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the return of said $1,100, the plaintiffs cannot say that said Hancock would refuse to return the same if a demand was made, in other words, the plaintiffs have no cause of action against the defendants until all lawful means for the recovery of said $1,100 from said IIancock have failed. It must be shown, first, that said Hancock is insolvent, and nothing whatever can be collected from him, before the defendants have become liable in damages to said plaintiff.” We think there was. It said "Hancock has * * refused * * * and still does

refuse to pay plaintiffs * * * the sum of $1,100, or any part thereof." Refusal to do a thing implies a demand made to do it. Certainly this would be so on general demurrer.

7. The seventh point is that there is no allegation that the plaintiffs have suffered loss of $1,100, or any sum; but only the statement of a conclusion of law that plaintiffs have so suffered. On the contrary we think an inspection of the allegation in this respect shows allegation of an ultimate fact, good as against general demurrer at least.

8. Counsel say there was no report in the abstract of title furnished by respondents that the land in question was free from all incumbrances; but only that it was from some incumbrances. Their contention is expressed as follows: "The attorneys for the plaintiff in their said brief on the demurrer, compare the Morange v. Mix case, in 44 N. Y. 315, with this case, and claim that this case is much stronger than the New York case; and we call the court's attention to line 4 on page 2 of their brief, where this language is found: “While, in our case, the complaint alleges that it was to be free from any incumbrance.' Webster defines the word 'any' as one out of many, indefinite. "Nor knoweth any man the Father, save the Son.' Matt. xi, 27. It is also defined as ‘some,' an indefinite number or quantity, as 'Are there any witnesses present?' Now the word 'any' incumbrance does not mean all incumbrances, as the word 'any,' in its largest meaning simply means 'some,' and does not mean from all incumbrances.”

The language in the allegation (allegation 4) is: "That defendants, in the performance of the duties of such employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a pretended abstract of title to the said land, and did report and represent to plaintiffs that the same was a full, true, accurate, and correct abstract of the title to said land, by which pretended abstract of title it appeared and was shown that the said W. H. Hancock was the owner of said land and premises in fee simple without any incumbrances; in

reliance on said pretended abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about the 28th day of June, 1902, purchase said land and premises from said Hancock and did pay him therefor the sum of $1,100, in lawful money of the United States." The allegation is that "Hancock was the owner of said land and premises in fee simple without any incumbrances.” The phrase "without any incumbrances," means just what it says. It means there were no incumbrances. Indeed, it means there was not a single incumbrance. It could not possibly mean there was some incumbrances, or even there was a single incumbrance. So to hold would be a strange perversion of language.

A few other points are made in the brief of respondents; but we think they are not of such moment as to require mention here, except the following:

9. Ninth point, if we correctly apprehend it, is this: That in case of negligence in the abstracter's work, and consequent loss therefrom, the damaged employer cannot sue the negligent abstracter until he has exhausted all remedy against the grantor of the title involved or shown that such grantor is insolvent. And, further, that this showing of exhaustion of remedy against grantor or his insolvency is an affirmative showing on the part of the plaintiff, and that, without such showing, his complaint would be bad on general demurrer. Is this the law? We think it is not necessary that such affirmative showing be made in the complaint, and it is unnecessary now to determine whether the same would constitute a defense if pleaded by answer. It is urged in the brief that Hancock may have paid the damages of $1,100 to plaintiff. It is alleged in the complaint, however, that Hancock has not se paid. It is also urged that Hancock may be able to pay it on being sued. Defendants' obligation was a direct contract to furnish plaintiff a full, complete, and correct abstract of title to the land in question, such as would protect the plaintiffs from incurring the loss that they have alleged. If plaintiffs had it in their power to protect themselves from such loss by any course of action that they could be reasonably and legally required to take; that is, an affirmative defense that respondents should set up and plead to defeat plaintiffs' action. The case of Morange v. Mix, 44 N. Y. 315, throws considerable light on this question.

