author: ME. COMMISSIONED CALLAWAY Peb CueiaM. Mi?. Justice Holloway:

text:
    STATE, Respondent, v. KEERL, Appellant.
    (No. 1,993.)
    (Submitted November 20, 1903.
    Decided February 1, 1904.)

      Criminal Law — Murder—Insanity — Instructions — Question for Jury — Information—Averment of Intent to Kill — Averment that Death Resulted from theMortal Wounds Inflicted hy Defendant — Gonclusions of Pleader.

    1. An information for murder need not contain an express averment of an intent to kill.
    2. An information for murder should directly allege that death resulted from the mortal wounds inflicted by defendant.
    3. Averments concluding an information for murder, “and so the said [defendant] did kill and murder the said [deceased],” are merely conclusions of the pleader, and do not cure or aid a defective allegation of the cause of death.

      4. An information, after alleging the infliction — by the defendant upon the deceased — of certain mortal wounds, continued “'of which said mortal wounds the said [deceased] did then and there languish, and languishing did live, and thereafter, on the 21st day of April, A. D. 1902, at the county of Lewis and Clarke, in the state of Montana, the said [deceased] died.” Disapproved as not sufficiently charging that the deceased died from the mortal wounds inflicted by the defendant.
    5. On the issue of insanity in homicide, instructions that an insane delusion must be such that if things were as the person possessed of such delusion imagined them to be they would justify the act springing from the delusion, and that one suffering from a partial delusion was in the same situation as to responsibility as if the facts with respect to which the delusion existed were real, were radically wrong.
    6. In a prosecution for homicide, instructions on the issue of insanity based solely on the “right and wrong test” are in irreconcilable conflict with others based on that tesr as modified by the “irresistable impulse” test, and vitiate the conviction.
    7. In a prosecution for homicide, a charge stating that certain testimony is corroborative of other testimony is a comment on the weight of the evidence, and invades the province of the jury.
    8. In a prosecution for homicide, a charge stating that lunatics and insane persons are incapable of committing crimes, and if defendant was an insane person he should be acquitted, should have been qualified by adding after the words “insane person” a definition of the term “insanity,”- as used in criminal law.
    9. The question whether defendant was affected with insanity to such a degree as would excuse him from the commission of an act otherwise criminal is one of fact for the jury.
    10. Since Penal Code, Sections 20, 21, provide that in every crime there must exist a joint operation of act and intent, or criminal negligence, and that the intent is manifested by the circumstances of the offense and the sound mind and discretion of the accused, an insane person in criminal law is one who is mentally unable to form a criminal intent.
    11. On the question of insanity in homicide, the court should instruct in the language of the statute (Penal Code, Sections 20, 21), then define insanity as any weakness or defect of the mind rendering it incapable of entertaining in the particular instance the criminal intent, supplementing the definition by the comment that criminal responsibility is to be determined solely by defendant’s capacity to conceive and entertain the intent to commit the particular crime, or similar language, and should not give further instructions, but should leave the fact to be determined by the jury.
    Me. Justice Hollowax dissenting in part.

      Appeal from District Court, Leivi-s and Clarice County; Henry C. Smith, Judge.

    James S. Keeel was convicted of murder in the second degree. From the judgment, and from an order denying his motion for a new trial, he appeals.
    Reversed.

      Mr. T. J. Walsh, and Mr. C. B. Nolan, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   ME. COMMISSIONED CALLAWAY

prepared tbe opinion for tbe court.

Tbe defendant lias appealed from a judgment finding bim guilty of murder in tbe second degree, and from an order denying bis motion for a new trial. A number of errors are assigned.

He first attacks tbe information, wbicb, omitting tbe formal parts, is as follows: “Tbat at tbe County of Lewis and Clarke, in tbe State of Montana, on or about tbe lltb day of April, A. D1. 1902, and before tbe filing of this information, tbe said James S'. Keerl did, willfully, unlawfully, feloniously and of bis deliberately premeditated malice aforethought, make an assault upon one Tbomas Crystal, a human being and a certain pistol, commonly called a revolver, wbicb was then and there loaded witb gunpowder and leaden bullets, and by bim, tbe said James S;. Keerl, bad and held in bis right band, be tbe said James S. Keerl, did then and there willfully, unlawfully, fe-loniously and of his deliberately premeditated malice aforethought shoot off and discharge at, upon and into tbe body of said Tbomas Crystal, thereby and by thus striking tbe said Tbomas Crystal witb the said leaden bullets, inflicted upon tbe said Tbomas Crystal certain mortal wounds in tbe back, side and bead of tbe said Tbomas Crystal (a more particular description of wbicb said mortal wounds is to tbe county attorney unknown), of wbicb said mortal wounds the said Tbomas Crystal did then and there languish, and languishing did live, and thereafter, on tbe 21st day of April, A. D1. 1902, at the county of Lewis and Clarke, in tbe state of Montana, tbe said Tbomas Crystal died.” Tbe objections lodged against tbe information are: E'irst. It does not contain an express averment of intent to kill. Second. It fails to allege tbat death resulted from tbe wounds inflicted.

Tbe first objection must be overruled on tbe authority of State v. Metcalf, 17 Mont. 417, 43 Pac. 182, State V. Northrup, 13 Mont. 522, 35 Pac. 228, and Territory v. Godas, 8 Mont. 347, 21 Pac. 26. While the pleading in this respect must be held sufficient under the'cases cited, this court has hitherto suggested that, as following a better practice, prosecuting officers should aver intent specially. (Territory v. Godas, supra.)

The second point urged presents more difficulty. After alleging the infliction of certain mortal wounds, the information continues, “of which said mortal wounds the said Thomas Crystal did then and there languish and languishing did .live, and thereafter, on the 21st day of April, A. D. 1902, at the county of lewis and Clarke, in the state of Montana, the said Thomas Crystal died.”

An information must be direct and certain as regards the party charged, the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. (Penal Code, Sec. 1834.) It is not permissible to convict the defendant upon mere inferences; he must be directly, plainly and specifically charged with the commission of a certain crime, and it must be proved substantially as alleged in order to convict him. In order to convict an accused of murder, the fact of the killing by him as alleged must be proved beyond a reasonable doubt. (Penal Code, Sec. 358.) The fact that the defendant inflicted upon another human being a mortal wound deliberately, premeditatedly, with malice aforethought, and with the intent to kill the victim, is not sufficient to substantiate a charge of murder. The victim must die of the mortal wound, and within a year and a day after the stroke is received or the cause of death administered. (Penal Code, Sec. 357.) If the victim die of the mortal wound, but after a year and a day have elapsed since its infliction, the defendant may not be convicted of either murder or manslaughter. Neither can he be so convicted if, while the victim is languishing because of the mortal wound, death ensues from some cause not connected with or a consequence of the wound. Por these reasons the information should directly allege that death resulted from the mortal wounds inflicted by the defendant. This view being so clearly correct in principle, it would seem that no citation of authorities is necessary, but see Clark on Criminal Procedure, 178; People v. Lloyd.9 Cal! 55; Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89; State v. Sundheimer, 93 Mo. 311, 6 S. W. 52; Maxwell’s Criminal Procedure, 180; Bishop’s New Criminal Procedure, Secs. 527, 531, 532; Wharton’s Criminal Law (10th Ed.), Sec. 536.

In Lutz v. Commonwealth, 29 Pa. 441, while an indictment containing language similar to the one at bar was sustained, the court say: “This indictment is not artistically expressed. Its grammatical construction is open to criticism, and it trenches hard on those rules of certainty which obtain in criminal pléad-ing.”

The attorney general relies on the concluding clause of the information as supplying the defect, because it allegesi, “and so the said James S. Keerl did in the manner and form aforesaid willfully, unlawfully, feloniously and of his. deliberately premeditated malice aforethought kill and murder the said Thomas Crystal.” These words are the mere conclusion drawn from the preceding averments. If the averments are bad, the conclusion will not aid them; if they are good, and sufficiently describe the crime as the law requires, * * * the formal concluding words are immaterial.” (Territory v. Young, 5 Mont. 244, 5 Pac. 248; State v. Northrup, 13 Mont. 522, 35 Pac. 228.)

We cannot give our approval to this information. As this case must go back for a new trial, the information may be amended by leave of the court to conform to the views herein expressed.

The defense interposed was that the defendant, when he committed the homicide, was affected with insanity. The defendant excepts to instructions Nos. 48, 50, 51, 52, 56 and 57, and alleges that 48, 51 and 52 are in conflict with 34, 38, 49, 53, 54 and 55. A discussion of a portion of those excepted to ■ will be sufficient to dispose of the points raised. We quote 52, 56 and 57.

