text:
    STATE, Respondent v. MAHONEY, Appellant.
    [No. 1513]
    [Submitted June 18, 1900.
    Decided July 2, 1900.]

      Rape — bidictment—Duplicity—Failure to Demur— Waiver— Failure to Object Below — Effect on Appeal — Female Under 16 — Allegation of Violence — Surplusage—Proof not Necessary ■— Instructions Advising Acquittal — Evidence of Female's Age — Proper Refusal — Letter Urging Prosecutrix's Silence — Defendant's Handwriting — foundation for Admission — Relevancy—Instructions—Comments on Weight of Evidence- — Substance Already Given — Proper Refusal.

    1. Penal Code Section 450, deiiues “rape” as “an act of sexual intercourse accomplished witli a female not the wife of the perpetrator, * * * * (i) where the female is under the age of 16 years * * * *; (3) where she resists, hut her resistance is overcome hy violence or torce * « * * .” Section 1922 makes charging more than one offense in an indictment a ground of demurrer; and sections 1930, 2200, and 2320 provide that a failure to demur shall waive demurrable defects appearing on tlie face of tlie indictment. Defendant was charged with carnally knowing a female of tlie age of 15 years, violently and against her wlil. Held, that the objection that the inidctment charged two offenses was waived by a failure to demur.
    2. "Where defendant’s objection that an indictment is bad, as charging more than one offense, under Penal Code, Section 1922. subd. 3, making such duplicity ground for demurrer, is not taken in tlie trial court, it will not be considered for the first time on an appeal.
    3. Where an indictment in a rape case charges defendant witli carnal knowledge of a female under 16, violently, and against her will, and there is ample evidence that tlie female was under 16, it is not incumbent on the state, to also prove that she resisted defendant’s assault, and that he violently overcame her resistance, even though it has been so alleged.
    4. Penal Code, Sec. 2096 authorizes the trial court, when it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit, the jury not being bound to do so. Defendant was charged with having had carnal knowledge of a female under 16 violently, and against her will, and there was ample evidence that she was under 16, though the evidence of her resistance was weak. Held, that the instruction authorized by the Code was properly refused tlie crime being complete, without the element of violently overcoming tlie female’s resistance.
    5. Where defendant in jail on a charge of rape, sends a note to the prosecutrix, also detained as a wituess, in which he urges her to deny everything, not to sign or say anything, and remember her promise, and she testifies on tlie trial that the promise referred to was that she would tell nothing concerning the sexual intercourse between them, the note is relevant, and properly admitted in evidence against defendant.
    6. Where a prosecutrix in a rape case receives a note urging her to deny everything, not to sign or say anything, and to remember her promise, and promising that “we” will be happy yet, and she testifies that she has seen the defendant’s handwriting, and thinks the note is in Ins handwriting, though unable to swear positively that it is so, such testimony is a sufficient foundation for the reception of the note in evidence against the defendant.

      7. "Where instructions requested by defendant contain comments on the weight of the testimony, and directions and advice as to inferences of fact to be drawn from the evidence, such instructions are properly refused.
    8. Where instructions requested by defendant have already been given in substance, it is not error to refuse his request.

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

    Edward Mahoney was convicted of rape and he appeals.
    Affirmed.

      Mr. M. J. Cavcmaugh, for Appellant.
    There were really two crimes charged in the information. Section 450 Criminal Code of the State defines Rape — to be— “an act of sexual intercourse under either of the following circumstances: Where the female is under the age of sixteen years. Where she resists, but her resistance is overcome by force or violence. ” When the prosecutrix undertook to prove a rape under the 3d and subsequent subdivisions of the Statute, her age became immaterial, and the allegation of the age of non-consent was surplusage. If the prosecution wished to rely upon the age of non-consent, they should have charged such crime under another count. (Greer v. State, 19 Am. Rep. 709 and cases cited.) The evidence was all directed to the proof of a crime under the 3d and subsequent subdivisions of Section 450. The female testified she was forced on the 10th day of January, 1897. She made no complaint until July, 1898. This delay was unaccounted for. Delay when unaccounted for throws suspicion upon plaintiff’s case. (Higgins v. People, 58 N. Y. 377; Topslank v. State, 40 Tex. 106; Millitt v. People, 42 Mich. 262; People v. O' Sullivan, 58 Am. Rep. 536; State v. Patrick, 107 Mo. 147.) The testimony of the prosecutrix was uncorroborated as to the crime charged and sought to be proved. (State v. Patrick, 107 Mo. 147.) If the prosecutrix remains friendly with the accused, the facts raise a strong presumption of innocence on the part of the accused. (Barney v. People, 22 111. 160.) The same presumption arises where there is no injury to the clothing or person of the prosecutrix, and she conceal the wrong for several days. {State v. Cross, 79 Am. Dec. 519.) Where the defendant denies the rape, the prosecutrix should be corroborated. {Mathews v. State, 19 Neb. 330; Gazley v. State, 17 Tex. App. 267; Ilall v. People, 47 Mich. 636.) In this case, as late as December, 1897, the prosecutrix denied ever having had intercourse with defendant.
    It was error in the trial court to admit the note alleged to have been written while in jail to prosecutrix, in evidence. It was immaterial for any purpose. It was written more than 18 months after the time referred°to in the information, and more than one year after the prosecutrix became of the age of consent, and in no way referred to any time or act before she was sixteen, and could in no way tend to prove the substantiative fact in the case, to-wit: the rape alleged to be committed on the 10th of January, 1897. It was in no way corroborative of any testimony material to such issue. (Commonwealths. Holmes, 34 Am. Rep. 223.) It was error for the court to refuse the instruction set out in Specification No. 3, Errors of Law in this brief. This instruction was a correct statement of law applicable to the facts in this case. (See Higgins s. People, 58 N. Y. 377.) The court erred in refusing to give the instruction set out in Specification No. 4 of this brief. In the case of {People s: Benson, cited in 65 Am. Dec. 506,) Judge Murray says “From the days of Lord Hale down to the present time no case has ever gone to the j ury upon the sole testimony of the prosecutrix unsubstantiated by facts and circumstances corroborating it, without the court warning them of the danger of a conviction on such testimony.” {Peoples. Benson, 6 Cal. 221; Hevan s. People, 12 Am. Rep. 283; Peoples. Argarla, 51 Cal. 371.) If a person can be convicted on the testimony in this case, no one can protect himself from conviction, where a designing female through malice, jealousy, or other motive, cares to make the charge, and attempts to prove it upon the witness stand by an unsupported, contradictory and improbable story, such as the record shows the story of the prosecutrix to be in this cause. (State v. Me William, 20 Mont. 52 o; O'Boyle v. State, 75 N. W. Rep. 989; Tway v. State, 50 Pac. 188; Kinnon v. State, 42 S. W. Rep. 376; Ship v. State, 45 S. N. Rep. 909; People v. Benson, 65 Am. Dec. 506; Bohlman y. State, 74 N. W. Rep. 343; People v. Tarbox, 46 Pac. 896; Curley v. Territory, 42 Pac. 953; Price v. State, 53 S. W. 988; State v. Mitchell, 38 Pac. 810; Thompson v. State, 26 S. W. 987; State v. Connolly, 59 N. W. 479; Richards y. State, 53 N W. 1027; Statev. Cassidy, 52 N. W. 1; RealiY. State, 17S. W. 951; State y. Patríele, 17 S. W. 666; •Monroe v. State, 13 So. Rep. 884.

      Mr. C. B. Nolan, Attorney General, for the State.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Edward Mahoney, convicted of the crime of rape, appeals from the judgment of conviction, and an order denying his motion for a new trial.

The information charges that the defendant, on or about the 10th day of January, 1897, and before the filing of the information “did willfully and. unlawfully and feloniously and violently, in and upon one Nellie Corbitt, a female then and there under the age of sixteen years, to wit, of the age of fifteen years, the said Nellie Corbitt not being the wife of the said defendant, Edward Mahoney, make an assault, and her, the said Nellie Corbitt, then and there, violently and against her will, feloniously did ravish and carnally know.” As defined by section 450 of the Penal Code, “rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (1) Where the female is under the age of sixteen years * * * (3) Where she resists, but her resistance is over come by violence or force. * *” The first point argued by the defendant is that the information charges two offenses and is therefore violative of that part of section J836, of the Penal Code, which declares that the information must charge but one offense. The only method by which the supposed fault now urged can be taken advantage of is by a demurrer interposed under subdivision 3 of section 1922, of the Penal Code. The failure so to demur is a waiver of the objection. (Sections 1930, 2200, 2320, of the Penal Code.) Again, if the offense be single, the question of whether it should have been set forth in different forms under separate counts was not raised in the trial court, and is therefore not considered here. Any objection to the inclusion in one count of the statement of different forms of the same offense must be made in the district court, and before plea.

The defendant next insists that the evidence was wholly insufficient to support the verdict. After a careful reading of the transcript, we are satisfied that the evidence was sufficient to justify the verdict. One of the suggestions made by counsel for the defendant is that, since the information charges the defendant with ravishing the prosecutrix violently and against her will, it was incumbent upon the state to prove that her resistance was overcome by force or violence even if she was under the age of consent when the defendant copulated with her. Such is not the law. A woman under the age of 16 years is not in Montana capable of giving consent to sexual intercourse. Her submission or want of resistance is not, and cannot be consent. She is incapable of forming a criminal intent to commit the act, and hence, in legal contemplation, is not an accomplice to her own violation. If the prosecutrix was under the age of 16 years when the defendant carnally knew her, the defendant is guilty. Whether she submitted with or without resistance, or even solicited his embraces, is immaterial, except, perhaps, as bearing upon the extent of the punishment to be imposed, and the allegation that the act was done violently and against her will, not being descriptive may be rejected as surplusage. But, if she was sixteen years of age or over, the allegation that the act of sexual commerce was perpetrated by violence and against her will, (or some like averment) is essential, and must be proved. In the case at bar the evidence tending to show resistance by the prosecutrix was weak. There was, however, ample evidence showing that she was under the age of 16 at the time the defendant accomplished the act of sexual intercourse with her.