We think the judgment appealed from in this case is erroneous. Said judgment is reversed, and the case is remanded to the trial court, for further proceedings in accordance with this opinion.

TALBOT and NORCROSS, JJ., concur.

(34 Mont. 418)

mitted; it is sufficient that there was a STATE V. HOUK,

design and determination to kill distinctly (Supreme Court of Montana. Oct. 22, 1906.)

formed in the mind at any moment before

or at the time the Winchester rifle gun was 1. HOMICIDE-INSTRUCTIONS.

fired; and in this case if you believe from Where the court in its instructions defined the grades of unlawful homicide, and defined

the evidence, beyond a reasonable doubt, justifiable homicide, and charged that accused that the defendant feloniously shot and killcould not be convicted of murder in the first de

ed the deceased, as charged in the informagree unless all the necessary elements including malice aforethought were present, an instruction tion, and that before or at the time the shot that to constitute murder in the first degree, it

was fired, the defendant bad formed in his was not necessary that the unlawful design to mind a willful, deliberate, and premeditated take life should have been entertained for any

design or purpose to take the life of the deprecise length of time, but it was sufficient if the killing was the result of deliberate premedi

ceased, and that the shot was fired or that tation, was not misleading because omitting mal- the fatal blow was given in furtherance of ice aforethought as an element.

that design or purpose, and without any 2. CRIMINAL LAW-EFFECT OF CHARGE AS A WHOLE.

justifiable cause or legal excuse therefor, as A charge must be read as a whole, and it, explained in these instructions, they should when so read, it correctly states the law, it is find the defendant guilty of murder in the sufficient, though an isolated sentence may when first degree." standing alone be erroneous. [Ed. Note.-For cases in point, see vol. 14,

“No. 35. The court instructs you, that in Cent. Dig. Criminal Law, $ 1090.]

order to justify the use of a deadly weapon 3. HOMICIDE-SELF-DEFENSE-INSTRUCTIONS.

in self-defense, it must appear to the defendAn instruction on a trial for homicide, that ant that the danger was so urgent that, in the right of self-defense is to be measured by order to save his own life, or to save himwbat a reasonable person would have done under like circumstances, sufficiently conforms to Pen.

self from great bodily harm, the attack upCode, g 361, declaring that the circumstances to

on the deceased was absolutely necessary. justify self-defense must be sufficient to excite And it must appear that the deceased was the fears of a reasonable person.

the assailant, or that the defendant had [Ed. Note.-For cases in point, see vol. 26, really and in good faith endeavored to de. Cent. Dig. Homicide, $8 616, 617.)

cline any further struggle before the fatal 4. CRIMINAL LAW-INSTRUCTIONS—MISLEAD

shot was fired. A bare fear of the commisING INSTRUCTIONS. Where, on a trial for homicide, the court

sion of the offense, to prevent which defenddeclared that the evidence must establish the ant used a deadly weapon, is not sufficient guilt of accused beyond all reasonable doubt be

to justify it; but the circumstances must be fore a verdict of guilty could be rendered, an instruction that if "from the evidence," the jury

sufficient to excite the fears of a reasonable found that accused, at the time he shot decedent, man, and the party attacking must have did not, as a reasonable man, believe that he

acted under the influence of such fears alone. was in imminent danger of losing his life, the killing was not in self-defense was not erroneous

It is not necessary, however, to justify the as leading the jury to find a verdict of guilty on use of a deadly weapon, that the danger be a mere preponderance of the evidence because actual. It is enough that it be an apparent of the omission of the words "beyond a reasonable doubt," after the words quoted.

danger; such an appearance as would induce

a reasonable person to believe he was in Appeal from District Court, Beaverhead

danger of great bodily harm. Upon such County; Lew. L. Callaway, Judge.

