source: Caselaw Access Project

author: HR. JUSTICE PIGOTT Me. Justice MilbueN :

license: Public Domain

text:
    STATE Respondent, v. TIGHE, Appellant.
    (No. 1,858.)
    (Submitted November 11, 1902.
    Decided January 2, 1903.)

      Criminal Law — Homicide—Jury Panel — Demurrer — Exemption from Jury Duty — Evidence—Bes Gestae — Necessity of ■ Swearing and Examining Eyewitnesses — Private Attorney Assisting Prosecuting Officer — Instructions—Self-Defense— Examination'of Jurors on Their Voir Dire — Practice—Cross-Examination — Argument of Counsel — Time limitation.

    1. In view of Penal Code, Sections 2170, 2036, 2037, 2038, 2039, held that in a criminal case a “demurrer” to a challenge to the jury panel was equivalent to an exception to the challenge, the mere name not being important.
    2. Action of the court in sustaining or allowing a demurrer to a challenge to the jury panelr and in impaneling the jury amounted to a “disallowance” of the challenge, so as to render the question raised by the challenge reviewable on appeal.
    3. Under Code of Civil Procedure, Sections 232, 241, 243, 262, Subdivision 3, held that where the jury commissioners intentionally omitted from their list persons known to them to be exempt from jury duty, though they were competent jurors and if summoned would have been required to serve unless they seasonably claimed the benefit of the exemption, was a mere irregularity, not affecting any substantial right of a defendant in a criminal case,» hence no ground for challenge to the panel.
    4. In a criminal case it was proper to permit an attorney to appear as an assistant for the prosecuting officer and participate in the trial, though he was being compensated by private persons. (Mr. Justice MilburN dis- ° senting.)
    5 Where the evidence before the jury was such as would have warranted defendant’s conviction of any degree of felonious homicide, an instruction to find him guilty of manslaughter or to acquit was properly refused.
    6. In a criminal case a witness for defendant on a cross-examination testified that his evidence before the examining magistrate was given while he was drunk. Part of the testimony was read to the witness, and used for impeachment purposes, but the writing was not introduced. Defendant’s counsel then offered the testimony for the purpose of showing that in its entirety it was not contradictory of the witness’ testimony on trial. Held, on appeal, that its exclusion was not apparent error, inasmuch as defendant had the opportunity, of which he availed himself, of interrogating the witness further, aud tne bill of exceptions contained no copy of the paper, or substance of its contents, so that it could be determined whether the remainder of the testimony on the examination was or was not inconsistent with the testimony on trial.
    7. Penal Code, Section 2082, enacts' that on a trial for murder or manslaughter it is not necessary for the state to call as witnesses all persons who are shown to have been present, but the court may require all such persons to be sworn. Held, not error for the court in a criminal case to refuse to require all the eyewitnesses to be sworn, unless it abuses its discretion.

      8. In a criminal case it was not error for tlie court to exclude as immaterial a question put to a witness on direct examination by defendant as to whether he had not been subpoenaed by the state. (See facts.)
    0. On a prosecution for murder, deceased having been killed in an affray with defendant, evidence of the conduct and acts of the parties from the inception of the affray to its end, and that neither called for aid or assistance while struggling, was admissible as part of the res (jestae.

    10. On a prosecution for murder, deceased having been killed in an affray with defendant, it was the theory of the defense that defendant did not intend to stab deceased, but that the knife, which he had seized from an instinct of self-defense, must have come in contact with deceased accidentally while they struggled, and defendant offered to show that in less than a minute after the fatal wound, and while he was being led away in a highly excited and angry condition and with a bleeding face, at a point from forty to fifty feet from the spot where the killing occurred, a person remarked that he was going for a physician for deceased, and defendant answered, “Hell, he does not need a doctor ; he is not hurt.” Code of Civil Procedure, Section 8126, provides that where the declaration, act, or omission forms part of a transaction which is itself the fact in dispute, or evidence of that fact, such declaration, etc., is evidence as part of the transaction. Section 3146 declares that evidence may be given of an act, declaration, or omission forming part of a transaction. Heldj error not to admit the offered declaration, the question whether it was part of the res gestae being'for the jury.
    11. Held, that certain instructions given by the trial court, touching the law of self-defense, though technically inaccurate, were not prejudicially erroneous.
    12. In a criminal case it was proper for counsel for defendant to ask each juror, when called and sworn on his voir direj whether he was a member of the Knights of Pythias, or of the Order of Odd Fellows, or of the Order of Sons of Hermann; his counsel having stated that decedent was probably a member of one or more of those societies.
    13. "Where, on a prosecution for murder, a map of the room in which the affray took place was put in evidence by the state, and the accuracy of the map was disputed, it was error not to permit defendant to show, on cross-amination of a witness who made the map, directions given to the witness by the county attorney as to its preparation.
    14. On a prosecution ior murder a witness testified that the expression on the face of deceased at the time of the killing indicated fear; that he “seemed to be scared”; and another witness testified that prior to the homicide defendant, while speaking about deceased, was emphat*c in his language, and that the expression of his face showed anger. I-Icld, that the testimony, in so far as it concerned anger and fear, was not objectionable as statements of inferences from facts rather than facts themselves, but each statement was admissible, being “a shorthand rendering of facts.”
    15. In a capital case it is error for the court to limit in advance the time which counsel for defendant may employ in his argument to the jury.

      Appeal from District Court, Broadwater County; TF. L. Holloway, Judge.

    ThoMas Tights was convicted of murder in the second degree, and appeals.
    Reversed.

      Mr. J. B. Kanouse, and Messrs. Nolan & Loeb, for Appellant.

      Mr. James Donovan, Attorney General, for tbe State.
   HR. JUSTICE PIGOTT

delivered, the opinion of the court.

Thomas Tighe was accused by information of the murder of one Paul Koch. lie was convicted of murder of the second degree, and appeals from the judgment and from the order denying him a new trial.

1. Before the jurors were sworn, the defendant challenged the panel upon the ground that the jury commissioners, in preparing the list for 1902, had intentionally omitted therefrom certain persons who were known to them to be exempt from jury duty, although such persons were also known to them to be in all respects competent jurors. In the challenge the defendant offered to prove the alleged facts by the oral testimony of the jury commissioners. To the challenge the state excepted by interposing a demurrer to the effect that the facts alleged were insufficient in law. The demurrer was sustained, and the jury impaneled, the defendant excepting.

The attorney general contends that the question of whether the court erred in sustaining the demurrer to the challenge cannot be considered here. In substance, his argument is as follows: There is no provision in the Penal Code permitting a demurrer to a challenge; the only exception which may be taken with reference to the decision upon such'a challenge is that authorized by Section 2170 of the Penal Code, providing for exceptions by the defendant to a decision of the court in disalloiv-ing a challenge to the panel; it does not appear that the challenge was ever disallowed; therefore the error assigned is not before this court. His conclusion does not follow. Section 2036 of the P’enal Code reads: “If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the stenographer, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.” , If, as against the exception, the" challenge be found sufficient, tbe court may permit the exception to be withdrawn, and the facts alleged to be denied; if the exception be allowed, the challenge may be amended by the court’s permission. (Section 2037, Penal Code.) If the truth of the matter set up' in the challenge be denied, the court must try the issue of fact. (Section 2038, Id.) If the challenge be allowed, either upon an exception for insufficiency in law or upon a trial of the issue of fact, the jury must be discharged. If a challenge be disallowed in either case, the jury is to be impaneled. (Section 2039, Id.) True; the Penal Code does not designate as a demurrer an exception to- a challenge for insufficiency of the facts stated therein; but the mere name is not important; such an exception is equivalent to a demurrer, for the denial of sufficiency admits the allegations to be true in point of fact. It is immaterial whether the denial of sufficiency be expressed by the use of the word “exception” or the word “demurrer;” each performs the same office. So much for the name. As to the statement that the challenge was not disallowed, it is enough to say that the action of the court in sustaining or allowing the demurrer or exception and impaneling the jury was a disallowance of the challenge. These are the only technical objections suggested, and the question of whether there was error is, therefore, presented for decision.

The persons whose names were omitted from the list were competent jurors. Their competency was known to the chairman of the board of county commissioners, the county treasurer, and the county assessor, who were the jury commissioners. They intentionally omitted the names from the list. Section 232 of the Code of Civil Procedure declares that- persons engaged in certain pursuits or holding certain public offices are exempt from- liability to serve as jurors. All the persons so excluded were exempt from liability to act as jurors, but, if they had been summoned, they would be required to serve, unless they seasonably claimed the benefit of the exemption. Section 241 of the same Code prescribes that the jurv commissioners “must select, from the last assessment roll of the county, and make a list of the names of all persons whom they believe to be competent and qualified to serve as trial jurors.” As bas been said, the commissioners purposely excluded from the list the names of persons known to them to be in every respect competent jurors. Not every deviation from the law in making a jury list will be cause for challenge to the panel. Many errors and mistakes are to be overlooked. All that may reasonably be required is that the commissioners, in selecting’ the names, in good faith substantially comply with the law. The omission of those whom they know or believe to be competent and qualified is an irregularity, which will, under some circumstances, amount to a material departure from the law, and a consequent denial of the litigant’s right to have a proper list in the jury box.

