« ForrigeFortsett »
facts were that, a statute required a notice | vehicle for giving publicity to a proposed to be published "for two weeks successively" sale of bonds, it seems to us that one publicain a newspaper, and it had been published in tion in a leading daily paper is as effective only four issues of a daily paper, and the as one publication in a leading weekly. In court held that the notice had been published this matter, the statute requires the publica"for two weeks successively,” as the statute tion of the notice "for two weeks before any required.
sale of bonds" in one newspaper in the counIn Knox County v. Ninth National Bank, ty where the bonds are to be issued, and in 147 U. S. 91, 13 Sup. Ct. 267, 37 L. Ed. 93, one leading newspaper in the city of Porta part of the syllabus is:
land, and in one leading financial newspaper "An order of court, directing a notice of an in the city of New York. The defendants election which was to take place in 34 days to caused the publication of the notice in the be given by publication in a designated news- Pacific Banker of Portland, Multnomah counpaper for five weeks, must be construed to mean a publication in each of the five weeks."
ty, published weekly, and in the Evening
Telegram, published daily in the city of We conclude that the rule prevailing in Portland, and in the Daily Bond Buyer, pubMassachusetts is a better one than that in lished daily in New York City. The bids for vogue in Nebraska. In Nebraska, it is held the bonds were to be opened on November that where a notice is required to be pub-9, 1914. Said notice was published in each lished for a stated number of weeks, its pub- of said three newspapers on October 24 and lication once a week for the required period October 31 and November 7, 1914. is a compliance with the statute, if it is tice was published once a week for two sucpublished in a weekly newspaper, but that, cessive weeks prior to the time fixed for if it is published in a daily paper, it must be opening the bids and selling the bonds. In published in every issue of that paper dur- fact, said notice was published three times ing the specified period. If a weekly news in each of said newspapers. paper has 10,000 subscribers, and a daily We conclude that the notice, given as statpaper has that number, other things being ed supra, was a compliance with the said equal, we presume that the publication of a statute, and that the defendants have a right notice in the daily paper would impart notice to issue and sell said bonds, and that the to about as many persons as publication plaintiff's complaint does not state facts suffithereof in the weekly paper would.
cient to constitute a cause of suit. The deIn the larger cities, the leading dailies murrer to the said complaint is therefore have more subscribers and reach more people sustained, and the suit is dismissed and the than the weekly press do, we believe. As a decree of the court below is affirmed.
ed. C. A. Irwin, of Denver, and 0. A. Johnson, PEOPLE V. MANDAL. (Cr. 264.) (Dis- of Boulder, for plaintiff in trict Court of Appeal, Third District, Cali- GABBERT, J. Plaintiff in error brought fornia. Oct. 27, 1914.) Appeal from Supe- suit against the Colorado & Southern Railway rior Court, Sacramento County, N. D. Arņot, Company and the Denver, Boulder & Western Judge. Leo Mandal was convicted of pimping, Railroad Company, to recover damages for perand he appeals. Affirmed. Martin I. Welsh, of sonal injuries and destruction of her property, Sacramento, for appellant. U. S. Webb, Atty. caused by the alleged negligence of the defendGen., and J. Charles Jones, Deputy Atty. Gen., ants. At the conclusion of the testimony on the for the People.
part of plaintiff, the defendants moved for a BURNETT, J. On this appeal we have not nonsuit, which was sustained, and the action been favored with any argument, oral or writ- dismissed. The damages for which plaintiff ten. Nevertheless we have examined the rec- seeks to recover were caused by the same exord, and we find that defendant was properly plosion of powder in the circumstances fully charged with the offense designated in
offense designated in the narrated in Willson v. Colorado & Southern statute as “pimping," that sufficient evidence Railway Co., 142 Pac. 174, in which case the of his guilt was received, and that no prejudi- trial court sustained motions for nonsuit. That cial error was committed during the trial. The judgment was reversed, and the cause remandjudgment and order are therefore affirmed.
