Page images

to try the case, the defendant was thereby placed in jeopardy, and cannot again be tried for the crime charged in the information, or for any offense included therein.

This appeal was taken and the case is decided for the sole purpose of determining the question of law involved.

Judgment reversed.

STRAUP and FRICK, JJ., concur.

think, also, the statute may be read and construed as though instead of the words "to commit larceny or any other felony," it contained the words, "to commit petit larceny, grand larceny or any other felony," or, as was said in Hall v. State, 48 Wis. 688, 4 N. W. 1068, a case exactly in point, “the statute must be read as though instead of the words 'or other felony' it had been written for any other offense for which the offender on conviction shall be liable by law to be punished by imprisonment in the state prison.'” Continuing, the court says: “We think the term 'or other felony' is not a limitation on what precedes, but is inserted to extend the scope of the section to other offenses not specifically named therein." In this connection it might be well to observe that evidently the intention and purpose of the Legislature, in amending the law defining burglary and housebreaking, was to overcome the embarrassment which so often arises in prosecutions for burglary where it becomes a doubtful question whether the crime was committed in the night or in the daytime. We think this conclusion is borne out by the concluding part of section 4336, as amended (Sess. Laws 1905, p. 16, C. 39), which provides that “wbere, in a prose cution for burglary in the first degree, the question as to whether the crime has been committed in the nighttime or in the daytime cannot be definitely arrived at by the jury, a verdict of guilty of burglary in the second degree may be found: provided, the other elements of the crime of burglary in the second degree have been proved." It is a matter of common knowledge that practically all offenses against the law of burglary are committed with intent to steal, and, in nearly all cases, except when the defendant is caught with the goods, the extent of the larceny which he intended to commit cannot be proved. Therefore, if the state should be required to prove a specific intent to commit grand larceny on the part of the offender when the charge is burglary in the first degree with intent to steal, it would be, in the majority of cases, impossible to procure convictions, however guilty the accused might be. We do not believe the Legislature intended to put upon the state this burden and thereby, in effect, grant immunity from punishment to all criminals who may be charged with burglary in the first degree with intent to steal, for, as we have pointed out, it would be next to impossible for the state to prove a specific intent to commit grand larceny, and, under the holding of the trial court, unless such Intent is alleged and proved no conviction can be bad.

The views herein expressed are supported by the following authorities, in which statutes similar to the one under consideration are construed: Hall v. State, supra; People v. Stapleton, 2 Idaho (Hasb.) 50, 3 Pac. 6; Pooler v. State, 97 Wis. 627, 73 N. W. 336; Kelly v. People, 132 Ill. 363, 24 N. E. 56.

A jury having been impaneled and sworn

(31 Utah, 172) HOGGAN Y. CAHOON. (Supreme Court of Utah. Oct. 26, 1906.) 1. APPEAL-QUESTIONS REVIEWABLE.

On appeal in a law case, where the evidence is conflicting, the only question the appellate court can consider and determine is whether there is any legal or competent evidence on which the judgment and verdict can rest.* 2. WITNESSES-DISCREPANCIES IN TESTIMONY -EXPLANATION.

Defendant, having testified that plaintiff was not his agent for the purpose of taking possession of certain chattels under a mortgage and that plaintiff had acted in his own behalf, and that defendant had no interest whatever in such chattels, was properly permitted to explain that testimony given on å former trial between the parties to the effect that plaintiff had acted as such agent was given under representations of plaintiff's alleged attorney that as the mortgage was executed to defendant, although really for the benefit of plaintiff, and for convenience only, it was necessary to so testify, independently of whether such alleged attorney was in fact plaintiff's attorney or whether plaintiff was himself present when such representations were made or not.

[Ed. Note.For cases in point, see vol. 30, Cent. Dig. Judgment, 88 1261, 1262.]

Appeal from District Court, Sanpete County; Ferdinand Erickson, Judge.

Action by James W. Hoggan against James C. Cahoon. From a judgment for defendant, plaintiff appeals. Affirmed.