(52) “The standard of accountability is this : Had the defendant, at the time of the commission of the act, sufficient mental capacity to appreciate the character and quality of the act? Did he know and understand that it was a violation of the rights of another, and in itself wrong-? Did he know, that it was prohibited by the laws of this state, and that its commission would entail punishment and penalties upon himself ? If he had the capacity thus to appreciate the character and comprehend the possible or probable consequences of his act, he is responsible to the law for the act thus committed, and is to. be judged accordingly.”

(56) “The court further instructs you that, if you find that the accused was possessed of a delusion or delusions, you are carefully to bear in mind that it is not every delusion that can be considered an insane delusion. The delusion must be of such a character that, if things were as the person possessed of such delusion imagined them to be, they would justify the act springing from the delusion.”

(57) “The court further instructs you that if you find the accused was possessed of a partial delusion only, and was not in other respects insane, then he must be considered in the same situation, as to. responsibility, as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposed another man to be in the act of attempting to take away his life, and he killed that man, as he supposed, in self defense, he would be exempt from punishment; but if his delusion was that the deceased had done a serious injury to his character or person, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

These instructions bring us- to a realm in which the investigator feels himself lost in a labyrinth of conflicting decisions. Of course, any discussion of the principles applicable to insanity as a defense to crime must necessarily be limited hr the particular case in hand. As to what extent juries should be instructed upon this subject and the subject-matter of such instructions is of the greatest importance. Some general rules have always been, and must be, laid down by the courts for the guidance of juries in trials of this character. This view is universally adopted; the only question is, what rule or rules should be adopted, and should the courts lay down any test? The tests of insanity generally adopted by the courts, are the right and wrong test, the irresistible impulse test, the right and wrong test as regards the particular act, and the right and wrong test as modified by the irresistible impulse test. The Supreme Court of New Hampshire denies the existence of any test. (State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242.) '

A majority of the courts seem to follow the right and wrong test laid down in McNaghten's Case. 10 Clark & Finnelly, 200; 1 C. & K. 47 Eng. C. L. Rep. 129; 8 Eng. Rep. Full Print, 718. For this reason, and because instructions 52, 56 and 57 are based upon the doctrines enunciated in that celebrated ease, we are justified in discussing it at some length. We shall do so with special reference to instructions 56 and 57. In 1843 D’aniel McNaghten was tried for the murder .of Edward Drummond. At his trial medical testimony w.as adduced showing that McNaghten was of unsound mind at the time of the killing; that he suffered from morbid delusions; that a person so laboring under a morbid delusion might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of" exercising any control over acts which had connection with his delusion. The prisoner was acquitted, but public feeling ran so high in consequence that the house of lords asked the opinion of the judges on the law governing such cases. Three of the five questions propounded were: “(2) What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defense? (3) In what terms ought the question to be left to the jury as to the prisoner’s state of mind, at tbe time when the act was committed ? (4) If a person nndér an insane delusion as to existing facts commits an offense in consequence thereof, is be thereby excused ?” To the second and third questions the judges answered “that to establish a defense on the ground of insanity it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind,'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” To the fourth question they answered: “Making the same assumption as we did before, namely, that he labors under a partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts, with respect to which the delusion exists, were real. Tor example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes^ in self-defense, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

Dr. Clevenger, in discussing this case, says: “Great ignorance of the nature of insanity is displayed in these answers, which seem to have been constructed with special reference to the popular wishes in the particular instance of McNaghten’s offense;” and then follows with an illustrative criticism in which he demonstrates the absurdity of the abstract right and wrong test, as well as the dangerous and inhuman doctrine enunciated in that part of Mc-Nághterís Case which refers to insane delusions. (Clevenger’s Medical Jurisprudence of Insanity, 19 et seq.)

One of the most learned discussions on this subject is by Mr. Justice Somerville, in Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 193. Trom that opinion we quote with approval the following language: “If the rule declared by the English judges be correct, it necessarily follows that the only possible instance of excusable homicide in cases of delusional insanity would be where the delusion, if real, would have been such as to create in the mind of a reasonable man a just apprehension of imminent peril to life or limb. The personal fear or timid- cowardice of the insane man, althoug'h created by disease acting through a prostrated nervous organization, would not excuse undue precipitation of action on his part. Nothing would justify [excuse?] assailing his supposed adversary except an overt act or demonstration on the part of the latter, such as, if the imaginary facts were real, would under like circumstances have justified [excused?] a man perfectly sane in shooting or killing. If he dare fail to reason, on the supposed facts embodied in the delusion, as perfectly as a sane man could doi on a like state of realities, he receives no mercy at the hands of the law. It exacts of him the last pound of flesh. It would follow also, under this rule, that the partially insane man, afflicted with delusions, would no more be excusable than a sane man would be, if, perchance, it was by his fault the difficulty was provoked, whether by word or deed; or if, in fine, he may have been so negligent as not to have declined combat when he could do so safely, without increasing his peril of life or limb. If this has been the law heretofore, it is time it should be'so no longer.' It is not only opposed to the known facts of modern medical science, but it is a hard and unjust rule to be applied to the unfortunate and providential victims of disease. It seems to be little less than inhuman, and its strict enforcement would probably transfer a large percentage of the inmates of our insane hospital from that institution to hard labor in the mines or the penitentiary. Its fallacy consists in the assumption that no other phase of delusion, proceeding from a diseased brain, can so destroy the volition of an insane person as to render him powerless to do what he knows to be right, or to avoid doing what he may know to be wrong.”

We therefore think that instructions 56 and 57 are radically wrong, and should never be given.

Now, taking np’ 52. Defendant’s counsel especially object to tliis instruction, because it does not recognize that tbe defendant may have acted under an irresistible impulse caused by mental disease.

It seems to be demonstrated by modern investigation, beyond cavil, that many insane persons^ while having the mental capacity to distinguish between right and wrong", are not able to choose between doing what is right and doing what is wrong. The lower court recognizéd this in instructions 34, 38, 49, 53, 54 and 55.' As illustrative of this, we quote a portion of 38: “If, by reason of disease affecting his mind, his mental faculties were so impaired or perverted as that he was unable to distinguish between right and wrong as to the particular act with which he is charged; or if he was able to recognize that it was wrong, and yet was impelled by some impulse, originating in disease, to the commission of the act, and was unable by reason of the diseased condition of his mind, enfeebling his will or otherwise, to refrain from its commission — he should be acquitted by reason of insanity.” This proposition was also recognized in State v. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529, in- which the court, speaking through Mr. Chief Justice B'rantly, says: “One may have mental capacity and intelligence sufficient to distinguish between right and wrong with reference to the particular act, and to understand the consequences of its commission, and yet be so far deprived of volition and self-control, by the overwhelming violence of mental disease, that he is not capable of voluntary action, and therefore not able to choose the right and avoid the wrong.”

Instruction 52 is based upon what is called the right and wrong test, which does not recognize that the accused may have been involuntarily impelled to the commission of an act from which he was mentally unable to refrain, and therefore is in conflict with instructions 34, 38, 49, 53, 54 and 55, which are based upon the right and wrong test as modified by the irresistible impulse test. In the Peel Case the court suggestéd that, in a case in which there is no pretense that the party cannot control his own actions, it may be proper to apply tbe right and wrong test. We thus see that the lower court gave to the jury two different tests by which the defendant’s responsibility for crime might be determined as the test to be followed by them. These tests are based upon different theories, and consequently upon different states of fact, and the two are irreconcilable. If instructions 34, 38, 49, 53, 54 and 55 were applicable to the facts in the case, 48, 51 and'52 could not be; the three latter excluded from the jury any consideration of the question whether, under the evidence, the defendant acted under an insane irresistible impulse. When instructions are conflicting upon a material issue, the judgment cannot stand. (State v. Rolla, 21 Mont. 582, 55 Pac. 523; State v. Sloan, 22 Mont. 293, 56 Pac. 364; State v. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529; State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558.)

Defendant also attacks instruction No. 50, on the ground that it comments upon the weight which is to be given to certain items of the testimony. So much of the instruction as is criticised reads: ‘That subtle essence which we call “mind” defies, of course, ocular inspection. It can only.be known by its outward manifestations, and they are found in the language and conduct of the man. By these his thoughts and emotions are read, and according as they conform to the practice of people of sound mind, who form the large majority of mankind, or contrast harshly with it, we form our judgment as to his soundness of mind. Por this reason evidence is admissible to • show conduct and language, at different times and on different occasions, which indicate to the general mind some morbid condition of the intellectual powers; and the more extended the view of the person’s life, the safer is the judgment formed of him. Everything relating to his physical and mental history is relevant, because any conclusions as to his sanity must often rest upon a large number of facts. As a part of the language and conduct, letters spontaneously written afford one of the best indications of mental condition. Evidence as to insanity in the parents and immediate relatives is also pertinent. It is never allowed to infer insanity in the accused from the mere fact of its existence in the ancestors. But when testimony is given directly tending to prove insane conduct on the part of the accused, this hind of proof is admissible as corroborative of the other. And therefore it is that the defense has been allowed to introduce evidence to you covering the whole life of the accused and reaching to his family antecedents.’ ”

This instruction was taken from the charge of Judge Cox to the jury in the Guiteau Case (10 Ned. 161). In the TJnited States courts the judges are permitted to comment upon and explain the testimony of the witnesses, but such is not the rule in this jurisdiction. The instruction is certainly open to defendant’s criticism. Nor instance, the jury is first told that “it is never allowed to infer insanity from, the mere fact of its existence in the ancestors,” and is then instructed, “but, when testimony is given directly tending to> prove insane conduct on the part of the accused, this kind of proof is admissible as corroborative of the other.” When the court told the jury that certain evidence was corroborative, it commented on the weight of that testimony. In this the court erred. It is the sole province of the jury to weigh each item of the testimony, and to give it such credit as they believe it entitled to. (State v. Sullivan, 9 Mont. 174, 22 Pac. 1088; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; State v. Mason, 24 Mont. 340, 61 Pac. 861.)

