Pacific Coast Law Journal.

VOL. 2.

SEPTEMBER 21, 1878.

No. 4.

Current Topics.

MR. DAVID DUDLEY FIELD was chosen President of the conference of the Association for the Reform and Codification of the Laws of Nations, recently held at Frankfort. Reports were made by different committees upon the subjects of bills of exchange, patent law, general average, bankruptcy, and copyright. The Envoy from Japan delivered an address upon the relations of the Asiatic nations to those of the West. An address was read by the Chinese Embassador. The capture of private property at sea, mercantile customs, and other subjects were discussed.

IN Lehigh Valley Coal Co. vs. Jones (18 Alb. L. J. 212), the Supreme Court of Pennsylvania, in determining who are fellow servants, holds that where a mining company had one general superintendent over all its men, and it had inside its mines a person called the "inside foreman," or "mining boss," who had control of the operations in the mine in regard to workingmen employed, and the ventilation, subject to orders from the general superintendent, the inside foreman was a fellow servant with the workmen subordinate to him, and his negligence causing injury to one of such workmen would not be imputable to the company.

Supreme Court of California.

JULY TERM.

[No. 10,356.]

[Filed August 26, 1878.]

PEOPLE vs. COLLINS.

CRIMINAL LAW-BURGLARY-ADVISORS AND PRIVIES NOT GUILTY-WHEN.Parnell entered into an agreement with the Sheriff to entrap the defendant, who had proposed and advised a burglary. Parnell entered the house, and having secured the money divided it with the defendant, and gave a signal by which the Sheriff was to arrest the defendant. The defendant was caught with the money in his possession, and was indicted and found guilty of burglary. The court below instructed the jury that no regard should be paid as to the motives or intentions of Parnell. Held: error; that no burglary was committed by Parnell for want of felonious intent, and the defendant could not have been privy to a burglary unless one was committed.

Appeal from County Court of Colusa County.

The appellant was indicted and found guilty of burglary. The District Attorney argued that Parnell, who entered the house, was the agent of Collins, the appellant, and acted under the advice of said Collins. That the guilty intent and advice to commit a felony made him a principal. That Collins was not indicted as an accessory before the fact, but as a principal, who committed a crime through his agent; and that it made no difference that Parnell entered the house without a criminal intent. (4 Hill N. Y. 133; 11 Mass. 136; 10 Mass. 181.)

The appellant argued that as no entry was made with intent to commit a felony the indictment can not stand. The facts appear in the opinion.

Jackson Hatch, for the People.

J. C. Dewell and A. L. Hart, for appellant.

PER CURIAM.

There was evidence tending strongly to show that the de

fendant requested Parnell to enter a certain building in the night time and to steal therefrom a sum of money which he knew to be concealed there; and that the money, when stolen, should be divided between them. The evidence also tended to prove, that instead of accepting and acting upon this proposal, Parnell immediately informed the Sheriff of it, who, after consultation with the District Attorney, advised Parnell to pretend to the defendant that he accepted the proposition and would carry out the enterprise. It was thereupon agreed between Parnell and the Sheriff that when the money was taken it should be marked with acid so that it could be identified; and that when the money was delivered to the defendant a signal should be given by Parnell to enable the Sheriff to arrest the defendant with the money in his possession. The evidence tended to prove that this programme, as agreed upon by Parnell and the Sheriff, was carried into effect; that Parnell entered the building, secured the money, marked it with acid, delivered a part of it to the defendant, gave the signal as agreed upon, and the Sheriff thereupon arrested the defendant with the money in his possession.

On this state of the evidence the court instructed the jury that if it was agreed between Parnell and the defendant that the former should enter the building and steal the money, to be divided between them, and if in pursuance of the agreement, Parnell did enter the building and take the money and divide it with the defendant he was guilty of burglary, and the jury should so find "without regard as to the part taken in the offense by the witness Parnell, or as to the motives or intentions of said Parnell." This instruction was erroneous.

If Parnell entered the building and took the money with no intention to steal it, but only in pursuance of a previously arranged plan between him and the Sheriff, intended solely to entrap the defendant into the apparent commission of a crime, it is clear that no burglary was committed, there being no felonious intent in entering the building, or

taking the money. If the act of Parnell amounted to burglary, the Sheriff, who counseled and advised it, was privy to the offense; but no one would seriously contend, on the foregoing facts, that the Sheriff was guilty of burglary. The evidence for the prosecution showed that no burglary was committed by Parnell, for the want of a felonious intent, and the defendant could not have been privy to a burglary, unless one was committed.

Judgment and order reversed, and cause remanded for a new trial.

(WALLACE, C. J. did not express an opinion in this case.)

[No. 3,961.]

[Filed August 16, 1878.]

HOUGHTON, APPELLANT,

VS.

HARDENBERG, RESPONDENT.

PATENTS-DELIVERY NOT ESSENTIAL.-The delivery of a patent, complete in every particular, is not necessary to its validity; and an action brought by parties interested in said patent to compel a delivery by the Surveyor - General, who retains the same under directions from the Commissioner of the General Land Office, may be sustained.

Appeal from the Twelfth District Court, County of San Francisco.

The complaint alleges that the plaintiff is the owner of an undivided interest in the Rancho Los Animas, in the county of Santa Clara, California; that the title to said rancho is founded upon a Mexican grant, which was confirmed by the courts of the United States under the Act of Congress, entitled "An act to ascertain and settle private land claims in the State of California," approved March 3, 1851; that said interest of plaintiff is derived to him through divers mesne conveyances from the confirmers.

That said rancho was afterward duly surveyed under the direction of the Surveyor-General of the United States for

the State of California, and approved by said Surveyor-General; that after said survey was made the claimants and confirmers of said rancho, and others claiming to be interested in said survey, filed objections thereto in the District Court of the United States for the Northern District of California. That afterward said District Court made a decree setting aside said survey, and commanded the Surveyor-General to make a new survey and location; that the Surveyor did, on the 6th day of June, 1865, make a survey in conformity to the decree of said court, and filed a plat of said survey in said court, and on the 10th day of June, 1865, the said court approved said survey. An appeal was taken to the United States Circuit Court, and on September 7, 1866, said court affirmed the decree of the District Court. That afterward the said Surveyor-General transmitted to the Commissioner of the General Land Office of the United States certified copies of said decrees, and the said Commissioner caused and procured to be prepared and made out a patent in due form for said rancho, dated March 15, 1873, which was signed by the President of the United States by the Commissioner of the General Land Office, and recorded in the office of said Commissioner by the recorder thereof.

That said patent was transmitted to the defendant, who is Surveyor-General of the United States for the State of California, for delivery to the parties entitled to receive the same.

It is agreed that the complaint shall be considered as containing the further allegation that since the receipt of the patent to the defendant it had been deposited in an iron safe belonging to the United States, situated in the office of said Surveyor-General, which safe was the repository of valuables belonging to the United States and in the custody of such Surveyor-General. That since the receipt of the patent by him he had been ordered and directed by the Commissioner of the General Land Office to hold and not deliver it to any person; that such order and direction was given prior to the time when appellant demanded the patent; and that he refused to deliver it solely in obedience to such order and di

rection.