L. Larsen and W. D. Livingston, for apo pellant. Jacob Johnson, for respondent

FRICK, J. This action was prosecuted by appellant against respondent to recover upon an alleged indemnity. The appellant in his complaint substantially alleges as follows: That the respondent constituted and appointed appellant agent for respondent to take possession of, and deliver to respondent, certain goods and chattels upon which respondent held a chattel mortgage. That appellant, as the agent of respondent, and at his request, went from Manti, Sanpete county, Utah, to Payson, Utah county, Utah, and, by virtue of said mortgage, took possession of certain goods and chattels specified in said mortgage as such agent for, and in behalf of, the respondent and took the same to Manti, the home of both appellant and

*Croco v. 0. S. L. R. Co., 18 Utah, 311, 54 Pac, 985, 44 L. R. A. 285; Kennedy V. R. Co., 18 Utah, 325, 54 Pac. 988; Mangum v. Bullion, Beck, etc., Min. Co., 15 Utah, 534, 50 Pac. 834; Anderson v. Min. Co., 15 Utah, 22, 49 Pac. 126; Braegger v. 0. S. L R. Co., 24 Utah, 391, 68 Pac. 146.

respondent. That thereafter, at Manti, the filed containing substantially the facts above respondent ratified and approved the taking set forth. A trial to a jury was duly had upof said chattels, and that appellant took pos on the issues set forth above, which resultsession of said chattels in good faith and ed in a verdict and judgment for respondent in the belief that respondent bad lawful of no cause of action. Appellant, in due right thereto. That thereafter, one S. S. time, filed a notice of motion for a new trial Johnson commenced an action against ap setting forto the ordinary statutory grounds, pellant claiming title to said goods and chat which motion was overruled and, after settels superior to the right and title of respond- tling his bill of exceptions, he prosecutes ent, and in said action recovered judgment this appeal. against appellant as for the conversion oť There are three assignments of error that said goods and chattels, in the sum of $300, we can consider, namely, (1) error in overand costs amounting to $13.90, all of which, ruling the demurrer to the answer; (2) that by reason of said judgment, appellant was the evidence is insufficient to justify the compelled to pay and did pay. That, in ad verdict and hence does not support the judgdition to the foregoing, appellant makes · ment; and (3) that the court erred in adclaim for attorney's fees and other costs anä mitting certain eridence against appellant's expenses expended by him in defense of said objection, which is more fully specified hereaction, amounting to the sum of $10.95. after. That said respondent had due notice of said The error assigned in respect to the overaction and refused, and still refuses to re ruling of the demurrer to the answer was pay appellant the amounts aforesaid, except not pressed by counsel for appellant in this the sum of $183.30, leaving a balance due court on the oral argument, and as, in our appellant from respondent in the sum of judgment, no error was committed by the $240.35, for which amount he prayed judy- i lower court in that respect, we will not conment. To this complaint respondent answer- ! sider that matter further. ed by general denial and by setting up an As to the error assigned that the evidence affirmative defense wherein respondent, after is insufficient to justify the verdict of the setting forth in detail the history of the jury and, hence, does not support the judgwhole transaction, in substance says: That ' ment, we, after a careful perusal of all the one J. G. Stutts was, on the 6th day of Janu evidence in the bill of exceptions, are conary, 1898, indebted to respondent in the vinced that the eridence justifies the one sum of $280; that on said date he executed ; and, lience, supports the other. Moreover, and delivered to respondent a note for said the evidence is in sharp conflict and, hence, amount and secured the same by giving him the only question, this being a law case, a chattel mortgage upon the goods and chat- that this court can consider and determine tels referred to in plaintiff's complaint; is whether there is any legal or competent that said note and mortgage became due on evidence upon which the judgment and verthe 6th day of April, 1898, and that a new dict can rest. In other words, are they supmortgage was then executed by said Stutts ported by any legal or competent evidence ? due and payable in 90 days thereafter; that | If such be found to be the fact, then the appellant and respondent on the said 6th matter passes beyond the authorized powers day of April agreed to and did obtain said of this court for the reason that when there $280 from the bank at Manti, and gave their is any evidence of the character above stated note therefor due in 90 days from said date; : the question ceases to be one of law merely, that said $280 so obtained was agreed to be but enters the domain respecting the weight and was paid to respondent as full payment of the evidence, which domain this court is of said claim against said Stutts and that ap


by both the Constitution and the statutes pellant then and there took said mortgage to prohibited from entering. This has often secure himself on said $250 note and that been decided by this court, as is disclosed by the appellant was to collect the same, and.' numerous decisions, among which are the respondent had no further connection there following: Croco v. 0. S. L. R. Co., 18 Utah, with; that said mortgage was taken in the 311, 51 Pac. 983, 44 L. R. A. 285; Kennedy name of respondent for convenience merely V. R. Co., 18 Utah, 325, 54 Pac. 988; Mangum for the reason that the original mortgage was ! v. Bullion, Beck, etc., lin. Co., 15 Utah, 531, made to him, and for the purpose of cutting

