dience to the judgment of the court, or in compliance with the terms of the bond, are in no position to claim exemption from the penalties of the bond by reason of the technical possession shown by the sheriff's return. If the plaintiff actually obtained any possession, it was of such short and fleeting duration and character that it never availed him anything, or interfered with the defendants. There is no error in the rulings of the court in this matter that warrants a new trial of the cause.

The instructions requested by the defendants and refused by the court, none of them, singly or as a whole, state the law as applicable to the issues and facts in this case, and there was no error in refusing them. We have examined the instructions given by the court, and think they present the law of the case clearly, fairly, and fully, and that no tenable objection can be made to them. There was no error committed in giving or refusing instructions.

It is further contended that the court should have rendered judgment for the defendants on defendants' motion for judgment on the special findings of fact. This motion is as follows: "Come now the defendants in the above-entitled cause, and move the court to enter judgment for the defendants, on special findings of facts of the jury in said cause, for the sum of four hundred and eighty-five dollars, the same being the amount of damages found by the jury as the value of the premises described in the pleadings in this cause accruing after October 7, 1897, for the reason that said special findings establish the fact that the plaintiff herein entered on said premises and took possession thereof on the 7th day of October, 1897." It requires no reasoning or argument to show that no error could be committed in overruling this motion. There were neither pleadings, proof, nor findings that would warrant the court in rendering a judgment for defendants.

The motion for new trial involves the questions already reviewed. We have examined the whole record, and are of the opinion the judgment should be affirmed. The judgment of the district court of Noble county is affirmed, at costs of plaintiffs in error. All the justices concur, except HAINER, J., who presided in the trial below, not sitting.

STATE v. YEE WEE. (Supreme Court of Idaho. June 7, 1900.) HOMICIDE-EVIDENCE-DYING DECLARATIONS -APPELLATE JURISDICTION.

1. The evidence examined, and held to be sufficient to justify verdict of murder in first degree.

2. An ante mortem statement as to the cause of death, made by the deceased soon after receiving an injury from which he died. made when death was apparently imminent, and while the deceased believed that he was about to

die, is admissible in evidence as against the defendant on the charge of murdering the deceased, although deceased had not been informed by a physician that he was about to die.

3. Upon appeal in a criminal case the jurisdiction of the appellate court is confined to a review of the case made in the trial court. (Syllabus by the Court.)

Appeal from district court, Blaine county; C. O. Stockslager, Judge.

Yee Wee was convicted of murder, and appeals. Affirmed.

Lyttleton Price, W. T. Reeves, P. M. Bruner, and Hawley, Puckett & Hawley, for appellant. S. H. Hays, Atty. Gen., for the State.

QUARLES, J. The appellant was tried upon information charging him with he murder of one Wee Waugh, alleged to have been committed in Blaine county in May, 1899, was tried and convicted, and sentenced to death. The appellant moved for a new trial, which was denied, and has appealed from the order denying him a new trial and from the judgment of conviction. Several witnesses, all Chinese, testified that on the night of May 3, 1899, at about 9 o'clock, they were at the store of Sam Waugh, in the quarter known as "Chinese Town," in Hailey, the deceased, Wee Waugh, being among the number, when appellant came into said store; that appellant had a paper sack on his hand; that soon thereafter a shot was fired, when the deceased, Wee Waugh, exclaimed, "Wee shoot me! Wee shoot me?" A number of witnesses testified that at the time of the shooting the deceased was standing at the inside or back of the table, and that the accused approached the table on the other side from the deceased, leaned his arm on the table, and slightly raised his hand, whereupon the report of a firearm was heard, when the deceased exclaimed: "Wee shoot me! Wee shoot me!" Thereupon nearly all of the parties, including the accused and the deceased, ran out of the house. Immediately after the shooting a paper bag, similar in appearance to the one held in the hand of the accused, was found by the door of the store building, picked up and carried in the house by one of the witnesses, and there kept until morning, when it and a candle were turned over to the county attorney. It was shown that the candle was burning on the table between the deceased and the accused at the time the shot was fired, and that the candle then went out; that a piece was cut out of the candle, making a notch therein; that this notch was not in the candle before the shot. Said paper bag and candle were introduced as evidence before the jury. The appellant objected to the introduction of the paper bag, but did not object to the introduction of the candle. The introduction of both the candle and the paper bag in evidence is now assigned as error, on the ground that they

