, federal legislation was silent on the subject of public mineral lands in the territory of Montana. At the time, therefore, that Section 2, supra, now Section 494 of the Code of Civil Procedure, was passed — February 9, 1865 — it was not possible to obtain the legal title to placer mining claims, for they were not patentable as such until the act of July 9, 1870, became operative; hence it is manifest that the first legislative assembly carefully distinguished between, property held as an unpatented placer claim and land to which the legal title had been secured from the United States, prescribing that adverse possession for one year of a placer nining claim should bar an action for its recovery, whereas three years of such possession was declared necessary to devest the beneficial ownership of, or the legal title to, other real property. The reasons for the enactment of section 2 may be only surmised. As has been already observed, there was not, anterior to July 9, 1870, any provision of the federal law limiting the area of placer claims, and examination of the Session Laws of Montana, fails to disclose any statute prescribing their size, — by the act of 1866 the matter seems to have been confided for' regulation entirely to the varying customs of mining districts, and prior thereto congress had failed to recognize any right or privilege whatever with respect to the occupation or exploration of the public mineral lands. Although the first legislative assembly, by sections 3 and 6 of an ‘ ‘Act relating to the discovery of gold and silver quartz leads, lodes or ledges, and of the manner of their location,” approved on December 26, 1864, found on pages 327 and 328 of the Bannack Statutes, restricted the area of ‘ ‘claims on lodes’ ’ to not more than 200 feet along the lode, with 50 feet on each side for working purposes, and required the “notice of the discovery or pre-emption upon any lead, lode or ledge” to be filed for record in the office of the county recorder within 15 days after discovery or pre-emption, yet the act of March 5, 1883, was the first statute which even went so far as to authorize the recordation of declaratory statements of placer locations (Laws of 1883, p. 95; see Moxon v. Wilkinson, 2 Mont. 421, 424.) Under the circumstances existing in 1865, it may not be unreasonable to assume that the purpose of the first legislative assembly in enacting section 2 was, as expressed in the dissenting opinion in South End Mining Co. v. Tinney, 22 Nev. 67, 35 Pac. 106, to prevent the holding of large tracts of the public mineral lands ‘ ‘without any title but that of the right of possession, and without working the same for an unreasonable length of time.” At the time section 2 was enacted, and until the act of congress of July 9, 1870, a placer claim in Montana might embrace, unless prohibited by some rule or custom of the mining district, as much of the public domain as the locator could occupy; the right to continue in possession was not dependent upon the performance of any labor on, or exploration of, the claim. It is not unlikely that section 2 was designed to lessen or check abuses which might be practiced under the conditions existing in 1865, tending to retard the mineral resources of the territory. What the particular reason or motive was which caused the first legislative assembly to except placer mining claims from the supposed operation of. the three years’ period of limitation, and to prescribe as applicable to them, and to them only, the period of one year, is not of importance, since the legislative intent so to do is unmistakable. Whether, under the decisions and intimations in Davis v. Clark, 2 Mont. 310; King v. Thomas, 6 Mont. 410, 12 Pac. 865; Weibold v. Davis, 7 Mont. 107, 14 Pac. 865; Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182; Mining Co. v. Taylor, 100 U. S. 37, 25 L. Ed. 541; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, and Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327, — the provisions of the section are enforceable, we do not decide. That question is not presented in this case.

The first re-enactment of sections 2 and 4 of the act of February 9, 1865, was the one of January 12, 1872, contained in sections 2 and 4 of Chapter XLI of ‘ ‘An act revising, re-enacting and codifying the general and permanent laws of Montana territory,” and found on page 515 of the Codified Statutes of 1871 — 72. The codification made no change in the sections as originally passed; even the numbering was retained. It repealed all acts and parts of acts revised or reenacted therein, and all acts or parts of acts repugnant to its provisions; and declared that its provisions, so far as they were the same as those of existing laws, should be interpreted as continuations of such laws, and not as new enactments. But on January 11, 1872, an act, appearing on pages 591 and 592 of the Laws of 1871-72, was approved, amending the act of February 9, 1865, by changing section 2 of the earlier act so that one year’s adverse possession of unpatented lode, as well as placer, claims, operated as a bar to recovery. It expressly provided that the period of one year’s adverse possession should not apply to placer mines or quartz lodes held under patent from the United States, but that sections 3, 4, 5, 6 and 7 of the act of February 9, 1865, prescribing the three years’ statute of limitations as a bar to the recovery of “real property,” should apply to them. It will be observed that the amendatory act was approved on January 11, while the act re-enacting sections 2 and 4 was approved on January 12, 1872. In view of the repealing clause referred to, it may be that the act of January 12th, being the later expression of the legislative will, annulled so much of the act of January 11th :as prescribed against actions to recover unpatented lode claims the bar of one year’s adverse possession, although in Davis v. Clark, supra, the contrary seems to have been taken for granted or assumed without discussion of the act of January 12th; whether or not such was its effect we need not decide, for section 674 of an act approved on February 16, 1877, found at page 215 of the Laws of 1877,. did repeal the acts of January 11th and 12th, and at the same time re-enacted sections 2 and 4 of the act of 1865 as sections 40 and 32 of the new statute.