While we have not passed upon the correctness of any instructions in this case which have not been argued by counsel, we call the court’s attention to 32, 33 and 36. No. 32 reads: “Under the law of this state certain persons, including lunatics and insane persons, are incapable of committing crimes. Accordingly, if you find that, at the time of the doing of the acts charged in the information against the defendant, he was an insane person, it is -your duty to acquit him on the ground of insanity.” After the words “an insane person” the court should have explained the meaning of the term “insanity,” as it is regarded in the criminal law, either by direct definition or by reference to other parts of the charge. It is not sufficient to give the statute without explanation, because it is not every form of insanity which will excuse the defendant of the act committed.

The disease of insanity is subject to so many different phases, which are manifested in so many different ways — as various as human thought — that each case must stand upon its own facts. A court, therefore, cannot instruct the jury on every phase or manifestation of insanity, nor should it attempt to; the instructions should be as brief and simple as it is possible to make them. It should only declare generally upon the subject, and it must be left to the jury to find from the proof upon the issue of insanity.

The question whether the defendant in any case was affected with insanity to such a degree as will excuáte him from the commission of an act which would be criminal if done by a sane person is one of fact; it certainly is not a question of law. When a defendant sets up insanity as a defense, laymen, and experts on insanity, are permitted to testify upon the question of his sanity, under the rules of evidence. Upon the testimony adduced the jury is to find the defendant guilty, or not guilty, by reason of insanity. What persons, then, are insane within the purview of the criminal law? Manifestly, those who are mentally unable to form a criminal intent. The Penal Code declares:

“Sec. 20. In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence.
“Sec. 21. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity.”

Por the purposes of this discussion, we shall treat insanity and lunacy as synonymous terms. What, then, is insanity in a legal sense ? Mr. Bishop gives the following definition: “In•sanity, in tbe criminal law, is any defect, weakness, or disease of tbe mind rendering it incapable of entertaining, or preventing its entertaining, in tbe particular instance, tbe criminal intent wbicb constitutes one of the elements of every crime.” (1 Or. Law, Sec. 381, Subd. 2.) “Criminal responsibility is to be determined solely by tbe capacity of tbe defendant to. conceive and entertain tbe intent to commit tbe particular crime. If there is no. intent, there is no crime.” (State v. Peel, supra.) In tbe Peel Case tbe court did not attempt to lay down any test; it was merely discussing tbe case presented to it. It gave its approval to instructions 36 and 31 quoted in tbe opinion, saying that upon that branch of tbe case tbe lower court instructed tbe jury fully and fairly. It will be observed that instruction 31 dealt wholly with the question of tbe defendant’s intent. That tbe instructions last mentioned were correct in tbe Peel Case is undoubted.

It is worthy of remark that juries must be composed of men of a very high order of intelligence if they are much enlightened —indeed, if they are not badly confused — by tbe mass, of instructions usually given them by tbe courts in insanity cases. Instructions are given to enlighten a jury, not to confuse it. (Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417.)

Recognizing tbe general doctrines asserted in tbe Peel Case as corréct, we are of tbe opinion that tbe result sought to be obtained, towvit, a solution of tbe question whether tbe defendant, when be committed tbe act for wbicb be is on trial, bad tbe mental power to entertain a criminal intent, and did entertain it, can be reached best by submitting to tbe jury a test founded solely upon tbe statute. Tbe question for determination being, was the defendant, when be committed tbe act, sane, or affected with insanity ? tbe court should give to tbe jury tbe appropriate sections of tbe statute, at tbe same time defining insanity in accordance with Bishop’s definition, as supplemented by this court’s comment thereon in tbe Peel Case, or make use of equivalent language. We doubt if any other or further instructions on tbe subject of insanity are necessary or useful. (State v. Pike, supra,; State v. Jones, supra.) The jury may determine the fact from the testimony adduced before it, no matter what may be the character of the insanity attributed to the defendant. This includes, of course, insane delusions and insane irresistible impulses. To illustrate: If the defendant, when he committed the act which would be criminal if done by a sane person, did not know the difference between right and wrong, or,- knowing it, was mentally unable to refrain from doing the wrong, he was incapable of forming the criminal intent; or if he was so mentally diseased that he was under the overmastering influence of a delusion which obliterated his power to refrain from the commission, of the wrongful act, he was incapable of forming the criminal intent.

In a case where insanity is urged as a defense, the particular technical phase of insaniiy from which the defendant suffered when he committed the act (if he was in fact insane) is utterly immaterial to the jury; they do not know nor care what the alienists may call it; their desire should be, and their duty is, to ascertain whether the defendant committed the act with a criminal intent; if he did, he is guilty; if he did not, he is not guilty by reason of insanity.

For the foregoing reasons we are of the opinion that the judgment and order should be reversed, and the cause remanded for a new trial in conformity with the views herein expressed.

Peb CueiaM.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause is remanded for a new trial.

Mi?. Justice Holloway:

I am- unable to agree with much that is said in the foregoing opinion. In my judgment, conflicting doctrines on the subject of insanity are announced in State v. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529, and, if it is intended in this instance to approve what is said in that decision upon this subject, great difficulty must necessarily be experienced upon a re-trial of this cause.

In my opinion, instructions 56 and 5Y are erroneous.

Instruction No. 50 does not state correct principles of law, and tbe court therein comments on tbe weight of tbe evidence. Nor these reasons, I think it should not be given at all.

I am also unable to reconcile the doctrine announced in State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, and State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, which I think correct, and which seems to be approved, with what is said in other portions of the opinion of the majority of the court.

However, without attempting any discussion of the subject, I content myself with concurring in the order reversing the judgment, but do so upon the grounds that conflicting instructions upon a material issue were given, and that the court gave instructions 50, 56 and 57, above.

Eehearing denied February 24, 1904.


source: Caselaw Access Project

author: MR. JUSTICE HOULOWAY

license: Public Domain

text:
    STATE, Respondent, v. STICKNEY, Appellant.
    (No. 2,003.)
    (Submitted January 7, 1904.
    Decided February 8, 1904.)

      Kidnapping — Information—Sufficiency* — Appeal — Record— Bill of Exceptions. ,

    1. Under Penal Code, Section 2229, Subd. 1, and Session Laws 1903, p. 47, Chap. 34, tbe- original and first amended informations, and demurrers to' tbem which were sustained, and a motion to dismiss the prosecution, and order overruling it, were not a part of the appeal record, where they were not embodied in the bill of exceptions.
    2. Under Penal Code, ‘Section 2171, providing that a draft of a bill of exceptions in a criminal case shall be presented for settlement on at least two days’ notice to the county attorney, where the record on appeal does not show affirmatively that such notice was given, the bill of exceptions will not be considered.
    3. Under Penal Code, Section 380, Subd. 3, as amended by Session Laws of 1901, p. 169, providing that whoever willfully entices or by force or fraud takes away another from a place within the state, and afterwards brings such person into this state, is guilty of kidnapping, the crime is complete when these acts are done, though without intent to cause the person to be-secretly confined and imprisoned within tbe state, notwithstanding Subdivision 1, making that an element of the crime where the person is seized in this state.

      4. An objection that the concluding phrase of the counts of an information, “against the peace and dignity of the state of Montana,” etc., modifies only the last sentence preceding such words in each count is without merit.
    -5. Under Penal Code, Section 1830, providing that the rules by which the sufficiency of pleadings in criminal actions is to be determined are those prescribed by that Code, an information is sufficient where it conforms substantially to the form laid down in Section 1833, and to the rules prescribed in Section 1841, and there is no imperfection in matter or form thereof tending to the prejudice of a substantial right of the defendant on its merits (Section 1842).

      Appeal from District Gourt, Cascade County; J. B. Leslie, ■Judge.

    Robert SticKNey was convicted of kidnapping, and appeals
    Affirmed.

      Messrs. Downing & Stevenson, for Appellant.