We are satisfied that the omission in the case at bar was a mere irregularity, not affecting any substantial right of the defendant. The list prepared by the commissioners is required to be delivered to the clerk of the district court, wlm places the name of each person thereon in the jury box. (Sections 242, 243, Code of Civil Procedure.) Jurors for a term or session of court are selected by drawing names from the box. Subdivision 3 of Section 262 of the Code of Civil Procedure provides that, “if the name of any person is drawn from said box * * * who is exempt from jury service, and the fact shall be made to appear to the satisfaction of the court, the name of such pei*-son shall be omitted from the list, and the slip of paper having such name on it shall be destroyed, and another juror drawn in his place.” The names of the persons drawn shall be certified to the sheriff for service. Now, the names omitted by the jury commissioners from the list furnished by them were of persons admittedly exempt from jury service. If the names of such persons had been on the list, it would have been the duty of the district court, the fact of exemption appearing, to omit them in drawing and selecting the jurors for the term; in other words, the court is commanded by the statute to exclude those appearing to' be exempt from service. How, then, can the defendant have been injured by the irregular action of the jury commissioners in omitting names from their list which the court, if advised of the exemption, was required to omit from its list ? Tlie tlieory of tlie statute is tliat- in drawing jurors for a term or session persons exempt- wifi not ordinarily be selected, and will never be selected if tlie exemption is shown to tlie court; but if they are selected and summoned, they must serve, unless they assert the privilege. The persons whose names were omitted by the commissioners were exempt in point of fact, and the defendant was not entitled to have them, or any of them, drawn by the court or summoned by the- sheriff. To hold the challenge good in this case would be to adhere strictly to the letter of Section 241 without considering other provisions which serve to express the purpose- of the legislative assembly. Counsel for the defendant cite some remarks in State v. Bowser, 21 Montana Reports, 133, 139, (53 Pac. 179), in support of the contention that the challenge should have been allowed. The remarks were not necessary to the decision, and wtere obiter, for this court held that the offer to prove the averments of the challenge was not sufficient. It may further be observed that the remarks would probably not have been made if the court had considered Subdivision 3 of Section 262, supra. The court rightly disallowed the challenge.

2. At the beginning of the trial the defendant objected to the appearance in behalf of the state of R. R-. Purcell, Esq., whose name had, on motion of the’county attorney, been entered as an assistant to that officer, on the ground that Mr. Purcell had been employed by private pi’osecutors, by whom-, and by whom alone, he was to be compensated. In support of the objection the defendant offered to prove the truth of the aver-ments, but the court re-fused to permit this to be done, and overruled the objection. Much might be said in favor of the action of the court, and much against it. Many courts declare that counsel employed and compensated by private persons may, with the court’s consent, assist in the prosecution of criminal cases. (State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; U. S. v. Hanway, 2 Wall. Jr. 139, 26 Fed Cas. 105, 129 (No. 15,299); Polin v. State, 14 Neb. 540, 16 N. W. 898; Bradshaw v. State, 17 Neb. 147, 22 N. W. 361, 5 Am. Ct. Rep. 499; State v. Bartlett, 55 Me. 200, 220; Hopper v. Com., 6 Grat. 684; Siebert v. State, 95 Ind. 471, 476; and see 1 Bish. Cr. Proc. Sec. 251, and People v. Blackwell, 27 Cal. 66.) Otlier courts have interpreted statutory provisions prohibiting the state’s attorney from receiving any compensation from or in behalf of any prosecutor for his services in a criminal case as preventing the appearance for the state of counsel employed by or in behalf of private persons. (Biemel v. State, 71 Wis. 444, 37 N. W. 244; Meister v. People, 31 Mich. 99; People v. Hurst, 41 Mich. 328, 1 N. W. 1027; Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534; and Com. v. Williams, 2 Cush. 582.) For nearly forty years the practice in the territory and state of Montana has been to permit counsel employed and paid by private persons to assist in the prosecution of criminal cases. This practice has amounted to a contemporaneous interpretation of the law, which, in view of the doubt touching the correct solution of the question, should not be disturbed or changed Toy the court. The-writer of this opinion, speaking for himself only, thinks the practice is in accord with the law, irrespective of the contemporaneous interpretation. The legislature may abolish the practice. As the matter stands at present, the district courts may, in their discretion, permit such coTinsel i» appear and participate in the trial of criminal actions as assistants to county attorneys. In State v. Whitworth, 26 Montana Deports, 107, (66 Pac. 748), the question now raised was not involved.

3. The defendant argues that the verdict is contrary to, and without support in, the evidence. He insists that the circumstances of the homicide show that the killing was without malice, and was either manslaughter, or justifiable on the ground of self-defense. He prayed the court to direct the jury that they must find him guilty of manslaughter or acquit him altogether. This the court refused to do.

The defendant was foreman of the East Pacific mine. There was evidence to show that he had general supervision of the kitchen, of the dining room, and of the entire mine, and was empowered to hire and discharge the men; and tbat one of his duties was to see that the meat and other supplies were weighed, and to verify the bills. Koch, the decedent, was the cook. On March 6, 1902, a few minutes after 12 o’clock noon, the defendant entered the kitchen on his way to the adjoining dining room, where dinner was being served to 40 or 50 men employed at the mine. He asked Koch whether he had weighed the meat "that had been delivered just before noon. Koch answered in the negative, and the defendant then said he would see that the meat was weighed thereafter, and moved away from Koch' and toward the swinging door leading into the dining room. On the part of the state the evidence tended to prove that Koch then said that, if the defendant wanted the meat weighed, he could do it himself; that the defendant told Koch not to get too “gay” or too. “funny,” to which Koch answered by an obscene invitation ; that the defendant then walked towards Koch, who struck the defendant on the nose and eye, knocking him against the wall; that they then “clinched” and fell to- the floor, and in the struggle went through the door of the dining room; that, after struggling there, the defendant grasped a knife from the bread table, and stabbed Koch in the heart at a time when Koch had ceased fighting, and had released the defendant, and then struck Koch twice over the head with the knife. There was evidence on behalf of the defendant to the effect that when he asked Koch if he had weighed the meat the latter said it did not “have to be weighed,” and defendant told Koch it was his duty to weigh it, upon which the obscene invitation was extended to the defendant ; that the defendant then told Koch not to “get funny,” and Koch replied by saying, “Get out of here, you son of a bitch,” at the same time starting rapidly toward the defendant; that when he reached the defendant he struck defendant on the cheek, and that, to protect himself, the, defendant grappled with Koch, who pressed him to the floor, pushed him toward the wall, and shoved him through the door between the kitchen and the dining room; that as they went through the door the defendant fell against a table, striking his head on the corner, and cutting it; that the defendant was down on his hands and knees and partly on his side, with Koch over him, either kicking him on the head or attempting to do so, and kicking him in the ribs; that while on the floor, with Koch on top, Koch struck him on tbe back of tbe bead, at tbe same time calling bim a vile name, and saying be would “fix” bim; that Koch then grasped tbe defendant by tbe back of tbe neck, and slnng bim onto or against tbe bread table; that tbe defendant’s bands struck tbe table, and, seeing a knife, “be grabbed” it; that, after tbe defendant-bad secured tbe knife, Koch swung him around against tbe window; that there was no cessation of the struggle from tbe first blow by Koch until after tbe killing; that, when tbe corner of the table was reached in the fight, tbe defendant struck Koch on tbe bead with a knife, but that be was not conscious of having stabbed Koch; that defendant considered himself to be in danger of great bodily injury or of losinig bis life at tbe bands of the decedent, and acted in self-defense throughout. Koch was tbe larger man. There was also evidence of a prior threat by Koch to kick tbe defendant out of tbe kitchen, and of some ill feeling on the part of tbe defendant towards Koch, or of dissatisfaction with bim. Tbe evidence was sufficient to justify a verdict finding tbe defendant guilty of any grade of felonious homicide. If the killing was unlawful, and done with malice aforethought and deliberation, it was murder of tbe first degTee; if unlawful, and with malice aforethought, but without deliberation, it was murder of tbe second degree; if tbe killing was unlawful, but without malice, it w'as manslaughter; and, if tbe killing was done in necessary self-defense, it was justifiable, and therefore lawful. Tbe instruction requested was properly refused.

4. One McPherson, a witness for tbe defendant, on cross-examination testified that bis evidence before tbe examining magistrate was given while be was drunk, or at least under tbe influence of liquor. Part of that testimony was read to tbe witness, and thus used for impeachment purposes, but tbe writing was not introduced. Defendant’s counsel then offered tbe testimony of tbe witness as taken at tbe preliminary examina-, tion for the purpose of showing that such testimony in its entirety was not contradictory of tbe testimony delivered by tbe witness on tbe trial. To its exclusion tbe defendant excepted. In this there was no- apparent error ¡ In tbe first place, tbe defendant bad the opportunity — of which he availed himself — ■ of interrogating the witness further as to matters formerly stated by him; and, secondly, it does not appear what the remainder of the testimony given on the preliminary examination was. It is not embraced in the record, and we have no means of ascertaining whether or* not it was consistent with his last testimony. The bill of exceptions should contain either a copy of the paper sought to be introduced or the substance of its contents. Without this we cannot consider the question.