were not sufficiently identified. We have carefully considered the evidence, and think that it was sufficient to identify the candle. Was it sufficient as to the paper bag? Wee Gwing testified that accused came in with a yellow bag, like the one exhibited, in his hand; that he saw the paper bag introduced in evidence, after the sot, out by the door. Chin Shu testified that the accused had a paper bag in his hand; that he pointed pa- | per bag at deceased, but thought the paper bag held by accused was not as large as the one introduced in evidence. Gui Waugh testified: "I saw the paper bag before the shot went off. * Wee had it on his hand when the shot went off. He raised up the bag high enough for Wee Waugh. I have seen a paper bag like this, but did not see this one before. I saw this bag right after the shot outside the door in front of Sam Waugh's store. I picked it up, and brought it in the house. It stayed in the house that night." The witness then stated that the paper bag remained in the house until the next morning, when the sheriff and county attorney went and took it and the candle away. This witness also testified: "Wee Waugh was hurt there that night, Wee Waugh hollow out, 'Wee shoot me!' ** * Wee Waugh died May 19th."

After a careful consideration of all the evidence, we are of the opinion that the paper sack was properly introduced in evidence. The finding of this paper bag just outside the door out of which accused fled after the shooting, and its similarity to the one held over the hand of the accused, were circumstances tending to identify it. The candle and the paper bag are not before us. Their appearance doubtless would show whether they were in close proximity to a firearm which had been discharged, and without an inspection of such exhibits, under all of the evidence, we are unable to conclude that the admission of either of these exhibits was error.

There is only one other error assigned, and that is the introduction of the evidence of the ante mortem statement of the deceased, to the effect that the accused shot the deceased, testified to by J. D. Jones, a dentist, and William Rember, the sheriff, and the action of the court in refusing to strike out such evidence. This alleged error is predicated upon the idea that before such statement could be introduced it must be shown that the attending physician informed deceased that he was going to die. cannot agree with this contention. To make such statement admissible, it must be shown that it was made by deceased while under the belief that death was impending, the imminence of death being apparent at the time. It makes no difference what influence induces the deceased, whose death is apparently imminent, to believe that he is about to die,-whether from his own condition and feelings, or the advice of a physi

We

cian, his statement as to the cause which brings about his death, made under such circumstances, is admissible. The evidence shows that said ante mortem statement was made about three hours after the shooting, and while deceased believed that he was about to die, and while his death was apparently imminent. He lived 16 days after the injury, but Dr. Brown, his physician, testified that he (the physician) expected the death of deceased to occur at any time. It might well be argued that the admission of the evidence showing this dying declaration was unnecessary, as there was sufficient evidence to convict the accused without it, but we do not think that the admission of such evidence was error.

Appellant contends that the evidence was insufficient to justify the verdict, because it was not proven that appellant had any firearm at the time of the shooting, and because the evidence does not show premeditation. We cannot agree with this contention. The evidence showing that accused walked into the presence of deceased with a paper bag over his hand; that accused rested his arm on the table, and pointed his hand, covered by such paper bag, towards deceased; that thereon there was a flash seen and a report heard; that deceased then exclaimed that the accused shot him; and that the accused immediately ran away,was sufficient to show that accused was not only armed, but that he deliberately, and with malice aforethought, shot deceased with the intent to kill him. The evidence further shows that appellant immediately after the shooting was making inquiries of different persons as to who did the shooting and who was shot; thus feigning ignorance of his own act. Such acts on the part of the defendant tended to prove his guilt. The evidence was amply sufficient, and would be if all of the evidence complained of was out of the record.

It is also contended by the learned counsel for appellant that the evidence of the Chinese witness who interpreted a paper written by the accused was untrue, and said witness prejudiced against the appellant. Taking the testimony of the appellant, and ignoring the other testimony touching this point, we would have to agree with this contention. But the evidence, taken as a whole, does not show that this contention is well founded. The paper alluded to was written in the Chinese language, and was given by the appellant to the sheriff to be posted by the latter in the Chinese quarters, in Hailey. Said paper was interpreted by Charlie Shung at the trial to read as follows: "Any particular friend for Yee Wee; any relation of Yee Wee: This trial comes off Monday. I wish all to come to court; explain this case. Nobody force he to shoot Wee Waugh. He done it for himself, right on this paper. If you don't believe it, send down to 'Frisco. Here it is, Yee Wee done;

