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We think the very slight error in the and maintenance of waterworks, gas works, title of the amendatory act is immaterial, electric light works, steam, water, or electric and that the members of the Legislature power works, heating works, telephone lines, could not possibly have been misled or de- street railways, bridges, and ferries, and such ceived in any manner thereby. Section 2 of other public utilities as the council may desthe original act treats only of the boundaries ignate, and to issue bonds therefor: Proof Salem, and the amendment, though en- vided, however, no contract, or agreement larging the municipal territory, relates ex- for the purchase, condemnation, ownership, clusively to the limits of the city, and is construction, or operation by the city of any therefore germane to the original act, and public utility shall be entered into, nor bonds does not introduce any new matter therein. be issued therefor, by the council without State v. Shaw, 22 Or. 287, 29 Pac. 1028; State first submitting such proposed contractor V. Linn County, 25 Or. 503, 36 Pac. 297; agreement to the qualified voters of the city. Simon v. Northup, 27 Or. 487, 40 Pac. 560, * * * In case the vote shall be in favor of 30 L. R. A. 171. The amendment does not,
The amendment does not, acquiring such public utility, then the propin our opinion, violate the spirit or letter of osition submitted receiving a majority of sections 20 or 22 of article 4 of the state the votes cast upon the alternative propConstitution.
ositions submitted shall be adopted. The It is insisted by plaintiff's counsel that sec- council, in submitting propositions to the tion 23 and subdivision 6 of section 6 of the electors for the acquisition thereof, shall amended act trench upon the following clause specify therein the amount of the proposed of the fundamental law of the state: "Acts bonded indebtedness, the rate of interest of legislative assembly incorporating towns thereon, and whether such bonded indebtedand cities shall restrict their powers of tax- ness shall be incurred. At least two-thirds ation, borrowing money, contracting debts, of the electors voting thereon at such elecand loaning their credit.” Const. Or., art. tion shall be necessary to secure such ac11, § 5. The provisions of the amendatory quisition, and to warrant the issuance of act thus challenged are, so far as deemed municipal bonds therefor.
A necessary to a decision herein, as follows:
perusal of these provisions will show an in“Sec. 23. The common council shall not tent on the part of the legislative assembly in any manner create any debt or liability: to restrict the taxing power of the city and Provided, that at the end of each year an es- as the limitation prescribed was a matter timate shall be made of the actual revenues within the discretion of the Legislature with to be derived from all sources, and from which the courts will not ordinarily interfere, the total of that estimate the total of fixed the section and clause inveighed against do charges shall be deducted, and the disburse- not contravene the fundamental law invoked ments of the city council shall be restricted to annul them. Lent v. Portland, 42 Or. to the balance. No debt shall be contracted 488, 71 Pac. 615; Kadderly v. Portland, 44 in excess of the estimated revenue, except in Or. 118, 74 Pac. 710, 75 Pac. 222. the case of an emergency or unforeseen ca- Other questions are discussed in the brief lamity, or except as otherwise provided there- of plaintiff's counsel, but deeming them unin; the council may call an election to deter- important or not involved herein, the decree mine whether the city shall incur an indebt- is aflirmed. edness to meet such an emergency or cala mity or the acquisition of a public utility: and upon two-thirds of those persons who
(18 Or. 378) are qualified voters of, and who pay taxes STATE v. WARNER VALLEY STOCK CO. on property within, said city voting at said (Supreme Court of Oregon. Nov. 21, 1906.) election being in favor of authorizing the APPEAL-AFFIRMANCE-DISPOSITION OF CAUSE council to incur the proposed indebtedness, -REMAND.
