Imágenes de páginas
PDF
EPUB

5. INFORMATION-FILING OF.-A district attorney is authorized to proceed against a
defendant by an information charging him with the crime of an assault with a deadly
weapon, after an examination and commitment by a magistrate. People v. Wheeler.
Cal. 70.

6. APPEAL FROM ORDER SUSTAINING A DEMURRER TO AN INDICTMENT.-An appeal lies
on the part of the prosecution from an order sustaining a demurrer to an indictment
when it is further ordered that the defendant be held in custody to await the action
of the next grand jury. People v. Hill. Utah, 476.

7. ERRONEOUS REFERENCE IN STATUTE.-Subd. 2 of sec. 192 of the criminal practice
act, providing that a defendant may demur to an indictment when it fails to comply
with the requirements of sec. 152, will be construed as referring to sec. 151, when
it is manifest that such was the legislative intent, and that the reference to sec. 152
was evidently a mistake. Id.

8. A DEMURRER TO AN INDICTMENT IS SUFFICIENT that states that the same does not
substantially conform to the requirements of sec. 151 of the criminal practice act,
and under such allegation specifies that two of the essentials mentioned in Sec. 151,
to wit, certainty as to the offense charged and the particular circumstances are want-
ing. Id.

9. RESUBMISSION TO GRAND JURY, CONSTRUCTION OF SECTION AUTHORIZING Sec. 197
of the criminal practice act, authorizing a resubmission of the case "to the same
or the next grand jury," after a demurrer to an indictment has been sustained, does
not limit such resubmission to the same grand jury that found the indictment, nor
to the one immediately succeeding. Such resubmission may be made to the first
grand jury that meets after the demurrer is allowed, although one or more grand
Juries have met and been discharged between then and the time when the indict-
ment was found. Id.

10. DISCHARGE OF PRISONER-RESUBMISSION TO GRAND JURY-APPEAL.

- Neither an

order refusing to discharge a prisoner, after an order sustaining his demurrer to the
indictment, nor an order resubmitting his case to the grand jury, are appealable. Id.
11. AN OBJECTION TO AN INDICTMENT, THAT IT DOES NOT SUBSTANTIALLY CONFORM
to sections 233 and 234 of the criminal practice act," cannot be taken advantage
of upon a motion in arrest of judgment under section 426. Such objection, if made
at all, must be taken by demurrer under section 285, as limited by section 293.
People v. Stapleton. Idaho, 176.

12. BATTERY-JUDGMENT IMPOSING FINE, WITH SUBSTITUTIONAL IMPRISONMENT.-A judg-
ment of a justice of the peace imposing a fine upon a defendant convicted of bat-
tery, and ordering a substitutional imprisonment until such fine be paid, as provided
in section 1446 of the penal code, cannot direct that the defendant, while so im-
prisoned, perform labor on the streets, or other public works of the city of Los An-
geles. Such judgment is not authorized by e act of February 20, 1872, amend-
ing the charter of said city. Ex parte Kelly. Cal. 719.

13. THE SAME-DISCHARGE ON HABEAS CORPUS.-Such judgment is a unit, and if one
portion of it is without the jurisdiction of the justice, the judgment is voic, and on
an application for a writ of habeas corpus the defendant should be discharged. On
such proceeding the supreme court cannot exscind the void portion from the judg-
ment and order what remains to be carried into execution. Id.

14. STAY OF EXECUTION PENDING APPEAL — CERTIFICATE OF PROBABLE CAUSE.--
Where, after a conviction for battery by a justice of the peace, the defendant ap-
peals to the superior court, although no certificate of probable cause is filed, the
same effect will be given to a dismissal of the appeal, when the justice, sheriff and
defendant treated the appeal as staying execution, as would be given to it had there
been a certificate of probable cause. Ex parte Whitty. Cal. 732.