50 Pac. 831; Anderson v. Min. Co., 15 Utah, off intervening claims if any there might be ; 22, 49 Pac. 126; Braegger v. 0. S. L. R. Co., that said mortgage and the debt thereby se 24 Utah, 391, 68 Pac. 110. cured belonged to appellant, and respondent The only other error that we are permitted then disclaimed, and had no further interest to consider is the one respecting the admistherein; that said appellant, in taking said sion of certain evidence against appellant mortgaged property, acted in his own buhalt over his objection. The assignment of error and for his own benefit. Wherefore re upon this point is stated by him as follows: spondent prayed judgment that appellant · "Error in law occurring at the trial and extake nothing by this action. To this answer cepted to by the plaintiff (appellant), to wit: appellant interposed a demurrer, which was The permission given defendant (respondent) sustained in part and overruled as to other to testify over plaintiff's (appellant's) obparts; whereupon an amended answer was, jection to a conversation had between defend

ant (respondent) and one out of the / gested that Mr. Blank, at the time of the alpresence of plaintiff (appellant).” For rea- leged conversation, was acting as the attorsons satisfactory to us we withhold the name ney for appellant, and that the conversation of the person referred to, and such person was permissible on that account. The trial will hereafter be referred to as Mr. Blank. | court then ruled that in order to make the By reference to the bill of exceptions it is dis conversation admissible, respondent must closed that the alleged error arose under the first show that Mr. Blank represented appelfollowing circumstances, viz.: When the re lant as his attorney, or that appellant was spondent was upon the witness stand giving present at the conversation. After consideratestimony in his own behalf, appellant's able testimony as whether Mr. Blank was counsel, for the purpose of impeachment, acting as the attorney for appellant at the asked the witness, in substance, whether he time, and the court apparently being satisfied had not, at another trial, at a time previous that Mr. Blank acted as such attorney, and to the time at which the witness was then that he represented appellant at that time, testifying in this case, testified to facts differ- overruled the objection, and permitted reent from what he was then testifying. The spondent to testify further. Whereupon rematter enquired about was whether the wit-spondent explained fully the circumstances ness had, at the previous trial, testified that in relation to the apparent conflict in his testhe appellant, in going after and taking the timony respecting what he testified to at the (hattels set forth in the complaint and an- present and

present and former trials. Among other swer in this action, had so taken them as an things, he testified that Mr. Blank explained agent for and in behalf of respondent. The to him that if the matter of agency was respondent in this case had testified in chief brought up at the trial at Provo, then he (rethat appellant was not his agent for that or spondent) would be required to answer that any purpose connected with the matters in

the appellant acted as his (respondent's) controversy, and that appellant had acted for

agent in taking possession of the chattels and on his own behalf in what he did in re taken under the mortgage set forth in the spect to said chatteis, and that respondent pleadings herein. That when respondent had no interest whatever therein. The re

told Mr. Blank that that was not the fact, spondent admitted testifying in the former

but that appellant acted for himself and on case, and stated that he did not remember

his own account, Mr. Blank said: “It don't the exact import of his testimony at said

make any difference, that's the way the law former trial, but admitted that, if it ap

looks at it," Mr. Blank basing his statement peared from the record of the testimony of

upon the fact that the mortgage was made to the former trial that he (respondent) testi

read in favor of respondent. Respondent, fied that appellant acted as the agent of re

while admitting this, contended, however, spondent in respect to the taking of said chat

that while the mortgage was made to read tels, he would not deny that he so testified,

in his name, it was so made for convenience but if he did so testify, it was for certain rea

only, and that it was in fact appellant's mortsons that he desired to explain. Counsel for

gage, and that in truth and in fact appellant appellant refused the opportunity to make

did not act as respondent's agent. such explanation or give the reasons why

It will be observed that the testimony was he so testified. When counsel for appellant