5. Certain persons, who were eyewitnesses- of the killing, were not called by the state. The defendant asked the court to require counsel to examine them. This the court refused to- do, and the defendant excepted. Thereupon the defendant called them as his own witnesses. It is discretionary with the trial court whether all persons who are shown to have been present at a homicide shall be sworn and examined in behalf of the state. Exercise of its discretion will be corrected only in case of abuse. (State v. Rolla, 21 Mont. 582, 55 Pac. 523; Section 2082, Penal Code.) While the court might well have required all the eyewitnesses to be sworn, we are not prepared to say it erred in refusing to do so. Nor did the court err in excluding as immaterial the question put to the witness Johnston on direct examination by the defendant as to whether he had not been subpoenaed by the state. (Mann v. State (Ala.), 32 South. 704 (not yet officially reported). Standing alone, the question seems designed to elicit immaterial matter.

6. Evidence of the conduct and acts of the defendant and Koch, and each of them, from the inception of the affray to its end, was competent and relevant. Hence proof of the fact that neither called for aid or assistance while struggling was admissible. It was part of the res gestae. The court rightly received it.

1. The defendant testified that he did not intentionally stab Koch; that he had no recollection of stabbing him; his theory being that the stabbing must have occurred by reason of the knife coming in contact with the body of Koch as he and Koch swung towards the window away from the table on which the knife taken by the defendant had been. The defendant offered to prove that in less than a minute after the fatal stroke, while he was being led away in a highly excited and angry condition, and with a bleeding face, at a point from 40 to 50 feet distant from the spot where the killing occurred, one Bell remarked that he was going for a physician, for Koch, and the defendant answered, “Ilell, he does not need a doctor; he is not hurt.” The court sustained an objection on the ground of incompetency and immateriality, and the defendant excepted. Section 312G of the Code of Civil Procedure provides that, where “the declaration, act or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction.” Section 314G of the same Code declares: “In conformity with the preceding provisions, evidence may be given upon a trial of the following facts: * * ’ * (7) The act, declarar tion or omission forming part of a transaction, as explained in Section 312G.” “Bes gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants under the immediate spur of a transaction, becomes thus part, of the transaction, because it is then the transaction that thus speaks. In such cases it is not necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they did or said is not hearsay. It is part of the transaction itself. And so long as the transaction continues, so long do-acts and deeds emanating from it become part of it, so that in describing it in a court of justice they can be detailed. The question is, is the evidence offered that of the event speaking through participants, or that of observers speaking about the event ? In the first case, what was thus said can be introduced without calling those who said it; in the second case they must be called. Nor are there any limits of time within which the res gestae can be arbitrarily confined. They vary, in fact, with each particular case. The distinguishing feature of declarations of this class is that they should be the necessary incidents of the litigated act; necessary in this sense; that they are part of the immediate concomitants or conditions of such act, and are not produced hy the calculated policy of the actors. They need not he coincident as to time, if they are generated by an excited feeling which extends without break or let-down from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part either of the action immediately producing it or of action which it immediately produces. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or 'declarations, become in this way evidence of the character of the act.” (Sections 262, 263, Whart. Or. E.v.) We are of the opinion that the declaration offered in evidence should have been received. It was so near the time of the homicide, and followed it so closely, that it may well have been a spontaneous expression, immediately and unconsciously associated with the principal act, of the belief of the defendant and of the state of his mind. It should have gone to the jury for what they might consider it worth. If, upon all the circumstances, the jury should be of the opinion that the declaration was instinctively made under the immediate and compelling influence of the affray, it must be consider^! by them as evidence tending to- show the intent of the defendant at the time the fatal thrust was given; if, on the other hand, the jury should believe the declaration was not spontaneously made under the immediate spur of the transaction, it must be deemed self-serving, and therefore not evidence in his favor. This question was one for the jury upon the same principle that the question of whether alleged confessions admitted in evidence were or were not voluntary — 'the evidence with respect to- the question being conflicting — is submitted to- the jury. This rule as to confessions is clearly correct, and finds support in Commonwealth v. Preece, 140 Massachusetts Reports, 276, (5 N. E. 494; Commonwealth v. Kennedy, 135 Massachusetts Reports, 543; Commonwealth v. Crossley, 162 Massachusetts Reports, 515, (39 N. E. 278); and State v. Grover, 96 Maine Reports, 363, 366, (52 Atl. 757). It is as clearly applicable to the question of fact whether declarations are part of the res gestae whenever that question arises upon conflicting evidence, or depends upon contradictory inferences either of which may be fairly deduced from uncontradicted evidence. It is the province of the court to determine the question of the admissibility of a declaration. Of course, if a declaration favorable b> the party mating it is clearly not part of the res gestae, it should be excluded by the court; otherwise it should be allowed to go to the jury, to be rejected by them if merely self-serving, but to be considered if the transaction spoke through the declaration. Territory v. Clayton, 8 Montana Reports, 1, (19 Pac. 293), and State v. Pugh, 16 Montana Reports, 343, (40 Pac. 861), are not opposed to the holding in the present case. In each of the cases the declaration of the defendant was a self-serving narrative of past events. The court committed prejudicial error in sustaining the objection.

8. Counsel for the defendant contends that instructions numbered 22 and 23 are prejudicially erroneous. Though they are not technically accurate, we are not prepared to agree with counsel that either was harmful. An opinion thereon is re>served. Under the circumstances of the case the instructions referred to should have been, in effect, these: “(22) On the other hand, if you believe from the evidence that the defendant commenced the affray by assaulting Koch, or by so menacing him as to induce in Koch a reasonable belief that he was in immediate danger of physical violence at the hands of the defendant, then the defendant is not entitled to a verdict of acquittal on the ground that he killed Koch in self-defense, unless the defendant really and in good faith endeavored to decline any further struggle, and in some way, by words or conduct, notified Koch thereof, and thereafter acted only upon a well-grounded fear in him, as a reasonable man, that he was in imminent danger of being killed by, or of receiving great bodily harm from, Koch. The words used by the defendant did not constitute an assault, nor were they sufficient to excite in Koch a reasonable fear that he was about to be assailed by the defendant. (23) If you find from the evidence that at the time he stabbed Koch tbe defendant did not, as a reasonable man, believe be was in imminent danger of losing Ms life or suffering great bodily injury at tbe bands of Koch, tben tbe killing was not done in self-defense, but was either murder or manslaughter, no matter who began tbe affray, and even though tbe defendant bad really and in good faith endeavored to decline further struggle, and bad so-informed Kocb.”

9. As tbe cause must be sent back for a new trial, we shall indicate briefly our views upon tbe remaining- specifications of error.

(a) The defendant asked each juror, when called and sworn on tbe vow dire, whether be was a member of tbe Knights of Pythias, or of tbe order of Odd Fellows, or of tbe order of Sons of Hermann, tbe purpose being to- enable tbe defendant judiciously to- exercise bis peremptory challenges. His counsel stated that tbe decedent bad probably been a member of one or more of those secret societies. Hpon objection tbe question was excluded as immaterial, irrelevant and improper. Before tbe jury were sworn to- try tbe cause, tbe defendant bad exhausted bis peremptory challenges. A defendant should be permitted great latitude in examining jurors so as to be in position intelligently to exercise bis challenges, and whenever there is a fair doubt as to tbe propriety of a question it is better to allow it. (Territory v. Campbell, 9 Mont. 16, 22 Pac. 121.) Tbe questions were proper (Burgess v. Manufacturing Co. (Tex. Civ. App.), 30 S. W. 1110; Abb. Tr. Brief. Civ. p. 54; State v. Mann, 83 Mo. 589; Watson v. Whitney, 23 Cal. 376 ; Lavin v. People, 69 Ill. 303; Union Pacific Railway Co. v. Jones, 21 Colo. 340, 40 Pac. 891), and tbe court erred in excluding them. Whether tbe error was prejudicial we do not decide.

(b) Tbe directions given by tbe county attorney to- tbe witness Wardwell as to tbe preparation by him of a map of tbe rooms in which tbe affray took place, and which map- was used by tbe state on tbe trial, were sought to- be proved on bis cross-examination by tbe defendant. Tbe accuracy of tbe -map was disputed. Tbe testimony sought to be adduced was competent and relevant, and should have been admitted.

(c) Tbe defendant’s cross-examination of Stratton was unduly restricted by tbe court, and tbe error does not seem to have been wholly cured.

(d) Tbe witness Bloomquist testified for tbe state that tbe expression on Koch’s face at tbe time be was stabbed indicated fear; be “seemed to be scared.” Tibbetts, a witness for tbe state, testified that in tbe February preceding tbe homicide the defendant, in talking about Koch, was very emphatic in bis language, and tbe expression on bis face showed anger towards Koch. Tbe defendant suggests that the witnesses were permitted, in so far as their testimony as to anger and fear is concerned, to state inferences from facts, instead of tbe facts themselves, and that such testimony should bave been stricken out. The objection is without merit. E'acb statement was “a shorthand rendering of facts,” and was admissible. (State v. Lucey, 24 Mont. 295, 302, 61 Pac. 994.)

(e) Tbe defendant’s cross-examination of Tibbitts. was improperly limited, but tbe error seems to bave been cured; and so with the cross-examination of Bloomquist.

