A NEW SERIES OF PROBATE REPORTS,

CONTAINING

THE CREAM OF PROBATE LAW.

Each volume gives about 100 Recent Cases (in full) from the Courts of the different States on all matters pertaining to the Law of Wills and the Administration of the Estate of Deccased Persons, &c.

PROBATE REPORTS ANNOTATED

(In continuation of the AMERICAN PROBATE REPORTS, 8 vols.)

VOLUME I NOW READY.

COMPRISING RECENT CASES OF GENERAL VALUE DECIDED IN THE COURTS OF THE SEVERAL STATES ON POINTS OF PROBATE LAW.

With Extended Notes and References. By FRANK S. RICE, Esq.

Author of "Civil and Criminal Evidence," "Law of Real Property,"
and "American Probate Law."

The plan of this new Series of Reports is to give in an annual volume (only one a year) Contemporaneous or Recent Decisions of the Courts of the different States of the Union upon all matters cognizable in Probate and Surrogate Courts.

Some of the Subjects covered by the Cases in these Volumes: Probate and Construction of Wills and Codicils; Foreign Probate; Lost Wills; Powers, Duties, and Liabilities of Executors, Administrators, Guardians, and Testamentary trustees--including Investments, Collection of Debts, Compounding Claims, Interest, &c.-Testamentary Capacity; Formalities of Execution and Revocation of Wills; DEVISES, and their construction; LEGACIES, their Vesting, Payment, Abatement, Satisfaction and Ademption. EVIDENCE. Powers, Trusts, Perpetuities, &c., &c.

The Editor's Notes in the “PROBATE REPORTS ANNOTATED” form a special feature of the

series.

The variety and Importance of the topics covered by the Monographic Notes of VOL. I will be seen by the following list of the subjects treated:

Ancillary Administration.

Collateral Inheritance Tax.

Accounting of Executor or Administrator.

Common Law System Examined.

Devise upon Condition.

Advancements.

Ancestral Property.

Community Property.

Construction of Wills.

Equitable Conversion.

Doctrine of Cy Pres.

Heirs of the Half-blood.

Depositions in Evidence.

Executory Devises.

VOL. I of the PROBATE REPORTS ANNOTATED, is a handsome octavo of about 800 pages. Price $5.50 net, or $5.75 delivered on receipt of price.

BAKER, VOORHIS & CO., Law Publishers,

66 NASSAU STREET, NEW YORK.

(order of ANY LAW BOOKSELLER.)

Central Law Journal.

ST. LOUIS, MO., MAY 28, 1897.

Post. 44 C.t. J. 465.

The agitation of the subject of inheritance tax, in States which have not already adopted that form of taxation, gives special value to such cases as Kochersperger v. Executors, recently decided by the Supreme Court of Illinois, in which that court declares constitutional a recent enactment of the legislature of that State providing for a succession tax. The court in announcing its opinion make the point that the law of descent and the right to devise and take under a will within the State of Illinois owe their existence to the statute law of the State. The right to inherit and the right to devise being dependent on the legislative acts, there is nothing in the constitution of that State which prohibits a change of the law with reference to those subjects at the discretion of the law-making power. The law of descent and devise being the creation of the statute law, the power which creates may regulate and may impose conditions or burdens on a right of succession to the ownership of property to which there has ceased to be an owner because of death and the ownership of which the State then provides for by the law of descent or devise. The imposition of such a condition or burden is not a tax upon the property itself, but on the right of succession thereto. To deny the right of the State to impose such a burden or condition is to deny the right of the State to regulate the administration of a de

cedent's estate.

When, by the act of June 15, 1895, for the taxation of gifts, legacies and inheritances in certain cases, the legislature prescribed that a certain part of the estate of the deceased person should be paid to the treasurer of the proper county for the use of the State, it was in effect an assertion of sovereignty in the estate of the deceased persons.

Whether to be levied and determined as a tax or penalty, the principle is that where one owning an estate dies that estate is to be assessed in accordance with those provisions of the act and the tax to be paid for the right of inheritance. The amount reserved to the State from the estate of a deceased owner is not a tax on the estate, but on the right of succession.

The constitution of Illinois provides as follows:

"Sec. 1. The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property, such value to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise; but the general assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, showmen, jug. glers, inn-keepers, grocery keepers, liquor dealers, toll-bridges, ferries, insurance, telegraph and express interests or business, venders of patents and persons or corpora. tions owning or using franchises and privileges in such manner as it shall from time to time direct, by general law, uniform as to the class upon which it operates.

"Sec. 2. The specifications of the objects and subjects of taxation shall not deprive the general assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution."

Under these provisions of the constitution it was insisted before the Illinois court that the levy of the succession tax, which, under the above provisions, is required to be made by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property, and that such law shall be uniform as to the class upon which it operates, is defeated by the provisions of the statute. But the court met this contention by saying that the statute provides certain classes of property which was a part of an estate shall be exempt from taxation under these provisions, and when the legislature provides other classes of property, some of which shall pay $1 per $100, others, $2, others $3, and others $4, and still others $5, and again others $6 per $100, six different classes are created under and by which a tax is levied by valuation on the right of succession to a separate class thus levied is general, uniform, and pertains of property. The class on which a tax is to all species of property included within that class. A tax which affects the property within a specific class is uniform as to the class, and there is no provision of the con

