Page images
PDF
EPUB

filled out, and Etna Western named as assignee, and a claim against the state bounty fund for $64 duly presented. Charles Hout presented the skins of two coyotes and one wolf to Newman as inspector, signed the affidavit and assignment of the claim in blank, had the stockgrower's affidavit made by one J. H. Daly, received $2.40 for each claim for bounty on the coyote skins, and $1 for the bounty claim on the wolf skin, Newman made out his certificate as inspector, that Hout had presented fourteen coyote skins and one wolf skin, the assignment of the claim was made out, and Etna Western named as assignee of the claim, the county clerk's certificate procured, and a claim against the state bounty fund for $17 duly presented, though the total amount of Hout's claim was but $11, and this he had sold to the defendant for $8.80. Ralph Gilmore went before Newman, signed an affidavit as one who had killed certain stock destroying animals, told Newman that he had not any of the skins with him, but had them at his ranch, and would send them to Newman; and it was then agreed between Newman and himself that for whatever number of skins Gilmore did send, Newman would give him credit on account. The stockgrower's affidavit was made by one Hostetter. Gilmore afterwards sent up to Newman three coyote skins. The defendant made out his certificate, in which he certified that Gilinore had presented 16 coyote skins, and that he, as such inspector, had examined and marked the same as required by law. The assignment was filled up, and Etna Western named as assignee of the claim. The county clerk's certificate was procured, and a claim for $18 presented to the state. It does not appear from the record for what amount Gilmore received credit.

The defendant urges that the introduction in evidence of the certificates showing these transactions, particularly the certificates showing the transactions other than the one with Hotchkiss, was error prejudicial to the defendant. With this contention we are not able to agree. It is a well-settled rule of the law of evidence that proof may be made by the state of facts, tending to show a uniform course of action recently pursued--a system or plan on the part of the accused, for the purpose of showing guilty knowledge or criminal intent, and to negative the idea that the particular act with respect to which the accused is charged with committing a crinie, was the result of accident, mistake, or inadvertence. In 12 Cyc. 411, the rule is thus stated : "Where the crime charged is part of a plan or system of criminal action. evidence, of other crimes near to it in time anil of similar character is relevant and adinissible to show the knowledge and intent of the accused, and that the act charged was not the result of accident or inadvertence." and numerous decisions are cited in support of the text. See, also. 1 Wigmore on Evidence, $ 304; Underhill on Criminal Evi

dence, $ 423. The defendant in his own behalf offered to show that he was a furrier and taxidermist; that while acting as bounty inspector he had purchased from parties who had killed the animals the skins of coyotes and wolves upon which bounty had not been paid; and that by agreement with Hotchkiss he, Newman, had properly marked 13 coyote skins of his own which he had theretofore purchased, and had included them in his certificate as having been presented to him by Hotchkiss; that his transaction with Hout was had under a like agreement; and that as to the claims of Lewis, Smith and Gilmore, he had not in any wise included in his certificates any "skins which were not bountable in any wise." These offers were made to negative any criminal intent on the part of the defendant, and to show that in fact he did not intend to commit a crime or wrong, or defraud the state or any one else; and exception is taken to the ruling of the court excluding these offers. An analysis of these offers shows that, according to the defendant's own statement as contained in the offers, in addition to being guilty of the crime for which he was being tried, he was likewise guilty of subornation of perjury, if he procured Hotchkiss to swear that he, Hotchkiss, had killed 16 coyotes, and had presented these skins to Newman as bounty inspector, when in fact Hotchkiss had killed but 3, and had presented but 3 skins. Section 3078, Pol. Code. He was also guilty of a felony in purchasing these claims against the state. Section 136, Pen. Code. Ile was likewise guilty of perpetrating a fraud upon the state in presenting for bounty and procuring the payment of bounty, upon skins for which no bounty could be collected by law. It is perfectly clear from section 3071 of the Political Code, as amended by Act March 6, 1903 (Laws 1903, p. 166, c. 94), that the state's bounty is only given to the party himself who kills a stock-destroying animal, and if any such party sold the skin of the animal to Newman, he thereby waived his right to claim the bounty, and from that moment the state was not liable for bounty on such skin, In attempting to collect it, Newman was attempting to defraud the state out of the amount of such bounty. So, instead of defendant's offers of proof tending in the remotest degree to excuse him, they convicted him of numerous other crimes. If the evi. dence offered had been received, the court must have instructed the jury that the facts which the evidence tended to prove, if considered proved, would not constitute any defense.