(g) The court, against tbe objection and over tbe exception of tbe defendant, limited tbe time of argument to tbe jury to one hour and three-quarters for the state and to a like period for tbe defendant. Tbe trial consumed five days, and many witnesses were examined. Tbe ease was a capital one. We cannot agree with tbe assertion made by tbe attorney general that tbe court bad tbe right, in its discretion, to submit tbe case to the jury without giving defendant’s counsel an opportunity to argue it. Such an act would be a direct and flagrant violation of rights declared and guarantied by tbe constitution. To determine in advance just bow long a time will be required for counsel to. present bis client’s case to. a jury is a delicate task. There is always danger that tbe time may be too. short, and injustice may result. It is always better in prosecutions for felony, and especially in those involving tbe life of a human being, to allow all tbe time counsel desire to use, subject, of course, to tbe power of tbe court to check excursions and prevent needless repetitions. At least one respectable court has held that it is error for tbe judge to- predetermine tbe time allowed for argument in any ease of felony. (Williams v. State, 60 Ga. 367, 27 Am. Rep. 412.)

In so limiting tbe time for argument by defendant’s counsel, tbe court erred.

Tbe other specifications are palpably devoid of merit, and not worthy of mention. Far tbe errors discussed, tbe judgment and tbe order denying a new trial are reversed and tbe cause is remanded.

Reversed and remanded.

Me. Chiee Justice BeaNtly: I concur.

Me. Justice MilbueN :

I concur except as to tbe views and conclusion of Me. Justice Pigott in respect of tbe matter of tbe employment of private attorneys as prosecutors. As to this I dissent. Tbe private attorney’s client is a stranger to tbe action. Tbe private attorney represents vengeance. Tbe state’s attorneys, paid by tbe people, are expected to represent justice. To express my opinion and tbe reasons therefor, and to cite tbe authorities in support thereof, would take more time than is at my disposal.


author: ME. JUSTICE MILBUEN'

text:
    STATE, Respondent, v. BROADBENT et al., Appellants.
    (No. 1,832.)
    (Submitted November 12, 1902.
    Decided January 2, 1903.)

      Criminal Law■ — Witness—Impeachment ■— Cross-Lxammation.

    1. Defendant, having as a witness denied Ms guilt, may for tbe purpose of impeachment be ashed on cross-examination if he did not make statements to the contrary, and having denied making some of them, and stated that others, though made, were made under inducements, and were false, the persons to whom they were alleged to have been made may, for the same purpose, on rebuttal contradict him.

      2. To the extent that testimony is admissible to impeach one defendant, testifying for himself and his co-defendant, his co-defendant is subject to be affected thereby.
    3. Defendants in a criminal case, the evidence tending to show that a witness for the state, and ex-convict, is friendly to the prosecution and hostile to defendants, and that he was visited in the penitentiary by the prosecuting witness and taken into his employ, should be allowed to ask him on his cross-examination questions showing his relations to the prosecuting witness and his animus in the case.

      Appeal from District Court, Custer County; O. II. Loud., Judge.

    Wixxiam BiioadbeNt and James Donaldson were convicted of grand larceny, and appeal.
    Beversed.

      Mr. William Wallace, Jr., Mr. II. J. Haskell, Mr. O. F. Goddard, and Mr. Sydney Sanner, for Appellants.

      2Ir. James Donovan, Attorney General, for tlie State.
   ME. JUSTICE MILBUEN'

delivered the opinion of the court.

The defendants were convicted of the crime of grand larceny, having been duly charged by the county attorney with having on the 1st day of September, 1897, in the county of Dawson, stolen 600 sheep, of the value of $2,700, the property of E. S. Webster, Aldo Sanford, and D. O. Webster, copartners as Webster, Sanford & Co. From the order denying’ the motion of defendants for a new trial and from the judgment, the defendants, and each of them, ajipeal.

There are thirty-seven alleged errors of the district court argued under ten heads in the brief of counsel. There were twenty-ono witnesses examined, and the testimony covers two hundred and twelve pages of the record. It will not be necessary to talce up seriatim the exceptions which were saved to the rulings of the court as to admission of evidence.

1. The first specification in the brief depends upon assigned errors 5, "6, 17, 18, 19, 20, 27, 28, 33, 34, and 46. All of these refer to alleged confessions and admissions of the defendant Broadbent not made in tbe presence of bis codefendant, Donaldson. Tbe brief of counsel treats these alleged confessions of Broadbent, first, as to their effect upon him; and, second, as to their effect upon his codefendant Donaldson. We first consider the rulings of the court complained of SO' far as they affect Broadbent himself. It apjoears that two witnesses, one Hand and one Beatty, ex-convicts, testified as to certain admissions and confessions made by Broadbent. Counsel admits that their testimony was admissible as to Broadbent. The contention, so far as the admissions alleged to have been made by Broadbent against his own interests are concerned, is as follows: F. S. Webster, prosecuting witness, while upon the witness stand as a witness for the state in its case in chief, testified as to certain self-incriminating statements made by Broadbent. The court, upon consideration and on motion of the defendants, finally rejected these statements, holding that they were involuntary, and therefore not admissible. The defendant, having been put upon the witness stand by his counsel in his own behalf, was cross-examined as to these alleged admissions and confessions made to Webster, the questions on cross-examination, having been allowed over the objection of the defendant. The defendant thus cross-examined admitted having made one or more of the admissions, but undertook to explain by saying that Mr. Webster came to him while under arrest and engaged him in conversation, and promised to procure him a bail bond so he could be at large if he would testify for the state and against Donaldson, his codefendant, and that he made these admissions in order to procure this bail bond, but that he lied in so doing, and thought that he was doing right in lying to Mr. Webster for the purpose of getting a bail bond. Certain other alleged admissions concerning which he was interrogated on cross-examination ho denied having made. - Proper foundation appears to have been laid for rebuttal, if rebuttal were proper. Mr. Webster, having been put upon the witness stand in rebuttal, was examined, over the objection of the defendants, concerning the matter of these admissions or confessions and the question of inducement. Defendants’ objection was principally based upon tlie fact that tbe court had declared in the state’s case in chief, upon cross-examination of Webster, that the admissions or confessions were involuntary and inadmissible, and that therefore the state was precluded in law from introducing them on cross-examination of the defendant on rebuttal, or at all. The court allowed the cross-examination of the defendant and the rebuttal evidence of Webster, holding that, “if the defendant goes on the witness stand and denies his guilt of the crime charged, then the state is permitted, by way of impeachment or contradiction, the proper foundation being laid, to show statements inconsistent with the testimony which he gives upon the stand.” The question whether the court erred in rejecting the evidence of Webster in the case in chief as to the alleged confessions as substantive evidence tending, to show guilt is not presented, and therefore we do not p-ass upon the same. The question is, did the court err against defendants, or either of them, Broadbent being a witness in his own behalf, in permitting evidence to- be introduced in rebuttal of statements and denials made by him on cross-examination, not as substantive evidence, but for the purpose of contradicting him as a witness? We think not. The court in its charge to the jury, instruction No. 16, said to them as follows: “The jury are instructed that certain testimony has been introduced in the nature of admissions or confessions of guilt. This testimony was, in the first instance, held to be incompetent by reason of the fact that some inducement had been offered to the defendant making such admissions or confessions, and it was therefore excluded; but later in the course of the trial the defendant making such statements having become a witness in his own behalf, and having denied all knowledge of, or participation in, the offense charged, the court permitted such testimony to be introduced in this case for the purpose of impeachment and contradiction of the- statements made by such defendant while upon the witness stand. The court instructs you in relation to this testimony that this evidence is to he considered by you, together with all the other evidence in the case, for what you deem it to be worth as impeaching the credibility of or contradicting the testimony of tbe defendant making such statements or confession.” Tbe purpose of this instruction apparently was to say to tbe jury that tbe testimony of these alleged admissions or confessions was not admitted as substantive evidence tending to sbow guilt, but tbat tbe jury might consider tbe fact that tbe defendant bad made such statements, if they believed they were made and tbe circumstances surrounding tbe making of tbe same, for what they were worth in judging tbe credibility and truthfulness of tbe witness. Considering tbe remarks of tbe court heretofore quoted, with this instruction, this apparently was tbe idea of tbe court attempted to be expressed; but tbe language is such tbat it might have been misunderstood by tbe jury, and they might possibly have understood it to mean tbat tbe testimony relative to tbe alleged admissions and confessions might be considered by them as proving confessions, and not merely as affecting tbe truthfulness of tbe witness. Tbe declared purpose of tbe court in admitting this evidence on cross-examination and in rebuttal, as shown by tbe remarks of tbe court hereinbefore quoted, and instruction No. 16, is perhaps inconsistent with the idea expressed in instruction 14, which is as follows-: “You are instructed, further, tbat if declarations or admissions of either of tbe defendants, connecting or tending to connect him with tbe commission of tbe offense charged, have been proven, you are to receive tbe proof of such declaration or admissions with caution as applying to the defendant making such declarations or admissions.” Instruction 14 by its language covers all • confessions appearing in proof, and would lead, tbe jury probably to believe tbat they were to be received against the' defendant Broadbent, although with caution. We do not find error against tbe defendants, or either of them, in tbe rulings of tbe court complained of respecting tbe cross-examination of Broadbent and the evidence of Webster in rebuttal, but recommend tbat in a retrial of this cause tbe court be more careful to clearly state tbe law of tbe case in its instructions to tbe jury affecting tbe matter of admissions or confessions as they may appear.

