as now claimed by respondent that such an inference is left without any force what

But the evidence is not satisfactory that the true division line is where it is claimed to be by respondent. True, the surveyor says that it was determined from the street monuments, but he also says that these monuments were placed in 1890, long after the improvements were made and the fence established. But if we assume, for the purposes of this case, the true line to be at the point fixed by the surveyor in 1904, still the result must be the same, upon the ground that the fence line has been too long established and recognized without question as the boundary to be now disturbed. To do so in this case would unsettle boundaries long acquiesced in by the original owners, if by a later survey it were found that the true boundary varied to any extent from the one acquiesced in by such owners. If the rule of established boundaries by long acquiescence was adopted "as a rule of repose with a view of the quieting of titles," and we believe that it rests upon sound public policy, with a view of preventing strife and litigation concerning boundaries, then this case is, as we view it, one where the rule should be enforced.

While, as all the authorities agree, no hard and fast rule can be laid down to control in every case, but that each case must be determined by its own peculiar facts and circumstances, still where, as in this case, the facts respecting the acquiescence for so many years, and the open and visible boundary is so clearly established, and the knowledge thereof by interested parties is so clearly shown, the general principles recognized by all authorities apply with full force, and we cannot do otherwise than to give them effect. We do not wish to be understood as holding that parties may not claim to the true boundary, where an assumed or agreed boundary is located through mistake or inadvertence, or where it is clear that the line as located was not intended as a boundary, and where a boundary so located has not been acquiesced in for a long term of years by the parties in interest. But in all cases where the boundary is open, and visibly marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties or their grantees to depart from such line. These rules, of course, have no application where a party buys with a view to lines established by new or later surveys. As to such grantees the new survey or lines, whether right or wrong, govern. This is so, however, because such a grantee bought, and his deed is made, with reference to the new lines, and not because the established boundaries may not be insisted on in all proper cases. While the interests of society require that the title to real estate shall not be transferred from the owner for slight cause, or other

wise than by law, these same interests demand that there shall be stability in boundaries, and that, where parties have for a long term of years acquiesced in a certain line between their own and their neighbors' property, they will not thereafter be permitted to say that what they permitted to appear as being established by and with their consent and agreement was in fact false.

The appellant asks for affirmative relief in her counterclaim, and prays that the title to the strip of land, as described therein, be quieted in her. The judgment is therefore reversed, and the case remanded to the district court, with directions to vacate the findings of fact and conclusions of law, and to substitute therefor findings of fact and conclusions of law in conformity to the views contained in the foregoing opinion, and that upon such findings and conclusions said court enter a judgment and decree quieting the title to the strip of land, as the same is described in appellant's counterclaim, in her. Costs to be taxed against respondent.

(Supreme Court of Utah. Dec. 12, 1906.) 1. APPEAL-NOTICE-SUFFICIENCY.

That the notice of appeal shows an attempt thereby to appeal from the order overruling motion for new trial is immaterial if the notice is otherwise sufficient, as such part is mere surplusage.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2149.]

2. SAME-TRANSFER OF CAUSE.

Though a transcript is not prepared in strict conformity with the rules of the court, and the abstract and briefs are served and filed a few days after time, the right to be heard will not be denied where no matter of substance has been disregarded and no material prejudice results.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 2775, 3126.] 3. SAME ASSIGNMENT OF ERRORS NECESSITY.

An appeal will be dismissed for an entire failure to comply with Supreme Court rule 26, requiring appellant to assign errors in writing, signed by himself or counsel, and serve a copy thereof on the respondent and file the original with the clerk of the Supreme Court five days from the time of the filing of the transcript and permitting respondent to assign cross-er

rors.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3088, 3126.] 4. SAME-SUFFICIENCY.

Supreme Court rule 26, requiring appellant to assign errors in writing, signed by himself or counsel, to be served on the respondent and filed with the clerk of the Supreme Court, is not complied with by appellant placing in his abstract what purports to be an assignment of errors.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2994, 3061, 3084.]

Appeal from District Court, Third District; T. D. Lewis, Judge.

Powers & Marioneaux and Stephen L. Richards, for appellant. Kinney & Wilson, for respondent.

FRICK, J. This action is one for damages, based upon an alleged malicious abuse or misuse of legal process issued by a justice of the peace at the instance of defendants against the plaintiff. A trial was had which resulted in a judgment in favor of plaintiff, and the defendants appeal.