The defendant requested the court to give the following instruction: “You are further instructed that in the opinion of the court the evidence in this case is insufficient to warrant a verdict of guilty, and you are are therefore advised to render a verdict of not guilty, but this instruction is not binding upon you, and you may notwithstanding this instruction find the defendant guilty as charged.” Error is assigned upon the action of the court in refusing the request. Section 2096 of the Penal Code provides that ‘ ‘if at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury is not bound by the advice.” This section is applicable to those cases only in which the trial court deems the evidence, although tending to prove every element necessary to constitute the crime charged, insufficient in weight to warrant a conviction. _ The interpretation of this section in State v. Welch, 22 Mont. 92, 55 Pac. 927 and in State v. Fisher, 23 Mont., at page 555, 59 Pac., at page 923 is approved. There was, therefore, no error committed in refusing to instruct the jury as prayed.

While the defendant was confined in the jail upon the charge of rape, and while the prosecutrix, Corbitt, was also held in the same jail as a witness, the defendant secretly conveyed to the prosecutrix a letter in which he advised her to “deny everything,” and saying: “if you are taken down on Jack Rand’s case, you say nothing. * * * We will be happy together yet. The world is against us. I have got no home, and you have got none, but we will have one, and if you stay true to your promise we need not fear. Be careful not to sign anything, or say anything. Give your note to Edith. She will send it. Write on the back of this. Remember your promise. ’ ’ The promise made to the defendant, if the prosecutrix is to be believed, was that she would tell nothing concerning the sexual intercourse which had taken place between them. She also testified that she had seen other writings of the defendant, and that, while not willing to swear that the note was written by him, she thought it was in his handwriting. To the reception of the note or letter in evidence, the defendant objected on the ground that it was irrelevant and immaterial, and did not relate to any of the issues of the case; and further, because there was no evidence to show that it was in the defendant’s handwriting, or that he ever sent it to the witness. The grounds urged were manifestly untenable, and the note was properly admitted.

Many specifications of error are based upon the refusal of the court to give instructions prayed by the defendant. Most of the prayers contain comments upon the weight of the evidence, and directions or advice from the court in respect of the inferences of fact to be drawn by the j ury from the evidence; hence such requests were properly refused. The requests for instructions which were free from these vices were, in substance, given in the charge of the court.

Finding in the Record no error prejudicial to the defendant of which he complains, the judgment and the order denying a new trial are affirmed.

Affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WORD,

license: Public Domain

text:
    PENN, et al., Appellants v. OLDHAUBER, Respondent.
    [No. 1216]
    [Submitted June 15, 190).
    Decided July 2, 1900.]

      Mining Clai/m — Annual Representation Work— Customs of Miners— Validity — Appeal and Error.

    1. Rey, St. U. S. Section 2324. provides that the miners in each mining district may make regulations, not in conflict with the laws ot the United States, governing the amount of work necessary to hold possession of a mining claim, provided that no less than $100 worth of labor shall be performed or improvements made on each claim during each year. Held, that a custom among miners in a certain district that 20 days’ labor shall constitute $100 worth of work is in conflict with this section, anti therefore void, for the test is not the number of day’s work performed, but . the worth or reasonable value of the labor performed or improvements made.
    2. V here, in an action of ejectment for the recovery of a mining claim, the evidence of piaintilf’s compliance with the law as to doing the required amount of assessment work is conflicting, the judgment of the trial court in refusing a new trial will be affirmed.

      Appeal Jrom District Court, Deer Lodge County; Theo. Brantly, Judge.

    Ejectment by Gr. W. Penn, and others against Claus Oldbauber. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal.
    Affirmed.
    Statement oe the Case.
    This action is a suit in ejectment brought by plaintiffs against defendant to recover possession of a quartz lode mining claim, known as the “Blue Bell,” situated in an unorganized mining district in Deer Lodge county. In his answer the defendant denied the ownership and right of possession of the plaintiffs to the premises described in the complaint, and as a further and separate defense, alleged that neither the plaintiffs, or either of them, nor any one in their behalf, performed $100 worth of development or representation work, or any work at all, upon said Blue Bell quartz lode claim, or upon any part thereof, during or for the year 1895 and therefore, if said plaintiffs, or.either of them, ever had any right, title, or interest in or to said quartz location, that they have forfeited the same.
    The case was tried to the court without a jury, by stipulation of counsel in words as follows: “In the above cause it is hereby stipulated and agreed that the only issue to be tried or on which testimony shall be introduced, is: Did the owners of the said Blue Bell quartz lode mining claim, mentioned in said complaint, do or cause to be done $100 worth of work and labor and improvements on said claim during the year 1895? — and, if the jury or court shall answer this question in the affirmative, that the plaintiffs shall have judgment for said mining ground and costs. But, if they or the court shall answer in the negative, then the defendant shall have judgment in his favor. It is agreed that all other facts necessary to entitle either party to recover shall be taken as proved; either the plaintiff or defendant to have the right of appeal to the supreme court. Dated the 29th day of March, 1897.” Upon the single question stated in the stipulation, evidence was introduced by plaintiffs and defendant; and upon this evidence the court below found “that the plaintiffs had not performed one hundred dollars worth of work during the year 1895, and that therefore the ground included within the Blue Bell-location became vacant and subject to relocation. ’ The court further held that testimony concerning the rules and customs in the district in which the property in dispute was situated, as to the number of day’s work that constituted $100 worth of work, was inadmissible. From, a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff’s appeal.

      Mr. James W. Forbis, and Mr. Charles M. Parr, for Appellants.

      Messrs Bodgers and Bodgers, for Respondent.
   MR. JUSTICE WORD,

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

In the progress of the trial certain of plaintiffs’ witnesses were each asked, in substance, the question: “Do you know what were the rules and customs among miners in that district [meaning the district in which the Blue Bell lode was situated] as to the number of day’s work that constituted a hundred dollars worth of work?” The answer in each instance was, substantially: “Yes; twenty days’ work.” To this question, whenever asked, the defendant’s counsel objected on the ground that the same was incompetent, irrelevant, and immaterial, for the reason that the rules and customs as to the number of day’s work that” constituted $100 worth of work is not the standard by which the value of the work done upon a mining claim should be measured. The court admitted this evidence subject to defendant’s objection, but afterwards excluded it from consideration on the ground that it was incompetent. This ruling of the court is the only-error assigned by appellants, and upon which they ask a reversal of the case.

The appellants contend that in the year 1895 there was in existence in the district in which the property in controversy is situated a custom to the effect that 20 days’ work performed upon a claim satisfied the requirements of section 2324, Rev. St. U". S., as to annual work, and that evidence of such custom was admissible under section 1321 of the Code of Civil Procedure (Statutes of Montana.)

Section 2324, Rev. St. U. S., among other things, provides that ‘ ‘the miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording amount of work necessary to hold possession of a mining claim, subject to the following requirements: * * * On each el aim located after the 10th day of May, eighteen hundred and seventy-two, and until a patent has been issued, therefor, not less than one hundred dollars worth of labor shall be performed or improvements made during each year:” And said section further provides that, upon a failure to comply with this condition, the claim or mine upon which such failure occurred, shall be open to relocation in the same manner as if no location of the same had ever been made.

A rule or custom like the one appellants sought to establish must not only be reasonable, but it must not be in conflict with the laws of Congress, or of the state. Nor can such a custom authorize a less annual expenditure than that named in the Federal statute. (Sweet v. Webber, 7. Colo. 443, 4 Pac. 752; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. 428, 28 L. Ed. 452.)

From a consideration of this statute of the United States, it appears that, when the contention is as to whether or not a mining claim has been represented for a given year, the test is not as to the number of days’ work done upon it, but what is the worth or reasonable value of the labor performed or improvements made thereon. The value of work done or improvements made is to be measured, not in days, but in dollars. Such work or improvements may add nothing to the value of the claim, but if, when completed, said work or improvements are reasonably worth the sum of one hundred dollars, then this requirement of the statute has been fulfilled. Such, in effect, is the holding of this court in Mattingly v. Lewishon, 13 Mont. 508, 35 Pac. 111, and that ruling we now approve.

Were the principles contended for by appellants to prevail the sole question to be determined in a case like the one now under consideration, where the value of each day’s work had been fixed by custom, would be: How many days’ work has been done upon the claim? All questions as to the worth or reasonable value of the work done, or improvements made, or of the good faith of the owner, would be eliminated. Again, under the provisions of section 2324, Rev. St. U. S., we have a uniform rule as to the performance and as to the value of annual labor. Such would not be the case if the customs of a mining district as to the representation of claims are to be followed. In one district the actual value of tne work performed upon a claim within the number of days fixed by custom might be $100, while in another district, possibly adjacent, the reasonable value of the work done, or improvements made, because of a custom requiring a less number of days to represent a claim, might fall far short of the amount required by statute to be expended on a claim during each year. The actual cost to the same owner of representing claims in different districts, even though the custom as to the number of days’ work required^ to be performed was the same in each, might vary, owing to the difference in the price of labor. Other instances wherein the rule as to the value of the work done or improvements made in representing a mining claim, if the customs of a mining district are tó prevail, would conflict with- that established by section 2324 of the Revised Statutes of the United States, readily suggest themselves. ’ That a custom such as that appellants sought to establish does conflict with said section 2324 is plain. The ruling of the court below excluding the evidence offered by appellants as to the rules and customs of the mining district in which the claim in controversy is situated is approved.

A careful examination of the evidence shows a substantial conflict therein, and the judgment of the court below and the order refusing a new trial are accordingly affirmed.

Affirmed.