As to' tbe effect of tbe testimony relating to admissions or confessions made by Broadbent implicating* bis codefendant Donaldson, and made ontside of tbe bearing of tbe latter*, tbe court instructed tbe jury not to consider them as against Donaldson. Apart from tbe seeming inconsistency between tbis instruction and instruction numbered 16, wbicb shows tbe sole purpose for wbicb sucb admissions or confessions were admitted, tbe court was correct in so instructing tbe jury, and we find no error in tbis bebalf prejudicial to tbe defendant Donaldson; but, on tbe other band, tbe court might have gone farther, and charged tbe jury that, so far as sucb testimony had any tendency to affect the credibility of Broadbent as a witness, it did affect bis codefendant Donaldson in so 'far as it might impeach Broadbent, who was not only a witness in bis own bebalf, but was a witness for Donaldson.

2. As to alleged errors 29, 30, and 31, it is only necessary to say that it appears that tbe court was strictly technical in sustaining tbe objections to tbe questions referred to1, and too much technicality and restriction is not to be recommended when it is evident from tbe connection what tbe question plainly means to a person of ordinary understanding.

3. Defendants assigned error (7, 8, 9, 10, 13, and 14) in that the court refused to allow certain questions to be asked of the ex-convict Hand, a witness for the state. The evidence tends to show that he was friendly to the prosecution and hostile to the defendants, or one of them at least; that be was visited in tbe penitentiary by the prosecuting witness Webster, and taken into tbe employ of tbe latter; and tbe questions were very proper, as likely to educe evidence from Hand showing bis relations to tbe prosecuting witness and bis animus in tbe case. Nothing is more important in a felony case than that each party should be allowed to thoroughly cross-examine tbe adversary’s witnesses. Again, we say that full cross-examination, within reasonable limits, must be permitted. Tbe court erred to- tbe prejudice of tbe defendants in tbis matter in tbis case. Tbe court erred, as said in assignments 11 and 12, but afterwards tbe witness testified in cross-examination as to these points, and tbe errors appear harmless. (Cobban v. Hecklen, ante, p. —, 70 Pac. 805.)

4. Alleged, errors 35, 36, and 40 are well assigned. Tbe court erred in permitting tbe impeaching witnesses to testify to tbe use or nonuse of tbe words “certain things” by Webster to Broadbent, for tbe reason that these words were not used by the defendant Broadbent as words actually spoken by Webster, but as characterizing things narrated by him as actually said to him by Webster. Broadbent testified that Webster mentioned matters which he said Webster wished him to swear, to, • and after narrating them he lumped them as the “certain things” that Webster wished to be told. He did not say that Webster used the words “certain things.” No foundation was laid for the questions asked, and the objections should have been sustained.

5. Assignments of error Nos. 2 and 3 are not tenable. As to assignment No. 16, considering the answers of the witness on cross-examination as to the same matter, we find no error.

6. We discover no error as suggested in assignment 41. The defendant Donaldson testified concerning the matter under consideration, and the evidence complained of was proper in opposition.

7. As to refused instruction “g,” we find it substantially covered, and there was no error assigned.

8. Refused instruction “d” should have been given.

9. Assignments 49 and 50 are not well taken. We see no prejudice to.the defendants.

10. It is not necessary to consider the matter 'of newly discovered evidence on motion for a new trial, as the case must be reversed for the reasons heretofore stated.

The order denying the motion for a new trial and the judgment are reversed, and the cause is remanded.

Reversed and remanded.

Me. Justice Pigott concurred in the reversal, but retired from the bench before the preparation of this opinion.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. SHORES, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,905.)
    (Submitted January 6, 1903.
    Decided January 8, 1903.)

      Supreme Court — Writ of Supervisory Control — Issuance— Remedy by Appeal.

    Code#of Civil Procedure, Section 1742, provides that intermediate orders affecting the judgment, and not otherwise appealable, may be reviewed on appeal from the judgment. Tn a trial of disbarment proceedings, a motion for postponement, based on the absence of witnesses and the inability of counsel to prepare the case in the short time given, was refused. Held, that while the denial of the motion might have been contrary to law, and while temporary injustice might result therefrom, yet the supreme court would not be justified in the exercise of its extraordinary supervisory power, in issuing a writ to compel a postponement, since the error, if any, and if not corrected during the course of the trial, or by a final favorable judgment, would be reviewable on an appeal from an adverse one.
    Petition by the state of Montana, on the relation of Arthur J. Shores, for a writ of supervisory control, to compel the district court of the Second judicial district and another to1 grant a postponement of disbarment proceedings.
    Writ denied.

      Mr. G. F. Kelly, Mr. William Wallace, Jr., Mr. II. G. Mc-Intire, Mr. C. B. Nolan, Messrs. Forbis <& Evans, and Mr. J. F. Vaile (of the Colorado Par), for Rjelator.

      Messrs. McHaiton & Goiter, and Mr. Peier Breen, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

On November 19, 1902, there was filed in the district court of Silver Bow county, by Edward W. Harney, one of the judges of said court, an accusation, properly verified, charging Arthur J. Shores, Esq., an attorney and counselor at law, with certain criminal conduct, violative of bis oath and duties as such attorney and "counselor, and asking tbat be be removed from bis office. Tbe matter was assigned for trial to tbe department of tbe court presided over by John B. McClernan, one of tbe two other judges of tbe same court, wbo directed tbe statutory citation to issue. At tbat time tbe said Shores was absent from tbe state, and could not be served with tbe citation. He returned to tbe state during tbe month of December, and upon tbe 24th of tbat month was served with citation requiring him to appear and answer on tbe 30th, This be did. He denied all tbe aller gations contained in tbe accusation justifying an inference of bis guilt. Thereupon, over tbe objection of tbe accused, January 2, 1903, was fixed as tbe time for tbe bearing; tbe court having in tbe meantime appointed Peter Breen, Esq., county attorney of Silver Bow county, to act as curmcus curiae, and present tbe evidence in support of tbe accusation. At tbe time appointed the accused appeared in person and by counsel, and moved for a postponement of tbe bearing, presenting in support of bis motion affidavits of himself and counsel, from which it appeared tbat there were many witnesses whom it would be necessary for tbe accused to examine; tbat several of them (giving their names) reside out of tbe state, or were then absent therefrom; tbat there were no other witnesses who* would testify to tbe same facts; tbat their, testimony could be obtained if time should be allowed in which to take their depositions; and tbat counsel bad up to tbat time bad no opportunity to interview any of tbe witnesses, or otherwise t» prepare tbe case by an examination of tbe evidence to1 be adduced by tbe accused. Tbe testimony of tbe absent witnesses was set forth with particularity. It further appeared tbat one of the counsel employed by tbe accused was not then present, and could not be present until after tbe lapse of some time after tbe bearing bad been in progress. Such counsel, it was stated, bad bad no opportunity to interview bis associates, nor bad be been able after bis retention to devote any time to tbe study of tbe case with bis associates, so tbat they could properly cross-examine tbe witnesses wbo would testify in support of the accusation, or present tbe evidence of tbe accused in an orderly and consistent manner. Tbe postponement was asked for a reasonable time, — not less tban one month, — in order tbat suitable preparation might be made for tbe trial. Though no counter affidavits were presented by Mr. Breen, nor any other showing made setting forth any reason why the postponement should not be granted, the motion was denied, and the hearing forthwith begun. Thereupon the accused, through one of his counsel, filed his petition in this court for a writ under its supervisory power, directing the district court to vacate the order fixing the hearing for January 2d, and to grant a postponement of the hearing for a reasonable time. The petition was accompanied by a copy of the record of the proceedings had in the district court up to the time the motion for postponement was made, and there is no1 controversy but that the petition, with the copies attached, correctly presents the proceedings had up to that time. Under an order to show cause, issued by this court on January 2d, counsel representing the trial court appeared in this court on January 5th to resist the application, and filed a motion to dismiss the application on the ground that the petition did not state a case calling for interference by this court under the process invoked. This motion was denied pro- forma,, the court reserving a decision until after a hearing upon the merits. Thereupon counsel for the judge of the district court filed his answer, in which, while he did not controvert the statements contained in the petition, and the facts shown by the copy of the record attached thereto, he alleged various matters showing the reasons why he had not postponed the hearing. Among these reasons, it was stated that the order denying the postponement contained a statement that when the accused should be required to introduce his evidence, if it appeared that he could not procure the attendance of his witnesses, or secure their evidence by deposition, he would be granted an opportunity to do so, and that by inserting this statement in the order it was intended by the court that counsel for the accused should understand that they would be given every opportunity during the progress of the ease to> prepare their defense; it being deemed proper meanwhile, owing to the crowded condition of the calendar, and expected press of other business as soon as a jury, which would shortly be called, would be in attendance, to proceed at once with the hearing, and to complete it, so far as possible, prior to that time. A copy of the order was incorporated in the answer.

After argument, and upon consideration of the questions involved, the court concluded that the motion was well made, and denied the writ. The order was entered on January 8th. The court at that time stated orally the reasons for its action, and deferred the delivery of a written opinion until a later date ; the district court having in the meantime suspended the hearing to await the determination of the proceeding here.