15. TIME FOR SENTENCE NO EXCEPTION IS ALLOWED BY STATUTE to the order of the
court fixing the time for sentence, after a defendant has been convicted of a felony.
No such exception being allowed, an order fixing the time for sentence on the 27th,
when the verdict convicting the defendant was rendered on the 25th of the same
month, is not reviewable in the supreme court. People v. Mess. Cal. 758.
16. ERROR IN REGARD TO THE ADMISSION OF EVIDENCE, which could not have preju-
diced the prisoner, is not grounds for reversal.-People v. Bennett. Cal. 905.

17. IMMATERIAL ERROR.-A judgment of conviction will not be reversed for an immate-
rial error.-People v. Wheeler. Ca'. 70.

18. A WRIT OF ERROR TO REVIEW THE JUDGMENT of the District Court in criminal
cases will be allowed only when the appellate court is satisfied, from an inspection
of the transcript of the record, that error has been committed.-Donovan v. Ter-
ritory. Wy. 66.

business hours, * and that all books and papers required to be in his office shall be open for the examination of any person," gives no right to a private individual to examine and abstract the entire records of a county for the sole purpose of securing future private emolument from the sale of abstracts thus obtained, and imposes no duty upon the clerk to allow such acts to be done. Bean, County Clerk, etc., v. People, etc. Col. 121.

See PUBLIC OFFICERS.

COUNTY COMMISSIONERS.

See APPEAL AND WRIT OF ERROR, 7–11.

COUNTY GOVERNMENT.

1. COUNTY GOVERNMENT ACT OF MARCH, 1883-VALIDITY OF.-The act of March, 1883 entitled "An act to establish a uniform system of county and township governments," is not in violation of that provision of the constitution requiring every act to embrace but one subject, which subject shall be embraced in its title. Longan v. Solano County. Cal. 493; Cruz v. County of Los Angeles. Cal. 760.

2. THE SAME.—The provisions of such act regulating the fees and salaries of the county officers, as classified therein, are not in violation of that provision of the constitution prohibiting the legislature from passing local or special laws affecting the fees or salary of any official. Id.

3. COURTS HAVE NO POWER TO DETERMINE INTO HOW MANY CLASSES the legislature shall divide the counties of the State for the purpose of carrying out the provisions of the constitution. Id.

COUNTY SEAT, REMOVAL OF.

See ELECTION, 1, 4, 6, 7.

CRIMINAL LAW AND PRACTICE.-IN GENERAL.

1. COMMITMENT AND EXAMINATION BY JUSTICE OF PEACE.-Where a complaint is filed before a justice of the peace, charging a defendant with a felony, and he is thereupon arrested and taken before the magistrate issuing the warrant, by whom an order of commitment for examination is made, such defendant may be examined and committed by another justice of the peace of the same township, although no warrant for the defendant's arrest is issued by such latter magistrate, and it does not appear why the defendant was taken before a magistrate other than the one issuing the warrant. Ex parte Moan. Cal. 760.

2. THE SAME-ORDER FOR COMMITMENT-HABEAS CORPUS.-A defendant's commitment, under Section 872 of the Penal Code, is sufficient, when the justice by whom he was examined makes the following order: "It appearing to me that the offense of manslaughter has been committed, and that there is sufficient cause to believe the within-named defendant guilty thereof, I order that he be held to answer to the same, and that he be admitted to bail in the sum of two thousand five hundred dollars." If such commitment were not sufficient, the defendant would not be entitled to his discharge on habeas corpus, after his trial and conviction, when he failed to move to have the information set aside under which he was tried. Id.

3. FILING INFORMATION AFTER DISMISSAL OF CHARGE BY GRAND JURY.-The district attorney has authority to file an information against a defendant, within thirty days after his commitment, notwithstanding the grand jury had previously examined the case and dismissed the bill. Id.

4. FILING INFORMATION-CONFESSION OF DEMURRER.-After a plea of not guilty has been entered in a prosecution for murder, upon which the case is set for trial, the court may set aside an order overruling a demurrer to the information, and allow the counsel for the people to confess the demurrer and to file a new information; and an order entered allowing such confession of the demurrer, and directing a new information to be filed, is equivalent to an order allowing the demurrer. People v. Biggins. Cal. 887.

AN INFORMATION WHICH SUBSTANTIALLY complies with the provisions of the Penas Code is sufficient on demurrer. Id.