Plaintiff brought suit for himself and others they may then contract the same; but said
not connected with his interest, and, after the indebtedness shall not exceed the sum of
sustaining of a demurrer to his amended com$20,000, except as provided in subdivision six plaint, refused to plead further, whereupon the (6) of section six (6) of this charter. * * * " cause was dismissed. Held, that the decree hav
ing been affirmed on appeal, the cause would not The material parts of the clause of the
be remanded to permit plaintiff to apply for section thus referred to are as follows:
leave to amend to substitute a cause of action “6. The common council may have power in his own favor only. to contract for water and light for city pur
On motion to remand. Denied. poses, or to lease, purchase, or construct a
For former opinion, see 86 Pac. 780. plant or plants for water or light, or both, for city purposes, in or outside the city lim- HAILEY, J. The demurrer to the amended its. The council of the city of Salem shall, at complaint having been sustained on appeal, all times, under the limitations herein set and the decree of the lower court dismissing out, have power to provide, by ordinance, this case affirmed, plaintiff filed a motion for lighting the streets, and all public and to have the cause remanded, with leave to private places in the city, and furnishing apply to the court below to amend its comwater to the inhabitants thereof; to provide plaint, so as to show its interest in certain for the acquisition, ownership, construction, I of the lands mentioned therein and its right to equitable relief in the cancellation of deeds and in section 1394, that this shall be done in therefor to the defendant. In support of case of reasonable doubt as between the degrees.
Section 1767 makes it a crime to "assault anthis motion plaintiff cites Powell v. D., S. &
other with intent to kill," and section 1771 to G. R. R. Co., 14 Or. 22, 12 Pac. 83, in which "assault another with such (dangerous) weapon.' the overruling of a demurrer to a complaint | An information charged an assault with a rewas sustained, and this court refused to
volver by shooting and wounding "with intent
* * * to kill.” Held that, assuming that the grant leave to answer over, but remanded
information charged the violation of section the cause for further proceedings, and an- 1771, as well as section 1767, it was not subject nounced as a rule of practice in such cases
to demurrer therefor, since, under accusation
of assault with intent to kill, defendant could "that when this court does not make a final
have been convicted of assault with a dangerous disposition of a cause, but remands the same
weapon. to the court below, it will be open for that [Ed. Note.--For cases in point, see Cent. Dig. court to determine in the first instance wheth- vol. 27, Indictment and Information, $ 376.] er the defendant shall be permitted to an- 2. CRIMINAL LAW-EVIDENCE-OPINION EVIswer or not.” This rule, however, is not ap- DENCE - COMPARISON OF HANDWRITING
STANDARD OF COMPARISON. plicable to the case at bar where the appel
B. & C. Comp. $ 776, provides that handlant seeks to have the cause remanded, with writing may be proved by one who has seen the leave to apply to amend, and by so doing sub- person write or seen writing purporting to be stitute a cause of suit in its own favor only
his, upon which he has acted or been charged.
Section 777 provides that evidence may be givfor the original cause of suit, which was for
en by a comparison by a skilled witness or the the benefit of others not connected with plain- jury with writings “admitted or treated as gentiff's interest. Fowle v. House, 30 Or. 303,
uine" by the party against whom offered. Sec17 Pac. 787, is also cited, in which a decree
tion 1399 provides that the law of evidence shall
be the same in criminal as in civil cases. Held, sustaining a demurrer to a complaint was that only writings admitted and treated as his affirmed, and the cause remanded "for such genuine handwriting by one accused of crime further proceedings as may be deemed proper,
can be used as a basis of comparison, under
section 777, and not such documents as might not inconsistent with the opinion herein,"
be valid, though written by another at defendand a motion was denied to recall the man- ant's request. date and amend the decree, so as to allow [Ed. Note.-For cases in point, see Cent. Dig. the plaintiff to amend his complaint. The
vol. 14, Criminal Law. $ 1080.1 court in that case held that it is for the 3. SAME-APPEAL-HARMLESS ERROR-ADMISlower court to determine in the first instance
SION OF EVIDENCE-CUMULATIVE EVIDENCE.
In a prosecution for assault with intent to whether a plaintiff shall be allowed to amend
kill, a poorly spelled letter, purporting to have his complaint, and that this court should not been written by defendant and relating to his interfere with the exercise of its discretion prospective marriage, was admitted in evidence by directing what.course it should pursue in
after testimony by the recipient that she dis
cussed its contents with defendant after she the matter. It is suggested in the motion had received it. No expert based his opinion that every objection to the sufficiency of the as to the genuineness of another incriminating complaint can be obviated by the amendment,
letter purporting to have been signed by defend and the delay and expense of bringing a new
ant, on a comparison with the first letter, and
the attention of the jury, who had before them suit thereby avoided. This, however, is not
numerous genuine samples of defendant's handa matter which this court can consider, and writing, was not particularly called to such letshould have been acted on by the plaintiff in
ter. Held that, even if defendant's acknowledgthe lower court, as the interest of the plain
ment of the contents of the letter was not a
sufficient admission of the genuineness of the tiff in the lands in controversy was one of penmanship to permit its use as a standard of the questions raised by the demurrer. Plain- comparison by an expert, yet its admission be
fore the jury could have caused no appreciable tiff, however, refused to plead further, and
injury to defendant. stood upon its amended complaint, and it is
4. SAME-JUDGMENT-FORMAL REQUISITES. now too late to complain of its own action A transcript of a criminal trial, after dein that respect.