ed for a new trial, for the reason that from the We concur: CHIPMAN, P. J.; HART, J./ testimony the case should have been submitted
Willson Case, and for the reasons therein stat
ed it was error to grant the motions for nonsuit PEOPLE v. TAGGART. (Cr. 263.) (Dis- and dismiss the action. The judgment of the trict Court of Appeal, Third District, Califor- district court is reversed and the cause remandnia. Oct. 27, 1914.)'Appeal from 'Superior ed for a
ed for a new trial. Judgment reversed. Court, Del Norte County; John L. Childs,
MUSSER, C. J., and HILL, J., concur. Judge. Orville Taggart was convicted of rape, and he appeals. Affirmed. E. M. Frost, of Eureka, for appellant. U. S. Webb, Atty. Gen., Court of Colorado. Dec. 7, 1914.) Department
SHULL v. SHULL. (No. 7743.) (Supreme and J. Charles Jones, Deputy Atty. Gen., for Court of Colorado. Dec. 7, 1914.) Department the People.
1. Error to Logan County Court; Jno. W.
Landrum, Judge. Action between Á. T. Shuli PER CURIAM.
. Defendant was convicted and Leonard Shull, who sues by Alonzo Shull, by a jury of the crime of rape upon one May his next friend. From the judgment, A. T. Bartol, at the time under the age of consent, Shull brings error. Affirmed. Quitman Brown, and was sentenced to imprisonment for the of Sterling, for plaintiff in error. McConley & term of five years. It appears from a fragmen- Hinkley, of Sterling, for defendant in error. tary record sent up to this court that the verdict was rendered on November 12, 1913, and authenticated and properly certified bill of ex
PER CURIAM. In the absence of a duly upon the motion of defendant's attorney sentence was postponed from time to time until ceptions, the questions raised by plaintiff in December 8, 1913. The record of that day error cannot be considered. The judgment of reads: "Defendant and attorney in court.
Judgment afthe county court is affirmed. De
firmed. fendant informs court he has no further use for an attorney. E. M. Frost, attorney, makes address to court and retires from case. Passing of sentence was postponed from time to (Criminal Court of Appeals of Oklahoma. Nov.
CHAMBLISS V. STATE. (No. A-2102.) time thereafter until February 24, 1914. It appears that on that day defendant withdrew kogee County; Farrar L. McCain, Judge. Ed
21, 1914.) Appeal from Superior Court, Mushis motion for a new trial and his plea of not Chambliss was convicted of a violation of the guilty and entered a plea of guilty. Thereupon
prohibitory law, and appeals. Affirmed. the court passed sentence upon him. We find Crump, Črump & Garrett, of Muskogee, for in the record what purports to be a notice of plaintiff in error. Chas. West, Atty. Gen., and appeal from the judgment of February 24, 1914, C. J. Davenport, Asst. Atty. Gen., for the State. signed, "E. M. Frost, Attorney for Defendant,
PER CURIAM. Plaintiff in error was tried and Henry L. Ford, of Counsel, for Defendant, to which is attached an affidavit of service upon the unlawful possession of 50 gallons of whisky
and convicted on an information which charged the district attorney by mail, and marked, “Filed March 6, 1914. W. L. Nichols, Clerk.” No and one gallon of wine, with the intention transcript of the phonographic report of the of selling the same, and on the 5th day of trial has been sent up.
There is nothing before July, 1913, in accordance with a verdict of the court for review, if it be admitted that an 60 days’in the county jail, and to pay a fine
the jury, he was sentenced to be confined for appeal was properly taken, except the minute entries of the trial kept by the clerk and the amination of the record, our conclusion is that
of $250, and the costs. Upon a careful exjudgment of conviction. No error appearing, this appeal is without merit.
