form of verdict, is directory only.-State v. I from a judgment quashing an information.McCormick (Wash.) 1037. State v. Morey (Kan.) 501. $885. Recommending defendant to mercy after finding him guilty of murder in the first degree held not to affect the validity of the verdict.-State v. Arata (Wash.) 227. § 887. A verdict finding accused guilty of burglary held not contrary to an instruction. State v. Sparks (Mont.) 87. (L) Waiver and Correction of Irregularities and Errors. § 897. After defendant voluntarily goes to trial, it is too late to object that he has not been informed of the accusation against him, or served with a copy thereof.-Stack v. State (Okl. Cr. App.) 320. XIII. MOTIONS FOR NEW TRIAL AND IN ARREST. § 915. Objection to information by action on motion to quash held not available on motion for new trial.-State v. La Bore (Kan.) 47. § 933. Disregard of instructions by the jury, shown by the evidence, held sufficient reason for granting new trial.-State v. Radmilovich (Mont.) 91. $938. Denial of a motion for a new trial held not an abuse of discretion.-People v. Kwpr Singh (Cal. App.) 423. § 938. One moving for a new trial on the ground of newly discovered evidence must make a clear case showing diligence, and the truth and materiality of the evidence.-People v. Kwpr Singh (Cal. App.) 423. § 938. Affidavits of newly discovered evidence held not to require a new trial.-People v. Carantan (Cal. App.) 768. $942. A new trial will not be granted after conviction because of alleged newly discovered evidence of the bad character of the witness for the state.-Caple v. State (Okl. Cr. App.) 681. § 942. A new trial will not be granted for newly discovered evidence impeaching the reputation for truth of witnesses for the state. Caple v. State (Okl. Cr. App.) 681. $942. Where the affidavit supporting a motion for new trial for newly discovered evidence only contained evidence tending to slightly impeach the testimony of the prosecuting witness, and the other evidence was sufficient to convict without it, the motion was properly overruled.-State v. Gaasch (Wash.) 817. XIV. JUDGMENT, SENTENCE, AND FINAL COMMITMENT. § 996. A district court may at or after the term at which a judgment is rendered correct the record when it does not speak the truth.Ex parte Hornung (Kan.) 23. XV. APPEAL AND ERROR, AND CERTIORARI. § 1032. An objection to an information that it did not state a public offense, because not specifying the person to whom a check, which had been unlawfully drawn, was delivered, held in effect an objection for uncertainty, which, not having been raised on demurrer, would not be considered on appeal.-People v. Russell (Cal.) 416. § 1038. Gen. St. 1901, § 5681, requiring the court in charging to state all matters of law necessary, held merely prescribes a rule of criminal procedure, which accused may waive. -State v. Winters (Kan.) 516. § 1038. In the absence of objection below to the instructions given, or request for special instructions, held, under Rev. Codes, § 9271. complaint cannot be made on appeal as to those given or omitted.-State v. Stone (Mont.) 89. § 1038. A complaint that the court erred in instructing orally comes too late for the first time in the appellate court.-Rea v. State (Okl. Cr. App.) 386. § 1042. Objection that judgment is uncertain for failure to name place of commitment, when not made in trial court, held not subject to review.-Davis v. People (Colo.) 879. § 1043. Where the ground of demurrer to an information was that certain matters therein specifically mentioned were uncertain, other matters not specified in the demurrer, cannot be taken advantage of as uncertain, on appeal.People v. Russell (Cal.) 416. § 1043. Grounds of objection to information that it was general held waived by action on motion to quash.-State v. La Bore (Kan.) 47. $ 1054. Prior to the amendment in 1909 (St. 1909, p. 1088. c. 713) of Pen. Code § 1259, rulings on the admission of evidence held not reviewable, unless exceptions were preserved.People v. McKeehan (Cal. App.) 273. § 1063. Motion for new trial held not necessary for consideration on appeal of exception to denial to direct acquittal for failure of proof.State v. Radmilovich (Mont.) 91. § 1064. Only those questions raised and preserved in the motion for new trial will be considered on appeal, unless of a fundamental character.-Rea v. State (Okl. Cr. App.) 386. (C) Proceedings for Transfer of Cause, and Effect Thereof. § 1081. It is a suficient compliance with Snyder's Comp. St. 1909, § 6949, to serve notice of appeal upon the county judge, where taken from the county court, as he is ex officio clerk of his own court.