claring defendant's inability to show cause why The motion to remand, with leave to apply
his sentence should not be pronounced, conto amend, will therefore be denied.
cluiler: "It is therefore ordered that [defendant] be confined in the penitentiary for a term of ten years." Held a final judgment, though
the term “considered” was not used. (49 Or. 86)
Appeal from Circuit Court, Lane County ; STATE v. BRANTON.
J. W. Hamilton, Judge. (Supreme Court of Oregon. Nov. 21, 1906.) John Branton was convicted of assault 1. INDICTMENT AND INFORMATION-DUPLICITY
with intent to kill, and appeals. Affirmed. -DIFFERENT DEGREES--CHARGING GREATER. It is provided in Const, art. 1, § 11, that
L. Bilyeu and J. C. Johnson, for appelthe accused shall have the right to demand the
lant. George M. Brown, Dist. Atty., and nature and cause of the accusation; in B. & John M. Williams, for the State. C. Comp. $8 1259, 1306, that an information must be certain as regards the crime charged and the necessary circumstances thereof; in
MOORE, J. The defendant, John Branton, section 1308, that the information must charge was accused by an information of the crime but one crime, and in one form only ; in section
of assault with intent to kill, alleged to have 1417, that one accused of a crime consisting
been committed as follows: "The said John of different degrees may be found not guilty as charged and convicted of an inferior degree ; Branton on the 9th day of March, A. D. 1905, in the said county of Lane and state , to kill. A specification of such charge may, of Oregon then and there being, did then therefore, include the accusation of an asand there with a certain revolver gun, loaded ! sault with a deadly weapon. 1 Bishop. New with gunpowder and leaden bullets and cal- Crim. Law, $ 780, subd. 3; 1 McClain, Crim. able of being discharged, unlawfully and fel- | Law, $$ 271, 272. Upon an accusation of the oniously assault John Fletcher with the commission of a crime, consisting of differaforesaid gun by feloniously shooting and ent degrees, the accused may be found not wounding him, the said John Fletcher, with guilty as charged and convicted of any desaid revolver gun, with intent him, the said gree inferior thereto (B. & C. Comp. $ 1417); John Fletcher, to kill and murder, contrary and when it appears that the defendant has to the statute in such case made and provid- committed a crime, and there is reasonable ed and against the peace and dignity of the ground of doubt in which of two or more state of Oregon." A demurrer to the in
the in- degrees he is guilty, he may be convicted of formation, on the ground that it attempted the lowest of these degrees only (Id. $ 1394). to charge the commission of more than one The defendant, having been accused of the ("rime, was overruled, and, the cause being commission of an assault with intent to kill, tried, the defendant was found guilty as could have been found guilty of an assault charged, and appeals from the judgment | with a deadly weapon, which is a lesser ofwhich followed.