not offered, nor, indeed, could it be considhad concluded his examination of the wit

ered for the purpose of establishing a maness, counsel for respondent, on redirect examination, propounded to him the following

terial or essential part of the issues in the

case. question: "Q. Mr. Cahoon, you stated that

It was offered and admitted for the in reference to your testimony at Proro that

sole purpose of explaining the conflict respectsome advantage was taken of you, and you

ing the testimony of respondent arising out of wanted to explain in reference to that mat

his testimony at the former trial when comter. You may now explain what you de pared with his testimony at this trial respectsired to say before?” To this the witness

ing the matter of appellant's agency. It was made the following statement: "A. When

not sought to bind the appellant by anything we went down he (appellant) took Mr.

Mr. Blank may have said to respondent, neiBlank along with him, and we got to talking

ther was it at all material whether what Mr. the matter over * * and Mr. Blank,

Blank said was true or otherwise, but it was says he: 'If this question is fetched up

both important and mateņial for the jury to whether Mr. Hoggan is here as your agent

know whether respondent had in fact knowor not,' says he, 'you will have to answer it ingly and willfully testified to the same fact as he was, because it is made in your name.'

in different ways. It was proper for appel'Well,' says I, 'he was not acting as my lant's counsel to show, if he could, that reagent.'” At this point counsel for appellant spondent took a different position respecting objected to the witness stating any conversa a material fact in the present trial to that tion he may have had with Mr. Blank out of assumed by him in the former one. It was the presence of appellant. On being asked just as proper for respondent to explain why whether appellant was present at the time of he made conflicting statements and thus give the alleged conversation, the witness answer the jury the benefit of the true conditions ed: “I think he was.” It was then sug that induced him to make them. Without

the explanation, respondent stood impeached; I had not been filed in justice's court need not with it the jury could place a correct estimate

wait for the expiration of such time. on the weight to be given to his testimony.

[Ed. Note.-For cases in point, see vol. 9,

Cent. Dig. Certiorari, 88 57, 58.] It was for the jury to say whether his explanation was reasonable or otherwise, and


MISSAL BY DISTRICT COURT OF APPEAL FROM whether they would believe his first or his JUSTICE'S COURT-REVIEW. last statement. It is always competent for Where the district court, without legal a witness, or a party if he become a witness,

cause, dismisses an appeal from a justice's

court, the remedy is by writ of mandate, under to explain either real or apparent discrep

Rer. St. 1898, $$ 3640, 3641, denominating the ancies in his testimony so that the jury may writ of mandamus a writ of mandate, and be possessed of the reasons that actuated him authorizing the granting of the writ to any in making such statements. The rules of

inferior tribunal to compel the performance of

an act which the law specially enjoins, to reevidence were established for the purpose of quire the court to vacate the order of dismissal, eliciting the actual, not the apparent truth, reinstate the appeal, and proceed to hear the and with the view of promoting justice. The

cause on its merits. matter now under consideration is not an


A court which misconceives the law, and exception to these rules and is elementary.

acts contrary thereto in a matter where it has 2 · Elliott on Ev. (2nd Ed.) § 931. 1 Greenl. jurisdiction of the subject matter, does not ex(16th Ed.) § 462. Dole v. Wooldredge, 142

ceed its jurisdiction, and its action is not re

viewable on certiorari. Mass. 161–183, 7 N. E. 832. The matters

6. MANDAMUS-PURPOSE OF WRIT-STATUTORY testified to by respondent, being thus limited

PROVISIONS. to an explanation of his motive in testifying The writ of mandate, as defined by Rev. differently at the former trial, it was clearly St. 1898, 88.3640, 3611, denominating the writ

of mandamus a writ of mandate, and authorproper, and this independently of whether

izing its issuance to any inferior tribunal to Mr. Blank was appellant's attorney and rep compel the performance of an act specially enresented him as such on the occasion, or joined by law, is' designed to compel action whether appellant was himself present at the

where the law enjoins it, and the tribunal re

fuses to act in accordance therewith. time or not. In this regard the court seemed

[Ed. Note.-For cases in point, see vol. 33, to demand more than the law required.