Mr. Chief Justice Brantly being disqualified, takes no part in the foregoing opinion.


author: PER CURIAM

text:
    KILLHONIC, Respondent, v. NUSS et al., Appellants.
    [No. 1239.]
    [Submitted July 3, 1900.
    Decided July 3, 1900.]

      Appeal and Error — Designation of Errors — Brief-—Argument — Dismissal of Appeal.

    Where Appellant fails to file a brief, or appear and make an argument after he has received notice of the time at which the cause has been set down for argument, he will be deemed to have abandoned his appeal, and the judgment appealed from will be affirmed, since it is incumbent on him to point out the errors relied on for a reversal.

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

    Action by Elmer Killhonic against Charles A. Nuss and another. From a judgment in favor of plaintiff, defendants appeal.
    Affirmed.

      Mr. Wm. M. Bickford, for Appellants.
   PER CURIAM

— This appeal is from a judgment entered on the 12th day of February, 1898. The cause was on the 28th day of May, 1900, set for argument today, and the parties were duly notified by the clerk of the setting. The appellants have neither filed a brief nor made any argument. All they have done in this court is to lodge the transcript with the clerk. It is incumbent upon the appellants to point out in the manner provided by the rules of practice, the errors upon which they rely for a reversal; the failure so to do will operate as an abandonment of the appeal, and require the aifirmance of the judgment. (Adams v. Bankers Life Association, 13 Mont. 222, 33 Pac. 192; State v. Dakin, 15 Mont. 556, 39 Pac. 848; Brewster v. Johnson, 51 Cal. 222; Edmondson v. Alameda Co., 24 Cal. 350.)

The judgment is affirmed. Affirmed.


author: PER CURIAM.

text:
    HURLEY, Appellant v. O’NEILL, Respondent.
    [No. 1485.]
    [Submitted July 2, 1900.
    Decided July 3, 1900.]

      Appeal — Notice of Appeal — Appeal from Judgment and from Order Denying New Trial — Undertaking on Appeal— Abandonment — Dismissal.
    Held, that where an appellant served notice that he desired to appeal from a judgment and an order denying a new trial, but the undertaking referred to an appeal from the judgment only, the appeal will be treated as abandoned as far as it relates to the order denying a new trial, and to that extent will be dismissed, irrespective of the intention of appellant.

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

    Action by Mary Ann Hurley against Patrick O’Neill. From a judgment in favor of defendant, and an order overruling a motion for a new trial, plaintiff appeals. On motion to dismiss the appeal as to the order denying a new trial. Dismissed.

      Messrs Sinclair & Dygert, for Appellant.

      Mr. John, N. Kirie, for Eespondent.
   PER CURIAM.

— Motion to dismiss an appeal from an order denying plaintiff’s motion for a new trial. It is based on the ground that this court has no jurisdiction of the appeal, for the reason that appellant has hied no undertaking to make the appeal effectual under section 1724 of the Code of Civil Procedure.

It appears from the record that the appellant gave notice of appeal both from the judgment, and from the order denying her a new trial, but the undertaking hied recites the appeal from the judgment only, and contains no reference to the appeal from the order. Under these circumstances, the only inference permissible is that the appeal from the order was abandoned. Whether this was done intentionally or not, the result is the same; for, though we have held that, upon an appeal from a judgment and an order denying a new trial, only one undertaking need be hied ( Watkins v. Morris, 14 Mont. 354, 36 Pac. 452; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129,) we cannot agree that an undertaking is sufficient to effectuate the appeal from the order where the undertaking contains no reference to an appeal therefrom. The question here presented was decided by this court adversely to appellant in Withers v. Kemper, (not reported) during the present term. See also, Berniaud v. Beecher, 74 Cal. 617, 16 Pac. 510 ; Schurtz v. Romer, 81 Cal. 244, 22 Pac. 657; Pacific Paving Co. v. Bolton, 89 Cal. 154, 26 Pac. 650; Duncan v. Times Mirror Co., 109 Cal. 604, 42 Pac. 147.) The motion must therefore be sustained.

Dismissed.

      Note — There was no written opinion filed in Withers v. Kemper; the order of dismissal was entered June 29,1900. — O. T. O.


author: Mr. CHIEF JUSTICE BRANTLY,

text:
    STATE, Respondent, v. LUCEY, Appellant.
    [No. 1512.]
    [Submitted June 26, 1900.
    Decided July 16, 1900.]

      Criminal Law — Homicide—Evidence—Hes Gestae — Motive— Opinion — Evidence — Flight and Concealment — False Statements by Defendant — Instructions — Practice — Identification of Instructions.

    1. Where the state’s theory was that a homicide was committed for the purpose of robbing deceased of money which defendant knew he intended to draw from the bank, evidence as to the amount of deceased’s deposit was admissible, as tending to prove the motive.
    2. Any evidence that tends to show that the defendant had a motive for killing the de" ceased is always relevant; this rule is especially applicable to cases where responsibility for the homicide rests entirely upon circumstantial evidence.
    3. Proof of motive is not indispensable to a conviction, if the crime is otherwise clearly established.
    4. Where deceased, departing from home, took with him a satchel, leaving behind a packed trunk, testimony as to the similarity of the laundry marks on linen contained in a satchel found after his death and those on linen contained in the trunk was admissible to identify the contents of the satchel as deceased’s.
    5. Conversation had between defendant and deceased, before starting out on a journey which, according to the state’s theory, was planned by defendant to entice deceased to his death, was admissible as a part of the res gestae notwithstanding it had no apparent significance.
    G. Testimony of the sheriff that, when arrested, defendant turned away, “as though he was about to be devoured,” was admissible, in the absence of a specific objection that the expression was vague.
    7. As an exception to the general rule excluding opinion evidence, a witness may be permitted to state his conclusion upon matters with which he is especially acquainted, but which cannot be specifically described.
    8. Evidence of efforts made to apprehend defendant after the discovery of a crime was admissible to show defendant’s flight and concealment, from which guilt might be inferred.
    9. Proof tending to establish flight or concealment is always competent.
    10. Where defendant accounted for his scratched appearance shortly after deceased’s death by saying he had been ejected from a certain train, testimony of the train’s crew that they were the only persons on the train, and that no one had been put off on the day in question, was admissible.
    11. Evidence tending to show that after the homicide, defendant gave a false account of himself, is competent, as such fact was a circumstance strongly indicative of his guilt.
    12. Where proper instructions were given, distinguishing murder in the first and second degrees, and telling the jury to find the degree, and there was no proof from which manslaughter could be inferred, failure to instruct the jury specifically that they might find defendant guilty of either degree of murder or manslaughter was not error.
    13. A party cannot complain of an instruction which he himself requested.
    14. Where in a criminal case, indorsements required by Code of Civil Procedure, Sec. 1030, subd. 7, as amended by Ses. Laws of 1897, page 241, providing that the court shall mark eacli instruction “Given,” “Refused,” or “Modified,” and all shall be filed as part of the record, were not made at the time of the trial, as the better practice requires, they may be identified subsequently by an entry ordered to be made in the minutes.

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

    Daniel Lucey was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Statement of the Case.
    On July 1, 1899, in the district court of Silver Bow county, the defendant, Daniel Lucey, was found guilty of murder of the first degree, and on September 26, thereafter was condemned to death. From the judgment and an order denying him a new trial, he has appealed.
    The evidence disclosed by the record tending to connect defendant with the homicide is entirely circumstantial, but no contention is made that it is not amply sufficient to sustain the finding of the jury. It is sought to reverse the judgment and order appealed from upon alleged errors in rulings by the trial court upon questions arising upon the admissibility of certain evidence, and in a failure to properly instruct the jury upon the law applicable to the case.
    The story of the crime, as shown by the evidence, is the following: On September 2, 1898, the defendant and deceased, who had been residing in Butte, Montana, made preparations to go to the mining districts in the Coeur d’Alene country, Idaho, to seek work in the mines there. About 3 o’clock in the afternoon they went together to the house of Michael Began, a brother of deceased, where the deceased had been boarding. In a few minutes the two left; the deceased stating that he was going to the bank, where he had a deposit of $550, to obtain expense money. The bank was closed for the day, and the money- was not obtained. Be-turning presently to his boarding house, deceased borrowed from a friend, who also boarded there, $25, consisting in part of a $20 gold piece. At about 25 minutes to 9 o’clock in the evening the defendant came to the house, bringing a valise, which was almost empty. He remained about five minutes, during which he and deceased put into the valise the clothes of deceased which were deemed necessary for the trip. Defendant apparently took no extra clothing. The deceased had a trunk, but locked it and left it behind, after putting into it his other belongings, taking the key with him. He also put into the trunk his certificate showing the amount of his deposit in bank. Thereupon the two left in company, ostensibly to take the train for Anaconda, about 28 miles to the northwest. About 10:30 o’clock they were seen together at Rocker, three miles from Butte, on the wagon road, leading to Anaconda. There they entered a saloon, bought some beer and a bottle of whiskey, and then departed for Silver Bow Junction, five miles further along the road, intending to find lodging for the night there. Neither was seen thereafter until the following morning, when the defendant came down the Butte, Anaconda & Pacific Railroad, walking from toward Butte to Gregson station, carrying the valise. His clothes were wet and torn, and his face and hands scratched and bleeding. This station is 18 miles from Butte, toward Anaconda. He accounted for his condition by saying that he was on the early morning train, going from Anaconda to Butte, and had been thrown off by a brakeman, falling into the water at the roadside. He at once began to drink at a saloon near the station house, offering in payment a ijj>20 gold piece. The Butte, Anaconda & Pacific Railroad connects Butte and Anaconda, winding down Silver Bow canon and along Deer Lodge river. At the mouth of the canon the roads turns west towards Gregson. During the forenoon of September 3d the body of deceased was found in Deer Lodge river, a short distance above the mouth of the canon. The front of the head and face was crushed in as if by a blow from a blunt instrument. " The pockets of the clothing upon the body were turned inside out, except the watch pocket in the pantaloons. A $5 gold piece was found in this pocket. Nothing else of value was found. At a distance of 1280 feet up the river, between it and the railroad, the ground showed evidences of a struggle. There were pools of blood by the track, and a trail of blood leading through a wire fence to the river, about 125 feet distant. The wire fence was broken. At the river bank, in the sand, were human tracks. Near the pools of blood were picked up stones having upon them clotted blood and human hair. On the trail leading to the river were picked up some small coins, and the trunk key belonging to deceased. The body was brought to Gregson about 11 o’clock in the forenoon by the same train from which defendant claimed to have been thrown in the early morning, the crew discovering it on the return trip. The defendant had remained there and continued his drinking until shortly afterwards, when he disappeared. Before going, he purchased a ticket to Bntte. He left the valise at the ticket window in the station house. He was seen at Anaconda late the following night, but again disappeared; and though search was made and rewards offered for him, his whereabouts were unknown until A]jril 17, 1899, when he was apprehended at Cripple Creek, Colo. The evidence does not disclose, except from defendant’s own statement, whether the defendant knew that the deceased had money upon his person. The defendant knew of the amount of the deposit of deceased, and claims, also, that he knew of deceased’s failure to reach the bank in time to withdraw any of it, as well as the fact that deceased borrowed expense money necessary for their intended trip.