In 1864 a company was incorporated for the construction of a water ditch through the city of Denver. Such ditch was completed during the following year. Long prior to the incorporation of such company, and the construction of such ditch, certain streets intersected by it were laid out on the map of said city, which map was recorded in the proper office of the county records. At this time the title to the lands included in the city of Denver, as so mapped, was in the United States, and part of the public domain. In pursuance of the Act of Congress of May 28, 1864, such lands were entered by the Probate Judge as a town site, and a certificate of entry thereof was issued to him on May 6, 1865, and a patent for the same was issued on June 8, 1868. The city of Denver was incorporated in 1861, and authorized to exercise general control over the streets, alleys and highways within the city. Held, that the title of the city of Denver to the lands acquired by the entry of May 8, 1865, did not relate back to the date of the Act of May 28, 1864, authorizing such entry, as such last mentioned act was not in the nature of a grant, but simply a provision to enable the city to acquire title to land for a town site, if it should elect to avail itself of the provisions of the act; that the authority conferred by the Act of 1861, incorporating the city of Denver, in respect to controlling the streets of the city, cannot be extended to invalidate the acquisition thereafter by the ditch company of a right of way through the public domain, to which the city had not as yet acquired title, although streets had been previously laid out thereon. City of

Denver v. Mullin. Col. 852.

See EMINENT DOMAIN, 4.

DEED.

1. CONGRESSIONAL GRANT.-A grant of public land may be made so as to vest an inde feasible and irrevocable title by an act of congress, as well as by a patent issued in pursuance of such act. Northern Pacific R. R. Co. v. Majors. Mont. 23.

2. ACT OF CONGRESS GRANTING LANDS TO THE NORTHERN PACIFIC RAILROAD Co.CONSTRUCTION OF.- Section 3 of the act of congress granting lands to aid in the construction of the Northern Pacific Railroad, approved July 2, 1864, operated as a conditional grant in præsenti of certain sections to be afterwards located. Such locations depended upon the route of the road, and until such route was designated in the manner prescribed by the act, the title of the company did not attach to any specific tracts. After such route was settled the location became certain, and the title of the company attached to the particular sections granted as of the date of the approval of the act, as fully as if such particular sections had been designated in such act. Id.

3. THE PROVISIONS OF SECTIONS 5, 6, 8, 9 AND 20 OF SUCH ACT, imposing certain conditions on the company, do not affect the creation or vesting of the estate granted by the act. They are simply conditions subsequent, which render the estate liable to be defeated for default on a breach in the performance of such conditions. Upon the breach of such conditions, congress alone has power to declare or take advantage of a forfeiture. Id.

*

*

*

4. SECTION 4 OF SUCH ACT, PROVIDING THAT WHEN "SUCH COMPANY shall have twenty-five consecutive miles of any portion of said railroad completed, patents of deeds shall be issued to said company, confirming to said company the right and title to said lands," and "from time to time, whenever twenty-five additional consecutive miles shall have been constructed and completed, then patents shall be issued to said company, conveying the additional sections of land," does not limit or restrict the estate granted by section 3 of such act. The effect of the patent issued in pursuance of such section is simply to confirm the title of the company as fast as certain portions of the road are completed, and render it absolute and unconditional. Id..

5. A GRANT OF PUBLIC LAND BY ACT OF CONGRESS IS THE HIGHEST EVIDENCE OF TITLE. It imports livery of seisin and possession, and is sufficient to sustain ejectment. Id.

6. CONVEYANCE-CONSIDERATION FOR.-A conveyance under seal is prima facie evidence of a sufficient consideration, and a mere stranger to the land can not question it. West Portland Homestead Association v. Lownsdale (U. S. Dist. Ct.) Or. 166. 7. CASE IN JUDGMENT.-G. and C. were tenants in common of a tract of land which was surveyed and platted as Carter's addition to Portland, and then partitioned between tenants in common by mutual conveyances; the one to C. containing a small park for the purpose of equalizing the partition, described therein as block 67, and after

wards changed by said survey so as to materially diminish said park; and at the
same time G. surveyed a tract of land adjoining the tract held in common into lots
and blocks, and together with his co-tenants platted the two tracts as one Carter's
addition, and duly acknowledged and recorded the same, with a block numbered 67
in the G. tract, and the small park aforesaid, not numbered. Held, that the con-
veyance to C. of the park as block 67 did not affect the block 67 afterwards laid off
in the G. tract, and that the assignee in bankruptcy of C. had no right, interest or
equity therein, and should be enjoined, at the suit of G.'s grantee, from selling the
same as the property of C. and thereby casting a cloud on such grantee's title there-
to. Id.