Cent. Dig. Mandamus, SS 1-3.] From the foregoing it is manifest that the

7. SAME. lower court did not err in overruling appel

Since the action of the district court in lant's objection. The judgment, therefore, dismissing an appeal from a justice's court is should be, and accordingly is, affirmed. Ap

final, and cannot, in consequence of the ex

press provisions of Const. art. 8, § 9, be repellant to pay the costs of this appeal. We

viewed on appeal to the Supreme Court nor on concur: MCCARTY, C. J. STRAUP, J. certiorari, the remedy is by mandamus where

the court erroneously dismisses the appeal, for its act is a refusal to proceed further, so that

if contrary to law the court may be required (31 Utah, 179)

to proceed in accordance therewith. HOFFMAN V. LEWIS, Judge.


Where a court refuses to proceed when it (Supreme Court of Utah. Oct. 31, 1906.)

has jurisdiction and authority to do so, the 1. CERTIORARI-GROUNDS-REVIEW OF JUDI

remedy is not by certiorari, but by writ of manCIAL ACTION.

date. 1 Under Rev. St. 1898, 88 3630, 3636, au 9. MANDAMUS-GROUNDS–NATURE OF ACT TO thorizing the granting of the writ of certiorari BE COMMANDED. where an inferior tribunal exercising judicial In proceedings for a writ of mandate, the functions has exceeded its jurisdiction, but de legal right to require the tribunal to proceed claring that the writ cannot be extended further and the legal duty to do so must be free than to determine whether the inferior tribunal from doubt, otherwise the writ must be denied. has regularly pursued its authority, certiorari

[Ed. Note.--For cases in point, see vol. 33, lies to review the action of the district court Cent. Dig. Mandamus, & 37.] where it exceeds its jurisdiction, but does not lie where the court merely errs.

10. JUSTICES OF TIIE PEACE-APPEAL-STATU[Ed. Note.-For cases in point, see vol. 9.

TORY RIGHT. Cent. Dig. Certiorari, $$ 41, 42.]

An appeal from a justice's court to the

district court is statutory, and the statutes 2. SAME.

granting it must be substantially complied with. The district court, in dismissing an appeal from a justice's court on the ground that an

[Ed. Note.-For cases in point, see vol. 31, undertaking, as required by law, had not been

Cent. Dig. Justices of the Peace, $ 466.] filed in the justice's court, does not exceed its

11. SAME - APPEAL - EXECUTION OF UNDERjurisdiction, and its action is not reviewable on TAKING-STATUTES certiorari.

Under Rev. St. 1898, $$ 3747, 3748, pro[Ed. Note.-For cases in point, see vol. 9,

viding that an appeal from a justice's court Cent. Dig. Certiorari, & 41.]

shall not be effective unless an undertaking

be filed within five days after the filing of the 3. SAME-JUSTICES OF THE PEACE-REVIEW

notice of appeal, and providing that the party TRANSFER OF CASE-SUFFICIENCY-RIGHT TO

filing the undertaking must serve notice thereof ATTACK.

on the adverse party, who may within two A party desiring to attack an appeal to the

days thereafter object to the sufficiency of the district court from a justice's court, on the sureties named in the undertaking, and upless ground that the papers are not filed and the

the sureties justify before the justice, on notice advance fee paid, cannot bring certiorari until

to the adverse party, the appeal shall bo lethe expiration of the time specified in the stit

garded as if no undertaking had been given, ute; but a party objecting to the appeal on the ground that an undertaking required by law 10. S. L. R. Co. v. District Court, 85 Pac. 360.

no appeal from a justice's court can be taken without the execution of an undertaking, and a failure to have the sureties justify within two days after excepting to their sufficiency nullifies the undertaking given, and leaves the case as though no undertaking had been made. 12. FORCIBLE ENTRY AND DETAINER-JUDGMENT-REVIEW-STATUTES.

Rev. St. 1898, $ 3.86, which provides that an appeal may be taken from a judgment in forcible entry and detainer within 10 days, which appeal shall not stay execution unless appellant files his undertaking, and on taking the appeal and filing the undertaking the proceedings shall be stayed, and section 3587, which makes the provisions of the Code relative to civil actions, appeals, etc., apply to proceedings in forcible entry and detainer, make sections 3747 and 3748, relating to appeals from justice's court, applicable to an appeal from a judgment in forcible entry and detainer, anil the undertaking provide thereby must be given to perfect the appeal. 13. STATUTES-CONSTRUCTION.