fense, and as the crime with which he was It is contended by his counsel that he was charged consists of degrees, wherein the charged with the commission of the crime greater necessarily includes the less, he could of assault, being armed with a deadly weap- not have been prejudiced by accusing him on, and also with an assault with intent with the commission of the lesser offense also, to kill, and that, having challenged the in- if it be assumed that the information contains fòrmation for duplicity, an error was com- such a specification. State v. McLennen, 16 mitted in overruling the demurrer. The or- Or. 59, 16 Pac. 879; State v. Lavery, 35 Or. ganic law declares that in all criminal prose- 402, 58 Pac. 107; State v. Kelly, 41 Or. 20, cutions the accused shall have the right to 68 Pac. 1. demand the nature and cause of the accusa- It is maintained by defendant's counsel tion against him. Const. art. 1, § 11. Stat- that the court erred in admitting, over objecutes passed in pursuance of this funda- tion and exception, certain immaterial manumental requirement provide, in effect, that script, claimed by the prosecuting attorney an information, which may take the place to have been written by the defendant, withof an indictment (B. & C. Comp. $ 1259), must out proof of such writings having been adbe direct and certain as it regards the crime i mitted or treated by him as genuine. The charged and the particular circumstances documents so received were introduced in thereof when they are necessary to constitute evidence to establish a standard of comparia complete offense (Id. & 1306), and the infor- son with the defendant's handwriting for mation must charge but one crime and in the purpose of proving that he inscribed a one form only (Id. $ 1308). When a formal letter that came by mail, addressed to the (riminal charge violates these provisions, specified officer of the town where it purports and its compound aspect is pointed out by a to have been written, of which the followdemurrer, the challenge thus interposed ing is a copy: "Cottage Grove Or Mch 8 95 should be sustained. State v. Lee, 33 Or. Marshel i leave this note to show that i have 506, 56 Pac. 415. The statute which the de. took my life and you will find me on the fendant is accused of violating contains the road between town and branton ranch i am following provision: “If any person shall tired living and leave this to save troubel assault another with intent to kill, * * * for my friends and expence to the county. such person, upon conviction thereof, shall good Bye J. Fletcher.” As tending to inbe punished," etc. B. & C. Comp. $ 1767. A criminate the defendant, a fellow prisoner, kindred enactment is as follows: "If any who was confined with him in the Lane person, being armed with a dangerous weap- county jail, appearing as a witness for the on, shall assault another with such weapon, state, testified that the defendant, referring such person, upon conviction thereof. shall to Fletcher, the prosecuting witness, said, be punished," etc. Id. $ 1771. It may be sup- "I am sorry I left the s- of a b posed that a person might intentionally at- without finishing him;" that the defendant tempt by violence to do another a bodily in- offered to pay the fine imposed upon the witjury with a deadly weapon, without an in- ness if the latter would persuade Fletcher tent to take the life of the person so as- to accompany him to Astoria, where he was saulted. So, too, it can readily be seen that to be shanghaied or disposed of in some mana person might assault another with a de- ner by persons whose names were stated; structive instrument with intent to take the that the witness saw the defendant write a life of the latter. The design with which letter, which was given to him to be mailed a deadly weapon is used in making an as- when he had fully executed the commission, sault determines the grade of the offense, which letter is addressed to the then deputy and, when a purpose to take the life of an- district attorney, and, having been offered other accompanies the overt act, it aug- in evidence, over objection and exceptioni, ments the crime to an assault with intent | the following is a copy thereof, to wit: “As
toria, June, 1903. Eugene.
Eugene. Mr. J. W. Wil- question raised by saying: “Under this liams as i am the gilty one in the Branton statute it is clear that any writing which is case i cant fase him in it so i ask you have admitted to be or treated as genuine by the him turned loose J fletcher.” Mrs. Della M. party against whom the evidence is offered Wetzel, a sister-in-law of the defendant, testi- may be used for the purpose of comparison fied that she had corresponded with him, with the writing or signature in question, and, referring to letters purporting to have although it may not be admissible in evidence been written by him to her, January 24, 1892, for any other purpose." See, also, 15 Am. & and September 3, 1901, she stated that he Eng. Enc. Law (2d Ed.) 267, note 3. In told her he wrote them; that after she re. IIolmes v. Goldsmith, 117 U. S. 150, 13 Sup. teived a similar letter, dated June 28, 1903. Ct. 288, 37 L. Ed. 118, in interpreting the she discussed with him the subject-matter section of the statute last referred to, it was and contents thereof; and that, alluding to held that, when the genuineness of a paper a like letter of December 20, 1.901, hein- sued on is put in issue, papers not otherwise quired of her if she had toll her father wliat competent may be introduced in Oregon for he wrote her therein. These letters. over the purpose of enabling the jury to make it objection and exception, were received in evi- comparison of handwriting, the court saying: dence for the sole purpose of proving the ba- "We regard the statute as constituting the sis of a comparison of handwriting, and are law of the case, and as warranting the action numbered respectively, Exhibits 1, 2, 4, and of the court in the particulars complained of." 55. D. Linelaugh testified that the defendant, It was argued at the trial herein that a in his presence, subscribed his name to a | party against whom writings may be offered note which stipulated for the payment to him in evidence could have admitted or treated of a sum of money, which written promise. them as genuine without ever having written over objection and exception, was received in them himself, and as such' manuscripts are cvidence and numbered Exhibit 6. Several received as a basis of comparison of penmanwitnesses were thereupon called by the state, ship, he might be convicted upon the authoreach of whom, having testified as to his ized writing of a person who theretofore bad qualifications, severally expressed, over oh- been his clerk, and, this being so, the rule ection and exception, an opinion that the adopted in the cases referred to should not be letters, copies of which are hereinbefore set applicable in the trial of criminal actions, out. when compared with Exhibits 1. 5, and and that the testimony of a witness that she fi, were written by the defendant.