      Messrs. Hamilton & Thresher, for Appellant.

      Mr. O. B. Nolan, Attorney General, for the State.
   Mr. CHIEF JUSTICE BRANTLY,

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

Exception is taken to the action of the court in permitting the witness, Kate Began, the sister-in-law of deceased, to state, over the objection of defendant, how much money the deceased had on deposit in the bank, and what evidence he held of such deposit. The theory of the state was that the homicide was committed for the purpose of robbery. The evidence on the part of the state up to this point tended to establish this theory. It showed that defendant and deceased had been engaged in the afternoon of September 2d, in preparing for their proposed journey to Idaho; that the defendant probably knew of the amount of money deceased had on deposit, and that he held a certificate for it. It also showed that he probably knew that deceased intended to withdraw the money, or a part of it, during the afternoon; for the deceased came with the defendant to the house of the Regans during the afternoon, and after staying a few minutes, the two hurried away again together; the deceased stating to the witness that he was going to the bank to get money for his expenses, and to pay her for board. Evidently their appearance at the house at this time was to secure the certificate, in order to draw the money. When deceased returned alone, presently, he told the witness that he had failed to get the money, because the bank was closed, and that he had borrowed §25. The evidence was clearly admissible as tending to prove motive. It furnished facts from which the jury could draw the inference of robbery, and the state was entitled to this inference. “Any evidence that tends to show that the defendant had a motive for killing the deceased is always relevant, as rendering more probable the fact that he did kill him. ” (Underhill on Criminal Evidence, Section 323.) This rule is especially applicable to cases like the present, where responsibility for the homicide rests entirely upon circumstantial evidence. (1 McLain, Cr. Law, Section 416; State v. West, Houst. Cr. Cas. 371; People v. Ah Fung, 17 Cal. 377.) The presence or absence of it is not conclusive, however, but is to be considered as any other eyidentiary fact bearing upon the ultimate question of the guilt or innocence of the defendant, and is more or less significant in the light of the facts of the particular case. The finding of a motive is not indispensable however. Were this true, it would oftentimes be impossible to secure conviction; for such is the nature of the human heart, and so various are the springs of action hidden therein, that it is often impossible to fathom it and assign any motive whatever to the act under consideration. Under such circumstances it is the duty of the jury to convict, notwithstanding the lack of proof tending to show motive, if the crime is otherwise clearly established. (Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 110, 38 L. Ed. 208; Johnson v. United States, 157 U. S. 321, 15 Sup. Ct. 611, 39 L. Ed. 717.) Whether the evidence complained of as improperly admitted, was sufficient to satisfy the jury that the murder of Regan was committed for the purpose of robbery, or not, it was proper matter for consideration. (1 McLain, Cr. Law, Section 116; State v. Crowley, 33 La. Ann. 782; Howser v. Com. 51 Pa. St. 332; Early v. State, 9 Tex. App. 476; Kennedy v. People, 39 N. Y. 215 Marable v. State, 89 Ga. 425, 15 S. E. 453; Kerr on Homicide, Section 172.) The relevancy and materiality of this evidence were not affected by the subsequent admission of the defendant, when sworn as a witness, that he knew all about the financial condition of deceased, and ■of his failure to-obtain any money from the bank.'

After the same witness had identified the articles of clothing taken from the valise left by defendant at Gregson, ■on the morning after the homicide, the court permitted her to recount to the jury the opening of the trunk which deceased had left at her house. She stated that this was accomplished by means of the key which was shown to have been found on the trail leading from the supposed scene of the homicide to the river. The witness then proceeded, over the objection of defendant, to enumerate the articles found in the trunk, and to compare the laundi’y marks upon some shirts and collars taken from among them with the same character of marks upon others found in the valise. • The marks were shown to be the same, and thereupon all the articles were exhibited to the jury. Defendant alleges that this was prejudicial error. The evidence was properly admitted. The defendant took the valise to Gregson station, and left it there, where it was after-wards found. It was competent to identify the articles found in it as the property of the deceased, both upon the question of motive, and as tending to corroborate the statements of witnesses who identified the defendant himself as the person who came to Gregson from the direction of the place, where the body of deceased was found. The identification could properly be made by the testimony of the witness, who knew the articles, or by way of comparison of the laundry marks upon them with those upon the articles known and admitted to belong to deceased, or by both methods. The identity of these marks was also strongly corroborative of the statement of the witness, who claimed to know and recognize the articles taken from the valise as the property of deceased.

Exception is also taken to the part of the statement of the witness, Maggie Donohue, in which she related the substance of a conversation between defendant and deceased while engaged in packing the valise at the house of Michael Regan. Something was said about how deceased would manage to get his trunk” to the Coeur d’Alene country, where they were going. Defendant told deceased that after they had settled down, he (defendant) would send for his wife, and that she would call at Regan’s for the trunk and take it with her. This statement was clearly a part of the res gestae. The parties were engaged in preparation for their proposed joui-ney, upon the first stage of which the homicide was committed. Upon the theory (which in the light of all the proof, is not improbable) that the defendant deliberately enticed his unsuspecting companion to an untimely death, the jury were properly allowed to consider all that was then said and done, as a part of the entire transaction. It matters not that the particular remark had no apparent significance; nor does it alter the case that the defendant subsequently testified that he was never married. The office of the jury was to inquire into the whole transaction, from the time of its inception until its completion and to draw therefrom their own conclusion as to the guilt or innocence of the defendant. (Kerr on Homicide, Section 429; People v. Potter, 5 Mich. 1; 1 McLain, Cr. Law, Section 411; State v. Donelon, et al 45 La. Ann. 744, 12 South. 922.)

Jerry D. Murphy, the undersheriff of Silver Bow county, who went to Cripple Creek, Colo, to bring the defendant back to Montana after the arrest, was sworn as a witness, and testified as to the appearance and behavior of the defendant at the time the witness first saw him. The witness was asked to describe defendant’s actions. He replied: “He was shaking and very, nervous, and went by me and turned his head away from me, as though he had run onto something he didn’t want to see. He turned right away, as though he was about to be devoured. ’ ’ Counsel moved the court to strike the last sentence of his answer from the record, but assigned no ground for the motion. The motion was denied. Exception is taken to this ruling. The demeanor of a defendant at or about the time he is charged with a crime is always proper matter of evidence to go to the j ury as indicative of a guilty mind. So, also, the jury may, for the same reason, be permitted to consider his acts and conduct at the time of his arrest, and to draw such inference from them as experience and observation of human conduct may suggest. Caution should be observed in considering such evidence, however lest an inference of guilt be improperly drawn from the fear and excitement naturally evinced by an innocent man when he is suddenly confronted with a serious charge, and is overcome by contemplation of the possible consequences to himself and family. (1 Rice on Evidence Section 318; Greenfield v. People, 85 N. Y. 75; McAdory v. State, 62 Ala. 154; Bishop’s New Cr. Proc. Section 1249.) The evidence elicited was clearly competent. (Com. v. Sturtivant, 117 Mass. 122; Wharton’s Cr. Ev. Sections459, 460.) The whole statement is a compound of fact and conclusion, — a “shorthand rendering of the facts” as they were observed by the witness, — and falls within the exception to the general rule excluding opinion evidence, under which a witness may be permitted to state his conclusion upon matters with which he is especially acquainted, but which cannot be specifically described. (Id. Section 460.) The use of the expression, ‘ ‘as though he was about to be devoured, ’ ’ was perhaps objectionable on the ground that it is vague and conveys no definite idea. But, in the light of the other part of the statement, it is reasonably certain that the witness intended to convey the idea that the defendant appeared to be in fear and that the jury so understood him. The defendant suffered no prejudice by the ruling, though the expression might well have been rejected if the motion had been made upon the proper ground.

Proof was admitted showing the effort made by the officers of Silver Bow county immediately after the homicide, and subsequently up to the date of the arrest, to find and apprehend the defendant; and, as a part of this proof, it was shown that a reward was offered, and that notices containing a description of defendant were sent to different places throughout the country. All this evidence was proper. It tended to show flight and concealment on the part of defendant, both of which are circumstances ordinarily indicating guilt. (1 Rice on Evidence, Section 318; People v. Ogle, 104 N. Y. 511, 11 N. E. 53.) The flight or concealment may be apparent only, and may be susceptible of explanation, but proof tending to establish either is always competent.

The persons constituting the crew which took the early morning train from Anaconda to Butte, from which defendant stated he had been thrown, when accounting for his condition on reaching Gregson, were all sworn, and permitted to state that they were the only persons on the train, and that no one had been put off on that particular morning. That this evidence was competent does not admit of discussion. It tended to show that defendant gave a false account of himself at Gregson, and was a circumstance strongly indicative of his guilt. (State v. Benner, 64 Me. 267; Will’s Circumstantial Evidence 108, 109.)

