Courts State Courts Jurisdiction-Government Lands.

2. Although a state court is powerless to interfere with the title of the United States to lands, when two parties are seeking to obtain title to government lands, it is the duty of the court to protect the possession of him who apparently has the better right until the controversy can be adjudicated by the agencies appointed by the United States for that purpose. (McComas v. Northern Pac. Co., 639.)

CREDITORS.

See Fraudulent Conveyances, 1-3.

CRIMINAL LAW.

Criminal Law-Harmless Error.

1. Admission of testimony of a girl friend of deceased that she (deceased) had told her that she would stay home because accused was coming to see her that evening was not prejudicial, where without objection there remained in the record, upon answer to crossexamination, a statement of a state's witness that deceased had told some girls that she had received a letter from accused, and could not go out with them because accused was coming to see her that evening. (State v. Farnam, 211.)

Criminal Law-Evidence-Competency.

2. If evidence is competent for one purpose, it cannot be rejected merely because it is not competent for another purpose, although an instruction, limiting its effect, is proper. (State v. rarnam, 211.)

Criminal Law-Evidence-Declarations of Third Persons.

3. Evidence of declaration of third person, tending to show he committed the homicide, is inadmissible. (State v. Farnam, 211.) Criminal Law-Evidence-Real Evidence.

4. The admission in evidence of material objects or allowing inspection of the same, whether offered in evidence or not is within the discretion of the court. (State v. Farnam, 211.)

Criminal Law-Evidence,

5. The refusal six months after the homicide to allow the jury to inspect the feet of a horse upon whose tracks the prosecution relied was not an abuse of the court's discretion as to admitting in evidence material objects or allowing inspection of the same. (State v. Farnam, 211.)

Criminal Law-Justices of the Peace Jurisdiction of Subject Matter cannot be Waived.

6. On appeal from a conviction in a Justice's Court, the only jurisdiction acquired by the Circuit Court is simply that of an appellate tribunal, and once a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the court has no jurisdiction of the subject matter, it is the duty of the court to refuse to proceed further, for jurisdiction over the subject matter cannot be waived. (State v. Goodall, 329.)

Criminal Law-Indictment and Information-Sufficiency of Statement

-Statutes.

7. Where the facts stated in the complaint show that the defendant has done something that the law prohibits, such pleading is sufficient under the statute, and any objection to the information is waived by failure to specifically demur, on the ground that it does not set out the offense with the particularity required by Title XVIII, Chapter 7, of Civ. Code, except as to the jurisdiction of the court or that the complaint does not state facts sufficient to constitute a crime. (State v. Goodall, 329.)

Criminal Law-Evidence-Admissibility.

8. In a murder case, where it appeared that the footprints of a man and woman and a woman's hair-rat were found in the vicinity of the body, evidence that a codefendant, wife of deceased, had been seen by several witnesses near the scene of the crime shortly after a shot bad been heard, that deceased was jealous of a supposed intimacy between defendant and his wife to defendant's knowledge, and of subsequent comparison of the hair-rat with those used by the wife, was admissible as a narration of the circumstances so closely connected with the issue as to be a part of the res gestae and tending to show joint action, and was not evidence of declaration and acts of a co-conspirator before proof of conspiracy forbidden by Section 727, subdivision 6, L. O. L. (State v. Branson, 377.)

Criminal Law-Trial-Statements of Counsel.

9. The action of the court in permitting the district attorney, in his opening statement to the jury, to announce his intention to prove that defendant and codefendant, wife of deceased, had been seen together under peculiar circumstances, although with the purpose of raising a suspicion of adultery and thereby establishing a motive for the killing, was not error. (State v. Branson, 377.)

Criminal Law-Appeal and Error-Review-Instructions.

10. The refusal of a requested instruction fully covered by the given instructions was not error. (State v. Branson, 377.)

Criminal Law-Trial-Instructions.

11. Where there was no evidence of a conspiracy or common design between defendant and codefendant to murder, a qualification of an instruction on alibi that, if defendants were acting together with a common design to bring about the death of deceased, it would not be necessary for both of them to have been actually present at the crime but each is bound by the act of the other in furtherance of the common design, was error. (State v. Branson, 377.)

Criminal Law-Review-Reversal.

12. Although Article VII, Section 3, of the Constitution, as amended in 1911, provides that, if the Supreme Court shall be of opinion that the judgment of the court appealed from was such as should have been rendered in the case, such judgment should be affirmed, notwithstanding any error committed during the trial in a murder case, where the court erroneously instructed the jury as to conspiracy between codefendants, the appellate court may not determine what influence the elimination of the question of conspiracy

would have upon the jury's determination, and judgment must be reversed. (State v. Branson, 377.)

Criminal Law-Evidence Declarations of Conspirator-Statute.

13. Under Section 727, subdivision 6, L. O. L., providing that after proof of a conspiracy the declarations or acts of a conspirator against his co-conspirator relating to the conspiracy may be admitted, declarations of an alleged co-conspirator, jointly indicted and separately tried, were inadmissible, where no evidence of a conspiracy had been offered. (State v. Booth, 394.)

Criminal Law-Instructions-Conspiracy-Evidence.

14. In a trial for homicide under a joint indictment with a separate trial, an instruction upon conspiracy to commit crime, though proper as abstract statement of law, was erroneous, where there was no evidence of a conspiracy or common design on the part of the defendants to take the life of the deceased. (State v. Booth, 394.)

Criminal

Law-Appeal-Record-Transmission.

15. The time fixed by law for the filing of a transcript on appeal cannot be extended by stipulation of the parties without an order of court. (State v. Keeney, 400.)

