Page images
PDF
EPUB

(2 Cal. Unrep. 590)

McDOWELL V. LEVY. (No. 20,156.)

Filed December 18, 1885. BIAS OF JUDGE-EFFECT AS DISQUALIFICATION.

Bias or prejudice on the part of a trial judge constitutes no legal incapacity to sit on the trial of a cause. On authority of People v. Williams, 24 Cal. 33. In bank. Application for a writ of prohibition.

On the trial in the court below, (one of the departments of the superior court of the city and county of San Francisco,) in an action of criminal libel against petitioner, he objected to the cause being tried by the judge then sitting, on the ground of bias and prejudice of such judge, and set out in affidavits the facts claimed to constitute such bias, and moved that the cause be postponed or transferred to another department of the same court on that ground. The motion was denied, and the petitioner then made this application.

S. W. & E. B. Hollyday, for petitioner.

BY THE Court. The application is denied, on the authority of People v. Williams, 24 Cal. 33. See People v. Muhoney, 18 Cal. 185; People v. Shuler, 28 Cal, 494.

(68 Cal. 192)

McKINNEY v. ROBERTS. (No. 9,342.)

Filed December 18, 1885. 1. SLANDER-ALLEGATIONS OF COMPLAINT.

In an action for slander, an allegation in the complaint that “on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, towit,” is in effect a statement that, according to the information and belief of the plaintiff, the defendant did in fact speak the words set out in the complaint at the time and place and under the circumstances stated; and the al

legation is sufficient. 2. SAME-IMPUTING WANT OF CHASTITY TO WOMAN.

To speak of a married woman as the paramour of a man not her husband is, of itself, to impute to her a want of chastity. In bank. Appeal from superior court, county of Stanislaus. Schell & Bond, for appellant. W. E. Turner, for respondent.

Ross, J. It is a mistake to say that the allegation of the complaint is, in effect, that “plaintiffs are informed and believe defendants spoke certain words,” etc. The allegation is :

“That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defenılant, addressing William Walker, spoke in the presence of said William Walker and George M. Dewel the following words, to-wit."

The effect of this is that, according to the information and belief of the plaintiff, the defendant did, in fact, speak the words set out in the complaint at the time and place and under the circumstances stated. The allegation is sufficient, although it might and should

have been made more definite and certain. Section 46 of the Civil Code declares:

“Slander is a false and unprivileged publication other than libel, which (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; * * * (4) imputes to him impotence or a want of chastity; or (5) which, by natural consequence, causes actual damage.”

It does not admit of doubt, we think, that to speak of a married woman as the paramour of a man not her husband is, of itself, to impute to her a want of chastity. Judgment reversed, and cause remanded, with directions to the court below to overrule the demurrer to the complaint, with leave to the defendant to answer.

We concur: McKEE,

McKEE, J.; MORRISON, C. J.; MYRICK, J.; SHARP

STEIN, J.

(68 Cal. 190)

PEOPLE v. BRICK. (No. 20,127.)

Filed December 18, 1885. 1. VERDICT-EVIDENCE.

Verdict held sustained by the evidence. 2. MURDER-INSTRUCTIONS-SUFFICIENCY OF.

There is no error in an instruction that “if the jury find the defendant guilty of murder in the first degree, and they also find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury, in a criminal case, for murder, with that discretion, but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment.” Nor is the last clause of this instruction erroneous. In bank. Appeal from superior court, county of Colusa. T. J. Hart, for appellant. The Attorney General, for respondent. Ross, J.

1. We would not be justified in disturbing the verdict on the ground that the evidence is insufficient to warrant it.

2. Appellant contends that the court below erred in instructing the jury:

“If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of guilty of murder in the first degree, and leave with the law the responsibility of fixing the punishment.”

The words quoted are found in the concluding clause of an instruction which reads:

“If the jury find the defendant guilty of murder in the first degree, and they also find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury, in a criminal case, for murder, with that discretion, but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment.”

There is in this instruction no error. The discretion given the jury by the statute is not an arbitrary one, but is to be employed, as said by this court in People v. Welch, 49 Cal. 179, "only where the jury is satisfied that the lighter penalty should be imposed.” Of course the jury could only be satisfied by the facts and circumstances of the case. The instructions were clear and correct, and covered every phase of the case. Judgment and order affirmed.

Wo concur: McKEE, J.; MORRISON, C. J.; MYRICK, J.; STEIN, J.; THORNTON, J.

SHARP

SUPREME COURT OF KANSAS. . (34 Kan, 425)

STATE v. SNYDER and others.

Filed December 4, 1885. 1. INTOXICATING LIQUORS - CONSTITUTIONALITY OF STATUTE GIVING LIEN ON

PREMISES WHERE LIQUOR SOLD.