here it is, you say no man force you. You done it yourself, right here. You send it down to San Francisco, and find out." Another interpretation of this paper was made at the trial by Wang Fung, substantially the same as the above. The defendant gave a different interpretation. It was for the jury to say which interpretation was correct, and also to determine the weight and effect of the evidence. We are now asked to consider an interpretation of said paper which has been made since the trial, and which is certified by the secretary (interpreter) of the Chinese legation at Washington, D. C., to be correct. But this interpretation and certificate are not, and would not have been, competent evidence at the trial, and could not there have been received. But, if it was competent evidence, we could not receive it or consider it on the hearing of this appeal, as the doing so would be assuming to a certain extent original jurisdiction not vested in this court by the constitution; our jurisdiction being limited to a review of the case tried by the lower court. It is proper to suggest that jurisdiction to review this case on the ground of evidence that has been discovered since the bringing of this appeal is vested, under the constitution, in another tribunal, to wit, the board of pardons. Finding no error in the record which would justify a reversal, and the evidence being sufficient to sustain and justify the verdict, the order denying a new trial and the judgment are both affirmed.

HUSTON, C. J., and SULLIVAN, J., con

cur.

NETHERLANDS AMERICAN MORTG. BANK v. CONNAWAY et al. (Supreme Court of Idaho. May 15, 1900.) TRUSTS EVIDENCE TO ESTABLISH-LIABILITY OF BANK.

B., the president of a national bank, made a loan for his personal use, to be invested, as the lender understood, in a purely personal transaction of B. Held, that the fact that the money so borrowed by B. was or might have been mingled with the money of the bank created no liability on the part of the bank as trustee.

(Syllabus by the Court.)

Appeal from district court, Latah county; Edgar C. Steele, Judge.

Action by the Netherlands American Mortgage Bank against W. P. Connaway, as receiver of the Moscow National Bank of Moscow, and S. Barghoorn. Judgment for defendants, and plaintiff appeals. Affirmed.

C. J. Orland, for appellant. R. T. Morgan and J. T. Morgan, for respondent Connaway.

HUSTON, C. J. The facts in this case, briefly stated, are as follows: The appellant is a foreign corporation, having an agent at Moscow, Idaho. The business of the said

corporation is the loaning of money upon first mortgages on real estate, and to this, it would seem, their agent was limited, so far as loans were concerned. The agent of the appellant, one Barghoorn, held the position of assistant, or quasi assistant, cashier of the Moscow Bank. One R. S. Browne was at the time the president of the Moscow National Bank. In fact, the inference from the evidence is that Browne was the National Bank of Moscow, if not de jure, at least de facto. The appellant had money on deposit with the Exchange National Bank of Spokane, Wash., against which their said agent, Barghoorn, was authorized to draw for loans upon real estate. It appears from the record that Browne was fully advised of the nature and extent of Barghoorn's authority in relation to the funds of appellant against which he was authorized to draw. On or about the 15th of January, 1897, it seems a payment was about to be made by the United States government to the Nez Perce Indians at Lapawai, Nez Perces county, and, as these payments were to be made in treasury drafts, there was a visible profit to be made in the purchase of the same from the Indians. Of course, such a transaction was outside of, and prohibited by the law governing, the operations of a national bank. But the astute and ubiquitous Browne saw a margin of profit, at least for Browne, in the transaction; but there were not sufficient funds in the bank available for the project. He therefore approaches Barghoorn with the request that he (Barghoorn) should loan him (Browne) the sum of $2,000 of the funds of the appellant, which Browne at the time well knew Barghoorn could not do without being guilty of a breach of trust. But the hypnotic influence of Browne overcame any scruples of Barghoorn, and upon the understanding that he (Barghoorn) was to be repaid in a few days, either in money or "Indian drafts," Barghoorn wires to the Spokane bank for the sum of $2,000, and on its receipt turns it over to Browne. There is considerable evidence as to what disposition was made of the money after its receipt by Browne, but we do not think it cuts any figure in the case. The money was loaned by Barghoorn to Browne individually, and not to the Moscow National Bank. It was loaned for a purpose well known to Barghoorn at the time, and which he, as an officer of the bank, was presumed to know was without the legitimate and authorized business of the bank. Because the money was placed by Browne in any particular receptacle of the bank, or because the bookkeeper in making up the cash of the bank included this sum in the aggregate of the funds of the bank, cannot alter the legal status of the parties. It is sought by this action to charge the Moscow National Bank, or its receiver, with this sum of money as a trust fund.