The informathe judgment is affirmed.
tion is sufficient, and it appears that the plaintiff in error had a fair trial. The judgment
of conviction is therefore affirmed. McCAVE v. COLORADO & S. RY. CO., et al. (No. 8075.) (Supreme Court of Colorado. Dec. 7, 1914.) Error to District Court, Boul- COFER v. STATE. (No. A-2229.)
(No. A-2229.) (Crimder County; James E. Garrigues, Judge. Ac- inal Court of Appeals of Oklahoma. Nov. 21, tion by Mary McCave against the Colorado & 1914.) Appeal from County Court, PottawaSouthern Railway Company and
and another. tomie County; Hal Johnson, Judge. Oscar CoThere was a judgment of dismissal, and plain- fer was convicted of a violation of the prohibitiff brings error. Reversed, and cause remand- I tory law, and appeals. Appeal dismissed. W. P. Langston, of Shawnee, for plaintiff in error. tion. The instruction given by the court did Chas. West, Atty. Gen., and C. J. Davenport, not. The judgment is reversed, and the cause Asst. Atty. Gen., for the State.
remanded for a new trial. PER CURIAM. Plaintiff in error was in the court below convicted of the offense of having the unlawful possession of intoxicating liq-(Criminal Court of Appeals of Oklahoma. Nov.
PASTORIA v. STATE. (No. A-2119.) uor with the intent to sell the same. Judgment | 21, 1914.) Appeal from County Court, Pittswas entered on the 19th
day of August, 1913, burg County; B. P. Hammond, Judge. Pete
to in county jail for 60 days and to pay a fine of Pastoria was convicted of violating the prohib$250 and costs. He attempted to appeal from itory law, and appeals. Reversed. J. W. Crow the judgment by filing in this court on April 8, and J. R. Miller, both of McAlester, for plain1914, a petition in error with case-made at- J. Davenport, Asst. Atty. Gen., for the State.
tiff_in error. Chas. West, Atty. Gen., and C. tached. The Attorney General has filed a motion to dismiss the appeal on the ground that
PER CURIAM. Plaintiff in error was tried a petition in error was not filed in this court and convicted on an information which charged until long after the expiration of the time al- that he did unlawfully have in his possession lowed by law within which to take such ap- intoxicating liquor, to wit, about 16 gallons of peal. In misdemeanor cases 120 days is the Choctaw beer, with the intent to sell the same, maximum time within which to take an appeal. and his punishment assessed at a fine of $50, In this case more than six months had elapsed and 30 days' confinement in the county jail. after the judgment was entered before the peti-The first assignment of error is that the court tion in error was filed in this court. As the erred in overruling defendant's application for court failed to acquire jurisdiction, the motion continuance. The application was based on the to dismiss must be sustained. The purported absence and sickness of the wife of the defendappeal is dismissed, and the case remanded. ant, who had just given birth to a child and
could not attend court, and that, if present, she would testify that the Choctaw beer did not be
long to the defendant, but to two other Italians, MERCHANT V. STATE. (No. A-1658.) who were building a blacksmith shop for the (Criminal Court of Appeals of Oklahoma. Nov. defendant, and on the absence of Alphonso Lan28, 1914.) Appeal from County_Court, Steph-zei, and Edward Zaccanti, the parties who were ens County; W. H. Admire, Judge. E. E. working for the defendant, building the shop, Merchant was convicted of violating the pro- and who, if present, would testify that the hibitory law, and appeals. Reversed. Womack Choctaw beer found there belonged to them, & Brown, of Duncan, for plaintiff in error. that they made it for their own use, and that Smith C.' Matson and C. J. Davenport, Asst. the defendant had no interest therein. The recAttys. Gen., for the State.