-Stewart v. State (Okl. Cr. App.) 374. (D) Record and Proceedings Not in Record. § 1088. A bill of exceptions when properly settled should be filed as required by Comp. In prosecution for homicide, see Homicide, §§ Laws, §§ 4390, 4415, and it then becomes a part of the record.-State v. Hill (Nev.) 1025. 338, 340. (A) Form of Remedy, Jurisdiction, and Right of Review. § 1018. On the creation of a Criminal Court of Appeals with exclusive jurisdiction in criminal cases, it acquired authority to determine all such cases then pending on appeal in the Supreme Court.-Byers v. Territory (Okl.) 998. (B) Presentation and Reservation in Lower Court of Grounds of Review. § 1028. Where both parties and the court treated an amended complaint as an information, it will be regarded as such, within Gen. St. 1901, § 5721, giving an appeal to the state § 1088. In view of Comp. Laws, § 4415, held that instructions given by the court of its own motion are not part of the record on appeal unless embodied in a bill of exceptions.State v. Hill (Nev.) 1025. § 1088. What constitutes proper record on appeal in criminal action, stated.-Chandler v. State (Okl. Cr. App.) 375. 1099. Under Snyder's Comp. St. 1909, § 6951, a certificate of the settlement of a casemade in the county court held sufficient, when signed and sealed by the judge thereof, without being attested by the clerk.-Stewart v. State (Okl. Cr. App.) 374. § 1099. A case-made must be signed and set- 1141. Where the clerk's minutes is silent tled by the judge who tried the case.-Chandler as to whether the trial court complied with v. State (Okl. Cr. App.) 375. Pen. Code, § 1066, it will be presumed that the court made the statement to the defendant required by the statute.-People v. Russell (Cal.) $ 1105. Where the record of an appealed case is in two volumes, only one of which is certified "to be a true and correct transcript of the appeal herein," the Supreme Court can only consider the volume so certified.-State v. Hill (Nev.) 1025. § 1106. An affidavit on appeal held insufficient to show that appellant was not blamable for failure of the clerk to transmit transcript as required, under B. & C. Comp. § 1479.-State v. Williams (Or.) 716. § 1109. Though the Supreme Court has adopted a liberal practice in granting applications to amend defects in transcripts, where no move is made pursuant to Supreme Court rule 7 (73 Pac. xiii) to obviate a valid objection to a transcript, there in no other alternative than to sustain the objection.-State v. Hill (Nev.) 1025. § 1122. Where the bill of exceptions does not contain the evidence, the contention that an instruction was erroneous because based on evidence which had been withdrawn cannot be considered.-State v. Menz (Kan.) 24. (E) Assignment of Errors and Briefs. § 1129. Fundamental error, which will be considered, whether assigned or not, defined.Rea v. State (Okl. Cr. App.) 386. § 1129. Fundamental error will be consider ed, whether assigned or not, where the justice of the case requires it.-Rea v. State (Okl. Cr. App.) 386. (F) Dismissal, Hearing, and Rehearing. § 1133. Petition for rehearing held required to show conflict between a controlling decision and the decision in question under rule 9 of the Criminal Court of Appeals (101 Pac. ix).Cox v. State (Okl. Cr. App.) 369. (G) Review. § 1134. A finding on motion for a new trial held one of fact, not reviewable on conflicting evidence.-People v. Soto (Cal. App.) 420. § 1134. The Criminal Court of Appeals will not discuss the evidence where a conviction is reversed and cause remanded for error of law. -Rea v. State (Okl. Cr. App.) 381. § 1137. Defendant who declined the offer of the court to appoint counsel for his defense could not object on appeal that he was not rep resented by counsel.-People v. Russell (Cal.) 416. 416. § 1144. On appeal from a conviction, held that it would be presumed to support the judgment that the discharge of the jury on a former trial was with accused's consent.-People v. Disperati (Cal. App.) 617. § 1144. The presumption is that the jury obeyed the charge in the language of Rev. Codes, 9484, that they should draw no adverse inference from the fact that accused did not offer himself as a witness.-State v. Sparks (Mont.) 87. § 1144. New trial will not be granted because the record does not show that defendant was arraigned in a misdemeanor prosecution under Wilson's Rev. & Ann. St. 1903, § 5380, providing that he may appear on such arraignment by counsel.-Stack v. State (Okl. Cr. App.) 320. § 1144. Where the giving of written instructions is waived, that fact should appear in the record.-Rea v. State (Okl. Cr. App.) 386. § 1144. Where, on appeal in a criminal case, the record shows that accused demurred on the ground that the information did not state a crime, and announced himself ready for trial, the Supreme Court will presume that a plea had been entered, even if the record does not show it.