discussell with the defendant the contents of It is argued by defendant's counsel that
a letter purporting to have been written by no manuscript is competent as a basis of bim to hier is not suflicient evidence in a (ase d'omparison of penmanship. by placing it in of this kind that he wrote the letter, and juxtaposition with other material writings, hence the basis for the comparison necessarily unless such document has been admitted or fails, and the error in admitting such letter treated by the party against whom it is becomes manifest. The sections of the statoffered as genuine, is relevant to the issue ute hereinbefore quoted relate to the same to he tried, and has been received in evidence subject-matter and should be construed tofor some other purpose:
that the exhibits gether. Considering these clauses in that mentioned did not tend to establish or dis- manner, it is the genuine handwriting of the prove the defendant's guilt or innocence, and person against whom the evidence is offered, hence they were immaterial, and their in- that has been admitted or treated by him as trodurtion in evidence prejudicial. The ques- such, that must be taken to form the basis of tion thus presented is whether or not writ- comparison of penmanship, and not such ings which have been proven to be genuine documents as might be valid and binding on are admissible in evidence for the sole pur- ! him, though written and signed by another at pose of providing a foundation for the com- his request. The bill of exceptions discloses parison of handwriting. The statute, regu- that Exhibits numbered 1, 2, and 5 were sevlating the manner of proving the style oferally admitted and treated by the defendant penmanship is as follows: “The handwriting as having been written by him, and that he of a person may be shown, by any one who subscribed his name to Exhibit No. 6. Exbelieves it to be his, and who has seen him hibit No. 4 is as follows: “Cottage Grove Or. write, or has seen writing purporting to have June 28th–1903. Dear Sister and family and been his, upon which he has acted or been all the rest of the folks. We are all well charged, and who has thus acquired a knowl- except Roy he has the measels I hope you edge of his handwriting." B. & C. Comp. $ are all well I got my hay in the barn before 776. "Evidence respecting the handwriting the rain that is all I had cut it is raining now may also be given by a comparison, made by I have about 12 acres reasy to cut now Well a witness skilled in such matters, or the jury, I will tell you about me going to get married with writings admitted or treated as. genuine I shall marry on the evening of the 9 of by the party against whom the evidence is July at (OClock I will let you no in time offered." Id. $ 777. In Munkers v. Farmers' so you can make calculation on the 4 if you Insurance Co., 30 Or. 211, 46 Pac. 850, Mr. want to go You peopel can come up to me Justice Bean, speaking for the court in con- place and go to town in the evening or if you struing the section last quoted, settles the want to just come to Mrs Dowens and then
come on the next day We dont expect to have very many at our weding Come if you can rite and let me no if you are coming. Well I will close Yours as ever John T. Branton Send Mancey and nell Word.” It will be remembered that Mrs. Wetzel testified that after receiving this letter she discussed with the defendant the subject-matter and the contents thereof. She also testified that she bad frequently seen him write and recognized his penmanship. In Manning v. State, 37 Tex. Cr. R. 180, 39 S. W. 118, a witness testified that, though he had never seen the prosecuting witness write, he had received many letters from her, had talked with her about the contents thereof, and she admitted to him that she had written a letter to him. It was held that a letter exhibited to him was one received by mail from her, and the testimony was sufficient to identify the letter as a specimen of her handwriting, to be used for comparison with other letters claimed to have been written by her.