('omplaint is made of certain instructions given by the court, and of the refusal of the court to give certain other instructions requested by the defendant. None of these instructions are set forth in the brief of appellant, as required by subdivision "b," paragraph 3, Rule 10, of the rules of this court

(82 Pac. x), and, under the practice uniforni. ly followed, these assignments will not be considered.

We have examined the other assignments made by appellant, but we do not find anything in them which would justify this court in interfering with the verdict of the jury or the judgment of the court. The evidence is amply sufficient to sustain the judgment. The defendant appears to have had a fair trial.

The judgment and the order are affirmed.

the market price of live stock, occasioned by the carrier's negligent delay.

(Syllabus by the Court.)

Error from District Court, Jewell County ; R. M. Pickler, Judge.

Action by Walter M. Poole against the Atchison, Topeka & Santa Fé Railway Conpany. Judgment for plaintiff, and defendant brings error. Allirmed.

W. R. Smith, O. J. Wood, and A. A. Scott, for plaintiff in error. E. P. Hotchkiss and Lee Monroe, for defendant in error.

BRANTLY, C. J., concurs.

JOINSTON, C. J. Walter V. Poole shipI dissent for the reasons MILBURN. J.

ped seven car loads of cattle from Loveland,

Kan., to Kansas City, Mo., over the Atchison, stated by me in Re Terrett, 34 Mont. —;, 86 Pac. 266. The defendant is not, in my opin. Topeka & Santa Fé Railroad. The time rea

sonably required for transportation between ion, guilty of forgery.

the points named is said to be about 13 hours, but Poole's cattle were on the road about

24 hours, and did not arrive until the market (13 N. M. 466)

for the day was closed; making it necessary BACA V. PARKER, Judge.

to hold them over till the following day, when (Supreme Court of New Mexico. Oct. 27, 1906.) there was a decline in the market value of OFFICERS-APPOINTMENT-COMMISSION-TEST- such cattle. Poole claimed that negligent deING RIGHT TO OFFICE.

lay of the company caused a shrinkage in the Where the Governor has power of appoint

value of the cattle during transportation of ment to an office, a commission therefor issued by him must be recognized till title to the office $206.98, also a depreciation in the market has been tried by quo warranto proceedings; so value during the detention to the extent of that writ of prohibition will not lie against the

$185.83, and required an extra expenditure appointee.

of $14.10 for feed. To recover these damages Application to Leandro Baca for writ of

an action was brought by Poole, and the railprohibition to Frank W. Parker, Judge of

road company has answered that the shipdistrict court of county of Socorro. Writ de- ment was made under a written contract, the nied.

terms of which precluded a recovery of danChas. 1. Spiess and E. W. Dobson, for re- ages. The contract provision mainly relied lator. Wm. C. Reid. Atty. Gen., for

on

was that: “As a condition precedent spondent.

to his right to recover any damages for any

loss or injury to his said stock during the PER CURIAM. The court in this case transportation thereof, or at any place or considers itself bound by its former deci- places where the same may be loaded or sions, to the effect that in this territory, unloaded for any purpose on the company's the commission of the Governor, in a case road, or previous to loading thereof for shipwhere he has the power to appoint, must be ment, the shipper, or his agent in charge of recognized until resort is had to a trial of the stock, will give notice in writing of his title to the office in question in a proceeding claim therefor to some officer of said comby quo warranto. Such being the case, this pany, or to the nearest station agent, or, if court will decline to issue a peremptory writ delivered to consignee at a point beyond the of prohibition, under the order to show cause company's road, to the nearest station agent which has just been argued.

of the last (arrier making such delivery. The issuing of the peremptory writ of pro

before such stock shall have been removed hibition is denied.

