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as now claimed by respondent that such an inference is left without any force what. ever. 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 assune, 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

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

true boundary varied to any extent from the 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.

MCCARTY, C. J., and STRAUP, J., concur.

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

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(31 Utah, 283) LYON V. MAUSS et al. (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 suflicient, 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-errors.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $S 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, $8 2994, 3061, 3084.)

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

Action by George E. Lyon against Michael | relied on in this court shall be printed in the Mauss and Charles Brown. From a judg. printed abstract filed in this court as the ment for plaintiff, defendants appeal. Ap. same is required to be prepared and filed by peal dismissed.

rule 6 (19 Pac. xi). Rule 26 became effec

tive November 1, 1905, and by its terms apPowers & Marioneaux and Stephen L.

plies to all cases filed in this court after that Richards, for appellant. Kinney & Wilson,

time. The transcript in this case was filed for respondent.

in this court on the 20th day of July, 1906,

more than eight months after the rule went FRICK, J. This action is one for dam- into effect. The rule was carefully conages, based upon an alleged malicious abuse

sidered by this court prior to and at the time or misuse of legal process issued by a jus- of its promulgation, and was adopted for tice of the peace at the instance of defend

the express purpose of authoritatively setants against the plaintiff. A trial was had tling the question of when, where, and how which resulted in a judgment in favor of the assignment of errors upon which the plaintiff, and the defendants appeal.

appellant intends to rely in this court should At the very threshold of the case we are be prepared, filed, and served. The rule is a met by a motion to dismiss the appeal for most salutary one, in that it is intended to certain specific irregularities. Some of these and does establish order, where, before its need no extended consideration. The objec- adoption, there existed more or less chaos in tion to the notice of appeal, for the reason respect to the preparation and filing of asthat an attempt is made thereby to appeal signments of error, as is well illustrated by from the order overruling the motion for a

both the majority and minority opinions in new trial, is not tenable for the reason that the case of Smith Table Co. v. Madsen (Utah) the notice otherwise is sufficient. The part 84 Pac. 885, decided by this court February referring to the order overruling the motion | 21, 1906. The purpose of the rule is there is therefore mere surplusage. This objection clearly set forth by Mr. Justice Straup. The is, therefore, overruled.

assignment of errors is the groundwork of The objections that the transcript is not the case in this court. Without errors beprepared in strict conformity with the rules ing assigned, there is nothing before this of this court, and that the abstract and court. The bill of exceptions and the tranbrief were served and filed a few days after script of the record made in the lower court the time when they should have been filed, are brought here by the notice of appeal, are merely technical, and have, so far as ap- but without more present nothing for repears, in no way affected the plaintiff in his

view. rights, nor in any manner interfered with

It must not be overlooked that this is a the regular and orderly proceedings of this court of review, not one of first instance. In

The right to be heard on appeal in order, therefore, that a review may be made, this court is not only a substantial, but a there must be something to review. The onvaluable, right. We are not disposed to de- ly way that this may be done is that the prive a party of this right upon mere mat- aggrieved party point out what matters he ters of form or practice, where no matter desires reviewed in this court and the of substance has been disregarded and no grounds upon which he relies. To attempt material prejudice results to the opposite par- to present a case for review in this court ty or other litigant in this court. These ob

without an assignment of errors would, in jections are, therefore, likewise overruled.

effect, be analogous to a trial court attemptThere is one objection to the consideration

ing to try a case without pleadings. While of this appeal, however, which is more se no doubt both fact and law could be derious, and, in view of its importance, we can- termined, to some extent at least, without not overlook where, as in this case, it is either pleadings or assignment of errors, insisted upon by the respondent. Rule 26 of such under our system of jurisprudence and the printed rules of this court provides, practice would be neither permissible nor among other things: "The appellant shall tolerable. But the purpose of the rule exassign errors in writing, subscribed by himtends beyond this. The assignment of errors self or his counsel, and shall serve a copy when filed apprises the opposite party of the thereof on the respondent or his counsel, and precise matter he will have to meet in this file the original with the clerk of this court

court. But not only this. It is intended within five days from the time of the filing as the only reliable guide to be followed in of the transcript of the record on appeal."

the preparation of the case on appeal. By The rule provides, in substance, further, rule 6 the appellant must prepare a printed that, if the respondent desires to assign

to assign abstract or abridgment of the record, in cross-errors, he must prepare and sign them which must appear the matters upon which in the same manner and serve and file them

the alleged errors are based. By rule 7 the within five days from the time appellant's respondent may, if he deems it necessary, assignments were served. This is followed prepare a further abstract. This is for the by giving directions in respect to the prepara- sole purpose of allowing him to show that, tion of the assignment of errors upon certain when the whole record is inspected, no error grounds, and with the provision that so was in fact committed, or, if committed, it much of the assignment of errors as may be ' has been cured. Suppose the appellant assigns error, but does not print the whole ever filed, from the files.