ord shows that the defendant had these two PER CURIAM. The plaintiff in error, E. E. witnesses in attendance the day before the case Merchant, was convicted at the January, 1912, was called for trial, that at that time it was term of the county court of Stephens county agreed by and between the county attorney and on a charge of unlawfully conveying intoxicat- the defendant's attorneys that the state would ing liquor from one place in said county to an- not be ready for trial on account of the absence other place therein, and his punishment fixed of the sheriff who made the seizure, and that the at imprisonment in the county jail for a period case would be passed, and relying thereon the of 30 days and a fine of $50. It appears from defendant excused the witnesses, and they left the evidence that the intoxicating liquor in and went home. When the case was called for question was an interstate shipment of beer trial the next day, the court refused to recogfor individual consumption. It is argued that nize the agreement as made, stating that he the court erred in giving the following instruc- would require the state to make a showing in tion: “Second. And
in this connection I charge open court why the case should not be tried. you that if you believe from the evidence in We are inclined to think that the defendant this case beyond a reasonable doubt that the had a right to rely on the agreement, and that defendant conveyed intoxicating liquors as the court exceeded its discretionary power in charged against him in the information herein, overruling the application for continuance. The in Stephens county, Okl., on or about the time next assignment is "that the evidence is insuffialleged in the information, from the place and cient to support the verdict." We think this to the place alleged, in the city of Marlow, as assignment is well taken. There is no evidence charged, then I charge you that you should find tending to show that the so-called Choctaw beer the defendant guilty, and so say by your ver- found on the defendant's premises was intoxidict. In such event you may assess his punish- cating liquor. On the other hand, the testimony ment at a fine of not less than $50, nor more of the witnesses for the state tended to show than $500, and by imprisonment in the county that it was nonintoxicating. For the reasons jail for not less than 30 days nor more than stated, it is ordered that the judgment be and 6 months, as you see proper, but you are not the same is hereby reversed. required to assess the punishment. In lieu of this instruction counsel requested the following instruction: "Gentlemen, in this case
SEARS v. STATE. (No. A-2157.) (Crimthe state alleges that the defendant conveyed inal Court of Appeals of Oklahoma. Dec. 12, intoxicating liquors from block 114 to block 115 1914.) Appeal from County Court, Seminole in the city of Marlow, Okl., and in this con- County; A. S. Norvell, Judge. John' Sears was nection I charge you that it is the duty of the convicted of violating the prohibitory law, and state to prove such conveyance from said appeals.
conveyance from said appeals. Affirmed. J. A. Patterson, of Wewoblock 114 to said_block 115 beyond a reason- ka, for plaintiff in error. C. J. Davenport, able doubt; and I further charge you that in Asst. Atty. Gen., for the State. the consideration of this case you cannot con- PER CURIAM. Plaintiff in error, John sider any other place or places from which to Sears, was convicted at the July, 1913, term of which any conveyance might have been made, the county court of Seminole county on a charge if any conveyance has been shown, save and of selling intoxicating liquor, and his punishexcept from the place to the place alleged in ment fixed at a fine of $50 and imprisonment in the information in this case." Without con- the county jail for a period of 30 days. The ap
” suming time in the discussion of other assign- peal was filed in this court on December 31, ments, we are of opinion that the court should 1913. The cause was assigned for hearing at have given the instruction requested in lieu of the November, 1914, term thereof. No briefs the one he did give. The instruction requested have been filed on behalf of plaintiff in error, ment. The Assistant Attorney General, in quash the indictment. Geo. Livesey, of Bellingopen court, moved an affirmation on the ground ham, for appellants. that the appeal had not been properly prosecut- PER CURIAM. On March 11, 1914, in the ed, and had been abandoned. The motion is superior court of Whatcom county, defendants sustained. The judgment of the trial court is were convicted of maintaining a common nuitherefore affirmed. Mandate ordered forthwith. sance, and they now appeal from the final judg.
ment and sentence entered upon the verdict of
the jury. Appellants were indicted by a grand FRANCIS V. THIENES. (Supreme Court
jury, and moved to quash the indictment for of Oregon. Dec. 22, 1914.) Department 2.