We are unable from the record to find

anything in this transaction which tends to impress the loan from Barghoorn to Browne with the character of a trust in the bank. It was a simple loan from an individual to an individual; nothing more. That Browne knew that Barghoorn was violating his trust in making the loan is no predicate for a charge against the bank; for Browne did not make the loan by or on behalf of the bank, but for his own personal profit. Had the money been loaned to Browne as president of the bank, for the use of the bank, or had it been deposited by Barghoorn as the agent of the appellant, under his known authority as such agent, a different case would be presented; but no such conclusion can be reached from the evidence. The mere fact that Browne put the money, which he had borrowed as an individual, in the safe of the bank, and presumably drew therefrom its equivalent in gold, to be used in a personal transaction of his own, could not make the bank responsible as a trustee. If the bank were to be held responsible for all the illegitimate, not to say unlawful, transactions of its officers, clearly outside of, and disconnected with, their official duties or responsibilities, the business of banking would be handicapped with most fearful responsibilities. The bank in this case derived no benefit from the loan from Barghoorn to Browne. It was no party to the loan. It could no more be held liable to Barghoorn, according to the evidence in the record, than if Browne had picked his (Barghoorn's) pocket of this amount.

We have examined the authorities cited by the appellant, but we find no case where the conditions were at all similar to the case at bar. The trouble with appellant's position and argument is that it assumes the existence of a state of facts not disclosed by the record, and ignores the primary and controlling fact in the case, to wit, that the loan from Barghoorn to Browne was purely a personal transaction, with which the bank had nothing to do, to which it was not privy, and for which it could no more be held responsible than it could for a larceny or any other criminality of Browne, and this condition could not be changed by any of the acts of the employés of the bank. We think the findings of the district court are fully sustained by the evidence. The judgment of the district court is affirmed, with costs to respondents.

SULLIVAN, J., concurs. QUARLES, J., did not sit at the hearing of this case, and took no part in the decision thereof.

On Rehearing.

(June 26, 1900.)

PER CURIAM. The facts in this case are undisputed. They were succinctly set forth in the opinion filed herein. To repeat them would be an act of supererogation. Simply

stated, the facts as they appear in the record are these: One R. S. Browne, being at the time president of the Moscow National Bank, entered into an agreement with Barghoorn, who was the agent of the appellant, by which they were together to realize a profit out of a speculation in Indian drafts; that is, drafts paid by the government to the Nez Perce Indians upon a purchase of Indian lands. This was, as set forth in appellant's findings of fact No. 9, submitted to the court, and by the court refused, and which is as follows: "(9) That Barghoorn and R. S. Browne had agreed together to use the said money of the plaintiff for the purpose of purchasing Indian drafts, which they had no authority to do, and did misapply the funds of the plaintiff to further their own business, or profit, and were wrongfully diverting said money from the purposes for which it was intrusted to said Barghoorn by the appellant." Accepting this statement of fact as fully supported by the evidence, which we think it is, upon what principle can the appellant claim a right of recovery from the bank? While it is clear from the evidence that the actual money received by Browne from Barghoorn was, by mistake of the clerk or bookkeeper, placed in the general funds of the bank, it is equally clear that its equivalent was drawn from the funds of the bank by Browne, and used by him in the joint speculation of himself and Barghoorn, and the bank received no consideration whatever therefor or therefrom. That Browne and Barghoorn, by their unlawful and unauthorized act (to use a very mild term to designate their actions), can impose a trust upon the bank is a proposition we are unable to recognize. Petition for rehearing denied.

HAYS, Atty. Gen., v. STEWART, Judge. (Supreme Court of Idaho. June 20, 1900.) ESCAPE-TRIAL-MANDAMUS.

1. A prisoner who escapes while serving a term in the state prison may, before the expiration of his term, be tried for such_escape, under the provisions of section 6452, Rev. St. Idaho.

2. Writ of mandate will issue to require a district court to proceed with a criminal case in such court which is triable, when such court refuses to proceed at all with said case. (Syllabus by the Court.)

Application by Samuel H. Hays, attorney general, for a writ of mandate to George H. Stewart, judge of the Third district court, to compel the court to proceed with a criminal case pending before it. Writ granted.