At the very threshold of the case we are met by a motion to dismiss the appeal for certain specific irregularities. Some of these need no extended consideration. The objection to the notice of appeal, for the reason that an attempt is made thereby to appeal from the order overruling the motion for a new trial, is not tenable for the reason that the notice otherwise is sufficient. The part referring to the order overruling the motion is therefore mere surplusage. This objection is, therefore, overruled.

The objections that the transcript is not prepared in strict conformity with the rules of this court, and that the abstract and brief were served and filed a few days after the time when they should have been filed, are merely technical, and have, so far as appears, in no way affected the plaintiff in his rights, nor in any manner interfered with the regular and orderly proceedings of this court. The right to be heard on appeal in this court is not only a substantial, but a valuable, right. We are not disposed to deprive a party of this right upon mere matters of form or practice, where no matter of substance has been disregarded and no material prejudice results to the opposite party or other litigant in this court. These objections are, therefore, likewise overruled.

There is one objection to the consideration of this appeal, however, which is more serious, and, in view of its importance, we cannot overlook where, as in this case, it is insisted upon by the respondent. Rule 26 of the printed rules of this court provides, among other things: "The appellant shall assign errors in writing, subscribed by himself or his counsel, and shall serve a copy thereof on the respondent or his counsel, and file the original with the clerk of this court within five days from the time of the filing of the transcript of the record on appeal." The rule provides, in substance, further, that, if the respondent desires to assign cross-errors, he must prepare and sign them in the same manner and serve and file them within five days from the time appellant's assignments were served. This is followed by giving directions in respect to the preparation of the assignment of errors upon certain grounds, and with the provision that so much of the assignment of errors as may be

printed abstract filed in this court as the same is required to be prepared and filed by rule 6 (49 Pac. xi). Rule 26 became effective November 1, 1905, and by its terms applies to all cases filed in this court after that time. The transcript in this case was filed in this court on the 20th day of July, 1906, more than eight months after the rule went into effect. The rule was carefully considered by this court prior to and at the time of its promulgation, and was adopted for the express purpose of authoritatively settling the question of when, where, and how the assignment of errors upon which the appellant intends to rely in this court should be prepared, filed, and served. The rule is a most salutary one, in that it is intended to and does establish order, where, before its adoption, there existed more or less chaos in respect to the preparation and filing of assignments of error, as is well illustrated by both the majority and minority opinions in the case of Smith Table Co. v. Madsen (Utah) 84 Pac. 885, decided by this court February 21, 1906. The purpose of the rule is there clearly set forth by Mr. Justice Straup. The assignment of errors is the groundwork of the case in this court. Without errors being assigned, there is nothing before this court. The bill of exceptions and the transcript of the record made in the lower court are brought here by the notice of appeal, but without more present nothing for review.

It must not be overlooked that this is a court of review, not one of first instance. In order, therefore, that a review may be made, there must be something to review. The only way that this may be done is that the aggrieved party point out what matters he desires reviewed in this court and the grounds upon which he relies. To attempt to present a case for review in this court without an assignment of errors would, in effect, be analogous to a trial court attempting to try a case without pleadings. While no doubt both fact and law could be determined, to some extent at least, without either pleadings or assignment of errors, such under our system of jurisprudence and practice would be neither permissible nor tolerable. But the purpose of the rule extends beyond this. The assignment of errors when filed apprises the opposite party of the precise matter he will have to meet in this court. But not only this. It is intended as the only reliable guide to be followed in the preparation of the case on appeal. By rule 6 the appellant must prepare a printed abstract or abridgment of the record, in which must appear the matters upon which the alleged errors are based. By rule 7 the respondent may, if he deems it necessary, prepare a further abstract. This is for the sole purpose of allowing him to show that, when the whole record is inspected, no error was in fact committed, or, if committed, it has been cured. Suppose the appellant as

signs error, but does not print the whole record respecting the matter to which the error is directed, how is respondent to meet it except by a recourse to rule 7? But, if appellant files no assignment of errors at all, how can respondent ascertain what he must meet, and how can he prepare his additional abstract to illustrate the precise måtter to be reviewed by this court and of which appellant complains without setting forth all matters deemed material by respondent? Rule 26 was designed to meet just this difficulty, and, further, to compel the making of a fixed record to which reference may be had by all interested parties, as well as this court, to determine just what is presented for review. The time to prepare and file the same was fixed for the purpose of having it on file before the case is prepared in this court by either party. In this case no assignment of errors was ever filed, nor was there any attempt to do so. It is true that in the abstract of appellant there appears what purports to be an assignment of errors. The argument, therefore, is that, inasmuch as the respondent had notice of the errors at that time and in that form, he cannot complain. A complete answer to this is that, under the rules of this court requiring a printed abstract, nothing can legitimately appear therein except either a full transcript or an abridgment of some proceeding had in the case as the same appears in the record of the proceedings had in the court below.