      Mr. James Donovan, Attorney General, for tbe State.
   MR. JUSTICE HOULOWAY

delivered tbe opinion of tbe -court.'

Tbe defendant, Robert Stickney, was convicted of the crime -of kidnapping, and sentenced to- imprisonment in tbe state prison for tbe term of seven years. From tbe judgment he •appeals.

Bound together as tbe record, and filed in this court, are a -copy of tbe original information, tbe demurrer filed thereto, tbe order of tbe district court sustaining tbe demurrer, tbe first amended information, tbe demurrer thereto, tbe order of tbe •district court sustaining it, tbe second amended information— being the one upon which the defendant was tried — a motion by defendant to dismiss tbe prosecution against him, tbe order ■of tbe district court overruling tbe motion, tbe defendant’s pleas, tbe minute entries of tbe trial, including a copy of tbe verdict, tbe instructions given to tbe jury, tbe judgment, a bill of exceptions embodying tbe testimony given at tbe trial, a stipulation, tbe notice of appeal, and tbe certificate of tbe clerk. Counsel for tbe state has moved this court to strike out all that portion, except tbe information upon which tbe defendant was tried, the record of his pleas, the minute entries of the trial, the instructions given, the judgment rendered, the notice of’ appeal, and the clerk’s certificate. The motion'to strike the-original and first amended informations, together with the demurrers thereto, and the orders of the court with reference to the same, together with the motion to dismiss the prosecution, and the order of the court overruling the same, and the stipulation of the attorneys respecting the time for the presentation of the bill of exceptions for settlement, is made upon the ground' that the several papers just enumerated are not a part of any bill of exceptions, and therefore not properly a part-of the record in this case.

Section 2229 of the Penal Code designates the papers which shall constitute the judgment roll or record of the action in a criminal case, where a conviction has been had. Subdivision 1 is, “The indictment or information, and a copy of the minutes-of the plea or demurrer.” It is contended by appellant that the motion to dismiss the prosecution was in effect a demurrer, and' properly a part of the judgment roll. However, Session Laws 1903, page 47, Chapter 34, has amended Subdivision 1 of Section 2229, above, by providing that motions to- set aside indictments or informations, or demurrers to indictments or infor-mations, shall be embodied in a bill of exceptions, and further-provides that they cannot be reviewed in any other manner. The information which is made a part of the judgment roll has. reference only to- the information upon which the defendant was tried. If he was tried on an amended information, that amended information succeeds all prior informations filed, and' they cease to have any effect whatever as pleadings. It is apparent that the defendant recognized this rule, for he sought to have the original and first amended informations introduced in evidence as exhibits, but upon objection they were excluded,, and are not copied in the bill of exceptions.

It appears, then, that the judgment roll or record of the action in this case is composed of copies of the following papers, only: (1) The information, and defendant’s pleas thereto;-. (2) tbe minutes of the trial; (3) the instructions given; and (4) the judgment. Section 2 of Chapter '34, Act of 1903, above, among other things, provides: “The only method of preserving for review by the supreme court on appeal, any proceeding, evidence or matter not designated by the Penal Code as part of the record on appeal without bill of exceptions, shall be by bill of exceptions prepared and settled under either Section 2171 of the Penal Code or this Act, as the one or the other may: be appropriate.” It is apparent, then, that with reference. to the original information, the demurrer thereto, the order of the court sustaining it, the first amended information, the demurrer thereto, and the order of the court sustaining it, the defendant’s motion to dismiss the prosecution, and the order of the court overruling’ the same, and the stipulation of the attorneys, none of which are embraced in the bill of exceptions, nor are a, part of the judgment roll, are not part of the record before this court for any purpose whatever, and must therefore be stricken out.

It is contended by the attorney general that the bill of exceptions should be stricken from the record, for the reason that it does not appear affirmatively from it that the same was presented to the judge for settlement on two days’ notice to the •county attorney.

Section 2171 of the Penal Code provides: “When a party desires to have the exceptions taken at the trial settled in a bill ■of exceptions the draft of a bill must be prepared by him and presented, upon notice of at least two days to the county attorney, to the judge for settlement within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the supreme court, or within that period the draft must be delivered to the clerk of the court for the judge. * * *” In State v. Gawith, 19 Mont. 48, 47 Pac. 207, this same question was before the court; and it was there held that the provisions of Section 2171, quoted above, are mandatory, and, where the record on appeal does not show ■affirmatively that such notice was given, the bill of exceptions will not be considered. In State v. Moffatt, 20 Mont. 371, 51 Pac. 823, tbe same question was presented, and the doctrine announced in State v. Gawith reaffirmed, so> that it may be said to have become a settled rule of practice in this state. Eliminating therefore from the record the bill of exceptions and those papers which are not properly a part of the judgment roll, and there remains for consideration only the judgment roll as provided for in Section 2229 as amended by the Act of 1903.

The only question presented for determination is, does, the information state a public offense?

The information is drawn and the prosecution had under the provisions of Subdivision 3 of Section 380 of the Penal Code, as amended by the Seventh legislative assembly (Session Laws 1901, p. 169). So much of that section as is. applicable to this case reads as follows: “Every person who willfully * * * (3) abducts, entices or by force or fraud unlawfully takes or carries away another, at or from a place without the state * * * and afterwards sends, brings, has or keeps such person, or causes him to- be kept or secreted within this state, is guilty of kidnapping and is punishable by imprisonment in the state prison for not less than one year.”

The information is in three counts, but upon the trial the first count was abandoned by the prosecution, and consideration of it withdrawn from the jury by an appropriate instruction. The second count charges that the defendant on Dteeember 11, 1902, by means of false and fraudulent representations, which are detailed at length, did unlawfully, willfully and feloniously entice one Hallie Wolcott from Denver, Colorado, and after-wards, on December 18, 1902, did, by means of such false and fraudulent representations, willfully, unlawfully and feloni-ously bring the said Hallie Wolcott into this state, and into a certain place in the city of Great Palls. • The third count charges the defendant with willfully and feloniously taking the said Hallie Wolcott from Denver, Colorado, and afterwards unlawfully and feloniously bringing her into Montana.

The various terms employed in the first part of Subdivision 3, above, merely designate the means by any one of which the crime may be initiated; and if the defendant willfully and feloniously enticed the prosecuting witness from Colorado, and afterwards unlawfully and feloniously brought her into this state, the crime would be complete, as charged in the second count. Or, if he willfully and feloniously took her from Colorado, and afterwards unlawfully and feloniously brought her into this state, the crime would be complete, as charged in the third count.

The contention of the appellant that the information must allege that the defendant brought her into this state “with intent to cause her, without authority of law, to be secretly confined and imprisoned within this state,” etc., is untenable. If the prosecution was had under Subdivision 1 of Section 380, above, then the objection made by the appellant would be applicable. But under Subdivision 3, above, if the defendant willfully and feloniously enticed or took the prosecuting witness from Colorado, he could then have completed the crime of kidnapping, as defined in that section, by any one of the following means, viz.: by sending her, by bringing her, by having her, by keeping her, or by causing her to be kept or secreted in this state.

Finally it is contended that the concluding phrase of each count, “against the peace and dignity of the state of Montana,” etc., only modifies or characterizes the last sentence of each count preceding such concluding words. But with equal propriety could that argument be made against the allegations of almost every information. In People v. Biggins, 65 Cal. 564, 4 Pac. 570, such contention is characterized as hypercritical. We are of the opinion that there is no merit in it.

The sufficiency of every information is to be tested by the rules prescribed by the Penal Code. Section 1830'reads as follows: “All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.” Section 1833 provides a form, for informations and indictments, and it is sufficient to sa.y that the information in this case conforms h> that model in all substantial particulars. Sections 1841 and 1842 provide tibe rules for the interpretation and construction of in-formations and indictments as follows:

“Sec. 1841. Tlie indictment or information is sufficient, if it can be understood therefrom: (1) That it is entitled in a court having authority to receive it, though the name of the court be not stated. (2) If an indictment, that it was found by a grand jury of the county in which the court was held; or if an information, that it was subscribed and presented to the court by the county attorney of the county in which the court was held. (3) That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury or county attorney, as the case may be, unknown. (4) That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein. (5) That the offense was committed at some time prior to the time of finding the indictment or filing of the information. (6) That the act or omission charged as the offense, is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what, is intended, (77) That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to1 pronounce judgment upon a conviction, according to the right of the case.
“Sec. 1842. No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”

Tested by the foregoing rules, we are of the opinion that the information states a public offense.

The judgment is affirmed.

Affirmed.


author: MB. JUSTICE HOLLOWAY Mr. Justice Milbuee

text:
    In re O’BRIEN.
    (No. 2,031.)
    (Submitted January 23, 1904.
    Decided February 9, 1904.)

      Local Option Liquor Law — Constitutional Law — Habeas Corpus.

