first of September, and they found in the house a milkpan, a bake-oven, and some baled hay, and there was a fence around the stack, and quite a quantity of hay fenced in; and there was a kind of shed, too. He said that Warren claimed to have built the house, and claimed the hay in the house; that he had known Warren always, and that Warren had been attending to Adams and Schilling's stock for a few years, at Promontory.

The

This, then, was the condition of the property when Taylor, Dean, and Brooks went there, and Brooks was put into possession by Taylor. The object of placing Brooks in possession was to hold it for the Promontory Stock Company, and Dean was sent there to help him hold possession. The house was not occupied by any one being in it-no person was there, but there was some personal property in the house, and outside of it there were corrals, shed, hay-stacks, and a large amount of fences. only witness testifying to have visited the premises prior to the time that Brooks was put into possession stated that he saw children there on the latter of his only two visits, and that in his judgment Adams and Schilling had occupied the place for over a year. Warren was in the employ of Adams and Schilling. From all these facts, it must have been apparent to appellant and his employees. as well as to the world, that those premises were at that time in the possession of somebody, even though no one was personally present when they went there. The personal presence of the party having the possession was not necessary. His possession was manifested by his having built a house and corrals, sheds, fences, and putting up hay-stacks, and leaving some personal property in the house during his absence, and by his having used the property for a long time: De Graw v. Prior, 53 Mo., 316; Shelby v. Houston, 38 Cal., 422; Gray v. Collins, 42 Cal., 152; Allen v. Tobias, 77 Ill., 169. The appellant and his employees acted as if they anticipated trouble. But why should they have anticipated trouble? Yet that they did anticipate it is apparent. Three of them went there to put Brooks into possession. Taylor testified that, when he put Brooks into the posses

sion, he said to Brooks: "This land is ours. We have bought and paid for it. I want you to hold it against all

persons who may come to take it.

but hold it for us. Don't leave to go." Dean was sent there September.

Don't use any violence, it unless you are forced again on the ninth of

think that the district.

From the foregoing facts, we court was authorized to find that Warren, and those whose interest he represents, had been in the possession for a long time, and were so when appellant took possession, on 'the first of September, and that the entry of plaintiff was tortious. The possession of Brooks was wrongful, and not in good faith. He knew it was contested, and that there would likely be trouble over it. It was a scrambling possession, and not such a peaceable possession as to enable the party thus entering to maintain an action of forcible entry against the person who had been thus dispossessed: Bowers v. Cherokee Bob, 45 Cal., 495; Conroy v. Duane, Id., 597; Gray v. Collins, 42 Cal., 152; Hoag v. Pierce, 28 Cal., 187; Wray v. Taylor, 56 Ala., 188.

The re-entry of the former possessor was not forcible. Warren had been in possession for a long while. He had built a house, put up fences, corrals, a shed, and haystacks. He was seen there twice by Brooks, while we was there. He was working about the stacks, and was at the house. During Brooks' temporary absence, and while Dean was there, Warren entered the house by consent of Dean, and then ordered Dean to leave, and Dean left. He used vulgar and rough language in talking to Dean, but used no force, and did nothing that put Dean in fear of force, nor that was calculated to do so. Dean left because as he says, he did not want to have Warren as his enemy, or to think that he was acting for meanness; that they had always been good friends, and he did not want to have any hard feelings: Thompson v. Smith, 28 Cal., 527; Wood v. Phillips, 43 N. Y., 152; Berry v. Williams, 21 N. J. Law, 423.

We see nothing in the case to justify a reversal of the judgment. It seems to have been but another instance,

so often resorted to, of taking the law into one's own hands, and, after meeting defeat, to turn to the law for help. The law cannot help in such cases. The purpose of the tortious proceedings of appellant and his employees is made manifest by the testimony of Taylor, who said that "there is a point about the possession of this house that would explain something. Near the house, within 40 or 50 feet, is a spring which is very valuable. That spring controls thousands of acres of land. It is cattle land." Taylor was apparently the head of a stock company, and appellant was his employee.