The question, therefore, arises: Of what portion of the record in the case is the printed assignment of errors printed in the abstract filed in the case? The answer is obvious, that it is a mere interpolation of something into the record which is not found there. Quite true, the assignment of errors in no event is part of the proceedings of the lower court, but this court, by rule 26, required the assignment to be made a part of the record within five days after coming to this court, and is thus a part of the record when the abstract is prepared. Parties may not add anything to this record. If this were permitted, it would, in time, become impossible to determine just what constituted the actual record on appeal. The printed assignment of errors, as printed in appellants' abstract, therefore, is a matter wholly outside of the record in the case, and as such performs no legal functions. The record, therefore, stands as if no assignment of errors had been made. Indeed, no errors were assigned in contemplation of law and of the rules of practice, and therefore none can be considered by this court. This is not a case where an assignment of errors was filed out of time merely. In such a case, when a respondent in fact appears, and attempts to meet the errors assigned, and no prejudice appearing, we would have no hesitancy in holding that respondent had waived his right to object or to strike the assignment, when

ever filed, from the files. But in view that no assignment was ever filed, none being on file at the time the case was heard in this court, and in view of the case of Smith Table Co. v. Madsen, supra, we must either annul rule 26, refuse to stand by the law as announced in the Madsen Case, or dismiss this appeal. The purpose of the rule being clearly stated in the case last above cited, and that case having been published in February before the filing of the transcript in this case in July following, there remains no reasonable excuse for not complying with the rule. In case a party cannot file an assignment of errors within the time allowed by the rule, or for some other reason it is not done, this court will, no doubt, on proper application, grant leave to file, but in the absence of such leave and where, as appears in this case, no assignment was ever filed, we cannot do otherwise than dismiss the appeal.

The motion to dismiss the appeal in this case is therefore granted, and the appeal is dismissed, at the cost of appellant.

MCCARTY, C. J., and MORSE, District Judge, concur.

(150 Cal. 12)

PEOPLE v. SOEDER. (Crim. 1,283.) (Supreme Court of California. Oct. 8, 1906.) 1. CRIMINAL LAW-EVIDENCE-ADMISSIBILITY. That letters offered in evidence to show motive for a homicide were of such character as would prejudice the jury against the defendant could not affect their admissibility if they were otherwise competent.

2. HOMICIDE-EVIDENCE-ADMISSIBILITY-MO

TIVE.

The theory of the state was that defendant had gone abroad and enticed his brother-in-law to this country and murdered him to obtain life insurance money. A series of letters written by defendant while abroad to a young woman showed that he was desirious of marrying her, and was satisfied that to accomplish this that he must immediately obtain a considerable sum of money, and that she would not see or listen to him until such sum was obtained, and it also appeared that he attempted to procure insurance to this same amount. Held, that the letters were admissible to prove motive.

3. CRIMINAL LAW-TRIAL COURSE OF CONDUCT-REMARKS OF JUDGE.

After a witness concluded his testimony, the court asked him if he understood that defendant was charged with murder and his punishment might be death, and after an affirmative answer said that the court had no desire of intimating that the testimony was true or false, but, that he might have an opportunity of correcting the same, informed him that any person who by willful perjury secured the conviction and execution of an innocent person could be punished by death, and inquired whether, with the knowledge of such punishment, the witness had any change or correction to make in his testimony. Held, that there was no intimation of opinion on the part of the court constituting misconduct prejudicial to defendant's rights. 4. SAME.

It was proper for the jury to know in a homicide case that a witness testified with knowl. edge of the law that perjury leading to a conviction and execution would render the witness liable to punishment by death.

5. WITNESSES-CROSS-EXAMINATION.

Where defendant testified that he did not kill deceased or employ any one to kill him, it was proper cross-examination to ask him where he was at the hour of the night the homicide was committed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 980.]