Counsel for the relator argued that it was apparent from the petition that ample grounds were shown in the affidavits to move the district court to grant a postponement, and that a refusal of it was, under the circumstances, an arbitrary and gross abuse of discretion, amounting to a willful disregard of the provisions of law applicable. Conceding all this to be true, nevertheless the court was not willing to- make a use of the extraordinary jrower invoked, xvhich would amount to: a practical disregard of its ordinary jurisdiction by appeal, and at the same time imply a conclusion on the part of this court that the trial court intended to do the accused a gross injustice. In State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395, cited by counsel, we endeavored to define the various powers granted to this court under the constitution, and to point out that each has its appropriate functions. It is there said that the extraordinary power of supervisory control is independent of the other powers conferred, and was not designed by the makers of the constitution to infringe upon the functions of any of them. While the statute does not provide for an independent appeal from an order denying a postponement of a trial, such an order may be reviewed upon appeal if an exception to' it is properly preserved. (Code of Civil Procedure*, Sec. 1142.) If an injustice is done by the order, the judgment will be reversed. Ordinarily this relief is full and adequate. It was also said in the Whiteside Case, supra,, that one of the functions of our supervisory power is to “control the course of litigation in the inferior courts, where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.” This language, taken without qualification, would cover the order complained of in the ease at bar; but it must be borne in mind that the court was there speaking in general terms, without reference to the facts of a particular case to which the language was intended to apply. A particular application of it is aptly illustrated by the situation presented in the case of State ex rel. Anaconda Copper Min. Co. v. District Court, 25 Mont. 504, 65 Pac. 1020, where the order complained of was about to' be executed, and, though the right to have it reviewed on appeal from the judgment existed, a reversal of the judgment would not amend the wrong done in the meantime by the execution of the order. In that case there would have been an invasion of the property rights of the relator prior to the trial and judgment in the district court, and the appeal, though it might have resulted in a reversal of the judgment, would have furnished no adequate remedy for the wrong already done. The order complained of here did not interfere with any property right of the relator; nor, by reason of it, is it apparent that he would suffer any immediate loss, either in property or his personal liberty. The want of opportunity to prepare for trial might be remedied by his obtaining the desired evidence, or by a judgment of the court in his favor. In either case there would be no just cause for complaint. To arrest the proceeding and compel a postponement would require this court to anticipate an adverse judgment by the trial court, while, if such result was to be anticipated, it will follow in any event, and a review on appeal be thus made necessary. It is true that an adverse judgment would perhaps fix the status of Mr. Shores with reference to his office in the meantime, so that he could not engage in practice; the statute apparently making no provision for a stay of the judgment. Still such, or a similar wrong, is one of the incidents of every erroneous judgment, and the possibility of its occurrence does not justify the interference by this court in the proceedings prior to judgment; otherwise every manifest wrong during the course of a trial in a district court would justify such interference. Dor example, if a district court should refuse to sustain a demurrer to an information or an indictment which did not state an offense, or to a complaint on the ground that it did not state a cause of action, when it did not, this would be a manifest -wrong, yet this situation may and does frequently arise. Interference in this case would open the door for a like interference in the cases used for illustration, with the result that this court would be constantly employed in the hearing and determination of applications like the one under consideration; thus rendering useless^ in great measure, its appellate jurisdiction. This may not be done. If the judgment in the case should be adverse, an appeal from it would furnish a remedy as complete and adequate as the court can furnish in any case, and would be preventive of any wrong whatever except such as would be an incidental result of any erroneous judgment, for which, owing to the imperfection of human institutions, no remedy has as yet been devised, except to correct it, by the ordinary procedure in the trial court, or upon review by the appellate court.

Several other points were made and argued by counsel, but they were without merit, and are concluded by the foregoing observations.

Writ denied.

Denied.


author: MR CHIEF JHSTICE BRANTLY

text:
    In re WOODWARD.
    (Submitted January 12, 1903.
    Decided January 15, 1903.)

      Attorney — Disbarment—Fraudulent Admission — Forged Letter of Recommendation.

    Code of Civil Procedure, Section 394, and Supreme Court Rule XXII, require foreign attorneys, admitted on the production of a license from the foreign jurisdiction, to supply satisfactory evidence of a good moral character. Held, that it was ground for the ■ disbarment of an attorney that, coming from another state and applying for admission, he presented with his application a letter of recommendation to which he had forged the name of a local firm, though he testified that he was so well acquainted with the firm that he had no doubt of their approving his action, and that as soon as he met the senior member he told him of the forgery, and was astonished that the desired ratification was withheld.
    ProceediNgs for tbe disbarment of E. C. Woodward.
    Disbarment ordered.

      F. C. Woodiuard, in -propria persona.

      Mr. R. Lee Word, amicus curiae.

   MR CHIEF JHSTICE BRANTLY

delivered tbe opinion of tbe court.

On December 29, 1902, one E. C. Woodward applied to this court for an order permitting bim to practice as an attorney and counselor at law in the courts of this state. Tbe application was made under tbe provisions of tbe statute (Section 394, Code of Civil Procedure) and tbe rules of this court (Rule XXII) permitting attorneys from other jurisdictions, after acquiring residence in this state, to be admitted to practice upon tbe production of a license from tbe proper authorities of such other jurisdiction, with satisfactory evidence of good moral character. Tbe applicant presented a license granted by tbe supreme court of tbe state of Nebraska, together ivitb evidence of bis good moral character and standing at tbe bar of bis native state. He also presented certificates of good moral character from reputable attorneys of tbis state. Among tbe certificates thus presented was a letter, ostensibly signed by Fox & Fox, a firm of reputable attorneys residing and practicing at Ned Lodge in tbis- state. Tbis letter contained statements very bigbly commendatory of tbe character and qualifications of tbe applicant, and, upon tbe faith of it and other evidence produced, Mr. Woodward was granted tbe order applied for. During tbe afternoon of tbe same day, information was brought to tbe members of tbe court that tbe letter signed “Fox & Fox” was a forgery. Thereafter, on January 5th, tbe matter was formally presented to tbe court by Ex-Associate Justice E. Lee Word, with affidavits of both members of tbe firm of Fox & Fox, and also of their stenographer, showing that tbe letter was in fact a forgery. Thereupon an order was entered citing 'Mr. Woodward to appear before tbis court on January 12th to show cause why be should not be deprived of bis license. In obedience to tbis citation, Mr. Woodward appeared, and made answer that be bad himself written tbe letter and subscribed thereto tbe firm name of Fox & Fox, thinking at tbe time be did so that one or both members of tbe firm would ratify bis action. Ilis conviction that tbis would be done was based upon tbe intimate relations which be stated bad theretofore existed between him and tbe members of tbe firm of Fox and Fox.

It is hardly conceivable under the circumstances, why tbe ■applicant should have been guilty of this fraudulent behavior. Among bis recommendations were several signed by reputable members of tbe bar, both of this state and tbe state of Nebraska, sufficient in substance to warrant favorable action upon bis application. His conduct can be explained only upon tbe theory that be is wholly destitute of those sentiments of honor and integrity which high-minded lawyers should always possess, and which should always characterize their conduct toward their clients, their fellow members of the bar, and the courts before which they practice from day to day. Without discussing the question whether the unauthorized use of the name of another in writing subjects the applicant.to a criminal prosecution, or whether under the circumstances the applicant should have been punished as for contempt, it is sufficient to say that, had the matter been brought to the attention of the court at the time the application was made, the license would have been denied upon the ground of total unfitness of the applicant. This being true, and the court being now informed of the fraud, the order granting the license will be revoked.

At the hearing the applicant stated that he was led into the fault by his conviction that one or both members of the firm of Pox & Fox, owing to the intimate relations existing between the members of the firm and himself, would ratify his unauthorized use of their name as soon as it was brought to their knowledge, and that as soon as he met the senior member of the firm he frankly stated to him what he had done, but was astonished that the desired ratification was withheld. Conceding this to be true, we do not think that a person whoi is so regardless of the rights of others and of his duty to this court should be permitted to occupy a relation in which his duties require the highest degree of honesty and fidelity. We are not prepared to' say that, even had the members of the firm of Fox & Fox ratified the unauthorized use of their name after the fraud was perpetrated upon this court, we would be willing to permit the applicant to remain upon the roll of attorneys. He was guilty, not only of a fraud upon the firm of Fox & Fox, but also upon this court, and jFat, too, upon the very threshold of the professional life upon which he expected to enter.

The order made and entered on December 29, 1902, admitting F. C. Woodward to the practice of law in the courts of this state, is revoked, and it is ordered that his name be stricken from the roll of attorneys and conunselors at law.


author: ME. JUSTICE IIOTXOWAY

text:
    STATE, Respondent, v. PERES, Appellant.
    (No. 1,846.)
    (Submitted January 8, 1903.
    Decided January 15, 1903.)

