jury were authorized in concluding as the verdict implies, that the remains were those of the person charged to have been killed. The consumption of a human body by fire does not necessarily repel an inference of suicide or of an unintentional death, for the dissolution may have been caused by purposely leaping or accidently falling into a fire, or by being unable to escape from a burning building. So, too, a human body may be destroyed by that means after death had resulted from natural causes. The finding of the remains of a healthy person, like Graham, in a burning log heap, where escape was possible in case contract with the fire was accidental, and probably, where immediate intense pain resulting from the flame would cause an abandonment of an attempt at selfdestruction, must necessarily repel every inference of death by means of such a fire. This conclusion is fortified by the testimony of a locomotive fireman who said that on Monday, May 1, 1905, at about 2:20 a. m., he saw, on the east of the railroad, about a mile and a quarter north of Glendale, a fire and a man standing by it. From this declaration under oath it would seem to appear that the fire which consumed Graham's body was not ignited by him. The evidence of what was supposed to have been blood stains in the vicinity of the ashes, and the appearance of the grass and weeds indicating that some object had been dragged towards the fire, thereby lodging the vegetation and staining the right of way fence with blood, warranted the jury in concluding that Graham's death did not result from natural causes or from suicide.

This brings us to a consideration of that branch of the question which involves the criminal agency. It will be remembered that on Saturday, April 29, 1905, at about 9 o'clock in the morning the defendant paid a bill which he owed a merchant in Glendale by giving a piece of gold that had belonged to Graham. The next day Barnes exhibited a revolver to the witness Hittsman, saying he had purchased it from Graham, which gun was found when the defendant was arrested hidden beneath his cabin. At the time the revolver was found there was also seen in a sack of potatoes in Barnes' cabin a piece of tinfoil. These potatoes were taken to a neighbor's house and emptied, there dropped from the sack a piece of tinfoil which being thereafter unrolled, a diamond ring was discovered that had belonged to Graham. Williams v. Commonwealth, 29 Pa. 102, it was held that an instruction, directing the jury to infer the commission of the crime of murder from the possession of stolen articles, where the evidence was adequate to warrant a conviction of the latter crime, correctly stated the law applicable to the facts involved. In deciding that case, Mr. Justice Porter, comparing the instruction referred to with another that had been given, says: "In that portion of the charge which

In

treats of the possession of the coin, and the right of the jury to infer a higher crime from the possession of stolen articles, sufficient to convict the defendant of larceny, we see as little to condemn. If criminal offenses are to be punished, circumstances like these must be laid hold of to prove them." In Poe v. State, 10 Lea (Tenn.) 673, a similar instruction was given at the trial of the plaintiffs in error, who were charged with the commission of the crime of murder in the first degree, and it was held that no error was committed, the court saying: "In fact, the recent possession of stolen articles under these circumstances, would not merely be a strong circumstance, but raise a presumption of guilt, upon which the jury should convict." So, too, in State v. Anderson, 10 Or. 448, a pocket book containing money that had belonged to a person alleged to have been killed having been found in the possession of the defendant was considered as tending to establish his criminal agency.

An exception was taken by defendant's counsel to the admission of testimony as to the finding of Graham's diamond ring, on the ground that the circumstance was too remote, indefinite, and uncertain. In Morris v. State, 30 Tex. App. 95, 16 S. W. 757, testimony of the finding in a well, of a watch, the property of the person charged to have been killed, several months after the alleged murder, was held admissible in connection with other evidence proving that on the day the defendant was arrested he had access to the well and could have thrown the watch into it. It will be remembered that on the day Barnes was arrested there was found in his sack of potatoes a small roll of tinfoil, the identity of which was reasonably accounted for, which being unwrapped revealed Graham's diamond ring. Evidence of this circumstance in connection with the others was, in our opinion, admissible. In the case of State v. Anderson, supra, the defendant's contradictory statements as to the whereabouts of the missing person were also regarded as tending to create an inference of his guilt. In the case at bar Barnes stated that Graham had gone to Mule creek prospecting and afterward that he had gone to California, saying that Graham had a few dollars, thereby implying that he was able to travel by rail. As Mule creek is situated west of Glendale and California south of that town, it was possible for a person going to the former place to continue his journey to the sister state; but as the travel by rail is so much easier and speedier than journeying over the mountains, the defendant's declarations should be considered as tending to incriminate him. State v. Reed, 60 Me. 550. The defendant having attempted to escape from the jail in which he was confined, awaiting trial on the charge of which he was convicted, is also a circumstance slightly tending to prove his guilt. Circumstantial evidence is legal and competent in the gravest kind of criminal cases; and

In an action for the price of goods, the defense that the seller failed to ship the same in time, and that the goods came too late to be of ready sale, is new matter, and the burden of proving it is on the buyer.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, 88 1044-1048.]