Counsel complain that the trial court committed error prejudicial to the defendant in failing to instruct the jury specifically that they were at liberty to find the defendant guilty of either degree of murder or manslaughter. The information charges murder of the first degree. An examination of the instructions shows that the court, after giving to the jury the statutory definitions of all grades of homicide, submitted, also instructions clearly and correctly distinguishing murder of the first and second degrees. They were also instructed that, if the proof justified a verdict of guilty of the crime charged in the information, they should find the degree. There was no proof tending to establish facts from which the jury could infer the crime of manslaughter. Under the proof the defendant was guilty of murder, or he was innocent. This being the case, the instructions were sufficient. The court was not required to leave to the jury the question as to whether the defendant was guilty of manslaughter. (State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Fisher, 23 Mont. 540, 59 Pac. 919.) For while, under the rule as stated in State v. Fisher, it was necessary to instruct upon murder of the second degree, in order that the jury might be left to consider the question of the presence or absence of deliberation, it was perhaps, not necessary for the court to go further, and define manslaughter, although it was entirely proper to do so. By the definition of this latter grade of homicide the jury were given a clearer understanding of the elements necessary to constitute the only crime of which the defendant could properly be found guilty; that is, murder of the first or second degree. No juror, after hearing or reading the instructions as a whole, could have been mistaken as to his duty in the premises; nor could he have understood that the court intended to exclude from his consideration the question as to whether the defendant was guilty of murder of the second degree. In the particular under consideration, the instructions furnish no ground for complaint.

Among the instructions are two paragraphs submitted at defendant’s request. Complaint is made that they are comments upon the weight of the evidence, and were therefore, prejudicial. It is not necessary to quote these paragraphs or to comment upon them. Conceding that they are open to the criticism counsel make, the defendant cannot complain. (Territory v. Burgess, 8 Mont. 57, 19 Pac. 558; Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333, 8 L. R. A. 440.) They are not inconsistent with the other instructions, and are favorable to the defendant, rather than the contrary.

We- take occasion in this connection to remark upon the duty of trial courts in regard to the identification of instructions. Under the various provisions of our Code of Civil Procedure, and the Penal Code, the instructions given and refused are deemed excepted to, without a bill of exceptions, and are made part of the judgment roll and the record on appeal. ^Code of Civil Procedure, Sections 1080, 1151, 1176, 1196; Penal Code Sections 2070, 2176, 2229; Wastl v. Montana Union Railway Co. 24 Mont. 159, 61 Pac. 9.) The same rule applies to both civil and criminal cases. Subdivision 7 of section 1080 of the Code of Civil Procedure, as amended by the act of 1897 (Ses. Laws of 1897 p. 241), provides: “The court shall either give each instruction as requested, or positively refuse to do so, or give the instruction with a modification, and shall mark or endorse upon each instruction so offered in such manner so that it shall distinctly appear what instructions were given in whole, or in part, and in like manner those refused. All instructions given by the court must be filed, together with those refused, as a part of the record. ’ ’ The amended section is identical with the old section, except that the old section required parties requesting instructions to sign them, while this provision is omitted from the amended section. The amendment was overlooked in the discussion in Wastl v. Montana Union Railway Co. supra, because not called to our attention, but this in no wise affects the decision upon the point presented. The provision of the subdivision ■quoted requires the trial court to identify the instructions as those given to the jury, either in the form requested, or as modified, as well as those requested and refused. This identification is directed to be made by the indorsements upon the instructions themselves, and the clear implication is that the indorsement should show, also, at whose instance the particular instruction was given. In this way it is made clear to this court what reviewable errors, if any, have been committed by the trial court to the prejudice of the complaining party. Being thus identified and filed with the record, as required, under the section cited they are a part of the record on appeal. As was said in Wastl v. Montana Union Railway Co., they may also be identified and made a part of the record by bill of exceptions. Inasmuch as the minutes of the trial in criminal cases must also be a part of the judgment roll, and record on appeal (Penal Code, Section 2229), we see no reason why, if the indorsements are not made under the requirements of section 1080, supra, the identification may not be made subsequently by an entry in the minutes of the trial. In the present case, the record failing to properly identify the instructions, upon proper motion by the attorney general, the identification was permitted to be made by the court below, by an order made as of the date of the trial, and the record amended accordingly. Much the better practice, however, is for the court to follow the statute in spirit as well as in the letter, and make the proper indorsements at the time of the trial.

Several other assignments of error are made by counsel. We have carefully examined them all They are without merit.

The judgment and order appealed from are therefore affirmed. Affirmed.


author: Mr. JUSTICE PIGOTT,

text:
    RALEIGH, Plaintiff, v. FIRST JUDICIAL DISTRICT COURT, Defendant.
    [No. 1555.]
    [Submitted July 10, 1900.
    Decided July 16, 1900.]

      Probate Law — Contest of Will — Res Judicata — Mandamus.
    1. Where a contest of a will was dismissed because not stating a cause of action, such dismissal did not deprive contestant of the right to maintain a subsequent contest based on other grounds.
    2. Under Code of Civil Procedure, Articles 1 and 2, Chapt. 2, Title 12, Part 3, one desiring to contest a will may file a Statement of opposition to the probate of the will at any time prior to the hearing of proof of the will; obiter, possibly the right may continue until the admission to probate.

      a. Where a district court erroneously struck from the flies a contest of a win on the ground that it was inadmissible, because of a former contest, which had been dismissed as not stating a ground of contest, as an appeal would not lie from the order a writ of mandamus will be granted to compel the court to take jurisdiction.
    4. Refusal to take jurisdiction, or after haying acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a preliminary question of law upon which the court refused to examine the merits, will be corrected by mandamus.
    Application in the Supreme Court by Medora T. Ealeigh for writ of mandamus against the district court of the First judicial district to compel it to restore to its files a second contest to the probate of a will.
    Writ granted.

      Mr. T. J. Walsh, Messrs. Sanders & Sanders, and Mr. Massena Bullard, for Plaintiff.

      Messrs. Glayberg and Gunn, Mr. H. G. Melntire, and Mr. II. 8. Hepner, for Defendant.
   Mr. JUSTICE PIGOTT,

delivered the opinion of the court.

This is an application for a writ of mandate to the district court of Lewis and Clarke county, commanding it, among other things, in substance, to reinstate and entertain jurisdiction of a contest instituted by the plaintiff on the 5th day of May, 1900, of the alleged will of one Albert G. Claike, deceased. An alternative writ was issued, and the court through its judges, showed cause by answers. The petition and answers disclose these facts: On the 10th day of January, 1900, the Honorable Sidney H. Melntire, one of the judges of the district court of Lewis and Clarke county, appointed the 23d day of January, 1900, as the time for the-hearing of a petition praying for the probate of the alleged will, and of two alleged codicils thereto (one bearing date the 16th day of January, 1899, and the other having been made on the 27th day of June of that year) of Clarke, deceased. On the day appointed for the hearing, the plaintiff in the present proceeding, appeared and filed the statement of her grounds of opposition to the probate of the purported will, in so far as the codicil of January 16, 1899, was concerned, alleging that such codicil was no part of said will, the testator having been induced to make the codicil by the fraud and undue influence of certain devisees, and legatees. The petitioners for the probate of the will traversed the averments of the contestant touching the fraud and undue influence, and also pleaded matter in avoidance. The contestant, by reply, joined issue on the new matter. On the 2d day of May, 1900, the contest came on for hearing before the court sitting with a jury, whereupon the proponents of the will objected to the introduction of evidence and to the court’s proceeding further in the cause, and moved that the grounds of opposition be over-ruled, for the reason that the execution of the second codicil was a republication of the original will as modified by the codicil of January 16, 1899, and because the grounds of opposition were confined solely to the first codicil; there being no allegation that the testator was of unsound mind at the time of the execution of the last codicil, or that he was induced to make it by fraud, duress, or undue influence. Before the submission of the motion, the contestant offered to file, and serve amended grounds of opposition, alleging that at the time of the making of each of the codicils, the decedent was not free from fraud or undue influence, but, on the contrary, that certain of the legatees and devisees, had exercised, and did then exercise, over him, undue influence, and practiced fraud upon him, whereby he was induced to make the codicil dated January 16, and also the later one of June 27th. The proponents objected to the allowance of the amended statement of grounds of opposition to the will, for the reason that the proposed amended protest set forth a new and different cause of action from that originally filed, which objection was sustained on the 4th day of May. On the same day the objection theretofore interposed to the reception of any evidence in support of the allegations of the contest and the motion to overrule the contest were, respectively, sustained and granted, and the contest was dismissed. The court then adjourned the hearing of the petition to prove the will to the 5th day of May, at the hour of 2 o’clock in the afternoon. On that day, and before the hour appointed, the contestant filed a duly-verified statement other grounds of opposition to the probate of the will, the statement setting up the same objections that were contained in the amended statement of opposition offered to be filed on the 2d day of May; at the hour of 2 o’clock on the 5 th day of May the proponents of the will moved to strike from the files the statement of contest; on May 26, the court granted the motion, and refused to proceed further with the contest, the court basing its action upon the supposed fact that the contestant had, at the time originally appointed, for the hearing of the petition to prove the will, filed her written opposition to the probate of the will, assailing the first codicil only. The court held that one contest had already been filed and disposed of upon law points, and that the statute will not permit successive contests before probate. After the court, through Judge Mclntire, had stricken the grounds of opposition from the files, the matter of hearing proof of the execution of the alleged will and codicils was, upon motion of the contestant, transferred by Judge Mclntire, to the other department of the district court, presided over by the Honorable Henry C. Smith, as judge, with the request that Judge Smith act in the place of Judge Mclntire in hearing the proof touching the execution of the will and codicils. Since the transfer to Judge Smith’s department, no hearing has been asked for, or had.