appearance a party may act with safety, Sidney Houk was convicted of murder in

nor will he be held accountable though it the second degree, and he appeals. Affirmed,

should afterwards appear that the indicaEdwin Norris, C. M. Robison, and J. H. tions upon which he acted were wholly falDuffy, for appellant. Albert J. Galen, Atty. | lacious, and that he was in no actual peril. Gen., and E. M. Hall, Asst. Atty. Gen., for The rule in such case is this: What would the State.

a reasonable person--a person of ordinary

caution, judgment, and observation in the BRANTLY, C. J. The defendant was con position of the defendant, seeing what he victed of murder of the second degree. He saw, knowing what he knew, suppose from has appealed from the judgment of convic this situation and these surroundings? If tion and from an order denying him a new such reasonable person so placed would have trial.

been justified in believing himself in imThe questions submitted for decision ariseminent danger, then the defendant would be upon certain paragraphs of the charge sub justified in believing himself in such peril mitted to the jury which follow:

and acting upon such appearances." "No. 31. You are instructed that while the "No. 37. If, however, you find from the law requires, in order to constitute murder evidence that at the time he shot Owen F. of the first degree, that the killing must be Ellis the defendant did not, as a reasonable willful, deliberate, and premeditated, still man, believe he was in imminent danger of it does not require that the willful intent, losing his life or suffering great bodily inpremeditation, or deliberation, shall exist for jury at the hands of the said Owen F. Ellis, · any length of time, before the crime is com then the killing was not done in self-defense,

but was either murder or manslaughter, no Shafer Case, not only omitted the expression matter who began the affray, and even “malice aforethought,” but by the use of the though the defendant had really and in good word “only," in the phrase “it is only necfaith endeavored to decline any further essary that the act of killing be preceded struggle, and had so informed the said by a concurrence of will, deliberation, and preOwen F. Ellis."

meditation on the part of the slayer," etc., The fault found with paragraph 31 is actually excluded that element. Furtherthat it omits the expression "malice afore more, the defendant in that case had been thought," an essential element of the crime convicted of murder of the first degree, and pf murder, and also conflicts with para the court was constrained to disapprove the graphs 29 and 30 of the charge as given. In instruction because it was, for the reason preceding paragraphs of the charge the just stated, not in harmony with the rest of court had define all grades of unlawful the charge. homicide, pointing out and defining clearly The criticism made of paragraph 35 is that and carefully the distinguishing elements it does not state the legal standard by which necessary to constitute any grade of the the defendant's right to act upon appearcrime. It had also correctly defined and ances should be measured. It is said that he distinguished justifiable homicide. In para had a right to act upon appearances as they graphs 29 and 30 it further explicitly tolil were presented to him, as a reasonable perthe jury that the defendant could not be son; whereas the jury were told that his convicted of murder of the first degree in right was to be measured by what a reasonless it appeared from the evidence beyond able person would have done under like or a reasonable doubt that all the necessary the same circumstances. The statute (Pen. elements, including malice aforethought, Code, $ 361) adopts the reasonable person were present. In the paragraph in question standard, for it declares that the circumit then properly pointed out that it was not stances inust be sufficient to excite the fears necessary that the unlawful design to take

of a reasonable person, and it must control. life should have been entertained for any But after all, what substantial difference is precise length of time, but that it was suffi

there in the meaning of the two phrases, (ient if it was the result of deliberate pre "fears of a reasonable person" and "fears meditation and prompted the killing. The of the defendant as a reasonable perso?" court was at the moment dealing particularly we can see none. If the defendant must with this element and no other. It then

act upon appearances as a reasonable perproceeded to say that, if the killing appeared

son, then his conduct must be judged by to have been done in furtherance of such de

what a reasonable person would have done sign and without lawful excuse, “as ex under the same circumstances, and this is plained in these

in these instructions,” the jury the legal measure of his right. Counsel should convict the defendant of murder of

cites State v. Rolla, 21 Mont. 582, 55 Pac. the first degree. Under this condition of