ever filed, from the files. But in view that record respecting the matter to which the no assignment was ever filed, none being on error is directed, how is respondent to meet file at the time the case was heard in this it except by a recourse to rule 7? But, if ap

court, and in view of the case of Smith Table pellant files no assignment of errors at all,

Co. v. Madsen, supra, we must either annul how can respondent ascertain what he must

rule 26, refuse to stand by the law as anmeet, and how can he prepare his additional

nounced in the Madsen Case, or dismiss this abstract to illustrate the precise matter to

appeal. The purpose of the rule being clearbe reviewed by this court and of which ap- ly stated in the case last above cited, and pellant complains without setting forth all

that case having been published in February matters deemed material by respondent?

by respondent? | before the filing of the transcript in this Rule 26 was designed to meet just this dif

case in July following, there remains no ficulty, and, further, to compel the making reasonable excuse for not complying with of a fixed record to which reference may be

the rule. In case a party cannot file an ashad by all interested parties, as well as this signment of errors within the time allowed court, to determine just what is presented by the rule, or for some other reason it is. for review. The time to prepare and file the not done, this court will, no doubt, on proper same was fixed for the purpose of having it application, grant leave to file, but in the on file before the case is prepared in this absence of such leave and where, as appears court by either party. In this case no as

in this case, no assignment was ever filed, signment of errors was ever filed, nor was we cannot do otherwise than dismiss the there any attempt to do so.

It is true that appeal. in the abstract of appellant there appears The motion to dismiss the appeal in this what purports to be an assignment of errors. case is therefore granted, and the appeal is The argument, therefore, is that, inasmuch dismissed, at the cost of appellant. as the respondent had notice of the errors at that time and in that form, he cannot

MCCARTY, C. J., and MORSE, District complain. A complete answer to this is that, Judge, concur. under the rules of this court requiring a printed abstract, nothing can legitimately ap

(150 Cal. 12) pear therein except either a full transcript PEOPLE v. SOEDER. (Crim. 1,283.) or an abridgment of some proceeding had (Supreme Court of California. Oct. 8, 1906.) in the case as the same appears in the rec

1. CRIMINAL LAW-EVIDENCE-ADMISSIBILITY. ord of the proceedings had in the court be- That letters offered in evidence to show low.

motive for a homicide were of such character The question, therefore, arises: Of what

as would prejudice the jury against the defend

ant could not affect their admissibility if they portion of the record in the case is the print

were otherwise competent. ed assignment of errors printed in the ab- 2. HOMICIDE-EVIDENCE-ADMISSIBILITY-Mostract filed in the case? The answer is ob- TIVE. vious, that it is a mere interpolation of

The theory of the state was that defendant

had gone abroad and enticed his brother-in-law something into the record which is not found

to this country and murdered him to obtain life there. Quite true, the assignment of errors insurance money. A series of letters written by in no event is part of the proceedings of the

defendant while abroad to a young woman showlower court, but this court, by rule 26, re

ed that he was desirious of marrying her, and

was satisfied that to accomplish this that he quired the assignment to be made a part of must immediately obtain a considerable sum of the record within five days after coming to money, and that she would not see or listen to this court, and is thus a part of the record

him until such sum was obtained, and it also when the abstract is prepared. Parties may

appeared that he attempted to procure insurance

to this same amount. Held, that the letters not add anything to this record. If this were were admissible to prove motive. permitted, it would, in time, become im- 3. CRIMINAL LAW — TRIAL — COURSE OF CONpossible to determine just what constituted

DUCT-REMARKS OF JUDGE.

After a witness concluded his testimony, the actual record on appeal. The printed as

the court asked him if he understood that designment of errors, as printed in appellants' fendant was charged with murder and his punabstract, therefore, is a matter wholly out

ishment might be death, and after an affirmative side of the record in the case, and as such

answer said that the court had no desire of in

timating that the testimony was true or false, performs no legal functions. The record, but, that he might have an opportunity of cortherefore, stands as if no assignment of er- recting the same, informed him that any person rors had been made. Indeed, no errors were

who by willful perjury secured the conviction

and execution of an innocent person could be assigned in contemplation of law and of the

punished by death, and inquired whether, with rules of practice, and therefore none can be the knowledge of such punishment, the witness considered by this court. This is not a case

had any change or correction to make in his tes

timony. Held, that there was no intimation of where an assignment of errors was filed out

opinion on the part of the court constituting of time merely. In such a case, when a re- misconduct prejudicial to defendant's rights. spondent in fact appears, and attempts to 4. SAME. meet the errors assigned, and no prejudice It was proper for the jury to know in a

homicide case that a witness testified with knowl. appearing, we would have no hesitancy in

edge of the law that perjury leading to a conholding that respondent had waived his right

viction and execution would render the witness to object or to strike the assignment, when- 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 IMPEACIIMENT.