Upon the foregoing facts the defendant moves this court to quash the alternative writ of mandate and dismiss the proceeding, for the reason that neither the petition nor alternative writ states facts sufficient to authorize the granting of the peremptory mandamus, or any relief whatever. The plaintiff on the other hand, moves the court to grant a peremptory writ of mandate herein, notwithstanding the answers.

Two questions are presented: (1) Did the plaintiff have the right to file written grounds of opposition to the probate of the will after the dismissal of the first contest, and subsequently to the day originally appointed for hearing the petition for the probate of the will, but at the time to which the hearing was postponed? (2) Is mandamus the proper remedy? These two questions, only, are necessarily involved. Whether or not the court erred in refusing to permit the plaintiff to amend her grounds of contest, and whether or not the court was right in dismissing the first formal contest, we need not inquire. Nor is it essential. that we consider the scope or effect of that part of section 2, of Article VIII, of the constitution of Montana providing that the supreme court “shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law. ’ ’ This provision was touched upon in State ex rel. B. and M. C. C. & S. Mining Co. et al. v. Second Judicial Dist. Ct. 22 Mont. 220, 56 Pac. 219; and provisions resembling it have been considered in (Vine v. Jones, Judge (S. D.) 82 N. W. 82; State ex rel. Fourth Nat'l Bank v. Johnson, Circuit Judge, 103 Wis. 591, 79 N. W. 1081; State, ex rel. Padron v. Judge, 31 La. Ann. 794; Tawas, etc., Railroad Co. v. Judge, 44 Mich. 479, 7 N. W. 65; City of Detroit v. Judge, 79 Mich. 384, 44 N. W. 622.) With regard to the doctrines announced in these cases which we have cited for convenient reference, no opinion is expressed.

The court held that the first contest failed to state any ground of opposition to the will, and therefore dismissed it. Before the hearing of the petition, the plaintiff caused to be filed the statement of the new grounds of opposition to the will; this the court refused to consider, and struck from the files, for the reason that the plaintiff had already attempted to maintain a contest which had been disposed of upon law points, the statute not permitting successive contests before probate. It is to be observed that the first attempted contest was dismissed because it failed utterly to state any ground of opposition to the probate of the will, and that the second contest was dismissed because there had already been a contest instituted against the will. Without commenting upon this seeming inconsistency, it is enough to say that the institution and dismissal of the first intended contest did not deprive the plaintiff of the right to commence and maintain a subsequent contest based upon other grounds. Neither the common law nor the statute recognizes the doctrine applied by the court in striking from the files the second statement of contest. In this court, counsel for the defendant argue that, because the plaintiff failed to institute the second contest at the time originally appointed for the hearing of the petition for probate, the court was correct in striking it from the files. Their contention is that one desiring to contest a will before probate must, at the time appointed for the hearing, file his statement of the grounds of opposition, and that a contest instituted thereafter, even though it be at the time to which the hearing was postponed, is too late. In our opinion, such is not the interpretation of those sections of Articles I and II of Chapter II, Title XII, Part III, (Sections 2320-2346) of the Code of Civil Procedure, pointing out the procedure with respect to the probate and contest of wills. We are satisfied that the statement of opposition to the probate of the will may properly be filed at any time prior to the hearing of proof of the will. The interpretation contended for by counsel, cannot be indulged without giving to the statutes a meaning of which their language is not fairly susceptible.

Is mandamus the proper remedy? The plaintiff possessed the absolute right to institute the second contest. The district court struck the contest from the files for the reason that, as the court believed, the law did not permit it to be filed. But the law specially enjoined upon the district court the duty to entertain jurisdiction and proceed in the regular exercise thereof, and to refrain from striking a contest for the reason assigned. Refusal to take jurisdiction, or, after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a preliminary question of law, upon which the court refused to examine the merits, will be corrected by mandamus. The rule that mandamus will not issue to control discretion or to revise judicial action, but only to direct the court to act in such matter, is to be understood as applying only to the act to be commanded by the writ, and not to the decision of purely preliminary questions of law only If the rule applied to such preliminary questions then, to use the language of Mr. Hayne in section 323 of his treatise on New Trials and Appeals, “no writ of mandamus could ever issue, and the machinery provided by the Code for trying such questions would be useless. The distinction above stated applies not only where the act to be performed is purely ministerial, — such as the signature of a warrant, the payment of a claim, or the like, — but also where it is judicial in its nature. ” In Castello v. Circuit Court, 28 Mo. 259, it was held that “where an inferior judicial tribunal declines to hear a cause upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. ’ ’ Judge Scott in concurring, expressed the opinion that if the inferior court had quashed the proceeding upon an erroneous interpretation of the statute requiring a notice to be given, mandamus would not lie, but, that, if notice was not required by any law or rule of practice then, that the inferior court had no authority to exact the giving of such notice, and mandamus would lie. In the present proceeding there was no law or rule of practice which prevented the institution of the second contest at any time prior to the hearing of the petition for the probate of the will, — possibly the right may continue until the admission to probate. If the statute or the law required that a contest be commenced at or prior to the time originally appointed for the hearing of the petition, or prescribed that not more than one contest should be instituted by the same person, and the court, upon applying the facts to the statute, or law, had erroneously decided against the plaintiff, holding that the contest of the plaintiff was within the inhibition of such statute or law, then, perhaps, the judgment or discretion of the lower court could not be controlled by mandamus. Mr. High, in section 151 of his work on Extraordinary Legal Remedies, says: “A distinction is recognized between cases where it is sought by mandamus to control the decision of an inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law or of practice preliminary to the final hearing. And, while, as we shall see, the decision of such court upon the merits of the controversey will not be controlled by mandamus, yet if it has erroneously decided some question of law or of practice presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case, mandamus will lie to compel it to proceed.”

Although the writ of mandate will not lie to correct errors committed by a court while exercising its judicial discretion upon the merits of the case (either of law or of fact) within its jurisdiction, as was held in State ex rel. Independent Pub. Co. v. Smith, Judge, 23 Mont. 329, 58 Pac. 857, yet, to adopt the language of the Supreme Court of the United States in Ex parte Parker, 120 U. S. 737, 7 Sup. Ct. 767, 30 L. Ed. 818, which case has been cited with approval in State ex rel. Mathews et al. v. Eddy, 10 Mont. 311; 25 Pac. 1032,— the writ of mandate does “properly lie in cases where the inferior court refuses to take jurisdiction where by law it ought so to do, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof.” In the Parker case the Supreme Court of the territory of W ashington refused to hear a case taken to that court by appeal, because it considered, upon an erroneous interpretation of the statute, that the parties were not in court for the purposes of appeal, and the court dismissed the appeal for want of jurisdiction. The Supreme Court of the United States issued a peremptory mana anuís commanding the territorial court to reinstate the appeal, and proceed, in the exercise of its jurisdiction, to hear and determine the same upon its merits. (Ex parte Schollenberger, 96 U. S. 369, 24 L. Ed. 853; Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697 28 L.Ed. 602; Hollon Parker, Petitioner, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123; Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. 611, 37 L. Ed. 432; and In re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211 —in which writs of mandate were issued, are well-considered cases upon this subject.) The doctrine announced by the supreme court of the United States, and the principles deduced by the text writers mentioned from a consideration of the cases, are well nigh universally recognized and followed by the English and American courts, as will appear by an examination of the following citations: (Castello v. Circuit Court, supra; State ex rel. Huey v. Cape Giardeau Court of Common Pleas, 73 Mo. 560; State v. Laughlin, 75 Mo. 358 State ex rel. Shannon v. Hunter, 3 Wash. St. 92, 27 Pac. 1076; Ferguson v. Kays, 21 N. J. Law, 431; People ex rel. Fishers v. New York Common Pleas, 18 Wend. 534; Wood v. Strother, 76 Cal. 545, 18 Pac. 766; Floral Springs Water Co. v Hives, 14 Nev. 431; State ex rel. Keane v. Murphy, 19 Nev. 89, 6 Pac. 840.) Nor is this court without the authority of its own adjudications which either expressly or tacitly recognize the doctrines and principles referred to: (State ex rel. Mathews et al. v. Eddy, supra; State ex rel. Kellogg v. District Court of First Judicial District, 13 Mont. 370, 34 Pac. 298, and State ex rel. Coleman et al. v. District Court of Third Judicial District, 14 Mont. 476, 37 Pac. 7.)

It is therefore unnecessary now to determine whether, in striking from the files the statement of the grounds of opposition to the will, the district court refused to take jurisdiction of the second contest, or, after having obtained jurisdiction, refused to proceed in its exercise, or, (if this differs from a refusal to proceed in the exercise of jurisdiction) erroneously decided a pure question of law or practice presented as a preliminary objection, and upon such erroneous interpretation refused to entertain the contest; manifestly, the court did the one thing or the other or both, and in either case mandamus is the proper remedy, unless there are other grounds for the denial of the writ.

The plaintiff is therefore entitled to a peremptory writ, unless she has a plain, speedy, and adequate remedy in the ordinary course of law. There is no appeal allowed from the order striking the grounds of contest from the files; but conceding that the error committed by the district court in striking the grounds of contest from the files might be reviewed in this court on an appeal from the judgment admitting the will to probate, yet such remedy would not be plain, speedy, and adequate. In the present state of the calendar of this court, and under the present rules, an appeal from a judgment admitting the will to probate could not be heard within two years after the filing of the transcript, and before that time the right of the plaintiff, conferred by section 2360 of the Code of Civil Procedure, to contest after the probate would have expired. In In re Hohorst, supra, the court said: ‘ ‘The Hamburg-American Packet Company being liable to this suit in the circuit court of the United States for the Southern district of New York if duly served with process in the district and having been so served and the order of that court dismissing the suit as against the corporation not being reviewable on appeal at this stage of the case, there can be no doubt that mandamus lies to compel the circuit court to take jurisdiction of the suit as against the corporation.” In Gaines v. Rugg, supra, the court said: ‘ ‘In the present case, as we have before observed, there was no discretion to be exercised by the circuit court; and, although it might have been admissable to raise the question by a new appeal to the proper court, yet, in view of the delay to be caused thereby, we do not consider that such remedy would have been, or would be, fully adequate, or that a writ of mandamus is now improper. ’ ’ To the same effect is State ex rel. Keane v. Murphy, supra.