The defendants contend that while the legislative assembly, by the act of January 11, 1872, prohibited the application of the term ‘ ‘mining claims’ ’ to patented claims, yet by the repeal of that act, and the omission ever afterwards expressly to exclude patented claims from the operation of the statute prescribing one year’s adverse possession of placer mining claims as a bar, the lawmaking power intended to include patented claims within the term ‘ ‘mining claims, ’ ’ and that therefore Section 40 of the First Division of the Compiled Statutes of 1887, and Section 494 of the Code of Civil Procedure of 1895, apply to both patented and unpatented placers, notwithstanding the fact that these sections are copies of section 2 of the act of 1865, which was passed before patents to any kind of mining claims could be issued. In our opinion, the position is untenable.

It is plain that the amendment of January 11, 1872, formally excluding patented placer claims from the operation of section 2 of the act of 1865, was wholly unnecessary; for such claims were never within the intent and meaning of the statute, and could not have been in contemplation when the section was first enacted; the amendment in this respect made no change whatever in section 2. The primary purpose of the .amendment was to subject actions to recover unpatented lode claims to the bar of the statute of limitations prescribed for .similar actions concerning unpatented placer claims, and thus place both species of claims on an equal footing with respect to the effect of adverse possession. Before the amendment, actions for lode claims not patented were barred, if barred at all, by the three years’ adverse possession applicable to real property held under legal title. The legislative assembly probably entertained the fear that, by amending section 2 so as to make its provisions applicable to lode claims, without ■express negation by apt language of the design to include those held under patent, the section might be susceptible of an interpretation by which actions to recover patented lodes, as well as those not patented, would be deemed within its purview. Had this section been amended so as expressly to prescribe the period of one year’s adverse possession as sufficient to bar actions for placer claims and unpatented lode claims, a doubt, at the least, would arise with respect to the inference or presumption deducible from the employment of the word “unpatented” to qualify lode claims, coupled with the omission to use that word in connection with placer claims; it would be argued, and the argument would be not without force, that the presence of the word in the one instance, and its absence in the other, was significant of an intention to include all placer claims, both patented and unpatented.

We think section 2 of the act of 1865, as re-enacted in sections 40 and 494, supra, must receive the same interpretation now that it did when originally passed; it should not, by construction, be held to include within the phase ‘ ‘mining claims’ ’ real property patented as a placer mining claim. Each reenactment of section 2 was a mere continuance, not a repeal, of its provisions; and there is nothing in the repeal of the act of January 11, 1872, or elsewhere, which is sufficient to raise the presumption that the legislative assembly ever intended to embrace within the words ‘ ‘mining claims’ ’ in section 2 any placer claims other than those held by a mere possessory title.

Another consideration furnishes a potent reason in support of our conclusion. Placer mines are, as a rule, of short life. They are soon exhausted. When the deposits which constitute the only value of placer claims as mines have been extracted or removed, or when it becomes unprofitable to work them, the land is not infrequently devoted to other purposes. It is a matter of common knowledge that many tracts or pieces of land which were originally patented as placer claims, having lost commercial value as mines, are occupied for the-purposes of trade, business and residence, — indeed, in the case at bar, the possession of the defendants was for the purpose last named, and for that alone. Every' patented placer claim eventually loses its distinctive character, and becomes assimilated in all respects to other real property. If the position of the defendants be correct, a city lot, once a placer claim, and patented as such a score of years ago, now owned by a remote grantee of the person who acquired title from the government, would be comprehended by the provisions of Section 494 of the Code of Civil Procedure of 1895, and adverse possession of the lot for one year by a stranger would bar an action for its recovery, as well as invest the disseisor witfi title as against the late owner, although as to all other real estate, namely, real estate not patented as placer' claims, ten years of adverse possession is necessary to produce the effect accomplished by one year’s adverse possession of the lot held under a placer patent. The statute does not warrant such a construction. Without a clear expression of the legislative will requiring the interpretation for which defendants contend, the presumption that the statute was intended to bring about or permit results so unreasonable and unjust may not be indulged.

-The judgment and the order appealed from are correct Each is therefore affirmed.

Affirmed.