For the reasons above stated, the judgment of the district court is affirmed, with costs.

ZANE, C. J., and HENDERSON, J., concurred.

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13* 234

UNITED STATES, RESPONDENT v. ROBERT C. KIRK

WOOD, DEFENDANT.

EVIDENCE. CONFESSION BEFORE GRAND JURY. Under section 141 of the Code of Criminal Proced. requiring that a grand juror must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them, but may however be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistant with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial thereof, held, that empowering the court to require the grand juror to disclose testimony for the two purposes specified, does not deprive it of the power to require disclosure for any other purpose, and that a grand juror may testify to a confession of defendant before the grand jury.

ID. CONFESSION UNDER OATH.-If a defendant voluntarily appears before the grand jury, and after being warned by the prosecuting attorney, still voluntarily was sworn and confessed the charge, held, that upon his trial for such offense, his confession so made could be given in evidence against him.

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

28* 957

Mr. A. G. Sutherland, Jr., and Mr. Samuel R. Thurman, for appellant.

Mr. W. H. Dickson, for respondent.

ZANE C. J.

The defendant was tried upon an indictment for unlawful cohabitation, was found guilty, and was sentenced to be imprisoned for the term of six months, and to pay a fine of $300, and from this judgment he has appealed.

While the charge against the defendant was being investigated before the grand jury he appeared, and offered himself as a witness, and the prosecuting attorney told him he could not be compelled to testify, and that he need not be sworn unless he so desired. Nevertheless, he expressed his willingness, and was sworn, and did testify. During the trial of the defendant upon the indictment, the prosecution called as witnesses two members of the grand jury by which the indictment had been found. Each of these witnesses was asked what the defendant had said while testifying before the grand jury. Thereupon his counsel objected for two reasons as alleged: First, that the witnesses were not competent under the statute to testify to what occurred in the grand jury room, because no charge of perjury was pending, nor had defendant given any evidence on the trial with which his statements before the grand jury could be inconsistent, and second, that the statements of defendant before the grand jury were not voluntary. But the court overruled the objection, and the witnesses respectfully testified that appellant had confessed to the grand jury that he knew the three women named in the indictment, Mary, Eliza, and Elizabeth; that they were his wives; that he had lived with them as such during the three years last preceeding the finding of the indictment, and during that time had represented them to be, and had held them out to the world as, his wives. The ruling of the court in admitting this testimony, defendant has assigned as error.

The first question raised upon this record, in the order we will consider it, is this: Was it error to permit mem

bers of the grand jury that found the indictment against. the defendant to testify in regard to what he had said before that body? The reason given for considering the ruling error is that the witnesses were incompetent. Section 141 of the criminal practice act of this territory is as 'follows: "Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted, on a matter before them, but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial thereof." Laws Utah 1878, p. 89. This section expressly requires the grand juror to keep secret whatever any grand juror may have said, or how he may have voted. on any matter before the grand jury. It does not, in express terms, enjoin secrecy as to the statements of witnesses, or the confessions of parties.

The letter of the first clause would forbid the disclosure of anything said by a grand juror to a witness, by way of interrogation or otherwise, although such disclosure might be necessary in order to ascertain whether the testimony of a witness before the grand jury is consistent with that given by the same witness before the court, or in order to ascertain what the statement of a witness was before the grand jury, on his prosecution for perjury. The answers of a witness are often unintelligible without the question put, and the examinations by grand jurors are often leading, and sometimes are much involved with conversation which should be given with the answers of the witness. Grand jurors may be sworn also, and examined as witnesses, before the grand jury of which they are members; and if they commit perjury, they may be indicted. So far as they appear before the grand jury as witnesses, they should be treated as witnesses.

It is reasonable to assume that the authors of the section under consideration added the second clause for the pur