the reason that the grand jury was not sumAppeal from Circuit Court, Lane County; L. T. Harris, Judge. Action' by T. M. Francis moned, drawn, or impaneled as required by
Action by I. M. Francis law. Error is assigned upon the denial of this against W. c. Thienes. Judgment for the plain-motion. It has been stipulated by the prosecuttiff, and defendant appeals. Appeal dismissed, ing attorney and appellants' counsel that the H. E. Slattery, of Eugene, for appellant. Fred E. Smith, of Eugene, for respondent.
grand jury which returned the indictment here
in was the same grand jury_that returned the PER CURIAM. Upon the hearing of this indictment in State ex rel. Murphy v. Superior case it appeared that all the questions upon Court for Whatcom County, 144 Pac. 32. which the defendant relied upon this appeal that case we held that the grand jury had not were settled and determined by a decree in the been drawn and impaneled as required by law, . equity suit of W. C. Thienes v. I. M. Francis In view of the stipulation above mentioned, and and A. M. Brewer, in which an opinion was upon authority of the Murphy, Case, and for heretofore rendered by this court (138 Pac. the reasons therein stated, the judgment of the 845), in which suit W. C. Thienes filed a com- lower court is reversed, with directions to quash plaint in the nature of a cross-bill in equity: the indictment heretofore filed against appelTherefore, there being no question presented lants. for review or consideration, and it remaining only for the parties to carry out the decree heretofore rendered, this action should be dis- STATE Y. HARDIN. (No. 12543.) (Sumissed; and it is so ordered,
preme Court of Washington. Dec. 15, 1914.) Appeal from Superior Court, Whatcom Coun
ty; Guy C. Alston, Judge. A. E. Hardin was BAUER V. BAUER. (No. 12117.) (Su- convicted of maintaining a common nuisance, and preme Court of Washington. Dec. 15, 1914.) he appeals. Reversed, with directions to quash Department 1. Appeal from Superior Court, the indictment. John A. Kellogg and Howard King County; Everett Smith, Judge. Action C. Thompson, both of Bellingham, for appellant. for divorce by Marie Katherine Bauer against
PER CURIAM. On April 11, 1914, in the Jacob Bauer. Decree for defendant, and plaintiff appeals. Affirmed. Frank M. Egan and superior court of Whatcom county, defendant George A. Meagher, both of Seattle, for appel- was convicted of maintaining a common nuilant. Peters & Powell, of Seattle, for respond sance, and he now appeals from the final judgent.
ment and sentence entered upon the verdict of PER CURIAM.
the jury. Appellant was indicted by a grand juThis is an action for di- ry, and moved to quash the indictment for the vorce.
, After a full hearing in the court below, reason that the grand jury was not summoned, the prayer of the plaintiff's complaint was de- drawn, or impaneled as required by law. Error nied. There is no question of law involved. is assigned upon the denial of this motion. It The court below decided that plaintiff's evi- has been stipulated by the prosecuting attorney dence was insufficient to warrant a decree. A and appellant's counsel that the grand jury
A majority of this department are of opinion that which returned the indictment herein was the the findings and decree of the lower court same grand jury that returned the indictment should not be disturbed. Affirmed.
in State ex rel. Murphy v. Superior Court for Whatcom County, 144 Pac. 32. In that case
we held that the grand jury had not been drawn STATE v. GERI et al. (No. 12385.) (Su- and impaneled as required by law. In view of preme Court of Washington. Dec. 15, 1914.) the stipulation above mentioned, and upon auAppeal from Superior Court, Whatcom Coun- thority of the Murphy Case, and for the reą. ty; Ed. E. Hardin, Judge. Raffael Geri and sons therein stated, the judgment of the lower another were convicted of creating a nuisance, court is reversed, with directions to quash the and they appeal. Reversed, with directions to indictment heretofore filed against appellant.
END OF CASES IN VOL. 144