from the place of destination above mentioned, or from the place of the delivery of the

same to the consignee, and before such stok (73 Kan. 466)

shall have been slaughtered or intermingled ATCIIISON, T. & S. F. RY. CO. v. POOLE.*

with other stock, and will not more such

stock from said station or stockyards until (Supreme Court of Kansas. April 7, 1906.)

the expiration of three hours after the giving CARRIERS - LIVE STOCK SHIPMENT - DELAYDAMAGES.

of such notice; and a failure to comply in A stipulation in a live stock shipping con- every respect with the terms of this clause tract that a written notice of a shipper's claim shall be a complete bar to any recovery of for damages should be a condition precedent

any and all such damages." Yo such notice to a recovery for any loss or injury to stock during transportation, does not apply to dam

of a claim for damages was in fact given priages such as loss of market or depreciation in or to the removal of the cattle, and the ques

tion arises whether the failure to give the *Reversed on rehearing pro forma ou stipu

same bars a recovery. In charging the jury lation on October 1, 1906.

the trial court ruled that the failure to give S7 P.-30

the notice cut out any recovery for the

(71 Kan. 880) shrinkage of the cattle during the delayed CRANE V. CAMERON et al. SAME v. PENtransportation, but left to the jury to deter- INGER et al. ('AMERON et al. v. CRANE. mine what, if any, damages were sustained

PENINGER et al. v. SAME. because of the depreciation in the market (Supreme Court of Kansas. July 7, 1905.) price of the cattle by reason of the delay and 1. WRIT OF ERROR-DISPOSITION OF CAUSE detention.

MODIFICATION OF JUDGMENT. It is competent for parties to make con

Where, on error in ejectment, the Supreme

Court held that the trial court was in error in tracts limiting a carrier's common-law lia

permitting a recovery for rents after the debility, and stipulations that the shipper shall fendants had disclaimed and surrendered posgive notice of injury or loss to live 'stock

session of the premises, the Supreme Court had'

no jurisdiction to order the entry of judgment in while being carried have been sustained.

the trial court for a reduced amount, in the abGoggin y. K. P. Ry. Co., 12 Kan. 416; Sprague sence of a finding of facts by the court or jury, V. Missouri Pacific Ry. Co., 3+ Kan. 317, or an agreement on the facts by the parties. 8 Pac. 465; Railroad Co. v. Temple, 47 Kan.

[Ed. Note.-For cases in point, see vol. 3,

Cent. Dig. Appeal and Error, $$ 4589, 4590.] 7, 27 Pac. 98, 13 L. R. A. 362; W. & W.

2. COSTS - WRIT OF ERROR - SEPARATE PRORailroad Co. v. Koch, 47 Kan. 753, 28 Pac.

CEEDINGS. 1013; Kalina v. Railroad Co., 69 Kan. 172,

Separate proceedings in error by the plain76 Pac. 138. Such contracts and the no- tiff and defendants being improper where the tices required by them must be reasonable.

relief can be obtained by cross-petition in error

in the same case, where defendants by a sepAgreements of this character are viewed with

arate petition in error subsequent to that of some strictness by the law, and unless the plaintiff show a right to some relief, the entire exemption from liability is clearly expressed,

costs will be taxed against them on their pe

tition in error, and the costs in the original case it should not be allowed. Assuming that the

will be divided. contract in question is valid, the limitation

[Ed. Note.For cases in point, see vol. 13, does not fairly cover the loss of a market. Cent. Dig. Costs, $$ 930, 964.] It does extend to damages for loss or injury

On motions to order judgment reformed to cattle during the transportation, and hence

and to retax costs. Motion to order judgthe trial court excluded a recovery from

ment reformed denied, and motion to retax shrinkage in their condition during shipment. costs granted. Reference is made to the Kalina Case as

