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416, and authorities therein cited. The at- | prosecuting witness that between the hours tachment being actually released, such release of 2 and 3 o'clock in the morning of Decemwas the agreed consideration for the note. ber 6, 1905, he was addressed from the out

We find no error in the record, and the side of his cabin on the Greenbrae drawjudgment is affirmed.

bridge, and on opening the door a little way

he was seized by the throat and dragged We concur: SIIAW, J.; TAGGART, J. outside by a man named Woods, and that

the defendant thereupon went through his

pockets; that they went inside the cabin, (4 Cal. App. 432)

and the defendant, after throwing its conPEOPLE v. FITTS. (Cr. 72.)

tents into confusion, came outside, and while (Court of Appeal, First District, California. holding the witness tight in his grasp deNov. 23, 1906.)

manded with a threatening gesture that he 1. ROBEERY – ASSAULT WITIL INTENT - IN- | give up his sack of gold; that thereupon le STRUCTION AS TO SIMPLE ASSAULT.

was pulled around by Woods and struck upOn a prosecution for assault with intent to commit robbery, there being no evidence of

on the temples, by which he was rendered assault except in connection with the attempt

unconscious for about two hours. Woods, to commit robbery, no instruction as to simple who was a witness for the defendant, testiassault need be given,

fied that he and the defendant were together 2. CRIMINAL LAW - HARMLESS ERROR - IN

during the whole of the night of December STRUCTION. The giving of an instruction that, if any

5th in a box car behind the freighthouse in of the witnesses willfully swore falsely as to San Rafael, and that neither of them was any material matter, it is the duty of the jury at any time that night at Greenbrae, or on to distrust their entire testimony, if violative of the inhibition of the Constitution against

the Greenbrae drawbridge. charging with respect to matters of fact, is

1. One of the grounds urged in support of harmless; it being as to mere commonplace mat the appeal is the refusal by the court to inters within the general knowledge of the jurors.

struct the jury, as requested by the defend3. SamE-ARGUMENT OF COUNSEL-REFERENCE

ant, that the charge in the indictment emTO DEFENDANT's Not TESTIFYING. Under Pen. Code, $ 1323, declaring that

braces two offenses; that is, an assault with neglect of a defendant to be a witness cannot intent to commit robbery, and an assault in any manner prejudice him or be used against

which is commonly termed a simple assault. him on the trial, it is not ground for reversal

The only evidence before the jury of the asthat the prosecuting attorney merely told the jury that the person they were trying was not

sault by the defendant was that of the W. (indicted with defendant) who took the stand, prosecuting witness, and, if the jury believed but F., the defendant, who did not take the

his testimony, the defendant made no assault stand, as to which fact he was not permitted to comment and should say nothing; the court hav

upon him except in connection with his ating then also told the jury that it was the tempt to commit robbery. The testimony of legal right of defendant to remain silent, and the witness Cleary, upon which the appellant that no presumption should be indulged in

claims the right to this instruction, did not against him because of his failure to take the stand.

purport to describe the occurrence, but was [Ed. Note.-For_cases in point, see Cent. Dig. merely a statement of what the prosecuting vol. 14, Criminal Law, $ 1672.]

witness had told him. If the testimony of 4. SAME-MATTERS NOT SUSTAINED BY Evi Woods should be believed by the jury, there DENCE.

was no evidence of even a simple assault on W., indicted, but not tried, with defen int

the part of the defendant. Under the evidence having testified that, when they arrived at a certain place, the evening after they were claim

before them the only verdict which the jury ed to have committed the offense, they met a could render was either one of guilty as fellow named Gilluly, the mere statement of charged in the indictment or of acquittal. the prosecuting attorney that defendant on

The court was therefore justified in refusing reaching such place the evening after the assault "met the Gilluly gang--the Gillulys are

the instruction, upon the ground that there well known in Santa Rosa"-is harmless, though was no evidence before the jury to which it there was no evidence of their being so known.

could refer. People v. Charez, 103 (al. 407, Appeal from Superior Court, Marin Coun

37 Pac. 389; People v. Lopez, 135 Cal. 23, ty; T. J. Lennon, Judge.

66 Pac. 965; People v. Swist, 136 Cal. 520,

69 Pac. 223. Terence Fitts appeals from a conviction. Affirmed.

2. The court instructed the jury: "If any

of the witnesses examined before you have Ross Campbell, for appellant. U. S. Webb,

willfully sworn falsely as to any material Atty. Gen., for the People.