523, in support of his contention; but it is the instructions it is hardly conceivable that

apparent from a reading of the opinion that the jury could have been misled. Besides, the court's attention was not directed to the even if the paragraph is open to the objec refined technical distinction for which contion made, it seems apparent that the jury tention is now made, and that it had no such were not misled, because the defendant was

notion in mind when it used the language not convicted of the higher grade of the it did. In any event, in this case the court crime with which the court was then dealing.

owed the statute, and that must be held In considering a charge it should be read sufficient. as a whole and judged accordingly. The

It is said that paragraph 37 is erroneous, court cannot discuss all phases of the law in that it omits the words "beyond a reasonor cover every branch of the case in one

able doubt," after the word "evidence" in paragraph. An isolated sentence or para the first line. This paragraph was copied graph of a charge may be subject to adverse

from State v. Tighe, 27 Mont. 327, 71 Pac. (riticism when standing alone, but when

3. The remarks made above upon instrucread in its proper connection, no fault can tion 31 are pertinent here. Standing alone, be found with it. Such, in our opinion, is the statement may be open to the criticism the case here. When read in connection made, but, when read in connection with the with other parts of the charge, particularly other parts of the charge, wherein the court paragraphs 29 and 30, it is not only a cor again and again declared that the evidence rect exposition of the law. but is entirely must be sufficient to establish the guilt of the consistent with these paragraphs and the defendant beyond all reasonable doubt berest of the charge. But counsel say that fore the jury could convict, they could not that paragraph is almost a literal copy of have understood that they could find a veran instruction criticised by this court in dict of guilty upon a mere preponderance of State v. Shafer, 22 Mont. 17, 55 Pac. 520. evidence. and held to be objectionable. A comparison Counsel for defendant assigns as error the of the two shows that this contention is refusal of the court to give certain instrucwithout foundation. The instruction in the tions requested.

tions requested. The remarks upon the in

structions given sufficiently meet all conten aware of the contention, he has not asked tions made in that behalf.

this court to have the record corrected so The judgment and order are affirmed. as to conform to the requirements of the Affirmed.


There l:eing nothing before this court upMILBURN and HOLLOWAY, JJ., con on which an examination of the appeals cur.

upon their merits may be had, the judg. ment and order are affirmed.

Affirmed. (34 Mont. 424) STATE v. FARRISS.

MILBURN and HOLLOWAY, JJ., concur. (Supreme Court of Montana. Oct. 22, 1906.) CRIMINAL LAW-RECORD-MANNER OF BRINGING UP.

(31 Mont. 403) Where the record defined by Pen. Code, 8 2229, as including the indictment, a copy of the

STATE V. ALLEN. minutes of the plea and of the trial, the charge (Supreme Court of Montana. Oct. 22, 1906.) given or refused, and the indorsements thereon, and a copy of the judgment, is included in the

1. LARCENY-INDICTMENT-REQUISITES - FELbill of exceptions, and not certified up by the

ONIOUS INTENT. clerk as the record, as required by section. 2281, $ 850, and section 883, as amended by Sess.

Both at common law and under Pen. Code, the merits of the appeal cannot be considered. (Ed. Note. For cases in point, see vol. 15,

Laws 1897, p. 247, defining larceny as a taking Cent. Dig. Criminal Law, $ 2887.)

"with intent to deprive or defraud" the true

owner, an indictment charging that defendant Appeal from District Court, Silver Bow

"feloniously and with the intent then and there

to steal," etc., sufficiently charges a felonious inCounty; M. Donlon, Judge.

tent, the phrase following the word "feloniously" Shabin Farriss was convicted of an as- taking nothing from the effect thereof. sault in the second degree, and he appeals. [Ed. Note.-For cases in point, see vol. 32, Affirmed.