8. A RECITAL In a Deed that THE CONSIDERATION THEREFOR WAS PAID by the gran-
tee is presumptively true. Such presumption may be overcome by parol evidence,
but to have that result, the evidence must be full, clear and satisfactory. The evi-
dence in this case, in support of a finding that the consideration for the conveyance
of the property in question was not made by the grantee named in the deed, re-
viewed and held not to comply with these requirements. Anthony, Adm'x, etc., v.
Chapman et al. Cal. 68.

9. A FICTITIOUS GRANTEE RENDERS INOPERATIVE and void a conveyance purporting to
be made to him. Downing v. Bartels. Col. 506.

See ESTOPPEL, 3: EVIDENCE, 9; FRAUD, 2; MORTGAGE, 1, 2; OREGON DONATION ACT.

DEMURRER.

1. A DEMURRER MUST BE DIRECTED TO THE WHOLE OF A PLEADING, or to a particular
and separate statement of a cause of action or defense. It cannot be directed to
certain lines thereof. Locke v. Peters. Cal. 725.

[ocr errors]

2. DEMURRER TO COMPLAINT OBJECTION TO OVERRULING, WHEN NOT WAIVED.—A
plaintiff does not waive his objection to a wrongful ruling of the court in sustaining
a demurrer to his complaint, by filing an amended complaint, when, in consequence
of such ruling, judgment is given for the defendant. Wood v. Mastick. Wash. 549.
See APPEAL, 22; CRIMINAL LAW AND PRACTICE, 7-11; DENVER TOWN SITE, 2; PLEADING
AND PRACTICE.

DENVER TOWN SITE.

1. TITLE TO A LOT IN THE ORIGINAL TOWN SITE OF THE CITY OF DENVER, entered by
James Hall, probate judge of Arapahoe county, on May 6, 1865, by virtue of the
act of congress for the relief of the citizens of Denver, approved May 28, 1864 (13
Stats. at Large, 94), can be acquired only in the manner designated by such act and
by the territorial acts carrying the same into effect.-Downing et al. v. Bartels.
Col. 506.

2 THE SAME VALIDITY OF DEED FROM PROBATE JUDGE-ATTACK ON.-The validity of
a deed to a portion of such town site, executed by the successor in office of such
probate judge, in pursuance of the territorial act of February 8, 1872, cannot be
attacked in a strictly legal action of ejectment, by evidence showing that the pre-
liminary steps and conditions required to a valid conveyance had not been com-
plied with by the grantee, prior to the execution of the deed, when the deed is reg-
ular upon its face and purports to have been executed to the person found to be en-
titled thereto under the laws of congress and statutes of Colorado, and by the offi
cer intrusted by the government with the legal title, and duly authorized to convey.
In executing the authority vested in him by such act, the probate judge exercises
judicial functions, and his voidable acts can only be impeached in direct proceed.
ings to set them aside.-Id.

See DEDICATION, 3.

DEPOSITIONS.

L DEPOSITION-ADMISSIBILITY OF, AT SUBSEQUENT TRIAL-A deposition taken pend
ing the action is admissible at the trial thereof, although subsequent to the taking
of such deposition the complaint has been amended, provided the subject matter of
the action and the issues therein have remained substantially the same. Anthony
et al. v. Savage. Utah, 674.

DIRECTORS.

See CORPORATIONS.