    1. The local option liquor law (Political Code, Sections 3180-3188) is not unconstitutional as being a delegation of legislative power to the people.
    2. The local option liquor law is not violative' of Constitution, Article V, Section 26, prohibiting local or special legislation.
    3. The local option liquor law is complete in its provisions, though it takes effect in each county only on a vote favorable to its provisions.
    4. Any invalidity of the local option liquor law on account of its failure to except from its provisions liquor for medicinal or sacramental purposes, or imported in original packages, cannot avail one who sold liquor otherwise than for those purposes or in that manner.
    5. The adoption of the local option liquor law in a county prohibits the sale of intoxicating liquors in the incorporated towns within said county.
    6. The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to the regulation and control of the police power of the state.
    7. Every reasonable intendment is to be resolved in favor of the constitutionality of the law, and before the court can pronounce an enactment of the legislature invalid, such invalidity must be made manifest beyond a reasonable doubt. o
    8. That when a writ of habeas corpus was served on a sheriff the complainant was not in fact confined in jail, but was permitted to go about without apparent restraint, is sufficient to justify a dismissal’ of the petition for the writ.
    Application by W. P. O’Brien for a writ of habeas corpus.

    Dismissed.

      Mr. Thomas C. Marshall, and Mr. Charles S. Wagner, for Petitioner.
    Counties are not municipal corporations, but at most quasi municipal corporations. (Constitution, Art. XVI, Sec. 1; Political Code, Secs. 4190, 4193; People v. Sacramento, 45 Cal. 692; People v. McFadden, 81 Cal. 491; Kahn v. Sutro, 114 Cal. 316; Storm v. School, 36 Am. St. B,ep>. 459, and note; LaTce v. Lacy, 51 Am. Pep. 119, and note; 13 Century Digest, page 1167, Sec. 1; In re Wilshire, 103 Ned. 622; Political Code, Sec. 4800, Snb-Secs. 1, 3 and 16.) •
    Ordinances passed under tbe police power granted municipalities have tbe force and effect of laws; tbe county cannot exercise any control whatever over them, nor can it in any way, by vote of its inhabitants or by its boards, suspend, alter, amend or contravene any such laws, sometimes called by-laws or ordinances, within the territorial limits of the town or city. '{Ex parte Boche (Cal.), 37 Pac. 1044; In re Mansfield', 106 Cal. 400; Los Angeles Gounty v. ITcenberry, 63 Pac. 766; Ex parte Campbell, 74 Cal. 20; Woodward v. Sanitary District, 99 Cal. 554; Cooley, Const. Lim. (6th Ed.) 256.)
    ' The ordinance passed by the town of Hamilton is in entire accord with its charter provisions, and as the power given to the town is to license, tax and regulate saloons within the limits of the town, it means that a town is given the power in this respect to pass laws on the designated subject, at its discretion, and the local option law is either expressly, or by necessary implication, excluded. (Cooley, Const. Lim. (6th Ed.), 239; McCarthy v. Deming-, 51 Conn. 422; State v. Brannon, 23 N. J. Lu 284; Tierney v. Dodge, 9 Minn. 166; Tied. Lim. Sec. 212; Dillon, Mun. Corp-. Secs. 363, 367-308; State v. Welsh, 36 Conn. 215 ; 15 Am. & Eng. Ehcy. Law (1st Ed.), 975, 1007 and note, 1046 and note, 974 and note. See also further on the status of counties as contra distinguished from incorporated municipalities, Cooley, Const. Lim. (6th Ed.), 294; People v. Sacramento, 45 Cal. 692; Kahn v. Sutro, 114 Cal. 316; Stevens v. School, 36 Am. St. Hep. 452, note; Tiedeman on Municipal Corporations, Sec. 146; Herr and Bemis, Municipal Police Ordinances-, Sec. 3; 20 Am. & Eng. Ency. Law (2d Ed.), 1138; Helena Consolidated Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382.)
    The language of the grant to incorporate municipalities is that they shall have power to license, tax and regulate saloons within the limits of the city or town. The language of the local option law is that it shall be unlawful (after favorable vote) to sell, etc., within tbe limits of tbe county. We contend that tbis case presents sncb a conflict as will warrant tbe court in applying tbe canon of construction provided for' in Section 5162 of tbe Penal Code. Tbe language is: “If tbe provisions of any title conflict with or contravene tbe provisions of another title, tbe provisions of each title must prevail as to all tbe matter and questions arising out of tbe. subject-matter of sucb title.” (State ex rel. Berger v. Weston, 14 Pac. 415; Ham v. Santa Rosa Bank, 62 Cal. 125, 136, 131; Robinson v. Mayor of Franlclin, 34 Am. Dec. 364; Thorntons. Territory, 11 Pac. 896; Ex parte Linn, 19 Tex. Ct. App. 293; 11 E’ncy. of Law (2d Ed.'), page 290, Sec. 22.)
    In so far as tbe application of tbe local option law interferes with the municipal functions of tbe incorporated town of Hamilton, we maintain that it is class legislation. (Constitution, Art. Y, Sec. 26; State v. Copeland, 66 Minn. 65, 61 Am. St. Pep. 415; State v. Haines, 58 Pac. 39.)
    Tbe local option law is unconstitutional. (Anderson v. Comm., 16 Ky. (13 Busb.) 485; Constitution of Kentucky, Sec. 61; Texas Constitution, Art. XVI, Sec. 20; State v. Wilcox, 19 Am. Pep. 364, 19 Am. Dec. 563; Comm. v. Bennett, 108 Me. 21, 11 Am. Pep. 304; Sanford v. Morris County (N. J.), 15 Am. Pep. 422; Bancroft v. Dumas, 21 Yt. 456; Ex parte Wall, 48 Cal. 219, 319; 19 Am. & Eng. Ency. of Law (2d Ed.), p. 491; ThorntonY. Territory, 11 Pac. 896; 0JNeill v. Am. Fire Ins. Co., 166 Pa. St. 12, 45 Am. Pep. 650, 655, note; Eutor v. Austin, Ml- 646; Rice v. Foster (Del.), 4 Ilarr. 419; Meshmier v. State, 11 Indo484; Weir v. Comm., 31 -, 649; Maize v. State, 4 Ind. 342; State v. Wier, 33 Iowa, 134; State v. Denelce, 9-Iowa, 203; Soneto v. State, 2 Iowa, 165, 63 Am. Dec. 481; Bradshaw v. Langford, 13 Md. 428, 11 L. R. A. 582; Opinion of Justices, 160.Mass. 586; Elliott v. Detroit, 121 Micb. 611; Owen v. Baer (Mo.), 55 S. W. 644; State v. Hayes, 61 N. H. 264; Parto v. Himrod (N. Y.), 59 Am. Dec. 506; Corning v. Creen (N. Y.), 23 Barb.- 33; Thorn v. Kramer (N. Y.), 15 Barb. 112; Weavoer
      v. Terry, 8 Obio St. 564; Cm. Ry. Go. y. Clinton Go., 16 Ohio St. 77; State v. Swicher, 17 Tex. 441; Winters v. Hughes, 3 Wasb. 443, 24 Pac. 759; People y. Draper, 13 N. T. 558; City of Hutchinson v. Leinback (Kan.), 74 Pae. 598; Goeb-riclc v. State, 5 Iowa, 491; Parker v. Comm., 6 Pa. St. 507; State v. Gopeland, 3 R, I. 33; State v. Liedike, 9 N. B. 498; Meishmeir v. State, 11 Ind. 484; State v. Steele, 17 Mo. 529; Mayor v. Finney, 54 G-a. 324; People v. Parks, 58 Cal. 644; Groach v. State, 42 Ind. 547; State v. Xing, 37 Iowa, 462; ITartvmond v. Haynes, 20 Am. Hep. 83; v. Fortner, 24 Iowa, 1, 29 1-. B. A. 206; People v. Collins, 3 Micb. 343; Feek v. Bloomdale Twp., 82 Micb. 393; Lock’s Appeal, 72 Pa. 491, 13 Am. Pep. 716; Boydv. Bryant (Ark.), 37 Am. Rep. 6; State v. Pond, 93 Mo. 606; Yol. 13 Am. & Eng: Ency. of Law, 92; People v. City of Butte, 4 Mont. 174; People v. McFadden, 81 Cal. 489 ; Cooley’s Const. Lim. (6tb Ed.) 137, 145 ; In re Weston (Mont.), 72 Pac. 512; Fx parte Seibold, 100 U. S-. 371; Cbnrcb on Habeas Corpus, page 391; Yol. 17 Am. & Eng. Ency. of Law (2d Ed.), page 358; Brown v. State, 9 Neb. 189; Woods v. State, 36 Ark. 36; State v. Chandlier, 15 Yt. 425; Fowler v. State, 39 Ark. 209; Chew v. State, 43 Ark. 361; Stats v. Gray, 22 Atl. 675; Wright y. People, 101 Ill. 126; State v. Bissell, 67 Iowa., 616; Salina v. Sietz, 16 Kan. 143; King v. State, 66 Miss. 502; Carl v. State, 39 Ala. 93; Comm. y. Kimball (Mass.), 24 Pick. 336; State v. Hall, 39 Me. 107; Comm', v. Sloan (Mass.), 4 Cnsb. 32; State v. Brown, 31 Mo. 552; Sweeney y. Webb (Texas), 76 S. W. 766; Strong v. Comm. (Ky.), 49 S. W. 451; People y. Murphy, 93 Micb. 41; Eastman y. Comm. (Ky.), 49 S. W. 795; State y. Donner, 21 Wis. 274; Chipman v. People, 24 Colo. 520; Tiedman on Lim. of Police Power, Secs. 102-103; Comm. y. Fowler, 96 Ky. 166, L. R. A. 839; 8 Ency. 864, page 872; In re Wiltshire, 103 Eed. 620; Mulzer y. Kansas, 123 U. S. 623; Sarris v. Comm., 88 Ky. 332; State v. Northern Pac. Express Co. (Mont.), 71 Pac. 404; State v. Rocky Mt. Bell Tel. Co. (Mont.), 71 Pac. 311; Cooley, Const. Lim. (6tb Ed.), 716, 717; 19 Am. & Eng. Ency. of Law (2d Ed.), page 489.)