2. TRIAL-INSTRUCTIONS-PREPONDERANCE OF

EVIDENCE-MISLEADING INSTRUCTIONS.

Where, in an action for the price of goods, the buyer denied the allegation of the complaint and pleaded as an affirmative defense the failure of the seller to ship the goods in time, an instruction that, if the evidence was equally balanced, the verdict should be for defendant, was misleading because calculated to lead the jury to apply the instruction to the affirmative defense.* 3. EVIDENCE-Burden oF PROOF-Failure to

SUSTAIN.

Where defendant denied the material allegations of the complaint, the burden of proving the allegations by a preponderance of the evidence was on plaintiff, and if he failed to do so, or if the evidence was equally balanced, he could not recover.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 122.]

4. TRIAL-INSTRUCTIONS-PREPONDERANCE OF

EVIDENCE.

Where, in an action for the price of goods, the buyer denied the allegations of the complaint, and pleaded an affirmative defense, and gave evidence rebutting the evidence of the seller, and the court charged that the burden of proving the sale was on the seller, and that the burden was on defendant to establish the affirmative defense by a preponderance of the evidence, and defined "preponderance of the evidence" as the greater weight of the evidence, the refusal to charge that the burden was on the seller to prove the material allegations of the complaint by a preponderance of the evidence, and that, if he failed to so prove the same, or if the evidence was equally balanced, the verdict should be for defendant, was erroneous. Appeal from District Court, Weber County; J. A. Howell, Judge.

Action by the John Ainsfield Company against O. D. Rasmussen. From a judgment for plaintiff, defendant appeals. Reversed and new trial ordered.

Plaintiff brought this action to recover from defendant the sum of $545.25, alleged to be due on an express contract for goods sold and delivered. The complaint contains two causes of action. In the first cause

*Hickey v. Rio Grande Western Ry. Co. (Utah) 82 Pac. 29.

of action it is alleged that between June 1, 1903, and November 1, 1903, at Ogden, Utah, plaintiff sold and delivered to the defendant, at his request, a certain stock of goods consisting of ladies' cloaks, skirts, and suits, and that the egreed price to be paid therefor was $283. The allegations in the second cause of action are the same as those in the first, except that the goods, at the request of defendant, were shipped and delivered to him at Rock Springs, Wyo., and that defendant agreed to pay therefor the sum of $262.25. The defendant answered denying each and every allegation of the complaint, and pleaded as an affirmative defense a breach of the contract under which plaintiff claims to have shipped the goods, in that the goods were not shipped until long after the time agreed upon and thereby were not received by defendant until the season for the selling of this class of goods had almost closed, and that they came too late to be of ready sale. It is further alleged that the goods were shipped to the defendant as samples from which to select a line of goods if he so desired; that he had permission to dispose of the goods, or such portion thereof as he might be able to sell in the usual course of trade; and that it was further agreed that defendant might, at any time, if he so desired, reship to plaintiff the unsold portion of said goods. There is a sharp conflict in the evidence on the issues raised by the pleadings, but it is not necessary to review in detail the facts in the case, because the errors assigned re late only to the instructions given by the court and the refusal of the court to give certain requests asked for by the defendant. From a verdict rendered by a jury and judgment entered thereon by the court, in favor of plaintiff, for the sum of $390.62, defendant has appealed to this court.

Henderson & MacMillan, for appellant. N. J. Harris, for respondent.