It may well be doubted whether the rule thus announced would be applicable under a statute like ours, for a party might be able to repeat from memory the contents of letters or other documents which had been written at his dictation and signed by another person at his request, the penmanship of which would not afford a safe guide for comparison. To hold that an instrument written and signed under the circumstances assumed constituted a sample of chirography sufficient to determine therefrom the similitude of handwriting of another document might result in convicting the purported author of the first letter of forgery or of a similar crime that had been committed by his amanuensis in writing the second. The genuineness of papers must be clearly shown before a person can be permitted to testify to the handwriting of another (15 Am. & Eng. Enc. Law [2d Ed.] 272), and there is now no distinction in this respect between civil and criminal causes (Id. 253), unless otherwise specially provided by statute (B. & C. Comp. $ 1399). The genuineness of handwriting was originally limited to the testimony of a witness who saw the instrument executed, and his declaration in this respect was applicable only in civil actions. 3 Wigmore, Ev. $ 1991. An express admission of the genuineness of a writing hy the purported author thereof renders it admissible in evidence as a basis for comparison of penmanship. B. & C. Comp. $ 776. So, too, his treatment of the instrument as genuine, which is an implied admission to that effect, is equally competent. 1 Wigmore, Ev. $ 701 ; 3 Wigmore, Ev. § 1993. Whether or not the defendant's acknowledgment of the contents of the letter, announcing his intended marriage, is such a treatment of the writing as to render it equivalent to an implied admissio i of the genuineness of his penmanship, we do not think it necessary to inquire; for it will be remembered that no comparison therewith was made by the expert witnesses.
The letter having been offered in evidence, the jury, it is true, were authorized to make a comparison therewith (B. & C. Comp. $ 777); but, their attention not having been directed thereto, we think, in view of the fact that so many genuine samples of the defendant's handwriting were received in evidence, that the admission of such letter caused no appreciable injury to his rights.
It is contended by defendant's counsel that no final judgment was rendered in this action. The transcript details the proceedings of the trial, sets out a copy of the verdict, states that the motion for a new trial was denied, declares that the defendant was unable to show any valid reason why sentence of the court should not then be pronounced, and concludes as follows: "It is therefore ordered that the said defendant John Branton be confined in the penitentiary of the state of Oregon for the term of ten years, and that he pay the costs of this prosecution.” The word “considered," when used by a court to express the final conclusion reached on the trial of an issue, or on the admission or confession of a party, has been deemed appropriate; but other words have been held equivalent thereto. 1 Freeman, Judg. (4th Ed.) § 46. This, when in a criminal action which condemns the prisoner to be punished and sets forth particularly the amount, duration, and place of punishment, is a final judgment. Id. $ 21a.
No prejudicial error having been committed, and the judgment being sufficient, it is affirmed.
(36 Colo. 60) MOCK et al. v. CHANEY.
(Supreme Court of Colorado. Jan. 8, 1906.) 1. DIVORCE-RIGIIT TO MARRY.
Where plaintiff's husband obtained a divorce in Colorado on January 12, 1899, and, under the laws of that state, was not entitled to remarry for a year, but on March 15, 1899, he went to New Mexico and there married plaintiff and immediately returned to Colorado where he resided with his wife and maintained the marital relation until June, 1900, when he died, the marriage became valid in Colorado from the date the husband's disability was removed. 2. SAMEJUDGMENT-ENTRY NUNC PRO TUNC.
Plaintiff sued her former husband for divorce in a foreign state in 1891. The defendant in that suit appeared and the judge made findings of law and fact that plaintiff was entitled to a divorce, and directed the clerk to enter judgment. A few days thereafter the judge discovered an error in his findings, which he amended, directing the clerk to cause the conclusion and judgment entered to be amended to correspond with the amended findings. Held that, no judgment having been in fact entered by the clerk until plaintiff married another in March, 1899, a decree was properly entered thereafter nunc pro, tunc as of the date of the filing of the court's findings.
Appeal from District Court, Las Animas County; Jesse G. Northcutt, Judge.
Suit by Annie M. Chaney against Emma Mock and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.