      Mr. W. P. Baker, and Mr. B. A. O'Hara, for Respondent.
    Cited: Boston Beer Go. v. Mass., 97 TJ. S'. 25; Black, Intoxicating Liquors, Secs. 45, 206, 34, 104; Weil v. Calhoun, 25 Fed. Bep1. 865; Commonwealth y. Dean, 110 Mass. 357; Commonwealth v. Bennett, 108 Mass. 27; Qloversville y. Howell, 70 N. Y. 287; Locke's Appeal, 72 Pa. St. 491; Fell v. State, 42 Md. 71; Fx parte Lynn, 19 Tex. App: 293; State v. Pond, 93 Mo. 606, 6 S. W. 469; Peek y. Bloomingdale, 82 Mich. 393; Territory y. O'Connor, 5 Dak. 397; Cooley, Const. Lim. (6th Ed.), 146; State ex rel. Witter v. Forhner, 28 L. B. A. 206; Dalby v. Wolf, 14 Iowa, 228; Nixon v. State, 76 Ind. 524; Comm-, v. Porter, Phila. 217; State v. T'Ftím/, 72 N. Car. 253; State v. Mitchell, 28 Mo. 562; State v. Robertson, 24 Mo. App. 232; United States v. Calhoun, 39 Fed. 604; Schwuchow v. Chicago, 68 Ill. 444; Butler y. State, 25 Fla. 347; Wücox y. Deer Lodge County, 2 Mont. 577; Btoie v. Cooke, 24 Minn. 247.
   MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

On the 1st day of December, 1903, an election was held in Ravalli county, Montana, pusuant to the provisions of Chapter X, Title VII, Part III, Secs: 3180-3188, of the Political Code, at which election a majority of all the votes cast were for “Sale of Intoxicating Liquors: No,” and thereafter the returns of the election were duly canvassed, and the result published, as required by law. The provisions of said chapter thereupon became operative in that county on the 7th day of January, 1904.

Within the confines of Ravalli county is the town of Hamilton, incorporated under the general incorporation Act pf Montana. Pursuant to that Act the town council had enacted an ordinance regulating and licensing the saloon or retail liquor business, and had regularly issued to this complainant a license to conduct such saloon business in that town. On January 7, 1904, after tbe local option law is claimed to have become operative in Ravalli county, tbe complainant was arrested and tried for and convicted of selling intoxicating liquors in violation of tbat law, and sentenced to pay a fine of $100, and in default, of payment was confined in tbe county jail. He thereupon applied to tbis court for a writ of habeas corpus, wbicb was issued. TJpon tbe petition and tbe return of tbe sheriff thereto tbe cause was submitted for decision to this court, it being conceded tbat no questions of fact were raised by the return of tbe sheriff.

Only two questions were argued and submitted for determination, and we have carefully confined our decision to< them.

In order tbat no broader application may be made of tbe language herein used than, is intended, tbe following is quoted from complainant’s brief as showing tbe scope of this inquiry: “It will be conceded here tbat the proceedings of tbe trial and conviction were regular, and that, if tbe said so-called local option law is valid and constitutional, and has operative force in tbe territorial limits of tbe town of Hamilton, then tbis petition and writ should be dismissed. Hirst. We take the position, as ■*ve have indicated, tbat the law is invalid, unconstitutional and void. Second. Tbat tbe law, even if valid, has no operative force within tbe corporate limits of tbe town-of Hamilton, and there can be no' violation of it within tbat territory. Tbat the law is unconstitutional upon tbe several grounds and for tbe reasons following: (a) Tbat it is a delegation of legislative' power, (b) Tbat it delegates to tbe people tbe legislative function of determining the expediency of tbe law. (c) That it is local and special legislation, (d) That it is not complete in all its terms and provisions, (e) That it undertakes to absolutely prohibit the sale of spirituous, vinous, malt and intoxicating liquors, making no exceptions for medical or sacramental purposes, or for physicians, or for lawful interstate commerce.”

Is the law unconstitutional?

Tbe same objections which are urged against tbe constitutionality of tbis Act have been frequently lodged against so-called local option laws, and, while in comparatively few instances such laws have been held unconstitutional, the very great weight of authority and nearly all the later decisions have upheld them.

(a, b) The most frequent objection made is that such laws are an unwarranted delegation of legislative power to the people. Under our system of government the lawmaking authority is vested in the legislative assembly, and can be exercised by no one else. The legal effect of the popular vote, however, is not infrequently misconceived. If the law is complete in all its parts, it is an expression of the legislative will none the less that the contingency upon which it takes effect in any particular locality is made to' depend upon a favorable vote of the people of that locality.

The Act under consideration was passed by the legislature, received the governor’s approval, and became law of state-wide application on July 1, 1895. A vote of the people of Kavalli county adds nothing whatever to the efficacy of the law, but merely furnishes the occasion for the exercise of the power inherent in the law. The law remains intact, and is a valid enactment on the statute books, whether a vote be taken upon it in any county, or whether any vote so taken results favorably or unfavorably to calling into' operation its provisions. .

While the legislature may not delegate to the people the authority to malee the law, or to say what kind of a restrictive measure shall be adopted, or propose a law and submit it to a vote of the people to say whether1 or not it shall in fact be enacted into law, it may pass an Act which takes effect only upon the happening of a contingency — a favorable vote of the people.

With equal propriety could it be said that the general incorporation Act under which the town of Hamilton assumes to license and regulate the saloon business within its corporate limits is unconstitutional for the same reason, for that Act is purely a local option law, which is to be put into operation in the same manner as the law in question. In fact, this same objection was nrgecl against the Act of tlie territorial legislature incorporating the city of Butte; but this court disposed of the •question adversely to the contention of the relator, and, after citing numerous authorities in support- of its position, among other things said: “These cases have been cited to show, first, that it is within the competency of legislative authority to enact laws the taking effect of which may be conditional or contingent, depending upon some uncertain future event; and, ■second, that it is competent for a legislature to delegate to one man, or to a certain designated body or class of men, or to the whole people, the question as to' when the contingency or event has or shall take place. And such determination is not in any sense the making of the law'. Tt is declaring when a law already made shall go into effect.” (People ex rel. Boardman v. City of Butte, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346; Cooley’s Constitutional Limitations, 145; Black on Intoxicating Liquors, 45, and numerous cases cited.)

(c) Is the law local or special in the sense that it is prohibited by Section 26, Article Y, of the Constitution ?

Considering this" same question, the Supreme Court of Dakota, in Territory v. O’Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355, said: “That it is in conflict with the statute of the United States prohibiting special legislation (by the territorial legislature), or that it is a delegation of legislative power, might have been urged with some plausibility in the earlier days of American jurisprudence. It is now too late to argue the question as an original proposition. Matters affecting the police, such as the sale of intoxicating drinks, running at large of cattle, and kindred questions, are so differently regarded in different localities that it has been by ho means uncommon to submit them to the people of the locality to be affected by their exercise; and laws so submitting such questions have been almost uniformly sustained, though not always upon the same ground. Many of the authorities in a case like the one before us hold that the law was perfect in all its parts, and complete, so far as any further action of the legislature was concerned, when it was- approved by tbe executive; aud tbat its adoption or rejection by tbe voters, or rather tbe' favorable or unfavorable vote as to execution of tbe law, was a contingency merely provided for by tbe legislature as to tbe time when it should become operative.”