MCCARTY, J., after making the foregoing statement, delivered the opinion of the court: Defendant assigns as error the refusal of the court to instruct the jury that, "if the evidence is equally balanced, your verdict must be for the defendant, no cause of action." One of the defenses set up by defendant in this case was the alleged failure of plaintiff to ship the goods mentioned as agreed upon at the time they were ordered, and that they arrived too late for the fall trade, and defendant was thereby unable to dispose of them. This was new matter. The burden of proving the issue raised by it was upon the defendant. As the foregoing request is not limited or confined to the issues made in the allegations of the complaint, the jury might have been misled thereby and applied it, had it been given, to the issues raised by the affirmative matter in the answer as well as to the issues of the complaint. Therefore the court did not

err in refusing to grant it. Hickey v. Rio Grande Western Ry. Co. (Utah) 82 Pac. 29.

Defendant also requested the court to instruct the jury as follows: "The burden is upon the plaintiff to prove all of the material allegations of its complaint by a preponder. ance of the evidence, and if plaintiff fails to prove all of those material allegations by such preponderance, or if the evidence is equally balanced, then your verdict must be for the defendant, no cause of action." This request correctly states the law. The defendant having denied the material allegations of the complaint, the burden of proving such allegations by a preponderance of the evidence was on the plaintiff, and if it failed to do so, or if the evidence on those issues were equally balanced, the plaintiff could not recover, and the defendant was entitled to have the jury so instructed. It is urged, however, that the request was fully covered by the following instructions which were given in the case: "(6) I further charge that the burden of proof of the sale of said goods to the defendant, as set out in his complaint, is upon the plaintiff." The court in the same paragraph, after inviting attention to some of the affirmative matters set up as a defense in the answer, proceeded to further charge the jury as follows: "And he (defendant) having alleged such fact affirmatively, the burden is upon him to establish such an agreement between him and the plaintiff for the return of said goods by a preponderance of the evidence." The court in its next succeeding instruction defines what is meant by a "preponderance of the evidence," as follows: "By a preponderance of the evidence is meant the greater weight of the evidence; that which is more convincing of its truth." These instructions when read together do not correctly state the rule respecting the degree of proof necessary for a plaintiff to produce in support of the allegations of his complaint to entitle him to recover, when, as here, the defendant introduces evidence tending to rebut and overcome the evidence produced by the plaintiff. The jury was instructed that the burden was upon the plaintiff to prove the allegations of his complaint, and that the burden was upon the defendant to prove by a preponderance of the evidence the affirmative matter in his answer. The jury might well have understood from these instructions as given that, while the burden was upon the plaintiff to

prove the allegations of his complaint and to make out a prima face case in chief, yet it was not indispensable to entitle him to recover that the evidence on these issues, when the case was finally submitted, should preponderate in his favor. Plaintiff cites and relies upon the case of Hickey v. Railway Co., supra, in support of his contention that the request was properly refused. In that case the defendant requested the court to instruct the jury as follows: "You are further charged that the mere fact that the accident happened is not sufficient proof to charge the defendant with negligence. The burden of proving negligence rests on the party alleging it, and, when a person charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of the evidence. And in this case, if the jury finds that the weight of the evidence, is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover, and you should find the issues for the defendant." It will be observed, as was pointed out in the opinion written by Mr. Justice Straup in that case, that the request in terms applied to the issues of the entire case, those raised by the allegations of contributory negligence in the answer as well as the issues upon the complaint; whereas in the case under consideration the request was limited to the allegations of the complaint. Moreover, in that case the court fully instructed the jury on all the issues raised by the pleadings in the case, and among other things charged the jury that: "The burden of proof is upon the plaintiff in this case, and it is necessary, before he is entitled to a verdict at your hands, that he should establish by a preponderance of the evidence the allegations of his complaint." It thus appears that the jury was instructed in clear and unequivocal terms that the burden was upon the plaintiff to prove the allegations of his complaint by a preponderance of the evidence, which was not done in this case. We are of the opinion that the defendant was entitled to have the request, or an instruction embodying the same principles, given to the jury, and that it was error for the court to refuse.

The judgment is reversed, and a new trial ordered, costs of this appeal to be taxed against respondent.

(30 Utah, 460)

STONE v. OGDEN PACKING CO. (Supreme Court of Utah. July 12, 1906.) 1. APPEAL AND ERROR-RECORD-BILL OF EXCEPTIONS-CERTIFICATE AS TO EVIDENCE.