In 1864 a company was incorporated for the construction of a water ditch through
the city of Denver. Such ditch was completed during the following year. Long
prior to the incorporation of such company, and the construction of such ditch, cer-
tain streets intersected by it were laid out on the map of said city, which map was
recorded in the proper office of the county records. At this time the title to the
lands included in the city of Denver, as so mapped, was in the United States, and
part of the public domain. In pursuance of the Act of Congress of May 28, 1864,
such lands were entered by the Probate Judge as a town site, and a certificate of
entry thereof was issued to him on May 6, 1865, and a patent for the same was is-
sued on June 8, 1868. The city of Denver was incorporated in 1861, and authorized
to exercise general control over the streets, alleys and highways within the city.
Held, that the title of the city of Denver to the lands acquired by the entry of May
8, 1865, did not relate back to the date of the Act of May 28, 1864, authorizing
such entry, as such last mentioned act was not in the nature of a grant, but simply
a provision to enable the city to acquire title to land for a town site, if it should
elect to avail itself of the provisions of the act; that the authority conferred by the
Act of 1861, incorporating the city of Denver, in respect to controlling the streets
of the city, cannot be extended to invalidate the acquisition thereafter by the ditch
company of a right of way through the public domain, to which the city had not as
yet acquired title, although streets had been previously laid out thereon. City of
Denver v. Mullin. Col. 852.

See EMINENT DOMAIN, 4.

DEED.

1. CONGRESSIONAL GRANT.-A grant of public land may be made so as to vest an inde
feasible and irrevocable title by an act of congress, as well as by a patent issued in
pursuance of such act. Northern Pacific R. R. Co. v. Majors. Mont. 23.

2. ACT OF CONGRESS GRANTING LANDS TO THE NORTHERN PACIFIC RAILROAD Co.-
CONSTRUCTION OF.- Section 3 of the act of congress granting lands to aid in the con-
struction of the Northern Pacific Railroad, approved July 2, 1864, operated as a
conditional grant in præsenti of certain sections to be afterwards located. Such
locations depended upon the route of the road, and until such route was designated
in the manner prescribed by the act, the title of the company did not attach to any
specific tracts. After such route was settled the location became certain, and the
title of the company attached to the particular sections granted as of the date of the
approval of the act, as fully as if such particular sections had been designated in
such act. Id.

3. THE PROVISIONS OF SECTIONS 5, 6, 8, 9 AND 20 OF SUCH ACT, imposing certain con-
ditions on the company, do not affect the creation or vesting of the estate granted
by the act. They are simply conditions subsequent, which render the estate liable
to be defeated for default on a breach in the performance of such conditions. Upon
the breach of such conditions, congress alone has power to declare or take advantage
of a forfeiture. Id.

# 棒

*

[ocr errors]
[ocr errors]

4. SECTION 4 OF SUCH ACT, PROVIDING THAT WHEN "SUCH COMPANY shall have
twenty-five consecutive miles of any portion of said railroad completed,
patents of deeds shall be issued to said company, confirming to said company the
right and title to said lands," and "from time to time, whenever twenty-five addi-
tional consecutive miles shall have been constructed and completed,
then pat-
ents shall be issued to said company, conveying the additional sections of land," does
not limit or restrict the estate granted by section 3 of such act. The effect of the
patent issued in pursuance of such section is simply to confirm the title of the com-
pany as fast as certain portions of the road are completed, and render it absolute and
unconditional. Id..

5. A GRANT OF PUBLIC LAND BY ACT OF CONGRESS IS THE HIGHEST EVIDENCE OF
TITLE. It imports livery of seisin and possession, and is sufficient to sustain eject-
ment. Id.

6. CONVEYANCE-CONSIDERATION FOR. -A conveyance under seal is prima facie evidence
of a sufficient consideration, and a mere stranger to the land can not question it.
West Portland Homestead Association v. Lownsdale (U. S. Dist. Ct.) Or. 166.
7. CASE IN JUDGMENT.-G. and C. were tenants in common of a tract of land which was
surveyed and platted as Carter's addition to Portland, and then partitioned between
tenants in common by mutual conveyances; the one to C. containing a small park
for the purpose of equalizing the partition, described therein as block 67, and after-

« AnteriorContinuar »