6. SAME-CREDIBILITY AND IMPEACHMENT.

Under Code Civ. Proc. § 2051, defendant, having voluntarily testified in his own behalf, became subject to the same rules as other witnesses, and it was competent for the prosecution to show either by cross-examination or the record of the judgment that he had theretofore been convicted of a felony.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1113, 1129-1132.] 7. CRIMINAL LAW-TRIAL-CONDUCT OF COUNSEL-ARGUMENT.

Counsel in argument may fully state his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1670.]

In Bank. Appeal from Superior Court, City and County of San Francisco; Carroll Cook, Judge.

Leon Soeder was convicted of murder in the first degree, and from an order denying a motion for a new trial, he appeals. Affirmed.

Edward S. Salomon and Alex. Campbell, for appellant. U. S. Webb, Atty. Gen., C. N. Post, Asst. Atty. Gen., J. Charles Jones, and Lewis F. Byington, Dist. Atty., for the People.

ANGELLOTTI, J. The defendant was charged by information filed in the superior court of the city and county of San Francisco with the crime of murder, alleged to have been committed on January 10, 1904, by the unlawful killing of one Joseph Blaise, and, having been convicted of murder in the first degree and adjudged to suffer death, appeals from the judgment and from an order denying his motion for a new trial.

There is not, and could not well be, upon the record before us, any claim that the evidence adduced on the trial was insufficient to support the verdict, and it will, therefore, be unnecessary to state the evidence, except in so far as is essential to a proper understanding of the points made for reversal. Between 8 and 9 o'clock a. m. on January 11, 1904, the body of Blaise was found lying on the west side of Taylor street, between Vallejo and Green streets, in the city of San Francisco. The evidence afforded by the condition of the body and of the ground where it lay was clear and convincing to the effect that Blaise had been foully murdered at that place the evening before, by being first struck down from behind with some blunt instrument, and then killed by a knife driven into and drawn clear across the throat, severing carotid artery and jugular vein. The spot where the body was found was a lonely place, Taylor street at Vallejo street running over the brow of Russian Hill, and between Vallejo and Green streets being a very steep

grade without sidewalk and without a house on either side. No one witnessed the killing, and the state was, therefore, without direct evidence as to the identity of the murderer. Blaise, according to the statements of defendant, was the husband of defendant's sister, who lives in Germany, and has never been in this country. He was apparently a laborer and without means, and at the time of his death had been in the United States only about six weeks, and in San Francisco for less than a month, having left his home in Germany with defendant in November, 1903. He was entirely without knowledge of the English language. On January 7, 1904, defendant had succeeded in obtaining two policies of insurance on the life of Blaise, one of which was an accident policy for $3,000, payable to defendant, and the other of which was an ordinary life policy for $3,000, payable to defendant's sister, who, as already stated, was in Europe. The theory of the prosecution was that the defendant, who had lived in this state for several years, went from California to Germany for the purpose of bringing Blaise to this country, so that he might then insure his life here, and subsequently kill or otherwise dispose of him, in order to obtain the insurance money, and that, in pursuance of this plan, he did bring Blaise from his home in Germany to San Francisco and there obtained insurance on his life, and then lured him to this lonely spot on Russian Hill and there killed him, so that he might realize on the investment he had made. Difficult as it is to conceive of a human being so constituted that he could deliberately make and carry into execution such a plan, the evidence sufficiently supports the theory above stated.

1. A portion of the evidence introduced by the prosecution in support of this theory consisted of certain letters written by defendant to a young woman in San Francisco. The admission of these letters in evidence, over the objection of defendant, is claimed to have constituted prejudicial error. It is urged that the letters are of such a character that they must have prejudiced the jury against the defendant. This, of course, would be no sufficient objection to their being received in evidence if they were relevant to any material fact in issue. Evidence having a direct tendency, in view of the surrounding circumstances, to prove motive on the part of a person for a crime, and thus to solve a doubt "either as to identity of the slayer, the degree of the offense, the insanity of the defendant, or to the justification or excusability of his act," is admissible against a defendant, however discreditably it may reflect on him, and even where it may show him guilty of other crimes. See People v. Cook (Cal. Sup.) 83 Pac. 43, 46, 50; People v. Suesser, 142 Cal. 354, 363, 75 Pac. 1093. In People v. Brown, 130 Cal. 591, 594, 62 Pac. 1072, this court, quoting approvingly from People v. Stout (N. Y.) 4 Park C. C.