A judge's certificate to a bill of exceptions, reciting: "Inasmuch as the foregoing matters do not otherwise appear of record, I hereby certify that this bill of exceptions has been by me settled and allowed"-does not show that the bill contains all the evidence, so as to justify a consideration on appeal of the sufficiency of the evidence.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2918-2927.] 2. SAME-INCORPORATION OF EVIDENCE-NE

CESSITY.

Where it is not made to appear that the bill of exceptions contains all the evidence as to certain points, objections to its insufficiency on such points cannot be considered on appeal.*

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2916, 2017.]

Appeal from District Court, Weber County; J. A. Howell, Judge.

Action by Edward S. Stone against the Ogden Packing Company. From a judgment in favor of plaintiff, defendant appeais. Affirmed.

James N. Kimball, for appellant. J. D. Skeen, for respondent.

MCCARTY, J. The pleadings in this case presented issues which involved both legal and equitable questions. It is unnecessary, viewing the case as we do, to reproduce here the issues and facts in the case. The questions of fact were tried by a jury who returned a general verdict in favor of plaintiff. Special interrogatories, embodying the equitable issues in the case, were also submitted to the jury, upon which the jury returned a special verdict in favor of plaintiff. From the judgment entered upon the general and special findings of the jury, defendant has appealed.

The errors assigned and relied on by ap pellant for a reversal of the judgment relate to the alleged insufficiency of the evidence to justify the verdict. Respondent objects to a consideration of the errors assigned, on the ground that there is nothing in the bill of exceptions showing that it contains all the evidence introduced and submitted at the trial. The order of the judge before whom the case was tried, settling and allowing the bill of exceptions, is as follows: "Inasmuch as the foregoing matters do not otherwise appear of record, I hereby certify that this bill of exceptions has been by me settled and allowed." There is nothing in this certificate or order of the judge showing, nor is it otherwise made to appear, that the bill of exceptions contains all the evidence, or even the substance thereof, introduced at the trial. This court has repeatedly held that for it to consider an error based upon the insufficiency

Crooks v. Harmon, 29 Utah, 304, 81 Pac. 95; Mitchell v. Jensen, 29 Utah, 346, 81 Pac. 165; Hannan Bros. v. Waltenspiel, 29 Utah, 466, 82 Pac. 859.

(29 Nev. 143) STATE ex rel. BACHELDER v. MURPHY, District Judge. (No. 1,600.)

(Supreme Court of Nevada. July 5, 1906.). 1. INSANE PERSONS-ACTIONS-TRIAL ING INSANITY.

Where

PEND

divorce

against his wife alleged that the acts constitut relator's complaint for ing the cause of action were committed by defendant before she became insane, her subsequent insanity constituted no ground for the trial court's refusal to try the cause which was at issue, during the continuance of such insanity.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Insane Persons, §§ 151-155; vol. 17, Cent. Dig. Divorce, §§ 237–242.]

2. MANDAMUS-PETITION-ALLEGATIONS- AD

MISSION.

Where the trial judge did not deny or answer the allegation of a petition for mandamus, that he had refused ever to try petitioner's divorce case on account of the insanity of the defendant, such allegation would be regarded as admitted.

3. JUDGES-DEFECTIVE PROCEEDINGS-DUTY OF JUDGE TO POINT OUT DEFECT.

Where a trial judge was doubtful concerning his jurisdiction to try a cause because of defects in the service of the summons, it was his duty to call the attention of counsel to what he regarded as the defects in the proceedings, in order that they might be corrected by amendment, and not to arbitrarily refuse to try the cause by reason thereof.

Mandamus by the state, on relation of George Bachelder, against the First judicial district court; M. A. Murphy, district judge. Writ granted.

Mack & Farrington, for plaintiff. E. E. Roberts, for defendant.

FITZGERALD, C. J. This is a proceeding in mandamus to compel the respondent, as judge of the First judicial district court, to proceed to hear and determine the case of George Bachelder, Plaintiff, v. Rose Ann Bachelder, Defendant, alleged to be pending in said district court. In his petition relator, among other things, alleges: That he commenced his action for divorce on the 23d day of February, A. D. 1905; that on the 25tb day of March, 1905, the defendant appeared in the action through her attorneys, Messrs. Curler & King, they filing an answer to the complaint; that on the 4th day of December,