-State v. Quinn (Wash.) 818. § 1147. The exercise by a judge of his discretion in paroling a prisoner under section 2, c. 178, p. 281, Laws 1907, held not open to review on appeal.-State v. Nite (Kan.) 220. of witnesses upon the information during the § 1148. Allowing the state to indorse names trial held to rest largely in the discretion of the court, which will not be disturbed in the absence of abuse or substantial injury.-State v. Quinn (Wash.) 818. 1151. The granting or refusing of an application for a continuance in a criminal case is discretionary with the trial court, whose ruling in the absence of abuse will not be considered on appeal.-People v. Russell (Cal.) 416. § 1151. A refusal of a continuance held no ground for reversal unless an abuse of discretion is shown.-Vance v. Territory (Okl. Cr. App.) 307. § 1151. Unless an abuse of the trial court's discretion is shown, a refusal of a continuance will not be reversed.-Rhea v. Territory (Okl. Cr. App.) 314. § 1137. The fact that accused introduced improper matter into the case may be considered in determining whether or not the error committed by the court at the request of the district attorney is or is not prejudicial to ac-V. Territory (Okl. Cr. App.) 314. cused.-People v. McKeehan (Cal. App.) 273. § 1137. Irregularity in adjournment consented to by defendant held not ground for trial in the absence of affirmative showing of injury.People v. Soto (Cal. App.) 420. retired, gives additional instructions, a reversal § 1152. Where the court, before the jury has will not result in the absence of abuse.-Rhea § 1137. Generally accused may waiye in structions upon lesser degrees and lesser of fenses embraced in the principal offense, and does so by objecting to the giving thereof.State v. Winters (Kan.) 516. $1141. Where the minutes of the court and bill of exceptions failed to show whether the trial court had complied with Pen. Code, 1066, it must be presumed that the court did what the statute required.-People v. Russell (Cal.) 416. § 1153. Allowing re-examination on rebuttal as to matters on which witness was examined in chief held not reviewable, except for clear abuse of discretion.-People v. Soto (Cal. App.) 420. § 1153. Whether a witness is incompetent on account of age and lack of understanding of the nature and quality of an oath held within the discretion of the trial court, and not reviewable on appeal in the absence of abuse of such discretion.-State v. Myrberg (Wash.) 622. held not reviewable in absence of abuse of dis§ 1156. Ruling on motion for a new trial cretion.-People v. Kwpr Singh (Cal. App.) 423. § 1158. A finding, on the trial of a charge of grand larceny, as to whether the evidence shows For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER larceny or burglary, is one of fact, and will not be disturbed on appeal if there is evidence to support it.-People v. Matezuski (Cal. App.) 425. § 1159. The credibility of witnesses held not a question for appeal.-People v. Soto (Cal. App.) 420. § 1159. A conviction will not be disturbed on appeal for a conflict in the testimony for the state. People v. Matezuski (Cal. App.) 425. § 1159. Where the evidence of the prosecution establishes a prima facie case, a verdict thereon may not be disturbed because of evidence of an alibi.-State v. Sparks (Mont.) 87. $ 1159. A conviction, which there is any evidence to support, will not be set aside.Rea v. State (Okl. Cr. App.) 386. § 1159. A verdict will not be disturbed unless clearly the result of improper motives.Caple v. State (Okl. Cr. App.) 681. § 1159. On appeal from a conviction, the court cannot review the evidence to determine its weight, where there is competent evidence to support the verdict.-State v. McCormick (Wash.) 1037. cused on cross-examination, where they were not answered.-State v. Rhys (Mont.) 494. § 1172. Where the weight of the evidence and of the credibility of witnesses was submitted to the jury, defendant was not prejudiced by the instruction that the jury "subject to the control of the court" are the judges of the evidence, even if such phrase was erroneous.-People v. Carantan (Cal. App.) 768. § 1172. An instruction as to the admissibility harmless.-People v. Piner (Cal. App.) 780. of a voluntary confession, though error, held § 1172. An instruction that evidence of previous good character should be considered with great caution held harmless.-People v. Piner (Cal. App.) 780. § 1172. Generally a conviction of a higher fusing instructions upon an inferior offense or offense or degree renders error in giving or redegree immaterial.-State v. Winters (Kan.) 516. § 1172. Instruction to jury to fix the punishment, not requested by defendant, though improper, held not ground for reversal.