Much stress has been laid upon the case of State ex rel. Independent Pub. Co. v. Smith, Judge, supra. Counsel for the defendant assert that it is decisive of the proceeding at bar. That case, however, is not in point. There the district court did not refuse to entertain the action, but took jurisdiction of it, and, if the court erred, the error was not committed in the decision of a question of law preliminary to any investigation, but in a matter in relation to an interlocutory order involving discretion, which could not be controlled by a writ of mandate. There it was also properly held that an appeal from a judgment against the plaintiff therein would furnish a plain, speedy and adequate remedy in the ordinary course of law for the correction of any error committed in refusing to change the venue; an appeal was the only remedy, in that case, and, in contemplation of law, it was in every respect ample.

A peremptory writ will be granted as prayed, commanding fhe district court to restore the second contest to the files, and to proceed therewith in the due exercise of its jurisdiction.

Writ Granted.


text:
    MONROE, Respondent v. CANNON, Appellant.
    [No. 1245.]
    [Submitted June 22, 1900.
    Decided July 10, 1900.]

      Trespass — Assumpsit — Pleading — Willful and Deliberate Herding of Cattle on Unfenced Pasture of another.

    1. In an action in assumpsit a complaint contains all the averments necessary to the creation of a legal liability on the part of the defendant, which alleges, ownership of the land in the plaintiff; ownership of the sheep in the defendant; the fact that the sheep were herded and pastured on plaintiff’s land during a stated period of time; and that such pasturage was worth a stated amount; for from these facts, if proved, the law creates an implied promise and legal liability, although defendant’s sheep were wrongfully on plaintiff’s land.
    2. Where defendant caused his sheep to be herded on what he knew to be plaintiff’s pasture, though the same was unfenced, an action will lie for the value of the grass destroyed by the sheep, notwithstanding Political Code, Sec. 3258, providing that, if an animal break into any fenced inclosure, the owner of the animal shall be liable for damages sustained, since such statute, permitting recovery only where the land is fenced, applies to trespasses committed by animals running at large without the knowledge of the owner, and not to a case where one knowingly and willfully appropriates the use of another’s land.

      Appeal from District Court, Lewis and Clarke county; S. H. McLntire,. Judge.

    Action by Burt Monroe against Henry Cannon. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Statement oe the Case.
    This wasjm action in assumpsit, brought 'in the district. court of Lewis and Clarke county by Burt Monroe, to recover of the defendant, Henry Cannon, the sum of $600, alleged to be due plaintiff Tor pasturage, in that for about ten days, ending on or about the 8th day of December, 1895, defendant herded and pastured his sheep, to the number of about 2,300, upon the land and pasture of plaintiff described in the complaint. The facts of the case, as shown by the pleadings and proof, were substantially as follows: At a time long prior to the bringing of this action, the appellant and his predecessors in interest enclosed by a fence something like 10 sections of land in Cascade county. Part of this land so enclosed belonged to appellant, and a portion thereof was a part of the public domain. To 120 acres of this public land so inclosed by appellant’s fence the plaintiff acquired title. During the spring and summer of 1895, plaintiff built ditches to this land and irrigated it; and the testimony shows that, at the time the sheep of the appellant were driven and pastured thereon, this land of plaintiff had upon it about 90 tons of blue-joint grass, of the value of from four to five dollars per ton. While it is true that, at the time of the injury complained of, plaintiff’s land was unfenced, yet it appears from the evidence that its boundaries were marked by post holes, by ditches, and by stakes placed at intervals along the exterior limits of the land. It further appears from the evidence that the band of sheep which were herded and pastured on plaintiff’s land were at that time in charge of a herder in the employ of the appellant and that the herder knew the boundaries of plaintiff’s land, and admitted that he had been repeatedly asked, and finally had been ordered, by plaintiff’s agents, to keep the sheep in his care off of and away from the premises of plaintiff. This the herder refused to do, saying that he had been told to herd upon plaintiff’s land, by one Morgan, foreman of defendant. The result was that the grass upon plaintiff’s land was eaten up and destroyed. It further appears from the evidence that when the defendant, Cannon, was informed by plaintiff of the acts of his herder and of the damage done, the defendant approved of such acts on the ground that the land was unfenced. Trial was by jury. Verdict for plaintiff for $300. Defendant-appeals from the judgment, and from the order denying his motion for a new trial.

      Mr. Massena Bullard, for Appellant.
    Under the common law a man’s premises were presumed to be enclosed, because it was held that whether he had a fence or other visible enclosure there was upon his line such a legal barrier as to protect him in his possession against trespass. And this legal barrier was more formidable than any sort of artificial fence or other enclosure that could be constructed, so that if animals belonging to B went upon the unenclosed lands of A and committed damage, B would be liable therefor. But where the statute has provided the necessity of enclosing lands by a substantial fence or something equivalent thereto, and has provided for the payment of damages for trespass by animals upon lands enclosed by a legal fence, such provisions are held to negative the right to sue for damages where the premises are not enclosed by a legal fence; and in order to maintain an action it is necessary to allege and prove that the premises upon which the trespass is alleged to have occurred were enclosed by a legal fence. This position has been maintained in a number of states where legal fence laws are in force; and we believe that it is so maintained wherever such laws are in force. Among the states in which the question has been presented and the position above taken assumed are (Colorado: Nuckolls v. Baut, 21 Pac. Rep. 41; Morris v. Fraker, 5 Col. 425; Oregon: Walker v. Blooming camp, 43 Pac. 175; Bilen v. Paisley, 21 Pac. Rep. 234; Campbell v. Bridwell, 5 Or. 3il, French v. Creswell, 11 Pac. Rep. 62; California: Waters v. Moss, 73 Am. Dec. 561; Comerford v. Dupuy, 17 Cal. 308; Illinois: Headen v. Rust, 39 111. 186; Oily. Rowley, 69 111. 469; Stoner v. Shugart, 47111. 76; Misner v. Lightfall, 13111. 609; Kansas: Darling v. Rogers, 7Kas. 592; Larkin v. Taylor, 5 Kan. 434; U. P. R. R. Co. v. Hand, 7 Kan. 380; New York: Rose v. Bunn,' 21 N. Y. 275; Bradley v. Buffalo, 34 N. Y. 427; Nevada: Chase v. Chase, 15 Nev. 262; Nebraska: Delaney v. Erickson, 10 Neb. 492; North Carolina: Burgwyn v. Whitfield, 81 N C. 261; Jones v. Witherspoon, 78 Am. Dec. 263; Missouri: Moore v. White, 45 Mo. 206; Ohio: Kerwhacker
      v. Cleveland, C. c& C. JR. Co. 62 Am. Dec. 246; Cleveland C. <&C. R. Co. y. Elliott, 40 Ohio St. 474; Arkansas: Little Rock ds Ft. S. R. Co. Y. Finley, 37 Ark. 562; Alabama: Lee Co. v. Yarborough, 85 Ala. 590; Wilhite v. Speakrnan, 79 Ala. 400. Iowa: Frazier v. JVortinus, 34 la. 82; Wagner v. Fissel, 3 la. 396; Camp v. Flaherty, 28 la. 520; Indiana: JMJyers v. Dodd, 68 Am. Dec. 624; Clark v. Stipp, 75 Ind. 114; Texas: Clarendon v. McClelland, 31 L. R. A. 669, 22 L. R. A. 105; Pennsylvania: Gregg v. Gregg, 55 Pa. 227.)
    The theory upon which the courts in some of the states have held that without reference to the existence of a statute prescribing a legal fence the common law doctrine with reference to trespass by animals upon unenclosed lands does not prevail is that the common law is not applicable to those states. (Waters y. Moss, 12 Cal. 535.)
    Long prior to the adoption of the constitution of the State of Montana, the territory embraced within its boundaries was used largely for the herding of immense bands of cattle, sheep and horses; marks and brands were provided for certain kinds of animals; fence laws were enacted and enforced, and the statute provided under what circumstances damages should be recoverable for injuries to crops. All these provisions negative the idea that people were required to keep their animals enclosed or that they should be liable for trespass upon unenclosed premises. This position we apprehend would be sustained by the court were the question being presented now for the first time to the courts of Montana; but the Supreme Court of Montana, has already considered and decided this identical question. (Smith v. Williams, 2 Mont. 195; Fant v. Lyman, 9 Mont. 61.)

      Mr. F. F. Stranahan, for Respondent.
   MR. JUSTICE WORD,

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

Appellant concedes the respondent’s ownership of the land, the appellant’s ownership of the sheep, and the value of the pasturage. That respondent’s land was unfenced is undisputed.

To appellant’s objection that the complaint is insufficient, it is enough to say that the complaint contains all the averments necessary to the creation of a legal liability on the part of the appellant. It alleges ownership of the land in the respondent/ ownership of the sheep in' the appellant; the fact that they were herded and pastured on respondent’s land during a stated period of time; and that such pasturage was worth the amount stated in the complaint. From these facts, if proved the law creates an implied promise, and a legal liability, although the appellant’s cattle were wrongfully on the respondent’s land. (De La Guerra v. Newhall, 55 Cal. 21; Fratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380.)