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, $8 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.-Tor 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.

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.

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, 1901, 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

128, said: "Whatever fact tends legitimate- make the insurance policies payable, as he ly and fairly, according to the ordinary undoubtedly believed the death of Blaise operation of the human mind and the would do, and thus to show a motive on his ordinary principles of human conduct, to part for the killing of Blaise. While the show motive, may properly be given in evi- effect in this behalf of the first seven letters dence in proof of any assumed motive for the may have been somewhat impaired by the commission of the crime.” Evidence as to last letter, written December 29, 1903, wherea motive for the killing on the part of the de- in defendant reproaches the young woman fendant is peculiarly material in a

case

for not having answered any of his letters or where the identity of the party who com- sent him any word or come to see him, all mitted the crime is a fact in dispute, though, because he had disappointed her in not as we have seen, the rule as to its admissi- sooner procuring money, and declares the bility does not confine it to such cases. See engagement broken, and demands a return of People v. Cook, supra.

his presents, such effect was not destroyed We have no doubt that the letters admitted thereby. The letter was of such a character in evidence in this case were admissible upon that it certainly cannot be held that it the question of motive. The evidence of the shows, as a matter of law, that defendant young woman to whom they were written had given up all desire or hope of winning showed that from April, 1903, to the time the hand of the young woman, or that he did of his departure for Germany on October 16, not feel that with money in his possession he 1903, defendant had been most anxious to could still obtain her. win her favorable regard, and especially It is suggested that, as the life policy was desirous of showing to her that he was pos- payable to the wife of Blaise, defendant could sessed of money. Ile had been assiduous in not derive any benefit therefrom, and there his attentions, had made her presents of was, therefore, so far as such policy was conarticles aggregating several hundred dollars cerned, no possible motive on his part for the in value, and had also represented to her that killing of Blaise. This suggestion, however, money had been bequeathed to him by an is practically without force when we rememuncle in Germany, which he would shortly ber that this wife, if there was such a person, obtain, and that he would be a wealthy man. was, according to the testimony, the sister He left California on October 16, 1903, with of defendant, and a resident of a country the purpose avowed to her of obtaining a thousands of miles away. In the light of all portion of the money given to him, telling her the facts, it is apparent that defendant exthat the lowest sum he would come back pected to himself handle the proceeds of such with would be $10,000, which sum, it may | policy. It must also be borne in mind that properly be noted in passing, was the exact we have nothing except the statement of deamount of life insurance that defendant

that defendant | fendant, acquiesced in by Blaise when alive, sought to obtain on the life of Blaise, the to show that Blaise was the brother-in-law insurance companies applied to refusing to of defendant, or that he had a wife at all. issue a policy in such a large amount. The 2. One Cooper, who was a cellmate of deletters introduced in evidence, eight in num- fendant in the county jail while defendant ber, were written by defendant between the was confined there awaiting trial, and who time of his departure and January 1, 1904, testified that he had known defendant prior several having been written in New York to the killing of Blaise, gave testimony to the and France, and at least three in San Fran- effect that the defendant had admitted to cisco after his return. This series of letters, him that he killed Blaise for the purpose of the last of which was mailed December 29, obtaining the insurance, and had, with the 1903, unmistakably shows that defendant aid of a pencil drawing which defendant himfor some reason was most desirous of marry- self admittedly made, given him a detailed ing the young woman, and also that he was statement of the locality where and the mansatisfied that it was essential to the ac- ner in which the crime had been committed. complishment of this that he should im- He further testified that defendant had asked mediately obtain a considerable sum of mon- him to assist in establishing an alibi. After ey from some source, and that it would be Cooper had concluded his testimony, the useless to persist in further attentions, or court asked Cooper if he understood that the even to see her, until such money was ob- defendant was charged with murder, and that tained. It throws some light upon the ques- the punishment for murder of the first degree tion as to the ultimate object of the earnest might be death, and Cooper answered in the efforts of defendant to obtain insurance in affirmative. The court then said: "Now, the large amounts upon the life of Blaise, in- court has no desire or intention of intimatdicating an object the accomplishment of ing in either way that your testimony is true which, viz., the immediate obtaining of the or that it is false, but that you may have an insurance money, necessarily included the opportunity of correcting the same, if any be death of Blaise or his disappearance under untrue, I inform you that, under the law of such circumstances as to make sufficient this state, any person who, by willful perjury, proof of death possible. It had a direct secures the conviction and execution of any tendency to show a motive on the part of de- innocent person is punishable by death. fendant for the doing of that which would With the knowledge of the punishment at

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