For former opinion, see 81 Pac. 480. holding that damages for the decline in the market price were not recoverable in the PER CURIAM. The proceedings institutabsence of a notice, but it will be seen that ed by Crane were separate actions against the contract there involved provided generally the respective defendants in ejectment and for all loss, damage, and detention that might for rents. While the actions were pending, be claimed, and 10 days were given in which and about one year after their commenceto present the claim. Here the claim speci-ment, the defendant in each case filed a disfied in the contract of which notice is to be claimer. The causes were continued for giren is confined to loss or injury to stock about one year after the disclaimer before during transportation, and the notice was re- judgment was entered. Judgment was renquired to be given before the removal of the dered in each case for the plaintiff in eject(attle from the place of the delivery or ment, and for the rents of the premises durdestination, and before they were slaught- ing the whole period. In Crane against Camered or intermingled with other stock. A eron the judgment for rent was $150; in loss of market differs distinctly from a loss Crane against Peninger the judgment for or injury to the cattle. Depreciation in the rent was $225. According to the opinion of price or the loss of a market is not fairly this court, it was error for the court to renembraced within the terms of the contract der judgment against either of the defendrequiring notice of loss or injury to the cattle ants for rent after they had abandoned the during transportation. Kramer & Co. v. premises and filed their disclaimer. It apRailway Co., 101 Iowa, 178, 70 N. W. 119. pears that the defendant in each case was Obviously, it was intended that these cattle actually chargeable with only about one-half should reach their destination on a particular of the amount of rent for which judgment market day, and be sold on arrival, The was rendered. The plaintiff in error now apparticular time for the transportation was plies to this court for an order directing the not specified in the contract, but the charac- trial court to enter its judgment, so that in ter of the shipment and surrounding circum- Crane against Cameron the judgment shall stances, well known to all, required the car- be for $75, instead of $150, and in Crane rier to transport the cattle with reasonable against Peninger the judgment shall be $115, dispatch. The testimony tends to show an instead of $225. This would appear to be unreasonable delay in shipment, whereby, just, but this court has no jurisdiction in any there was a loss of market on the day of case to order a judgment for a particular arrival, and a consequent loss to the ship- amount, except where the facts are found per, for which the carrier is liable.

by the court or jury, or where they are The judgment will be affirmed, All the agreed upon by the parties. Application Justices concurring.

should have been made to the court that ren

dered the judgment and that had jurisdic- , and beneficiary, has a statutory lien for the tion to change it, and where, no doubt, such

insured's overdraft on a paid-up policy issued

to the banker in lieu of the assigned policy. application would have been received with

[Ed. Note.-For cases in point, see vol. 6, favor. The applicant asks for other relief,

Cent. Dig. Banks and Banking, $ 673.) which is beyond the jurisdiction of the court

3. PLEDGES-COLLATERAL ASSIGNMENT OF IXto grant.

SURANCE POLICY-RIGIITS OF ASSIGNEEAfter the record and petition in error had PAID-UP POLICY-APPLICATION ON DEBT. been filed in this court in the two cases, the

An assignment of a life policy by the in

sured and beneficiary as collateral to the indefendants in error also filed records and

sured's debt gave the assignee a right, on inpetitions in error in the same cases, asking sured's failure to pay the premiums, to receive this court to review certain trial errors. The a paid-up policy in lieu of the one assigned. records in all the cases are identical, and all

Defendant failed to pay either the premiums

or the debt, which amounted to more than the the relief to which the plaintiffs in error in

face of the paid-up policy, which the assignee the last two cases are entitled could have demanded and received. Held that, though been awarded in case cross-petitions in error

without the assignment the paid-up policy would

have belong to the beneficiary, yet under it the had been filed in the first two cases. The

assignee could treat such paid-up policy as so plaintiff in error in the first two cases now much money and apply it on the debt without asks this court to tax all of the costs of the attempting to make any sale of it as pledged

property. last two proceedings in error to the plaintiffs

[Ed. Note.--For cases in point, see vol. 40, in error therein, and that the costs in the