Cent. Dig. Larceny, $ 63.] E. S. Booth and H. A. Frank, for appel


-CO-CONSPIRATORS. lant Albert J. Galen, Atty. Gen., and W. H. Prior to the formation of any conspiracy Poorman, Asst. Atty. Gen., for the State. for the stealing and disposing of horses between

defendant, a witness, and Š., S., without de

fendant's knowledge, urged the witness to buy BRANTLY, C. J. The defendant was defendant's ranch, and pay for it with stolen convicted of assault in the second degree horses, to be disposed of by defendant. Subseand sentenced to a tern of three years in the

quently such an arrangement was made, s.

being included in the agreement. Held, that state prison. He has appealed from the

the conversation between S. and the witness judgment and an order denying him a new was inadmissible in a prosecution of defendant trial.

for the larceny. The Attorney General makes the conten

[Ed. Note.--For cases in point, see vol. 14, tion that the appeals may not be considered

Cent. Dig. Criminal Law, $$ 997-999.) on their merits , for the reason that the 3. SAME.

Conversations between S. and the witness, transcript filed in this court does not con

having reference to the purpose of the conspiratain an authenticated copy of the record of cy and occurring after its formation, were adthe trial in the district court, but a bill of missible, though without defendant's knowledge. exceptions only, settled, signed, and allowed [Ed. Note.-For cases in point, see vol. 14, by the judge who tried the cause. We think

Cent. Dig. Criminal Law, $8 096–1001.] the contention must be sustained. Section 4. SAME. 2229 of the Penal Code provides how the

It is not essential to the admission of dec

larations of co-conspirators out of the presence record shall be made up. The papers con of the defendant that the witness be required stituting the record proper cannot be brought to fix the time and place of the occurrence, up in a bill of exceptions, but must be certi

and the persons present. fied up by the clerk as the record. Penal

[Ed. Note.--For cases in point, see vol. 14,

Cent. Dig. Criminal Law, 88 989-990.] Code. $ 2281; State v. Morrison, 34 Mont.


Where, in a prosecution for larceny, there In the transcript before us are what pur is evidence to show a conspiracy under which port to be the papers constituting the record horses stolen by otliers were to be disposed of

by defendant, evidence is admissible of the proper; but they are included in the hill

larceny by co-conspirators of other horses than of exceptions, and are not certified as the

the one mentioned in the indictment, the brands record, nor are they identified in any way by on such horses having been changed, and most the certificate of the clerk or judge. Such

of them disposed of by defendant. being the case, there is no legal evidence

(Ed. Note.-For cases in point, see vol. 14,

Cent. Dig. Criminal Law, $8 833, 834, 989before this court of what the action of the

1001.) district court was, and consequently the

6. SAME-POSSESSION OF STOLEN PROPERTY merits of the appeals may not be considered. GUILTY KNOWLEDGE-CONSPIRACY. We more readily sustain the position of the In a prosecution for larceny, the possession Attorney General because of the fact that of the stolen property by defendant soon after though his brief has been on file since Au

it had been stolen, in connection with an ob

vious change of the brands, and the fact that gust 8th, and the appellant has been fully at different times animals with various brands

87 P.-12

A. W. Allen was convicted of larceny, and he appeals. Reversed and remanded.

J. L. Staats and Geo. D. Pease, for appellant. Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.

were received by defendant from the same persons without inquiry, was an incriminating fact tending to show a conspiracy.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $8 1012-1016.] 7. LARCENY-TRIAL-INSTRUCTIONS - INTENT.

In a prosecution for larceny, the jury must be instructed as to the necessity of the felonious intent, though the statutory definition does not include such element.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Larceny, $8 191-194.] & SAME-SUFFICIENCY.

An instruction to acquit if not satisfied “that the defendant had something to do with the felonious taking of the property" is not a sufficient instruction as to the necessity of felonious intent.

(Ed. Note.For cases in point, see vol. 32, Cent. Dig. Larceny, $$ 191-194.] 9. CRIMINAL LAW-INSTRUCTIONS-INVASION OF JURY'S PROVINCE.