Tbe mere fact tbat tbe adoption of this law in Eavalli county, and its rejection or non acceptance in Missoula, county, for instance, will make tbat unlawful in tbe former which is lawful in tbe latter, does not render tbe Act void. Tbe error in tbe argument made in support of this contention lies in tbe assumption tbat tbe vote makes tbe law, and tbat what is a law in Ka-valli county is not a law in Missoula county. Tbe law is tile same for all, and equally available to all. (Territory v. O’Connor, supra; State v. Pond, 93 Mo. 606, 6 S. W. 469.)

Considering this objection to a like statutory enactment tbe Supreme Court of New Jersey in Paul v. Gloucester Gounty, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86, said: “Tbe inhibition in tbe constitution is not intended to secure uniformity in tbe exercise of delegated police powers, but to forbid tbe passing of a law vesting in one town or county a power of local government not granted to another. If one town or county was excepted from tbe operation of this law, it would be special and local. Under it one county or town has neither greater nor less power than every other, nor does such power differ in any respect. Tbe authority granted is in every aspect of it tbe same. It- may be exercised in a different way or tbe same way. * * * Tbe law, in my judgment, is unquestionably a gem eral law. Tbe quality of uniformity in result cannot coexist with tbe right of self-government in various sections of the state.”

In discussing a township, organization Act which, was purely a local option law, tbe Supreme Court of Missouri, in Opinion on Township Organization Law, 55 Mo. 295, said: “It is a general law, made for the. whole state, and by tbe terms of the Act itself took effect from and after its passage. Every county in tbe state may avail itself of tbe privileges offered by this law by a majority vote of its people. It is left to tbe option of’ the counties whether they will organize under the law or not. If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions, and the organization then takes effect, and also- the law as it existed before-the vote was taken. The law does not delegate, nor was it the-intention of the lawmakers to delegate, legislative authority to the counties. Tinless the counties avail themselves of the right to Qrganize, they will remain as they were, unaffected by any of the provisions of this statute.”

(d) Is the law complete ?

The law provides, first, -for a petition to the board of county commissioners praying for an election; second, for the notice to be given of the impending election; third, for the particular-form of ballots, for their supply, and the method of marking them; fourth, for an election, and the canvassing of the returns according to the general election laws; fifth, for a notice of the-result of the election, and a definite date when the law shall become operative; and, finally, for a penalty for a violation of its provisions. The only question submitted to- the- people is: Shall intoxicating liquors be sold in this county, or in other words Shall the people of this county become1 subject to the operations of the local option law? And that question, we have already seen, may properly be submitted to a popular vote. The law is a-complete legislative enactment. It was passed with all due formality by the legislature and was approved by the governor. As was said of a like statute by the Supreme Court of Missouri in State v. Pond, supra: “The- law is complete and effective when it has passed through the forms prescribed for its- enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which it can act. In the case we- are considering the Act took effect with the other laws-contained in the statutes. It was passed according to- the prescribed forms designated in the constitution. Its enactment did not depend upon any popular vote, but parties to be affected by it were at liberty to accept the privileges granted and incur the burdens and obligations it imposed, as their interests or will should dictate. If they elected not to avail themselves of its privileges, it did not in the least impair its force. It still stood a valid enactment on the statute book. If they organized under it, they were entitled to' the benefit of its provisions; but in ■either event the law remained the same.” (See, also, State v. Wilcox, 45 Mo. 458.)

(e) Because no- exception is made for liquors for medicinal ■or sacramental purposes, or for sales in original packages imported from, other states, this law, it is claimed, is unconstitutional and void. However, the complainant was not arrested for selling liquors for medicinal or sacramental purposes, or for •selling in original packages which had been imported from another state, and, while these subjects have received consideration ■at the hands of the courts, and a review of such adjudicated ■casés might be interesting, this court will not decide a moot ■case. The-complainant cannot urge these objections, and it will be time enough to consider them when they become directly involved. (State v. Pond, supra.)

Is the local option law operative within the incorporated town of Hamilton?

The local option law is a portion of Part III of the Political ■Code, while the general incorporation Act for cities and towns Is embraced in Part IV of the same Code. The portion relating to the legislative powers of cities and towns is found in Section 4800. Whether Section 4800, as amended by Act of 'the Fifth legislative assembly, approved March 8, 1897 (Sess. Laws 1897, p. 203), or the Act of the Third legislative assem-. bly, approved March 7, 1893 (Sess. Laws 1893, p. 113, retained by Section 5186, Political Code), be in force, is immaterial ■for the purposes of this case.

Counsel for complainant contend that under the provisions of Section 4800 the town of Hamilton has been granted power to license and regulate saloons within its corporate limits, and ■that, if the local option law be given force in that town, there Is a direct conflict in the laws, and therefore the canon of interpretation provided in the Political Code, Section* 5162, must-be applied, viz.: “If the provisions of any title conflict with, or contravene the provisions of another title, the provisions- of each title must prevail as to- all matters, and questions arising out of the subject-matter of such title.”

The general license law of this state is found in Part III of the Political Code along with the local option law, and if the contention of complainant is correct, then no license can be-exacted from residents of the town of Hamilton under the general license law; in other words, the license exacted by the town of Hamilton would be exclusive. But no one would seriously contend that in granting power to incorporated towns to license- and regulate the liquor traffic the state had surrendered its power to license and regulate it also. (Corbett v. Territory, 1 Wash. T. 431.) The power conferred on incorporated towns by the general incorporation Act is but a mere grant of limited power to the municipality, which it holds subject to- the general laws of the state. “But municipal corporations are subordinate parts of the state and invested with limited powers. The legislature, in granting such powers, does not divest itself of any power over the inhabitants of the district which it possessed before the charter was granted.” (Wilcox v. Deer Lodge County, 2 Mont. 574.)

The general incorporation Act only authorizes the city council to- license and regulate the sale of intoxicating liquors where-it can be done without violating existing state laws. (Cooper v. Shelton, 97 Ky. 282, 30 S. W. 623; Tatum v. State, 19 Ga. 116, 3 S. E. 907.) In other words-, by Section 4800 the state-merely says- to- the municipality: “You may license such business so- long as that business may be lawfully carried on under the general laws of the state, and no longer.” This intent on the part of the legislature is made manifest by Subdivision 3 of Section 4800, which reads- as follows: “The city or town-council has power: * * * (3) To license all industries,, pursuits, professions and occupations for which under the state law, a license is required, but the amount to be paid for such, license must not exceed the sum required by the state law.”

With the local option law in operation in Ravalli county, there is no one there who can lawfully sell intoxicating liquors, and therefore there is no one whom the city of Hamilton can lawfully license to conduct such business. The limited grant ■of power to the town of Hamilton is merely held in abeyance •so long as the local option law' is in effect. (Robertson v. State, 5 Tex. App. 155; Butler v. State, 25 Fla. 347, 6 South. 67.)

The license granted to complainant is a mere permit, and he took it charged with the full knowledge that at any time the •state, in the exercise of its police power, might revoke it (McKinney v. Town of Salem, 77 Ind. 213), and that the adoption of the local option law in Ravalli county would have such •effect (State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344). For the powers of the city council are subordinate to the general laws of the state (State v. Langston, 88 N. C. 692). Neither is the grant of the power by the legislature made to-, or directly for the benefit of, the individual, but it is made to the municipality as such, tO' enable it to properly conduct its corporate •affairs.

The cases cited by complainant from California are not in point. There the counties are more nearly municii>al corporations, and the boards of county commissioners are legislative "bodies to a limited extent, at least. In Ex parte Campbell, 74 Cal. 20, 15 Pac. 318, 5 Am. St. Rep. 418, it is said: “Section 25 of the county government Act [St. 1883, p. 303, c. 75] confers upon the boards of supervisors in their respective counties power to make and enforce ‘all such local, police, sanitary and other regulations as are not in conflict with general laws.’ 'There is nothing in the case before us to- show whether the board ■of supervisors of Los Angeles county have ever made any regulations with respect to the sale of wines or liquors in saloons and barrooms, but manifestly such regulations, if made, could not operate to^ divest the authorities of the city of the right to legislate upon the same subject, and enforce such regulations ■within the city limits. The regulations of the board of supervisors would not be a general law within the meaning of the provisions of Section 11, Article XI, of the Constitution.”

In tbis state the counties are at most only quasi municipal corporations, witb ím legislative authority vested in the several boards of county commissioners in the sense that they may adopt ordinances and prescribe penalties for a violation thereof, or define nuisances and provide for their abatement.

Complainant apparently assumes that by virtue of the vote favorable to the enforcement of the local option law in Ravalli county the law therefore became, in effect, an enactment or ordinance of that- county; but, as we have said before, the law was in existence as a state-wide measure before the vote was taken, and the only possible effect of the vote was: to put that' law into effect in that particular locality.