128, said: "Whatever fact tends legitimately and fairly, according to the ordinary operation of the human mind and the ordinary principles of human conduct, to show motive, may properly be given in evidence in proof of any assumed motive for the commission of the crime." Evidence as to a motive for the killing on the part of the defendant is peculiarly material in a case where the identity of the party who committed the crime is a fact in dispute, though, as we have seen, the rule as to its admissibility does not confine it to such cases. See People v. Cook, supra.

We have no doubt that the letters admitted in evidence in this case were admissible upon the question of motive. The evidence of the young woman to whom they were written showed that from April, 1903, to the time of his departure for Germany on October 16, 1903, defendant had been most anxious to to win her favorable regard, and especially desirous of showing to her that he was possessed of money. He had been assiduous in his attentions, had made her presents of articles aggregating several hundred dollars in value, and had also represented to her that money had been bequeathed to him by an uncle in Germany, which he would shortly obtain, and that he would be a wealthy man. He left California on October 16, 1903, with the purpose avowed to her of obtaining a portion of the money given to him, telling her that the lowest sum he would come back with would be $10,000, which sum, it may properly be noted in passing, was the exact amount of life insurance that defendant sought to obtain on the life of Blaise, the insurance companies applied to refusing to issue a policy in such a large amount. The letters introduced in evidence, eight in number, were written by defendant between the time of his departure and January 1, 1904, several having been written in New York and France, and at least three in San Francisco after his return. This series of letters, the last of which was mailed December 29, 1903, unmistakably shows that defendant for some reason was most desirous of marrying the young woman, and also that he was satisfied that it was essential to the accomplishment of this that he should immediately obtain a considerable sum of money from some source, and that it would be useless to persist in further attentions, or even to see her, until such money was obtained. It throws some light upon the question as to the ultimate object of the earnest efforts of defendant to obtain insurance in large amounts upon the life of Blaise, indicating an object the accomplishment of which, viz., the immediate obtaining of the insurance money, necessarily included the death of Blaise or his disappearance under such circumstances as to make sufficient proof of death possible. It had a direct tendency to show a motive on the part of defendant for the doing of that which would

make the insurance policies payable, as he undoubtedly believed the death of Blaise would do, and thus to show a motive on his part for the killing of Blaise. While the effect in this behalf of the first seven letters may have been somewhat impaired by the last letter, written December 29, 1903, wherein defendant reproaches the young woman for not having answered any of his letters or sent him any word or come to see him, all because he had disappointed her in not sooner procuring money, and declares the engagement broken, and demands a return of his presents, such effect was not destroyed thereby. The letter was of such a character that it certainly cannot be held that it shows, as a matter of law, that defendant had given up all desire or hope of winning the hand of the young woman, or that he did not feel that with money in his possession he could still obtain her.

It is suggested that, as the life policy was payable to the wife of Blaise, defendant could not derive any benefit therefrom, and there was, therefore, so far as such policy was concerned, no possible motive on his part for the killing of Blaise. This suggestion, however, is practically without force when we remember that this wife, if there was such a person, was, according to the testimony, the sister of defendant, and a resident of a country thousands of miles away. In the light of all the facts, it is apparent that defendant expected to himself handle the proceeds of such policy. It must also be borne in mind that we have nothing except the statement of defendant, acquiesced in by Blaise when alive, to show that Blaise was the brother-in-law of defendant, or that he had a wife at all.

2. One Cooper, who was a cellmate of defendant in the county jail while defendant was confined there awaiting trial, and who testified that he had known defendant prior to the killing of Blaise, gave testimony to the effect that the defendant had admitted to him that he killed Blaise for the purpose of obtaining the insurance, and had, with the aid of a pencil drawing which defendant himself admittedly made, given him a detailed statement of the locality where and the manner in which the crime had been committed. He further testified that defendant had asked him to assist in establishing an alibi. After Cooper had concluded his testimony, the court asked Cooper if he understood that the defendant was charged with murder, and that the punishment for murder of the first degree might be death, and Cooper answered in the affirmative. The court then said: "Now, the court has no desire or intention of intimating in either way that your testimony is true or that it is false, but that you may have an opportunity of correcting the same, if any be untrue, I inform you that, under the law of this state, any person who, by willful perjury, secures the conviction and execution of any innocent person is punishable by death. With the knowledge of the punishment at