An instruction intimating that "prominent and striking" contradictions in the stories of different witnesses should be attributed to deliberate perjury is an invasion of the jury's province.

[Ed. Note.For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 1772–1775, 1889– 1891.] 10. SAME.

An instruction that the coincidence in all parts of the stories of two witnesses engenders suspicion of practice and concert is an invasion of the jury's province.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 1772-1775, 1889 1894.) 11. SAME-CIRCUMSTANTIAL EVIDENCE.

An instruction as to the value to be given circumstantial evidence should include a statement as to the satisfaction of guilt beyond a reasonable doubt to the exclusion of every other reasonable hypothesis, and not merely state that the jury should convict if such evidence convinces the guarded judgment.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 1883–1888.] 12. SAME-ASSUMPTION OF Fact-EXISTENCE OP ACCOMPLICE.

An assumption in a charge that a certain person was an accomplice is erroneous as an assumption of the commission of the crime.

[Ed. Note.--For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 1754-1764.) 13. SAME-DEFINITION OF PRINCIPAL.

An instruction is not erroneous for authorizing the conviction of one who "advised or encouraged” another in the commission of a crime instead of "advised and encouraged," in accordance with the definition of a principal in Pen. Code, 41.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 1818-1820.) 14. SAME.

It is error to define a principal as one who "aids or abets” in the commission of a crime instead of "aids and abets," in accordance with the definition of Pen. Code, $ 41.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $ 1819.] 15. SAME-INTENT.

An instruction embodying the necessity of joint act and intent and the manner in which intent is manifested, as laid down in Pen. Code, $8 20, 21, should be given in every criminal case, especially where requested by defendant.

Appeal from District Court, Gallatin County; W. R. C. Stewart, Judge.

BRANTLY, C. J. The defendant,'having been convicted of the crime of grand larceny, has appealed from the judgment of conviction and an order denying him a new trial. He challenges the integrity of the judgment on the grounds (1) that the information does not charge the offense of grand larceny; (2) that the verdict is contrary to the evidence; (3) that the court committed prejudicial error in admitting certain evidence; and (4) that the defendant was prejudiced by certain instructions submitted to the jury, and the court's refusal to submit others requested.

1. The information charges that the defendant committed the crime of grand larceny in Gallatin county on or about October 10, 1905, "in that he then and there willfully, unlawfully, and feloniously, and with the intent then and there to steal, did take, steal, carry, and drive away," etc., a certain bay mare and colt of the personal property of one Dan. Inabnit, describing them, contrary to the form, etc. The contention is made that the charge is fatally defective in that it fails to allege that the taking was with felonious intent. In this contention defendant is wrong. Leaving out the clause "and with the intent then and there to steal," the charge would read: “Willfully, unlaw. fully, and feloniously did take, steal, carry, and drive away,” etc. The term "feloniously” imports criminal intent, and furnishes exactly the element which counsel say is wanting. The addition of the clause which we have omitted does not take from or ada to the substance of the charge-which we think is a sufficient statement of the intent with which the taking was done, both at common law (Wharton's Precedents, 415), and under our statute (Pen. Code, $ 880, and section 883, as amended by Sess. Laws 1897, p. 247). In construing section 880, supra, this court in State v. Rechnitz, 20 Mont. 488, 52 Pac. 264, held an instruction erroneous which failed to tell the jury that a criminal intent was necessary to constitute the crime of grand larceny. It was also held in the same case, however, that it was not necessary to use the word "feloniously" in describing the crime, but that it was enough if the criminal intent expressed in that technical word is included in appropriate terms. The same general principle applies to pleading. While the important distinctions between larceny and embezzlement have been destroyed by our statute, making both larceny at common law and embezzlement larceny, the general principle of pleading has not been changed. State v. Dickinson, 21 Mont. 595, 55 Pac. 539.

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