Cent. Dig. Pledges, $ 130.] cases of Crane against Cameron and Crane

4. LIMITATION OF ACTIONS-SECURITY ALagainst Peninger be equally divided between

READY APPLIED--EFFECT. the parties. The practice of plaintiff and de- A bank holding a paid-up insurance policy fendant instituting separate proceedings in as security for an overdraft applied the face

thereof as a credit on the overdraft within two error in the same case has been disapproved

years from the date of the last entry. After by this court in Scully v. Smith, 66 Kan. 265,

the expiration of the two years insured died and 71 Pac. 519, and in that case the second the assignee collected the money. Held' that, petition in error was dismissed on the ground

even if the two-year statute applied to the

overdraft, it did not benefit the beneficiary that the plaintiff in error could have obtained

claiming the proceeds of the policy from the all relief by a cross-petition in the original bank. case. It is therefore ordered that all the

Appeal from Superior Court, Tulare Councosts of the proceedings in the cases of Cam

ty; W. B. Wallace, Judge. eron against Crane and Peninger against

Action by Sarah J. Du Brutz against the Crane in this court be taxed to the plaintiffs

Bank of Visalia. From a judgment in favor in error in those cases. Since, if the plain

of plaintiff, defendant appeals. Reversed. · tiffs in error in those cases had filed their

Charles G. Lamberson, for appellant. Hancross-petitions in the cases of Crane against

nah & Miller, for respondent. Cameron and Crane against Peninger, they would have been granted some relief, it is

BUCKLES, J. This was an action by the ordered that the costs of the two latter cases

widow to recover from the bank $2,840 which in this court be equally divided.

had been paid to the bank on a life insurance

policy on the life of Edward R. Du Brutz. (4 Cal. App. 201)

Judgment was for the plaintiff. The appeal DU BRUTZ v. BANK OF VISALIA. (Civ. is from the judgment and from an order 236.)

denying defendant's motion for a new trial. (Court of Appeal, Third District. California. The policy was originally for $5,000, and Aug. 4, 1906. Rehearing Denied by Su- was made payable to Sarah J. Du Brutz upon preme Court Oct. 3, 1906.)

the death of her husband, Edward R. Du 1. INSURANCE - COLLATERAL ASSIGNMENT OF Brutz. The husband was indebted to the POLICY-RIGHTS OF ASSIGNEE.

Bank of Visalia, and to secure such indebted

a policy providing for the issuance of a paid-up

ness and future advances these spouses joinpolicy on nonpayment of premiums 'assignea iu ed in assignment of the policy to said bank. as collateral. The assignment transferred "all

This assignment was made December 21, 1898. rights" under the policy and all benefits "ac

On the 13th day of November, 1901, on failure crued or to accrue" by virtue of its terms and covenants, and authorized the assignee to "re- of assured to pay the premiums, this policy ceive" and "collect" any money "to become due" was by the company changed into a paid-up thereunder. Held to give the assignee power to

policy for $2,840, without the knowledge or demand and receive a paid-up policy, where insured paid neither the debt nor the premiums,

consent of either husband or wife. The date and to receive any benefits accruing thereunder. of the last check drawn by Du Brutz on and 2. BANKS AND BANKING-LOAXS-COLLATER- paid by said bank was February 28, 1901, AL SECURITY – STATUTORY PROVISIONS-IN

marked "Paid" March 1, 1901, and his indebtSURANCE POLICY.

edness to said bank at that date was $3,982.26. Under Cir. Code, § 3054, providing that a banker shall have a general lien dependent On August 14, 1902, the bank credited Du upon possession on all property in his hands Brutz's account with the amount of the paidbelonging to a customer for the balance due

up policy, to wit, $2,840. Du Brutz died May from such customer in the course of his business, a banker, in addition to rights granted

17, 1904, and the bank thereupon collected the by an assignment of a life policy by the insured $2,840 from the life insurance company,

The contention of respondent is that the / of the $2,840 which might exist at the death statute of limitations of two years had run in of her husband after paying his account in favor of Du Brutz in his account with that full at the bank, for the bank had a statutory bank prior to the commencement of this ac- lien on the policy in addition to the assigument tion. The last item of the account was March for' security. Section 3054 of Civil Code: 1, 1901, and the action was commenced on "A banker has a general lien, dependent October 5, 1904. That the account in the upon possession, upon all property in his bank being balanced on February 28, 1901, hands belonging to a customer, for the balance and a statement thereof rendered, the account due to him from such customer in the course became an account stated and the statute be- of his business." But, as has been seen, the gan to run from that date.