The main contention of appellant is that no action lies, and no damages can be recovered, for trespass by animals on uninclosed lands; and in support of his' position appellant cites the cases of Smith v. Williams, 2 Mont. 195; Fant v. Lyman 9 Mont. 61, 22 Pac. 120, and many others of like tenor from' other states. It is to be observed that most, if not all, of the decisions to which appellant directs our attention rest upon statutory provisions the'same as, or similar to, section 3258, of the Political Code, which is as follows:

“If any cattle, horse, mule, ass, hog, sheep, or other domestic animal break into any enclosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to. the owner or occupant of the inclosure which may be sustained thereby. This section must not be construed so as to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law. ’ ’

The question now arises: To what extent have statutes like the one just cited limited the right of an owner, or of one in possession, of real, property, to recover for trespasses committed upon it? “Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close\ the words of thé writ of trespass commanding the defendant to show cause," — ‘‘‘Qúare clausum qu'erentis jregit. ’’' For every man’s land is, in the eye of the law, inclosed and set apart from his neighbors; and that either by a visible and material fence, as one held is divided from another by a hedge, or by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same held. And every such entry or breach of a man’s close, carries necessarily along with it some damage or other; for if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.” (3 Bl. Comm. 209.)

“Aman is answerable for not only his own trespass, but that of his cattle also; for if, by his negligent keeping, they stray upon the land of another (and much more if he permits, or drives them, on) and they there tread down his neighbor’s herbage, and spoil his corn, or his trees, this is a trespass for which the owner must answer in damages.” (Id. 211, 212.)

While admitting that such would- be the rights of respondent under the common law, appellant contends that the provisions of section 3258, Political Code-, which makes the owner of any animal named therein liable for all damage such animal may do by breaking into an inclosure surrounded by a legal fence, negative the right to sue for damages, where the premises are not inclosed by a legal fence; and that, in order to maintain an.action, it is necessary to allege and prove that the premises upon which the trespass was committed were inclosed by a lawful fence.

If, in the case now under consideration, the damage sustained by respondent had resulted from trespasses committed by cattle or sheep, or other animals named in the statute, lawfully at large and not under the direction or control of their owner, then appellant’s position would be sound. But the evidence in this case presents a different question. Under the conditions disclosed by the record, what rights had respondent? If appellant is right, the respondent, although his grass had been destroyed by the deliberate act of appellant, was without remedy; silent acquiescence was all that was left to him. If appellant is correct, no man whose field, or pasture, or garden is not inclosed by a legal fence, is entitled to any protection under the law from the trespasses of any man who may desire to drive or herd his cattle or sheep upon it. If this is true in this case, it is true in any case where a man’s land is not protected by a legal fence. Take the case of a field in cultivation, or of a garden adjacent to a home. It may be that the fence around each had for years served to keep all animals out, and yet was not as high or as strong as the law required. Can it be possible that any man is at liberty to tear down such a fence, drive his sheep or cattle within, that they may feed upon the contents, and escape all liability on the ground that no man has any right to complain of such injuries whose premises are not protected by a legal fence? Such, in our opinion, is not the law. And we are of opinion that under the evidence in this case the respondent’s right to recover for the damage sustained by him is as clear as would be that of one whose fence had been torn down by another, and the fruits of his labor destroyed. If a man has the right to drive his sheep or cattle upon the uninclosed land of another, and to pasture them there, against the will and wishes of the owner, it follows that he would have the right to go upon the same land, to mow the grass growing thereon, and appropriate it to his own use. The mistake appellant makes is in concluding that the statute providing for and defining a lawful fence, and giving damages for the trespass of certain animals upon premises inclosed by such a fence, does not modify, but abrogates the rights existing under the common law.

Such was the contention in the case of Harrison v. Adamson, 76 Iowa, 338, 41 N. W. 34. In the opinion the court observed: “The allegations of the petition are to the effect that the defendant knowingly and willfully caused his cattle to be driven and kept upon plaintiff’s land. Surely, the owner of uninclosed prairie land is not deprived of his rights in it by any statute of the state in regard to fences, or which authorizes another to use it for pasturage against the owner’s will. If he may so use it, why may he not use it for cultivation? There is nothing to be found in the statutes of this state, or the decisions of this court, depriving the owner of uninclosed land of the profits of the grass and pasture thereon, and exempting one who, against his consent, appropriates the grass or pasture, from liability therefor to the owner. The laws of the state provide that trespass is not committed when cattle which are running at large enter upon uninclosed land. But it is quite a different thing when cattle not running at large, but in the charge and under the control of a herdsman, the employe and agent of their owner, are driven and kept upon nninclosed land against the will of the landowner, and with full knowledge of the owner of the cattle. In that case the trespasser takes and appropriates the use of the land for pasture, and is held by the law liable therefor. In the other case, where the cattle, being at large without the act or knowledge of the owner, go upon the land, the owner is not liable, for the reason that he committed no trespass, and has not knowingly appropriated the use of the land. ’ ’

A like contention as to the necessity of a fence, in order to give a right of action was made in the case of Powers v. Kindt, 13 Kan. 14, an action of trespass to recover for injuries committed by defendant’s cattle to growing crops of plaintiff. The court, in an opinion by Brewer, J., say: “It is insisted that, because the findings show that Kindt had no legal fence, or inclosure around his premises, he was not entitled to recover. But the court also finds that Power’s cattle were driven and herded upon the premises of Kindt against his wishes and consent, and while so driven and herded, destroyed the property as alleged; and as a conclusion of law from the various facts found, that Power’s was guilty of a wanton and willful want of care. This brings the case within the rule laid down in Larkin v. Taylor, 5 Kan. 433, 446. It is claimed that because the plaintiff’s in error employed herders to watch their cattle, and keep them off from other parties’ crops and premises, they could not be held liable where they would not have been held liable if they had simply turned them loose, and they had roamed upon Kindt’s premises, and done the damage complained of. This ignores the fact that the court finds that these cattle were driven and herded upon Kindt’s premises which brings in the element of gross negligence or wanton and willful want of care. ’ ’

The case of Lazarus v. Phelps, 152 U. S. 81, 14 Sup. Ct. 477, 38 L. Ed. 363, an appeal from the circuit court for the Northern district of Texas, was much like the one now under consideration. The defendant in that action (as did the defendant in this) requested the court to charge that “the law is that the owner of stock is not required to keep them in an inclosure, or to prevent them from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced,” and further, “that to entitle the plaintiff to recover in this suit you must believe from the evidence that the plaintiff’s lands were fenced from those leased by defendant. If there was a common inclosure around the lands of plaintiff and those leased by defendant, and no fence separating such lands, then the plaintiff cannot recover. ’ ’ The court in its opinion in the case, said: ‘ ‘The object of the statute [requiring the fencing of lands] is manifest. As there are, or were, in the state of Texas, as well as in the newer states of the west generally, vast areas of land over which so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their lands, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been intended, however, to authorize cattle owners deliberately to take possession of such lands and depasture their cattle upon them, without making-compensation, particularly if this were done against the will of the owner, or under such circumstances as to show a deliberate intent to obtain the benefit of another’s pasturage. In other words, the trespass authorized, or rather condoned, was an accidental trespass caused by straying cattle. If, fox-example, a cattle owner, knowing that the proprietor of certain lands had been in the habit of leasing his lands for pasturage should deliberately drive his cattle upon such lands in order that they might feed there, it would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land, adjoining an unmclosed section of another, and stock his his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such case,5 ’ — citing the following cases: St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, 390, 20 S. W. 855; Kerwhacker v. Railroad Co., 3 Ohio St. 172; Union Pac. Railway Co. v. Rollins, 5 Kan. 167, 177; Larkin v. Taylor, 5 Kan. 433; Delaney v. Errickson, 11 Neb. 533, 10 N. W. 451; Otis v. Morgan, 61 Iowa, 712, 17 N. W. 104; Willard v. Mathesus, 7 Colo. 76, 1 Pac. 690; to which may be added Erbes v. Wehmeyer, 69 Iowa, 85, 28 N. W. 447; Bedden v. Clark, 76 Ill. 338; and Norton v. Young, 6 Colo. App. 187, 40 Pac. 156.

A ixumber of the cases cited by appellant refer to tlhe distinction pointed out in Lazarus v. Phelps, supra, and recognize the rule there laid down. See Nuckolls v. Gaut, 12 Colo. 361, 21 Pac. 41; Walker v. Bloomingcamp, 34 Oregon 391, 43 Pac. 175; Chase v. Chase, 15 Nev. 259, 263; Larkin v. Taylor, 5 Kan. 434; Bileu v. Paisley, 18 Oregon 47, 21 Pac. 934.

The case of Smith v. Williams, 2 Mont. 195, is not at variance with the views herein expressed. That was an action in the nature of trespass to recover damages alleged to have been suffered by reason of the cattle of defendant breaking into the inclosure of plaintiff and destroying his grain. The evidence in the case was not properly before the court, and was not considered. Upon the theory that the cattle were lawfully at large, and were not driven or herded upon the premises of plaintiff by defendant, the ruling of the court in this case can be upheld.

The case of Fant v. Lyman, 9 Mont. 61, 22 Pac. 120, seems to conflict with the views of the court in the present case. We find, however, that the court, in that case used the following language: “Section 1119 of the Fifth Division of the Compiled Statutes subjects the owners of animals to liabilities for any damage done by them by breaking into the lands of another inclosed by a lawful fence. This section negatives the liability of the owner when animals lawfully at large, as in this instance, stray on uninclosed lands in quest of food or pasturage. ’ ’ If the facts in the case were as indicated in that part of the opinion just given, then Fant v. Lyman, supra, is in accord with the conclusions reached herein.

In the case before us, the complaint was amended so as to charge that the defendant “willfully and maliciously” herded and pastured his sheep upon plaintiff’s land. While there was enough evidence of willfulness and malice on the part of the defendant to go to the jury, yet exemplary damages were not asked, and it is admitted that a verdict for the actual damages only was returned. We may say, further, that the action being in contract, the tort having been waived, the original complaint was sufficient, and the amendment made thereto unnecessary.

The judgment and order appealed from are accordingly affirmed. Affirmed.