1905, the respondent set the case for trial before a jury on the 21st day of December, 1905; that on the said 21st day of December, 1905, plaintiff's attorney in said case, C. E. Mack, Esq., appeared and requested the respondent to proceed with the trial of the case; that respondent refused to do so, giving and stating his reasons for so refusing as follows: "The said defendant is insane and confined in the Asylum for Mental Diseases at Reno, Nev."-and that this relator, through his attorney, the said C. E. Mack, thereupon made a demand upon the said respondent to proceed with the trial of said action, but that the said respondent then and there refused and does now refuse to proceed with the trial thereof, and will not proceed to the trial of said action without an order of this court compelling him so to do. The respondent's refusal to proceed with the trial of the case is based on the fact of the defendant's insanity. The complaint, however, alleged that the acts constituting the cause of action in plaintiff's favor against the defendant were committed by the defendant before the insanity occurred.

Under these circumstances, I think the fact of the insanity of the defendant was not sufficient to justify the respondent in his refusal to proceed with the trial of the case. In his return or answer to the alternative writ herein, the respondent sets up other matters in justification of his refusal to proceed with the trial, to wit, a doubt whether or not the summons in the action had been properly served, the absence of the defendant's attorneys, etc. As the case stands on the petition and answer, these matters cannot avail him under his admission that he would never try the case while defendant was insane. He did not deny or answer the allegation in the petition that on account of the insanity of the defendant he would not even in future try the case. The allegation stands admitted by the fact of its not being denied. The other matters alleged in the answer to the petition might perhaps have justified the respondent in his refusal to proceed with the trial at the time mentioned. But, if such were the case, he should have signified to counsel his willingness and intention to proceed with the trial at the proper time, and also have let them know wherein he deemed their proceedings irregular and insufficient, so that they could have amended and corrected them, and at some time gotten a trial of the case.

Therefore, without passing on the question of the sufficiency of the service of summons in the case, or any of the other matters stated in the answer of respondent, except the single one of the sufficiency of defendant's insanity as a bar to proceeding with the orderly hearing and determination of the case, it is ordered that the mandate of this court issue to the respondent that he proceed with the hearing and determination

of the case, of course, first satisfying himself upon all questions of service of summons, guardianship, and jurisdiction.

TALBOT and NORCROSS, JJ., concur.

(36 Colo. 492) BOARD OF COM'RS OF TELLER COUNTY v. PINNACLE GOLD MINING CO. LYSIGHT, County Assessor, et al. v. C., K. & N. MINING CO.

(Supreme Court of Colorado. May 7, 1906.) TAXATION-ERRONEOUS ASSESSMENT APPEAL TO DISTRICT COURT-APPEAL TO SUPREME COURT.

The statute authorizing one injured by an erroneous assessment of taxes to petition the county commissioners, and giving an appeal to the district court, does not authorize an appeal or writ of error from the judgment of the district court.

En Banc. Appeal from District Court, Teller County; Robert E. Lewis, Judge.

The Pinnacle Gold Mining Company and the C., K. & N. Mining Company petitioned for relief from an unjust assessment for taxation, one petition being addressed to the board of county commissioners of Teller county and the other to the district court, and in the case presented to the commissioners an appeal was taken to the district court. From the judgments of the district court reducing the assessments, the board of commissioners and another, as county assessor, appeal. Appeal dismissed.

C. S. Thomas and Scott Ashton, for appellants. McAllister & Gandy, for appellees.

BAILEY, J. The above cases are two of a series involving identical issues. One of the appellees filed a petition with the board of county commissioners of Teller county, praying for relief against what they deemed to be an unjust and excessive valuation placed by the assessor upon their nonproductive mining claims in Teller county. The commissioners refused to interfere with the assessment, and the case was taken to the district court of that county by appeal. The other appellee filed a like petition directly with the district court and by stipulation the cases were tried together. The district court reduced the assessment made by the assessor, and the board of commissioners and the assessor bring the actions here upon appeal.

This court has not jurisdiction to entertain this appeal. The statute concerning appeals to the district court from the assessor and from the board of county commissioners are similar to the previous law upon this subject, passed in 1889. There is no provision for an appeal from the district court. This ques

tion was before the Court of Appeals in the case of Pilgrim Consolidated Mining Co. v. Board of County Commissioners of Teller County, 20 Colo. App. -, 78 Pac. 617, and that court in a very carefully prepared opin