-Chandler v. State (Okl. Cr. App.) 375. § 1162. Courts of appeal will review such ing liquor to a minor, an instruction authoriz§ 1172. In a prosecution for illegally sellerrors of the trial court as prejudice the rights ing a conviction on proof of a sale to the minor of the party complaining, and will not set aside verdicts merely because some error has on or about the date specified on which the state been committed on the trial.-People v. Mc-elected to rely for a conviction, while erroneous, held not prejudicial.-State v. McCormick Keehan (Cal. App.) 273. (Wash.) 1037. § 1163. The failure of the court to admonish the jury at each adjournment, as required by Pen. Code, § 1122, held not necessarily reversible error.-People v. McKeehan (Cal. App.) 273. § 1163. It must be assumed that the jury obeyed the instruction as to conditions on which they could convict, so that the conduct of the district attorney in giving prominence to collateral acts was not prejudicial.-People v. Soto (Cal. App.) 420. § 1165. Under Snyder's Comp. St. 1909, 6957, held, that a conviction will be affirmed if accused has had a fair trial and the appellate court is satisfied that it is supported by the evidence.-Atchison v. State (Okl. Cr. App.) 387. § 1166. That the clerk of the United States Court of the Indian Territory sitting at Tulsa, on transmitting the indictment to the court at Sapulpa, of which he was also clerk, on change of venue, failed to affix his official seal, held not prejudicial to defendant.-Haikey v. State (Okl. Cr. App.) 313. § 1169. Error in admitting evidence held harmless in view of defendant's admissions.People v. Soto (Cal. App.) 420. § 1169. Unnecessary admission of evidence, in proof of ownership of premises where gaming was permitted that prior to the offense charged a man was killed there, held prejudicial. -State v. Radmilovich (Mont.) 91. XVII. PUNISHMENT AND PREVEN- Delegation of legislative power, see Constitu- § 1208. Under Rev. Codes, §§ 8359, 8895, 8902, held, one convicted of attempt to commit the infamous crime against nature may be sentenced for 15 years in the state prison.-State v. Stone (Mont.) 89. § 1208. Defendant convicted of an attempt to commit a felony cannot be sentenced under Rev. Codes, § 8313, as for an assault, but under section 8895 for an attempt to commit a crime. v. State v. Stone (Mont.) 89. § 1169. Admission of incompetent evidence which could not have prejudiced accused held not ground for reversal.-Rhea V. Territory (Okl. Cr. App.) 314. § 1169. Error in the admission of evidence held rendered harmless where accused testifies to the same facts.-Rhea v. Territory (Okl. Cr. App.) 314. § 1169. In a prosecution for criminal conspiracy, admission of hearsay evidence held prejudicial.-State v. Blake (Utah) 910. § 1169. Error, if any, in admitting certain evidence in a murder case, held harmless.-State v. Quinn (Wash.) 818. § 11702. Error cannot be predicated on the overruling of objections to questions asked ac § 2. Party furnishing seed wheat for a fourth of the crop held to have a right thereto superior to a mortgage given by the other party on the entire crop.-Dodson v. Covey (Kan.) 519. CROSS-EXAMINATION. See Witnesses, §§ 269, 277. CRUELTY. Ground for divorce, see Divorce, §§ 27, 93. CURATIVE ACTS. damages are not capable of exact pecuniary measurement, and is used in contradistinction to the term "aggravation of damages"; and, where matter in aggravation of damages is proper, matter in mitigation may be shown.Swank v. Elwert (Or.) 901. § 59. In an action for injuries to a passenger, the conduct of the carrier's servant and humiliation suffered by the passenger is to be considered only as matter in aggravation of damages, and not as a foundation of a right of action.Caldwell v. Northern Pac. Ry. Co. (Wash.) 625. § 59. Acts of a carrier's servant attending injury to a passenger may be shown in mitiga Validation of municipal acts, see Municipal Cor- tion, whether the resulting damages are comporations, § 76. See Dower. CURTESY. CUSTODY. Of child, see Divorce, § 298. Of insane persons, see Insane Persons, §§ 48, 49. Of property levied on, see Attachment, §§ 164201. CUSTOMS AND USAGES. Admissibility of evidence of custom of hunters in action for injuries from negligent shooting, see Weapons, § 18. Customary law, see Common Law. DAMAGES. Compensation for property taken for public use, see Eminent Domain, §§ 134-158. Damages for particular injuries. See Assault and Battery, §§ 38, 40; Nuisance, $$ 72, 73. Breach by buyer of contract for sale of goods, see Sales, § 384. Breach of covenant, see Covenants, § 127. Conversion by mortgage, see Chattel Mortgages, § 176. Frivolous appeal and delay, see Costs, § 260. 