      Statutory Rape — Prior Acts, of Intercourse — Statement of Prosecutrix — Voluntary Character — Delay in Malting — A3r missvbility of Evidence —■ Testimony — Sufficiency — Com tradicion — Impeachment—Effect.
    1. In a prosecution ior tbe rape of a female under tbe age of consent, evidence of acts of intercourse between tbe parties prior to that charged is admissible to corroborate tbe prosecutrix.
    2. In a prosecution ior statutory rape it appeared that tbe offense was committed .on Friday; that on Monday and Tuesday prosecutrix appeared at school, nervous and tearful, evading her teacher’s questions, and on tbe latter day was excused from recitation; and that on Wednesday, when found crying by the teacher, and on being urged to disclose the trouble, told of the crime. Held, that this statement was not objectionable, as involuntarily made.
    3. As the statement was not in the nature of a confession or admission, its involuntary character would not be a ground of objection to evidence thereof, but would only affect its weight.
    4. In a prosecution for statutory rape it appeared that the offense was eom- . mitted on Friday; that prosecutrix made no disclosure thereof until the next wednesday, when, in response to questioning, she told her teacher of the offense, declaring it to have been accomplished by force; and that on the next Monday she told all her teachers. Prosecutrix testified that she did not tell her stepmother, because they were not on good terms, and the • stepmother knew of previous illicit relations between prosecutrix and accused ; and that she did not tell her fat&er because she feared he would believe she had consented. Held, that prosecutrix’s delay in making the statement would not, in view of her testimony, warrant the exclusion of evidence thereof.
    5. The rule which requires a prosecutrix raped by force to make immediate outcry or disclosure, or stand discredited on the trial, has no application to a prosecution for the rape of a female under the age of consent.
    6. Code of Civil Procedure, Section 3120,’provides that the direct evidence of one witness, entitled to full credit, is sufficient proof of any fact except perjury and treason. Held, that prosecutrix’s uncorroborated evidence would be sufficient to sustain a conviction of statutory rape.
    7. Code of Civil Procedure, Section 3390, Subd. 2, provides that the jury are not bound to decide in conformity with the declarations of any number of witnesses, not convincing their minds, against a less number satisfying their minds. Held, that the fact that prosecutrix was contradicted, or that conflicting impeaching evidence was given against her, would not overthrow a conviction of statutory rape.

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

      Camele Pekes was convicted of statutory rape, and appeals.
    Affirmed.

      Mr. Thomas E. Brady, for Appellant.
    It was error to admit, over tlie objection of defendant, tlie testimony of tbe prosecutrix to the effect that previous acts of the same character had been committed upon her by defendant, extending over a period of time more than two years prior to tlie offense charged in the information. {People v. Berman, 79 Cal. 025; People v. Barnes, 48 Cal. 551; People v. McNutt, 64 Cal. 116; People v. Fultz, 109 Cal. 258.)
    The statements made by the prosecutrix as to wliat occurred, together with the statements of those toi whom they were made, should not have been admitted in evidence as part of the case in chief. First, these statements seem not'to- have been voluntary ; and second, they were made at too remote a period, and the delay ivas unaccounted for. (Wharton’s Grim, Ev. (9th Ed.), Sec. 565; 'Whitney v. State, 35 Ind. 503; State, v. McLaughlin., 44 Iowa, 82; People v. Benson, 6 Cal. 221; People v. Hamilton; 46 Cal. 540; People v. Ardaga., 51 Cal. 371.)

      Mr. James Donovan, Attorney General, for the State.
   ME. JUSTICE IIOTXOWAY

delivered the opinion of the court.

The defendant, Camile Peres, was convicted of the crime of rape committed on the person of one Adrienne Baque, a female under the age of 16 years;, and from the judgment and an order denying his motion for a new trial he appeals.

On the trial of the cause the prosecuting witness was permitted, over the objection of the defendant, to- testify to acts of intercourse between herself and the defendant prior to the act complained of and for which the defendant was then being tried. This is assigned as error. While there may be some slight conflict in the authorities on this point, confessedly the great weight of authority is in favor of the admissibility of tbis class of evidence; not to prove substantive offenses upon which, conviction might be had, but in corroboration and explanation of the testimony concerning the commission of the act charged. (People v. Jenness, 5 Mich. 305; Whart. Cr. Ev. (8th Ed.), Sec. 35; People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880, 58 Am. Rep. 530; Mitchells v. People (Colo. Sup.), 52 Pac. 671.) In State v. Robinson, 32 Oregon, 43, 48 Pac. 357, in discussing the precise question under consideration, the court says: “It is next insisted that the court was in error in allowing the prosecution to. give evidence tending to show more than one act of criminal intercourse between the defendant and the prosecutrix. The reason assigned for the objection to this testimony is that it violates the rule which prohibits evidence of a distinct crime unconnected with that alleged in the indictment to be given against the prisoner. As a general rule, the principle invoked is unquestioned, although there are in fact many exceptions, which it is unnecessary to attempt to point out at this time, as the authorities fully sustain the competency of the evidence offered and admitted in this case, not for the purpose of proving a different offense, but to show the relation and familiarity of the parties, and as corroborative of the prose-cutrix’s testimony concerning the particular act relied upon for a conviction. (Strang v. People, 24 Mich. 6; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. Rep. 360; Commonwealth v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; Hardtke v. State, 67 Wis. 552, 30 N. W. 723; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753; People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880, 58 Am. Rep. 530.) It was for this purpose alone the evidence in question was admitted, as expressly stated at the trial court at the time, and as subsequently fully explained to the jury in the charge.”

In this connection it is urged that the court erred in giving instruction numbered 8, in which the jury was told that the evidence of prior acts of intercourse between the prosecutrix and defendant was admitted only for the purpose of corroborating her testimony regarding the commission of the act charged. On the argument of this cause counsel for defendant admits that, if tbe evidence was properly admitted, tbe instruction was proper, and, having disposed of tbe former question above, its determination likewise disposes of tbis.

It is next urged tbat tbe district court erred in permitting tbe prosecutrix to testify tbat on Wednesday after tbe Friday .on which tbe alleg'ed crime was committed she told her teacher, Miss Sutton, tbe fact tbat she bad been raped, and repeated tbis to all of tbe teacher’s on tbe Monday following; the contention being tbat a considerable time bad elapsed, with good opportunity for her to have told of tbe occurrence ;• and tbat her statement was not voluntary, in tbat it was elicited by her teacher by repeated questioning.

Considering tbe last phase of tbis question first, was tbe statement of tbe prosecutrix to her teacher in fact voluntary ? Tbe testimony tends to show tbat tbe alleged crime was committed on Friday; tbat on Monday she went to school, was nervous, and cried, and, when asked by her teacher the cause of her trouble, evaded tbe question; tbat on Tuesday much tbe same thing occurred, and she was excused from reciting in her classes. On Wednesday, when her teacher found her crying, and urged her to tell tbe cause of her trouble, she did so. TTn-dér tbe circumstances we cannot say that tbe statement was involuntarily made, and the objection on tbat ground is not tenable.

By tbis, however, we are not to be understood as saying tbat tbe testimony would not have been admissible unless tbe statement was voluntarily made. Tbis was not in tbe nature of a confession or admission as those terms are generally used and understood in the decided cases or text-books, and tbe rule governing there has no application here.

Tbe evidence was properly admitted, and tbe qiiestion as to whether the statement was made under coercion, or otherwise than voluntarily, was one which affects tbe weight, rather than tbe admissibility, of tbe evidence, and was a matter properly for tbe jury’s consideration. Under tbe information in tbis case, which charged tbat tbe prosecutrix was under tbe age of consent, viz., under tbe age of 16 years, it will Readily be observed that the rule1, which has often been promulgated, with references to cases of rape where force and resistance thereto were the gist of the offense, and which required the injured party to make immediate outcry or report of the occurrence at the first opportunity, or stand discredited as to her testimony given at the trial if she failed to do so-, has no' application here. But, the prosecutrix having made the statement of her injury and of its accomplishment by force, then the rule which requires that, if such statement be made at all, it must be made immediately after the occurrence in order to render the testimony that it was made admissible, became applicable.

Was the testimony then properly admitted; in other words, is there any fixed and definite time within which such declarations must be made in order for the evidence of their having been made to be admissible, and what, if any, explanation has the prosecutrix to make for not having spoken sooner ? In the first place, she testified that she was naturally reluctant to tell any one; that she would not tell her stepmother, for they were not on good terms, did not get along well together, and frequently had trouble; that she disliked her stepmother very much, and, further, that her stepmother knew of the improper relations existing between her and defendant, she having once caught them in the act. She further says she. was afraid to tell her father, for fear he would not believe her, and would think she had consented. With this explanation before the court, can it be said that the testimony should not have been 'admitted ? In Higgins v. People, 58 N. Y. 377, Church, Chief Justice, speaking for the court, says: “The proposition [which the court was requested to charge] is> doubtless, substantially correct, although it is quite general, and somewhat vague. Any considerable delay on the part of á prosecutrix to- make complaint of the outrage constituting the crime of rape is a circumstance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity or fear may sometimes excuse or justify a delay. There can be no iron rule on the subject. The law expects and requires that it should be prompt; but there is and can be no particular time specified.” The above authority is pertinent only as to the question of the lapse of time between the outrage and the statement of the prosecutrix, and' is not to be considered in this connection as in any wise suggesting that the law expected or required that the prosecu-trix in this ease should make complaint, she being under the age of consent. So, in People v. Gage, 62 Mich. 271, 28 N. W. 835, 4 Am. St. Rep. 854, it is said: “It is contended that the testimony ought not to have been received because of the lapse of time after the outrage and the statement to the mother. The lapse of time occurring after the injury and before complaint made is not the test of admissibility of the evidence, but it may be considered as affecting its weight.” We may conclude, therefore, that the rule requiring immediate complaint is not inflexible, and that, if reasonable circumstance cause delay, the effect is simply for the jury, and their province as to1 that fact will not be invaded by the court. (3 Rice, Ev. 827; State v. Shettleworth, 18 Minn. 208 (Gil. 191); Oleson v. State, 11 Neb. 279, 9 N. W. 38, 38 Am. Rep. 366; State v. Knapp, 45 N. H. 148; State v. Niles, 47 Vt. 82; People v. Snyder, 75 Cal. 323, 17 Pac. 208.)