We agree with counsel for complainant when they say that ordinances passed by the town of Hamilton under the power granted to that town by the general incorporation Act cannot be controlled, suspended, altered or amended by the county, either by its board of county commissioners or by a vote of its inhabitants. But it is not the county government of Ravalli county which is seeking to prohibit the sale of intoxicating liquors, but the state itself. The county is not depriving the town of Hamilton of the revenue which it formerly had from, saloon licenses, but the state is doing so- by operation of a general law. The law is not an ordinance of tire county, and the vote of the people had nothing to- do with its enactment. If the law had not. already been on the statute books, the people of Ravalli county would have been helpless in the matter, so far as controlling the liquor traffic by any vote which they may have cast. In State v. Pond, supra, it is said: “By its provisions the law, and not the vote, extended its influence over the locality voting against the sale of intoxicants. It was the law that authorized the vote to be taken, and, when taken, the law, and not the vote, declared the result that should follow the vote. The* vote was the means provided to ascertain the will of the people, not as to the passage of the law, hut whether intoxicating liquors should he. sold in their midst. If the majority voted against the sale, the law, and not the vote, declared it should not be sold. The vote sprang from tire law, and not tbe law from the vote. By their vote the electors declared no consequences, prescribed no penalties, and exercised no* legislative function. The law declared the consequences, and, whatever they may be, they are exclusively the result of the legislative will.”

In Ex parte Lynn, 19 Tex. App. 293, this, same question was before the court. Under the Texas local option law the people of Milam county had voted against the sale of intoxicating liquors. The petitioner, Lynn, was arrested for a violation, of the law, and defended upon the ground that he, resided in the city of Bockdale, an incorporated city within Milam 'county, which had issued to him a license to sell liquors, and that the charter of that city authorized it i» issue such license. The Court of Appeals, however, held the law operative throughout the county, and, among other things, said: “But, even viewing it as a general law, it was unquestionably the intent of the legislature that it should have the effect, whenever adopted in a particular locality, to prohibit the sale of intoxicating liquors in that locality by any person, without regard to whether such person, had been licensed by the state, county, city or town to sell. Any other construction of the law would seriously impair its efficacy, and in a great measure defeat the purposes for which it was enacted. * * * we hold, therefore, that the local option law, having been legally adopted in Milam county, it became operative throughout the county, and upon all persons within said county alike, and had the effect to repeal and abrogate all licenses for the sale of intoxicating liquors granted by said county, or by any city or town within, said county.”

Counsel contend that the decisions of the courts of Texas and Kentucky should not be considered by this, court, for the reason that the local option laws of those states were enacted pursuant to constitutional provisions; but we are unable to perceive the difference in effect between a law passed by a legislature because it is compelled to do so, and one passed by a legislature because it has, full power and authority to do so. Each is alike a legislative mandate when duly passed, and each is of equal dignity and importance.

From the foregoing considerations we are of tlie opinion that tlie adoption of tlie local option law in Ravalli county prohibits the sale of intoxicating' liquors in the town of Hamilton. (Smith v. Patton, 103 Ky. 444, 45 S. W. 459 ; 19 Ency. Law (2d Ed.), 510.)

The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to tlie regulation and control of the police power of the' state; a. power of which the legislature cannot divest itself (Burnsides v. Lincoln County Court, 86 Ky. 423, 6 S. AY. 274; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989) ; and such body is the exclusive judge of the manner in. which such police power shall be exercised, and its action should be liberally construed (Garrett v. Mayor, 47 La. Ann. 618, 17 South. 238).

In the early history of this class of legislation a few courts held local option laws unconstitutional. (Rice v. Foster (Del.), 4 Har. 479; Thornton v. Territory, 3 Wash. Ter. 482, 17 Pac. 896; Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; Parker v. Com., 6 Pa. St. 507, 47 Am. Dec. 480; Maize v. State, 4 Ind. 342; State v. Wier, 33 Iowa, 134, 11 Am. Rep. 115.) A Michigan local option' law was held unconstitutional, hut because of a defective title to tire Act (In re Hauck, 70 Mich. 396, 38 N. W. 269) ; but afterwards, in Feck v. Township Board, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69, an Act similar to the one under consideration, in so far as the objections here urged are concerned, was upheld. The case of Ex parte Wall, supra, was decided by a bare majority of the court, as was the case of Thornton v. Territory, supra. Parker v. Com. was overruled in Locke’s Appeal, 72 Pa. St.. 491, 13 Am. Rep. 716, decided in 1873. Maize v. State, above, is overruled in fact, though not in express terms, by the later decision in Groesch v. State, 42 Ind. 547; while the effect of the decision in State v. Forkner, 94 Iowa, 1, 62 N. W. 683, must be held to' have destroyed the effect of the decision in State v. Wier, above, as an authority.

So far as our investigation goes, the only states which now hold such laws invalid are Delaware, California and AAtoshing-ton, while they are upheld by the following authorities: Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. 6; State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Frederickton v. Queen (Can.), 3 Duv. 505; Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355; Weil v. Calhoun (C. C.), 25 Fed. 865; Caldwell v. Barrett, 73 Ga. 604; State v. Forkner, 91 Iowa, 1, 62 N. W. 683; Com. v. Bean, 110 Mass. 357; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; Feek v. Twp. Board, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344; Schulherr v. Bordeaux, 64 Miss. 59, 8 South. 201; State v. Pond, 93 Mo. 606, 6 S. W. 469; Paul v. Gloucester County, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86; Village of Glov-ersville v. Howell, 70 N. Y. 287; Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749; Locke’s Appeal, 72 Pa. St. 491, 13 Am. Rep. 716; Ex parte Lynn, 19 Tex. App. 293; Savage v. Commonwealth, 84 Va. 619, 5 S. E. 565; Bancroft v. Dumas, 21 Vt. 456.

Commenting on .these laws, Cooley says: “Such laws are known in common parlance as ‘Local Option Laws.’ They relate to subjects which, like the retaling of intoxicating drinks, or the running a.t large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground that the subject, though not embraced within the ordinary power of the municipalities to 'make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control.” (Cooley’s Const. Lim. 7th Ed. pp. 173-174.)

Finally, every reasonable intendment is to be resolved in favor of the constitutionality of the law, and 'before this court can pronounce a solemn enactment of the legislative assembly invalid, such invalidity must be made manifest beyond a reasonable doubt. (State v. Camp Sing, 18 Mont. 128, 44 Pac. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. McKinney, 29 Mont. 375, 74 Pac. 1095.)

After this canse bad been argued to‘ tbis court at great length, it appeared from tbe testimony of the complainant, taken in open court, that at the time the writ of habeas corpus was served upon the sheriff of Ravalli county complainant was not in fact confined in the county jail, but was permitted h> go about without apparent restraint. IJpon this testimony of complainant this court would have been justified in dismissing his petition, but because of the importance of the questions and the public interest involved we have considered it upon its merits.

The complainant is remanded to the custody of the sheriff of Ravalli county to be imprisoned until he shall be discharged .according to law, and the proceedings are dismissed.

Dismissed.

Mr. Justice Milbuee

(concurring) : While I believe that Me. Justice Holloway is correct in what he says in the foregoing well-considered opinion as to the constitutionality of the statute, yet it is not because of this belief that I decide, as I do, that the writ should be quashed and the proceedings dismissed. I so' decide upon the single ground that the complainant was not in the custody of the sheriff, or at all restrained of his liberty, when he prayed for the writ.

The complainant, in his petition addressed to the justices of this court, declared under oath that he was “unlawfully imprisoned, detained and confined of his liberty by Joshua Pond, sheriff of Ravalli county, * * * in the county jail of said county.” A writ of habeas corpus was issued by order of the chief justice, returnable before this court.

The sheriff, under oath, made his return that “at the time said writ was issued * * * and served upon me the said W. P. O’Brien was by me imprisoned and restrained of his liberty, and confined in the county jail of Ravalli county, and that such imprisonment and restraint would have continued until this time, had not this honorable court directed that said W. P. O’Brien, relator herein, be released upon executing a satisfactory bond in the sum of $500. * * *”

The complainant, being examined upon his oath in this court at the time of the hearing, declared that at the time the poetition was made and at the time the sheriff was served with the writ he was not in the custody of the sheriff at all, but had been allowed to go at his own will pending his application for said writ.

Looking to Article VIII, Section 3, of the Constitution of this state, -we find that a petition for a, writ of habeas corpus addressed to a justice of this court must show that, the complainant is “held in actual custody.” In Section 110 of the Code of Civil Procedure, is said the same tiling.

The writ of habeas corpus is to enable a person unlawfully held in actual custody to regain his liberty. It is not designed for the purpose of assisting persons to' get expeditiously, or at all, a mere decision of the court upon unsettled and disputed points of law. In the case of a bona fide petition of a person actually in custody this court may and will grant a, writ returnable and order a hearing to be had as provided by law. But it will not permit the sacred writ, which was intended to protect the citizen from unlawful imprisonment, to' be- made, by convenient arrangement, a mere means of securing such a decision as is referred to above.