debt due the bank was much more than the Appellant contends that Du Brutz's indebt- policy, so that the plaintiff could not have edness to the bank was founded on written in- | been injured by the whole of the $2,840 being struments, to wit, the checks he drew upon credited on the debt for which the assignment the bank and which the bank paid.

had been made. There is still another contention of plaintiff, It is claimed, also, that this paid-up policy and that is that the paid-up policy was not was the property of plaintiff and not subject the policy assigned. But we think this latter to the payment of her husband's debts. Had objection not well taken. In the written she not assigned all her rights under it to the assignment the assignors, Du Brutz, and his bank, her contention would be correct. The wife say: “Do hereby assign said policy, and policy being a security for the money owing all our, and each of our, rights thereunder." when the assignment was made and for fuOne of their rights under said policy was to ture advances, plaintiff would have no right have a paid-up policy issued in lieu thereof. to said policy or its proceeds until she had The written assignment continues: “And all first tendered the debt due for which the benefits accrued or to accrue under and by policy was assigned. However, this seems not virtue of the terms, covenants or conditions to have been made an issue in the case. Unthereof, to the Bank of Visalia." This carried der the circumstances in this case, to wit, that with it the assignment of the benefits to the debt at the bank was very much larger accrue under the paid-up policy as well as than the policy, that the amount of the policy those under the original policy. Continuing could never have increased and more than a further, the assignment provides: “And here- year had passed since anything had been paid by authorize said Bank of Visalia to receive, on the indebtedness to the bank, and the fact Collect and receipt for any money or thing of

which occurred after the credit was given, value which is now or may become due by that the husband dying on May 17, 1904, virtue of said policy or the terms, covenants had not paid anything on said indebtedor conditions thereof, as fully and completely ness, we think that the bank was justified in as we, or either of us, might or could do if applying the policy as so much money on this assignment had not been made." This August 14, 1902, without attempting to make assignment couched in the terms it is we any sale of it is as of pledged property. The think gave the bank power to apply for and debt was due, and to have put the policy up receive a paid-up policy in lieu of the original.

and sold it would have been an idle thing, as The policy was taken out December 7, 1886. it could not have brought more than its face Payments had been made up to November 5, value, the assured being still alive. Even 1901, and the premium then due was not paid.

could it be said that the two-year limitation Premiums had therefore been paid for more

in which to collect the debt was the proper than three years, and under the terms of the period, the credit of the policy on the debt policy the life insurance company was bound was made before the lapse of the two years. to issue a paid-up policy. Under the assign- But we think the indebtedness was based ment the bank might have paid the premium upon instruments in writing, to wit, the check and kept the policy alive for the full amount given by Edward R. Du Brutz as follows: of $5,000, but it chose not to do so. The paid- | “Pay to the order of —

E. R. Du up policy for $2,810 is dated November 13, Brutz.” A check on a bank, if the drawer 1901, and presumably was issued on that day, have money deposited therein to be checked but seems from the uncontradicted evidence out, is a demand on such bank for the payof the cashier of the said bank that it was ment of a specific sum of money. If there be not received at the bank until August 14, 1902, no funds on deposit, then it is a request for and on that date the sum of $2.840, the credit and becomes an overdraft. A check is amount named in said paid-up policy, was under our Code (section 3254, Civ. Code) a placed to the credit of Du Brutz's account, bill of exchange and is negotiable. leaving a balance then due of $1,142.26, whether it is a demand or a request it is which balance was charged to profit and loss always the written instrument on which the and the account closed. This paid-up policy payment of a sum mentioned therein is foundrepresented a promise to pay a fixed, definite ed, and is the foundation of any suit growing sum to become due and payable at the death out of the payment of such money or a reof the insured, but the bank chose to treat it fusal to pay the check. The statute of limitaas so much money. At the most, the plaintiff tions pleaded here provides that an action had a right to have paid to her any balance upon any contract, obligation, or liability

But

« PreviousContinue »