Criminal Law-Appeal-Record-Transmission.

16. After the expiration of the statutory time for filing copies of the transcript in a criminal case, neither the trial court nor appellate court can extend the time by order nunc pro tunc; the right of appeal being purely statutory. (State v. Keeney, 400.)

Criminal Law-Evidence of Settlement Admissibility.

17. In prosecution for larceny of two horses from a range, statement of a witness that the defendant in an interview with him had "evidenced a desire" to have the case settled out of court if possible was inadmissible, since it does not impute to the defendant any utterance whatever. (State v. McLennan, 621.)

Criminal Law-Evidence of Settlement-Admissibility.

18. It was also inadmissible for the reason that there is nothing inculpatory in wishing to get a case "settled." (State v. McLennan, 621.)

Criminal Law-Appeal and Error-Prejudicial Error.

19. In a prosecution for larceny of two horses from the range, error in the admission of testimony of witness that accused had evidenced a desire to get the case settled out of court if possible was cured by the court's action in withdrawing the testimony from the consideration of the jury. (State v. McLennan, 621.)

Criminal Law-Evidence-Other Offenses Admissibility.

20. In a prosecution for larceny of two horses from the range, evidence that the defendant had changed the brand on the animals and that he was concerned in killing them, although tending to prove distinct crimes separate from the one mentioned in the indictment, was admissible as tending to show a general plan or as an attempt to conceal his offense. (State v. McLennan, 621.)

82 Or.-47

Criminal Law-Trial-Instructions.

21. In a prosecution for larceny of two horses from the range, as the killing of the horse by the defendant might be equally attributed to the commission of malicious mischief, defined in Section 1969, L. O. L., or to a desire to conceal the alteration of a brand, defined by Section 1954, or to the destruction of stolen property to aid in evading the consequences of the larceny, an instruction that, if the jury found from the evidence beyond a reasonable doubt that defendants killed the horses in question for the purpose of concealment, they might consider the same as tending to show the guilt of defendant of the charge of the indictment, was error, since, if the conclusion to be drawn from the circumstances in question is equivocal, it is for the jury alone to say what influence and what direction shall be accorded the evidence on the point. (State v. McLennan, 621.)

Criminal Law-Evidence Judicial Notice.

22. It is common knowledge, not requiring expert testimony, that a putrescent or desiccated carcass has been dead longer than one the flesh of which presents no indications of decay. (State v. McLennan, 621.)

Criminal Law-Evidence—Admissibility.

23. Whether the body is stiff or relaxed, whether the gases of decomposition have distended it or not, the temperature and moisture prevalent at the time, as well as other factors, are phenomena to be considered in estimating how long a body probably has been dead. (State v. McLennan, 621.)

Criminal Law-Experts-Qualification.

24. In a prosecution for larceny of two horses from the range in which it appeared that the horses had been found dead after they were discovered in the possession of the defendant by the prosecutor, in the absence of testimony as to whether the witnesses who had butchered cattle, sheep or hogs had made any systematic or extended observation as to the condition of the carcasses and surrounding circumstances, their opinion as to how long the horses had been dead should not have been admitted. (State v. McLennan, 621.)

Criminal Law-Experts Qualification.

25. In any event they should have described to the jury the appearance and indicia upon which they based their judgment, since even an expert cannot give an opinion upon facts not communicated to the jury. (State v. McLennan, 621.)

See Witnesses, 1, 2.

CRUEL AND INHUMAN TREATMENT.

See Divorce, 3.

CUSTOM AND USAGE.

See Taxation, 3.

DAMAGES.

See Bailment, 4.

See Carriers, 7.

See Principal and Agent, 1, 2, 4.

DEATH.

Death-Presumption of Death from Absence Statute.

1.

By Section 799, subdivision 26, L. O. L., there is a presumption that a person, not heard from by his acquaintances or any members of his family for more than seven years, is dead. (St. Martin v. Hendershott, 58.)

Of Third Persons.

See Criminal Law, 3.

DECLARATIONS,

Of Deceased Person.

See Homicide, 7.

DECREE.

See Appeal and Error, 16, 17.

DEDICATION.

Dedication-Street-Sufficiency of Evidence.

1. In an action to enjoin a city and its contractor from entering upon and excavating a part of plaintiff's land for the improvement of a street, evidence held not to show a dedication of the strip in dispute as a part of the street. (Christie v. Bandon, 481.)

Dedication-Requisites-Intent.

2. The public, whether in the form of a municipality or otherwise, cannot acquire the real property of a private holder by dedication, unless the intent of the owner thus to give his realty to the public is clearly and satisfactorily established. (Christie v. Bandon, 481.) Dedication Statute—Acknowledgment—Signature.

3. A declaration on a recorded plat that the owner extended one of the streets over adjoining land owned by him, but not platted, and dedicated the extension, which was not signed or acknowledged by the owner and was accompanied by no map, was not a statutory dedication. (Lais v. Silverton, 503.)

Dedication Estoppel-Private Way.

4. Where the owner of three tracts of land lying in a row had platted one of the end tracts and dedicated the streets thereon and then sold the other end tract with an agreement to give a way through the center tract on a line continuing one of the platted streets, and attempted to perform that agreement by doing a dedication of such extension on the recorded plat, but the way was very little used or improved, and the two unplatted tracts later came into the possession of the same owner, there was no dedication of the extension of the street by estoppel. (Lais v. Silverton, 503.)

See Adverse Possession, 4.

See Corporations, 1.

See Evidence, 9.

DEEDS.