S. H. Hays, Atty. Gen., in pro. per. Silas W. Moody, for defendant.

QUARLES, J. One James Guy, while serving a term in the state prison, and before the expiration of such term, made his escape from said prison. He was retaken, where

upon an information charging him with such escape was filed by the county attorney of Ada county in the district court of the Third judicial district in and for said Ada county, Hon. George H. Stewart, judge. Thereafter, and on March 2, 1900, said county attorney filed in said district court his affidavit showing such facts, and moved that the defendant be brought before the court to plead, and that the case be proceeded with. Said district court denied said motion, refused to order said defendant brought before it, and refused to proceed with the case. To compel the said district court to proceed, plaintiff has commenced this proceeding, and demands the writ of mandate of this court requiring the said district court to take the plea of said defendant, James Guy, to said information, at the next term of said court, and proceed to try said defendant. Annexed to the petition as exhibits are copies of said information, motion, and affidavit. To the petition the defendant files a general demurrer. The only question before us is, can the defendant be tried for such escape before the expira ion of his original sentence?

Section 6152, Rev. St., is as follows: "Every territorial prisoner confined in the territorial prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the teritorial prison for! a term equal in length to the term he was serving at the time of such es ape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison." Construing this statute by the usual rules of construction, it is palpable that it was the manifest intention of the legislature that a pri oner who escapes from the state prison should be speedily tried for such escape, with ut awaiting the termination of his original term of imprisonment. This inten is evi'ent fom the language, "said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison." The action of the district court, if affirmed, would nullify this statute, which was evidently enacted in behalf of the good government of the state prison, to deter prisoners from escaping, and in order to have a speedy trial, while the witnesses, both for the state and the defendant, are accessible. The defendant has no just cause to complain, inasmuch as he is relieved from hay ng to wait, in the county jail, the convening of the district court after his di cha ge at the end of his first term. We think the provisions of this statute are wise, and in the interest of good government. The trial of the defendant on the charge of such e cape in no way interferes with the judgment of conviction under which he is impr's ned. The district court should have ordered the warden of the penitentiary to bring sa d defendant before it, received the defendant's plea, and proceeded with the case in al respects as if the defendant was in the county jail and in the custody of the sheriff, instead of being in

the state penitentiary and in the custody of the warden of the penitentiary. During the trial the defendant should remain in the custody of the warden, the same as he would in the custody of the sheriff if he was confined in the county jail. The writ demanded should be granted and issued, and it is so ordered; no costs to be taxed against either party.

HUSTON, C. J., and SULLIVAN, J., con

cur.

PEOPLE ex rel. GREEN v. COURT OF APPEALS OF COLORADO. (Supreme Court of Colorado. June 4, 1900.) CERTIORARI-JURISDICTION OF COURT OF APPEALS-DECISIONS REVIEWABLE-MISTAKE OF LAW-HABEAS CORPUS.

1. Under Const. art. 6, § 2, giving the supreme court control over all inferior courts. certiorari will not lie to review a decision of the court of appeals on the ground of application of a wrong legal doctrine in reversing a judgment of the district court in a habeas corpus proceeding, and awarding the custody of a child, for its benefit, to relatives of its deceased mother, instead of the father, who was not shown to be disqualified, as there has been no decision of the supreme court announcing a contrary doctrine.

2. Where a court has appellate jurisdiction over a cause, its jurisdiction is not devested by a mistake in the law controlling the decision thereof.

3. The court of appeals has jurisdiction of an appeal from the district court of a habeas corpus proceeding brought to determine the right to the custody of a child as between its father and relatives of its deceased mother, as it is a civil suit, and certiorari will not lie to review its decision thereon.

Certiorari to court of appeals.

Certiorari by the people of the state of Colorado, on relation of Frederick I. Green, against the court of appeals of Colorado. Dismissed.

Henry T. Sale and Morgan Edgar, for petitioner. Patterson, Richardson & Hawkins, for respondent.

PER CURIAM. This is a petition for a writ of certiorari to review a judgment of the court of appeals in the case of Eliza J. McKercher and others vs. Frederick I. Green, brought to that court on a writ of error to a judgment of the district court of Arapahoe county. A proceeding in habeas corpus was instituted in the district court to determine the right to the custody of an infant child, as between the father and the immediate family of the deceased mother. The district court awarded the custody of the child to the father. The court of appeals reversed this judgment, and remanded the case to the district court, with instructions that a decree be entered dismissing the writ, and awarding the custody of the child to respondents, upon the ground that the best interests of the child would be thereby subserved. McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406.

The grounds upon which the right to the