Courts must give eifect to all the provisions of a statute relative to one subject-matter, though found in different sections.

[Ed. Note.For cases in point, see vol. 11, Cent. Dig. Statutes, $ 283.] 14. JUSTICES OF TIIE PEACE - APPEAL - DISMISSAL - GROUNDS -- ENDERTAKING - STATUTES.

Under the statute providing that no appeal shall be effective unless an undertaking is filed, and making the failure of the sureties to justify tantamount to a failure to give an undertaking, an appeal may be dismissed, not only where there is an insufficient undertaking, but also where there is no undertaking.

[Ed. Yote.--For cases in point, see rol. 31, Cent. Dig. Justices of the Peace, $$ 3.50, 039, 643.] 15. JUSTICES OF THE PEACE-REVIEW-FORCIBLE EXTRY AND DETAINER.

There is no distinction between an appeal from a judgment rendered by a justice's court in forcible entry and detainer and an appeal from a justice's court in other cases. 2

Certiorari by Frank Hoffman against T. D. Lewis, judge of the Third Judicial District, to review the action of the judge in respect to the dismissal of an appeal from a justice's court. Denied.

M. M. Kaighn and A. G. Sutherland, for petitioner. E. A. Walton, for respondent.

forcible detainer against the petitioner herein in the justice's court of Salt Lake City, which action, in due time, and on the 20th of said month, eventuated in a judgment for $125 and for restitution of certain premises in favor of said Earl and against the petitioner. On the 3d day of July following, the petitioner filed a notice of appeal in said court, and on the 9th day of said month he filed an undertaking on appeal. On the 11th said Earl duly filed exceptions to the sufficiency of the sureties on said undertaking, and demanded that said sureties justify, as provided by the statutes of this state. Due notice of said exceptions was duly served on the attorney for the petitioner. Up to this time the petitioner had not served any notice on said Earl or his attorney of the filing of an undertaking on appeal, but served such a notice on the 12th day of July, and after said exceptions were filed. The sureties on said undertaking failed to justify within two days after the exceptions aforesaid were filed and served, nor did they, nor any others, justify at any time. On the 14th day of July, 1906, the justice transferred a transcript of the proceedings had before him in said action duly certified to the district court of Salt Lake county, which was filed in the clerk's office on that day. On the 16th of said month, and after the transcript was filed, said Earl served a notice and motion on the attorney for petitioner, notifying him that on the 21st day of said month said Earl would make a motion to dismiss said appeal before respondent herein as one of the judges of said district court upon substantially the following grounds, viz.. That said district court has no jurisdiction to try said cause on the merits, or to do other than to dismiss the appeal, and that the sureties on the undertaking on appeal had not justified as required by law, although exceptions to their sufficiency had been duly made. The attorney for the petitioner attacked the foregoing motion to dismiss by a counter motion "to dismiss the motion and notice," made by said Earl upon the ground that the court had no jurisdiction to entertain such motion to dismiss said appeal, and that there was no action pending in said district court between the parties, to wit, said Earl and said peticioner, and further, that the notice accompanying said motion to dismiss was insufficient. To this motion was attached the affidavit of the petitioner, setting forth, in substance, the proceedings had in the justice's court, as hereinbefore stated. On the 21st day of July, 1906, and on the day set in said motion to dismiss, the respondent, sitting as judge in one of the departments of said district court, after a hearing upon the motion aforesaid, sustained the motion to dismiss said appeal, and accordingly entered an (rder dismissing the same.

We remark here that it will be observed that the case originated in the justice's court,

FRICK, J. The petitioner herein applied to this court for a writ of certiorari for the purpose of reviewing the action of one of the judges of the district court in respect to the dismissal of an appeal to that court from a judgment entered in the justice's court of Salt Lake City, the writ being directed to Hon. T. D. Lewis, one of the judges of the Third Judicial District of the state of Utah, and before whom the proceedings were had. For convenience the applicant for the writ will be designated petitioner, and the judge will be styled respondent.

The facts upon which the petition is based may be briefly yet comprehensively stated as follows: On the 9th day of June, 1906, one James Earl commenced an action of

2 Pratt v. Jarvis, 28 Pac. 869, 8 Utah, 5.

« PreviousContinue »