The section of the prohibitory liquor law which provides that the judgment for fine and costs for a violation of that law shall be a lien upon the premises where the intoxicating liquors were unlawfully sold, is not in conflict with section 16 of article 2 of the state constitution. Hardten v. State, 32 Kan. 637;

S. C.5 Pac. Rep. 212. 2. SAME-CORRUPTION OF BLOOD OR FORFEITURE OF ESTATE.

Nor does the statute violate that clause of section 12 of the bill of rights which provides that "no conviction in the state shall work a corruption of blood or forfeiture of estate.” Error from Washington county. Charles Smith and J. G. Loue, for plaintiff in error.

A. S. Wilson, Birch & Fisher, A. M. Hallowell, and D. S. Lowe, for defendants in error.

JOHNSTON, J. This was action brought by the county attorney of Washington county in the name of the state of Kansas toenforce the lien created by section 18 of the prohibitory liquor law. From the petition it appears that one George E. Ross was convicted of violating that law, and sentenced to pay a fine of $800 and the costs of prosecution, and to stand committed until such fine and costs were paid. The fine and costs were not paid, and the plaintiff brought the action to enforce the lien against the premises upon which the intoxicating liquors were unlawfully sold; alleging that the owner of the premises, who had leased the same to Ross, had full knowledge that the premises were being used for such unlawful purpose, and that he leased them to be used, and knowing that they would be used, for such purpose. The defendants joined issne with the plaintiff, and at the November term, 1884, the case was called for trial. The plaintiff produced its witnesses, and offered testimony to sustain the issues upon its part, but the defendants objected to the introduction of any evidence, on the ground that the plaintiff's petition did not state facts sufficient to constitute a cause of action; claiming that the statute under which the action was brought was unconstitutional and void. One ground of invalidity asserted against the statute, and the one upon which the court below appears to have rested its decision, is that it violates section 16 of article 2 of the state constitution. This question was presented to the court in the case of Hardten v. State, 32 Kan. 637, S. C. 5 Pac. Rep. 212, and, after due consideration, the validity of the statute was upheld. We see no reason to disturb that de. cision.

Another objection urged against the statute under which the action was brought is that it contravenes section 12 of the bill of rights, where it is provided that no conviction shall work a forfeiture of estate. This objection is without force. It has already been determined by this court that the liability created by the statute is not in the nature of a forfeiture. State v. Pfefferle, 33 Kan. 718; S. C. 7 Pac. Rep. 597. “The fine and costs are not imposed upon the owner of the premises, but are imposed upon the person who violates the law, and the owner of the premises is simply made a surety for their payment.” Hardten v. State, supra.

A final objection to the statute is that it conflicts with that provision of the constitution providing that a homestead cannot be alienated without the joint consent of husband and wife. This question, however, is not in the record, and cannot be determined in this case. It is not stated in the petition, nor does it appear from any source, that the premises against which the lien is sought to be enforced have ever been occupied as a homestead by any of the defendants. The court erred in excluding the evidence offered, and the judgment must therefore be reversed, and the cause remanded for a new trial.

(All the justices concurring.)

(34 Kan. 393)
STATE v. KNOWLES and others. (Two Cases.)

Filed December 4, 1885.
1. CRIMINAL LAW-PLEADING-DEFECT CURED BY VERDICT.

Where an averment which is necessary to support a particular part of a com. plaint or information filed in a criminal case is imperfectly stated, or is stated in very general terms, a verdict or plea of guilty cures the defective averment,

although such averment might be bad on demurrer or motion to quash. 2. SAME-NUISANCE-SLAUGHTERING ANIMALS.

A complaint filed under section 317, c. 31, Comp. Laws 1879, which, omitting court, title, and verification, reads as follows: “J. P. Mayfield, being duly sworn, on oath says: That on the twenty-sixth day of July, A. D. 1883, in the county of Sumner and state of Kansas, Franklin E. Knowles and Thomas J. Garland were then and there the owners and occupiers of out-lot B, in C. R. Godfrey's addition to the city of Wellington, in Sumner county, in the state of Kansas, (except that portion of said out-lot B sold by C. R. Godfrey and wife to the Kansas City, Lawrence & Southern Railroad, and described as follows, to-wit. Commencing at the south-west corner of said out-lot B; running thence east 200 feet; thence north 150 feet; thence west 200 feet; thence south 150 feet, to place of beginning,) and were then and there the owners and occupiers of a slaughter-house on the above-described premises, occupied by them as aforesaid; that hogs, beeves, and other animals were then and there, and for a long time prior to said twenty-sixth day of July, 1883, had been, slaughtered on said premises and in said slaughter-house by the said Franklin E. Knowles and Thomas J. Garland; and that the said Franklin E. Knowles and Thomas J. Garland, while so owning and occupying said slaughter-house and said premises, on said twenty-sixth day of July, 1883, did then and there unlawfully permit the same to remain unclean, to the annoyance of J. P. Mayfield, J. A. Shafer, W. F. Travis, F. E. Phelps, A. J. Jones, G. F. Hargus, and H. A. Williams, citizens of the said county of Sumner and state of Kansas;” — held sufficient, after an entry of a plea of guilty thereto. Appeals from Sumner county.

On July 27, 1883, J. P. Mayfield filed his complaint in writing, under oath, before a justice of the peace of Sumner county, charging

« PreviousContinue »