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.
- Neither an
10. DISCHARGE OF PRISONER-RESUBMISSION TO GRAND JURY-APPEAL.
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. Cal. 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.
COUNTY COMMISSIONERS.
See APPEAL AND WRIT OF ERROR, 7–11.
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.
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.
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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
19. MISCONDUCT OF DISTRICT ATTORNEY DURING ARGUMENT. - It is not misconduct
sufficient to warrant a reversal for the district attorney to address the defendant
personally during his argument, advance towards and point his finger at him, saying,
"You sought this trouble with him [referring to the prosecuting witness], and made
a cowardly attack upon him."-People v. Wheeler. Cal. 70.
20. INSTRUCTIONS-TESTIMONY Of Defendant.—However incredible the testimony of a
defendant in a criminal prosecution may be, he is entitled to an instruction based
upon the hypothesis that his testimony is true.-People v. Keefer. Cal. 878.
21. AN INSTRUCTION IN REGARD TO THE FLIGHT of a person accused of crime is justified,
when it appears that the defendant was absent from his home soon after the com-
mission of the crime, and that some three weeks afterwards he was arrested in
another county.-People v. Forsythe. Cal. 288.
22. SETTING ASIDE INFORMATION-FAILURE TO FILE REPORTER'S NOTES.--An informa-
tion filed by the district attorney, after a prisoner has been examined and held to
answer by a committing magistrate, will not be set aside for the failure of the short-
hand reporter to transcribe and file his short-hand notes.-People, etc., v. Riley.
Cal. 364.
23. RECEIVING A VERDICT IN THE ABSENCE OF COUNSEL FOR THE PRISONER. — If the
jury in a criminal prosecution come into court with their verdict, in the absence of
the counsel for the prisoner, the court may, after notifying such counsel, and waiting a
reasonable length of time for him to come into court, if he had been so disposed,
receive the verdict, poll the jury, and discharge it.-People v. Bennett. Cal. 905.
24. PRIVATE COUNSEL MAY RE PERMITTED TO ASSIST the District Attorney in the trial
of a criminal prosecution.-People v, Turcott. Cal. 490.
25. PUBLIC TRIAL EXCLUSION FROM COURT-ROOM.—An order in a criminal prosecution
excluding all persons from the court-room, except those connected with the trial, in
the absence of a showing to the contrary, will be presumed to have been assented to
by the defendant. The phrase "public trial," in the constitutional provision guar-
anteeing to every one accused of crime the right to a public trial, is used in opposi-
tion to a secret trial. It does not mean that every person who sees fit shall in all
cases be permitted to attend criminal trials -People v. Swafford. Cal. 927.
See APPEAL, 12-15, 22; BURGLARY; EMBEZZLEMENT; FORGERY; FORNICATION; FUGI
TIVE FROM JUSTICE; JURY AND JURORS, 6-13; LARCENY; MURDER AND MAN-
SLAUGHTER; PERJURY; ROBBERY.
See PLEADING AND PRACTICE.
1. AMOUNT OF DAMAGES TO BE AWARDED TO AN ACTION FOR A PERSONAL INJURY is in
the sound discretion of the jury, whose verdict will not be disturbed, unless it ap-
pears that they were influenced by prejudice, misapprehension, or by some corrupt
or improper consideration.-City of Denver v. Dunsmore. Col. 841.
See ADMIRALTY, 6: JUDGEMENT, 5:
1. DEDICATION OF STREET-FINDINGS.—In an action to obtain a decree adjudging cer-
taiu premises to be a public street, a finding that on a certain day such premises
were dedicated by the owners as a public street is sufficient, without finding who
such owners were, when it appears that neither the defendants nor their grantors
have or had any interest in the premises, or any title thereto. People ex rel. Harris
v. Blake et al. Cal. 140.
2. A FINDING THAT THE DEFENDANTS have and had no right or title to the land in con-
troversy reviewed, and held supported by the evidence.-Id.
3. DEDICATION OF STREETS-RIGHTS OF DITCH OWNERS.-Where a right of way for a
water ditch had been acquired over a certain tract of land, the owners of which sub-
sequently laid it out in lots and dedicated the streets thus formed to the city of
Denver, subject to the pre-existing right of way of the ditch, such city will be held
to have accepted such dedication subject to such existing right of way, and must
render passable such streets and keep them in repair, without interfering with the
rightful and accustomed use of said ditch.
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.
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.
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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-
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