The third and last contention of counsel is that the evidence is insufficient 1» support the judgment, because the verdict rests upon the uncorroborated testimony of the prosecutrix; that her testimony is contradictory within itself; that she was contradicted by numerous witnesses, and that she was impeached.

Upon the first proposition it is sufficient to say that it has been quite generally held by courts of last resort in this country, in the absence of any statute, that such a conviction is propea.*, and will not be disturbed for lack of evidence corroborating the prosecuting witness; while Section 3120 of the Code of Civil Procedure of Montana provides that the direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact except perjury and treason, and the question of the credibility of this witness was one for the jury’s determination exclusively. However, in passing, we may say that we do not agree witb counsel that there was no. corroborating evidence. The letter written by the defendant to the prosecuting witness after his arrest and before his trial must have had considerable weight with the jury, and in a material degree corroborates her testimony. There are no material contradictions in the testimony of the prosecutrix, and, if she was contradicted by others, it is sufficient to say that a verdict will not be disturbed on account of a conflict in the evidence, if there is evidence to support it (State v. Allen, 23 Mont. 118, 57 Pac. 725; State v. Hurst, 23 Mont. 484, 59 Pac. 911); and Subdivision 2 of Section 3390 of the Code of Civil Procedure provides that the jury are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, satisfying their minds.

It is sufficient to say, with reference to the claim that the prosecutrix was impeached, that certain witnesses testified that her reputation for truth and veracity is bad, while even a greater nrunber testified that such reputation is good. It was for the jury to determine from the evidence what credit should be given to the testimony of the prosecutrix.

We are satisfied, upon a careful examination of the record, that the evidence is sufficient to support the verdict, and that there is no merit in the errors assigned.

The judgment and the order appealed from are affirmed.

Affirmed.


author: MR. OHIEE JUSTICE BRANTLY,

text:
    KING et al., Appellants, v. MULLINS et al., Respondents.
    (No. 1,690.)
    (Submitted January 5, 1903.
    Decided January 19, 1903.)

      Injunction — Trespass—Irreparable Injury — Mining Shafts.

      The sinking of a mining shaft by trespassers upon a forty-acre tract of ground used for manufacturing brick, and the throwing of the debris therefrom upon the surface of the ground (but not to such an extent as to interfere seriously with the use' of the ground for the purpose of manufacturing brick), is not such an irreparable injury, nor waste of the estate, as to authorize an injunction.

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

    Injunction by Silas K. King and another against Pat Mullins and others. Prom an order denying the injunction, plaintiffs appeal.
    Affirmed.
    STATEMENT OE THE CASE.
    Appeal from an order denying an injunction. The action was brought to obtain a judgment against the defendants for a trespass upon a portion of the Columbia clay placer mining claim, situate in Silver Bow county. The complaint alleged that the defendants in April, 1901, entered upon a portion of the surface of the claim, on which there are certain shafts and excavations made by the plaintiffs, and that since thát time they have remained in possession, engaged in digging shafts and dumping the debris therefrom upon the surrounding surface, to the damage of the plaintiffs in the sum of $600. It is further alleged that the defendants are mining and removing therefrom the valuable ore deposits found therein, and will continue to do so, thus obstructing the plaintiffs’ use and enjoyment of the premises; that the said premises are valuable chiefly for their mineral deposits; and that, unless the defendants are enjoined from so trespassing thereon, the property will be depreciated in value, and it will require a multiplicity of suits to protect the plaintiffs’ rights. The nature of the mineral deposits referred to is not stated.
    The answer puts in issue the plaintiffs’ title and right of possession under their alleged placer location; denies the damage complained of; and then alleges affirmatively that the defendants are rightfully in possession of the disputed portion of the premises for purposes of exploration and location, pursuant to tbe mineral laws of tbe United States, of quartz claims upon two certain veins of quartz-bearing copper, and other valuable minerals wbicb they believe to exist therein.
    Under an order to show cause why an injunction should not issue pendente lite, a hearing was had, during which it appeared from the evidence introduced on the part of the plaintiffs that their claim is founded upon u location of about 40 acres of ground, including that in controversy, as a briclc-clay placer, though the location notice declares that the ground contains gold also. It further appeared that the ground is situated near the city of Butte, and contains a stratum of clay valuable for the manufacture of brick; that the plaintiffs were in possession of the same through a lessee under their alleged location, which was made in June, 1898; that this tenant paid a royalty to the plaintiffs until July, 1900, when his lease expired ; that thereupon, concluding that a location of land containing a deposit of brick clay only was not valid under the mineral laws of the United States, and desiring to hold the land because of the deposit, he made an entry of it as a homestead, and at the commencement of this action was engaged in litigating the alleged title of the plaintiffs in the land department of the United States, though still retaining possession by their consent, with the reservation, understood and acquiesced in by them, that if the placer location should be held invalid he would hold the ground under his homestead entry; and that, while the tenant was so occupying the ground, the defendants entered upon the portion of the surface in controversy, which was not in his actual possession, and, taking possession of a shaft thereon called the “discovery shaft,” at a distance of about 400 feet from the base of the tenant’s operations, began to sink the same through the surface deposits of clay and gravel in order to discover, if possible, copper-bearing quartz veins believed to exist some distance beneath the surface; and that the debris from the excavations thus made was being hoisted and deposited upon the surface immediately about the shaft.
    At the close of defendants’ case, upon motion of defendants, the location notice was stricken out. Thereupon, without fur-tber evidence and after argument, the injunction was denied. Error is assigned upon the action of the court in striking out the notice and in denying the injunction.

      Mr. George M. B our quin, for Appellants.
    Veins or lodes not known to exist within a placer when placer patent is applied for, belong to the placer claimant, and no other person can acquire any right thereto by discovery and location. (Montana Copper Co. v. Dahl, 6 Mont. 131, S. O. 132 U. S. 264; Raunheim v. Dahl, 6 Mont. 167, S. O. 132 IT. S. 260.)
    Defendants’ seeking veins or lodes within the premises in controversy, intending to locate and extract and cany away the substance thereof, wás waste or trespass, and involved irreparable injury, and because of it plaintiffs were entitled to an injunction pendente lite. (10 Am. & Eng. Bncy. of Law, 881, 817; Lindley on Mines, Sec. 872; 1 Beach on Injunctions, Sec. 35.)
    Plaintiffs were in possession by their tenant; repeated and continuing trespasses by defendants should have been enjoined, principally to avoid multiplicity of actions and the inadequacy of legal remedy. (Kellogg v. King, 46 Pac. 166; Paliman v. Lohmeyer, 83 N’ W. 201; Hall v. Hester, 80 N. W. 982; 3 Pomeroy, Eq. Jur. Sec. 1357; Hvnekel v. Stevens, 45 N. Y. S. 678.)
    Threatened location of the premises by defendants would cloud plaintiffs’ title, and an injunction should issue to prevent casting a cloud upon complainants’ title. (2 Am. & Eng. Ehcy. of Law, 302; 3 Pomeroy, Eq. Jur. Secs. 1345, 1348.)
    . Mr. T. J. Walsh, for Respondents.
   MR. OHIEE JUSTICE BRANTLY,

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

Under the view we take of the case, it will not be necessary to consider whether the court erred in striking out the notice. Presumably this was done upon the ground which, among others, was laid in the motion, that title cannot be acquired to lands under tbe mineral laws of the United States by reason of brick-clay deposits therein.

Conceding the location to be valid, and that the court should not have stricken out the notice, this, in connection with the evidence offered to show irreparable mischief, presented no ground for an injunction. Upon'this theory the evidence tended to show an unlawful entry and ouster as to' the disputed portion of the ground, but no irreparable injury which the plaintiffs will suffer during the litigation. There is. nothing shown but a simple technical trespass. Nothing of value is being removed or carried away; nor is the adj acent surface being incumbered by the debris deposited thereon to such an extent as to* interfere seriously with the operations of the tenant in possession under qdaintiffs, or the use of the ground for the purpose of manufacturing brick. The estate is not being removed or destroyed, nor is it being seriously impaired. There is presented a case for a suit at law in trespass, such as is this case, or one in ejectment to establish plaintiffs’ title and recover the possession of tlie disputed portion, and it falls clearly within the rule that an injunction will not issue to restrain a trespass unless the injury being done is irreparable, or is in the nature of waste and goes to the destruction of the estate. (Heaney v. Commercial Co., 10 Mont. 590, 27 Pac. 379.) Though the rule laid down in the case cited was modified in the later case of Lee v. Watson, 15 Mont. 228, 38 Pac. 1077, because too broadly stated as applied to the facts in that case, yet, as applied to cases similar in their facts to the one under consideration, it states the correct rule, and is followed.

The foregoing observations render unnecessary a consideration of the question, which arises upon the record, whether the plaintiffs, by reason of their fraudulent collusion with their tenant in possession, and by reason of their apparent abandonment of their placer location under the agreement with the tenant, are in a position to demand any relief whatever from a court of equity.

The order complained of is affirmed.

Affirmed.