382. Wrongful injunction, see Injunction, § 261. Recovery in particular actions or proceedings. See Trover and Conversion, §§ 44, 49. III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES. (A) Direct or Remote, Contingent, or Prospective, Consequences or Losses. Mental suffering as element of damage from assault, see Assault and Battery, § 38. Mental suffering from injuries to passenger, see Carriers, § 319. 848. A party injured may recover for the actual measurable wrongs sustained, and for mental suffering.-Caldwell v. Northern Pac. Ry. Co. (Wash.) 625. § 49. Mental suffering, unaccompanied by bodily injury, is an element of damage in an action for a willful or wanton wrong, or one committed with malice and an intention to cause mental distress.-William Small & Co. v. Lonergan (Kan.) 27. (B) Aggravation, Mitigation, and Reduction of Loss. $ 59. The term "mitigation, of damages" is properly applied only to actions where the pensatory or punitive.-Caldwell v. Northern Pac. Ry. Co. (Wash.) 625. (C) Interest, Costs, and Expenses of Litigation. Attorney's fees as element of damages for wrongful Injunction, see Injunction, § 261. Costs and expenses in action for breach of covenant, see Covenants, § 127. V. EXEMPLARY DAMAGES. § 87. Exemplary damages are not allowable unless authorized by statute.-Caldwell v. Northern Pac. Ry. Co. (Wash.) 625. VI. MEASURE OF DAMAGES. For conversion of mortgaged property, see Chat- VII. INADEQUATE AND EXCESSIVE DAMAGES. Excessive damages ground for new trial, see New Trial, § 76. Inadequate damages ground for new trial, see New Trial, § 75. § 132. The verdict in a personal injury action held not excessive.-Dunkin v. City of Hoquiam (Wash.) 149. § 140. In a suit for breach of a contract to use a livery rig to transport defendant to a certain place, a judgment for plaintiff for the entire contract price was excessive, since it allowed plaintiff more profits than he could have made had the trip been made.-Kilpatrick v Inman (Colo.) 1080. (C) Proceedings for Assessment. § 199. Special findings as to items of damages held not required on assessment of damages under B. & C. Comp. § 185, subd. 2, on default (sections 158, 109, 111).-Vuilleumier v. Oregon Water Power & Ry. Co. (Or.) 706. § 203. Evidence held immaterial on assessment of damages under B. & C. Comp. § 185, subd. 2, after default.-Vuilleumier v. Oregon Water Power & Ry. Co. (Or.) 706. 206. The refusal to require plaintiff suing for a personal injury to submit to a physical examination by a physician held not erroneous. -Dunkin v. City of Hoquiam (Wash.) 149. DATE. Of holographic will, see Wills, § 130. DEATH. Of partner, see Partnership, § 255. DEBTOR AND CREDITOR. See Bankruptcy; Fraudulent Conveyances; solvency. DECEDENTS. Particular classes of deeds. Of trust, see Mortgages. Tax deeds, see Taxation, §§ 761-788. I. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. § 38. The description of the property conveyed must be sufficient to identify it with reasonable certainty, but a tract may be conveyed by a distinguishing name by which it is known without reference to the boundaries.-St. Dennis v. Harras (Or.) 246. (D) Delivery. § 56. Delivery of deed held sufficient to vest title in vendee.-Good v. Williams (Kan.) 433. § 61. Evidence held to warrant a finding of valid delivery of deed.-Collins v. Norton (Kan.) 26. III. CONSTRUCTION AND OPERA TION. (A) General Rules of Construction. 97. Provisions in a deed for the land enIn-uring to the heirs of one of the two grantees at the death of the two held not repugnant to the rest of the deed; and so not void.-Parsons v. Kendall (Kan.) 25. Of homicide in general, see Homicide, § 307. DELAY. § 19. Where an owner of lots sold one according to a map showing bounded on two sides by narrow strips marked "lot A" and "lot C," his unexecuted intention to make the strips Laches, see Equity, §§ 67-87. private alleys for the use of the purchasers of lots did not constitute a dedication of the strips as private alleys.-Shultz v. Redondo Improvement Co. (Cal.) 118. DEEDS. Acknowledgment of execution, see Acknowledg .ment. Cancellation, see Cancellation of Instruments. In fraud of creditors, see Fraudulent Convey ances. In trust, see Trusts, §§ 25-39. DELEGATION. Of duty of master to instruct servant, see Master and Servant, § 151. Of power of eminent domain, see Eminent Domain, 10. DELIBERATION. Element of murder, see Homicide, §§ 14, 286. DELIVERY. Parol or extrinsic evidence, see Evidence, §§ Of deed, see Deeds, §§ 56, 61. Reference to deed in will, see Wills, § 477. See Homestead, § 117; Public Lands, §§ 135, Water rights, see Waters and Water Courses, Of goods sold, see Sales, §§ 156-181. DEMAND. As condition precedent to liability for embezzlement, see Embezzlement, § 11. For payment of bill or note, see Bills and Notes, § 405. |