ant.' This instruction ought to have been that, 'if the evidence raises a reasonable doubt in your minds as to whether the defendant was at Indianapolis or at Noblesville when the larceny was committed, you ought to find the defendant not guilty.' We do not think that anything that precedes or follows this error, in this or any other instruction given, cures it. An erroneous instruction to the jury in a criminal case cannot be corrected by another instruction which states the law accurately, unless the erroneous one be plainly withdrawn." Among the many cases to the same effect are: Turner v. Com., 86 Pa. St. 54; Walters v. State, 39 Ohio St. 215; State v. Josey, 64 N. C. 56; State v. Taylor, 118 Mo. 153, 24 S. W. Rep. 449; Walker v. State, 42 Tex. 360; State v. Waterman, 1 Nev. 543; Pollard v. State, 53 Miss. 410; Adams v. State, 42 Ind. 278; People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. Rep. 233; Clare v. People, 9 Colo. 122, 10 Pac. Rep. 799; Ritchey v. People (Colo. Sup.), 40 Pac. Rep. 384. In State v. Taylor, supra, the defense of alibi is discussed at length, and the decisions upon the subject carefully reviewed; and it is shown that the great weight of authority in this country is against the doctrine that an alibi must be established by the defendant; there being but two States-Illinois and Iowa, and the territory of New Mexico committed to that doctrine. As will be seen from the above quotation from Kent v. People, this court has aligned itself with the majority of the courts of this country upon this subject, and has repudiated the doctrine of the Illinois courts embodied in the instructions under consideration. That the giving of these instructions and refusing the ninth request of defendant, which we have seen correctly expresses the law applicable to this defense, was prejudicial to the rights of the defendant, is quite probable, when considered in connection with the facts in the case, which, in brief, are as follows: During the existence of what is known as the "Cripple Creek Strike," and on the morning of May 29, 1894, John Simmons, the principal witness for the prosecution, was driving a vehicle containing eight or nine passengers from Cripple Creek to the terminus of the railroad, and at a point about two miles from Cripple Creek was approached by a man on horseback, with a rifle at his shoulder, who commanded him to halt. In compliance with this demand, Simmons stopped his team, whereupon the horseman road up to the side of the hack, and inquired several times of the occupants if there were any guns in there; and upon being answered by the persons addressed that they had no guns, he rode away. On the same morning, and at about the same place, another vehicle, driven by Frank Sahrbeck, and in which Mrs. Jane Leonard was riding, was also stopped by a man on horseback, armed with a rifle. Of those who were at the time in the first vehicle but two besides Simmons testified in the case. Upon the question of the identity of the defendant with the man on horseback the testimony is conflicting. Simmons and one Mace, who claims to have witnessed the transaction at the stage from a distance of about 150 yards, and Sahrbeck, identify the defendant as the man; while John Mallory and Frank Finnigan, two of the passengers in the stage, and Mrs. Leonard, testified that the defendant is not the person. The defendant introduced eight witnesses whose testimony tended to show that he was at the town of Altman at and during the time the offense is shown to have been committed. In view of the fact that the evidence of the prosecution as to the presence of the defendant at the commission of the crime is in substantial conflict, it was of vital importance to him that the evidence intro

and place of the occurrence, regarded it as an affirmative and independent defense that the law imposed the burden of proving upon the accused. The jury were told that, if they believed from the evidence that "an alibi had been established by or on behalf of defendant, and that at the time when the prosecuting witness alleges that the robbery was committed at the place alleged in the indictment, that the defendant at such time was in Altman or elsewhere than at such place," they should find him not guilty. This was clearly erroneous. In order to avail himself of the defense of alibi, it is not incumbent upon the accused to establish that he was not present at the commission of the crime, or that he was in some other place. If the evidence is sufficient to raise a reasonable doubt in the minds of the jury as to whether he was or was not present at the commission of the crime, he is entitled to an acquittal. As was said by this court in Kent v. People, 8 Colo. 563, 9 Pac. Rep. 852: "It may, therefore, be laid down as the established doctrine of this State that as to all facts in evidence properly constituting part of the res gesta, they are to be considered by the jury in passing upon the question of guilt or innocence, without discrimination as to rules of evidence, whether introduced by the prosecutor or the defendant. . The rule relating to the res gesta, which we have been considering, applies to all defenses which traverse the averments of the indictment and go to the essence of the guilt charged against the accused. Within this class may be mentioned .. all matters growing out of the res gesta which go to justify, extenuate, or excuse the crime charged, including the defense of alibi. Some authorities hold an alibi to be an independent defense, not coming within the rule mentioned; but the weight of authority is against this view. The later authorities hold it to be an essential averment of the indictment that the accused was present, and committed or participated in the commission of the offense. this averment must be established by the prosecution beyond a reasonable doubt; and if the proof leaves it doubtful in the minds of the jury whether the defendant was present at or absent from the place at the time the crime was committed, he must be acquitted." In the sixteenth instruction the jury are expressly told that the burden is on the defendant to make out his defense as to an alibi, thus emphasizing the incorrect rule stated in No. 15. We do not think that what follows cures this error. In support of the doctrine announced in Kent v. People, supra, the court cites, among other cases, Howard v. State, 50 Ind. 190. The instruction condemned in the latter case is very similar to the one before us, and was as follows: "(6) And if the evidence satisfies your minds that the defendant was in fact in the city of Indianapolis at the time that the witnesses on behalf of the State testify that he was in the town of Noblesville and other points in the county of Hamilton, it will be your duty to acquit the defendant; and if that evidence, in connection with all the evidence given on the trial of this cause, leaves a reasonable doubt in your minds as to the presence of the defendant in the county of Hamilton on the day the horse and buggy are alleged to have been stolen, it will be your duty to acquit the defendant." The court say: "We hold that the sixth instruction, supra, on the subject of alibi, was erroneous in charging that, "if the evidence satisfies your minds that the defendant was in fact in he city of Indianapolis at the time that the witnesses, on behalf of the State testified that he was in the town of Noblesville and other points in the county of Hamilton, it will be your duty to acquit the defend

Hence