matter, it is your duty to distrust their en

tire testimony." It is contended by appelHARRISON, P. J. The defendant was in lant that by this instruction the court viodicted for an assault with intent to commit lated the constitutional inhibition against robbery, and upon the trial thereof was con charging the jury with respect to matters of victed and sentenced to a term in the state fact. While it is held that in so far as the prison. From this judgment and an order statute "requires" such an instruction to be denying his motion for a new trial he has given it is unconstitutional, it is at the same appealed.

time said that the giving of such instruction It was shown by the testimony of the will not be held to be reversible error, since

by it the jury are instructed as to mere com Misconduct on the part of the district atmonplace it.itters within their general torney is also assigned for another remark knowledge. People v. Wardrip, 141 Cal. 229, in his argument to the jury. Woods in his 74 Pac. 744.

testimony stated that after they had reached 3. The witness Woods was indicted jointly Santa Rosa on the 6th of December they with the defendant, but the defendant was "met a fellow named Gilluly."; and, in alseparately tried, and Woods was a witness dressing the jury in reference thereto, the in his behalf. In his closing argument to district attorney said, "The (lefendant, on the jury the district attorney, while com reaching Santa Rosa the evening after the menting upon the testimony, said to them: assault, met the Gulluly gang--the Gullulys "You are trying the defendant Fitts and not are well known in Santa Rosa." The propWoods, and we have shown that he (Fitts) is sition of the appellant that these remarks the one that ran his hand in Feliz Sands' were prejudicial to him is submitted withpocket, and I don't want you gentlemen of out any argument. No reference is made the jury to become confused as to which is therein to the charge upon which the defendthe person on trial in this action and whose ant was tried; and, while there was no evicase you can alone consider. The codefend dence before the jury that the Gullulys are ant Woods, the one who took the stand, is well known in Santa Rosa, it is evident that not the defendant on trial. The person on their verdict could not have been affected by trial is the defendant Fitts—the one who this statement. did not take the stand. I am not permitted The judgment is affirmed. to comment on his failure to take the stand, nor shall I say anytoing about that.” The

We concur: HALL. J.; COOPER, J. attorney for the defendant objected to his reference to the fact that the defendant did not take the stand, and the court thereupon

(29 Nev, 451) instructed the jury that it was the legal right BERRY et al. 5. EQUITABLE GOLD MINof the defendant to remain silent, and that

ING CO. (No. 1,708.) they were to indulge in no presumption (Supreme Court of Nevada. Sept. 4. 1907.) against him because of his failure to take

1. APPEAL RECORD FILING ORIGINAL the stand in his own behalf.

-COPY. It is contended by the defendant that the Two duplicate volumes entitled "statement above remarks of the district attorney are in

on appeal" in the handwriting of the clerk of

the district court were tiled September 8. 1906. violation of section 1323 of the Penal Code,

They were identical, except that one of them and constituted misconduct on his part for was indorsed "copy," and this instead of the which the verdict should be set aside. Sec original was the one that was settled by the

district judge. Held, that the certification and tion 1323 declares that the neglect or refusal

settlement of the copy instead of the original of a defendant to be a witness "cannot in was not a fatal defect, but that the copy could any manner prejudice him or be used against be considered as an original. him on the trial or proceeding." We are of

2. SAME-Motiox TO DISMISS-TIME. the opinion that the above reference of the

A second motion to dismiss an appeal on

grounds not previously urged, not made before district attorney to the defendant was for

the day of the hearing. nor until after respondthe purpose of directing the attention of the ent had filed his brief, was too late. jury to testimony which particularly affected [Ed. Note. For cases in point, see Cent. Dig. him rather than Woods, and cannot properly

vol. 3, Appeal and Error, $ 3149.] be considered as indicating a purpose on his

3. JUDGMENT--ORDEP. FOR JUDGMENT-EXCEP

TION-TIME OF TAKIxG. part to "use" against the defendant the fact

Where no order was made directing the of his not being a witness. The section does entry of judgment at the time a verdict was not declare that no reference to such fact rendered, but defendant's counsel took an excepshall be made, or that any reference, how

tion as soon as a nunc pro tunc order was made,

and he became aware of the direction that judgever innocent or inadvertent, shall be a

ment be entered, the exception was in time. ground for setting aside the verdict. It is 4. APPEAL - JUDGMENT ROLL — CONTENTS only when the fact is "used against" the de SUMMOxs. fendant that such result should follow.

The summons is not an essential requisite

of a judgment roll to sustain an appeal, where There is an expression in an opinion given the judgment was rendered after trial at which by the court for the Third appellate district defendant appeared. in People v. Morris (Cal. App.) 8 Pac. 463, (Ed. Note.-.For cases in point, see Cent. Dig. to the effect that “it is error to allude in any

vol. 3, Appeal and Error, $ 2284.] way to the fact that the defendant had re

5. JUDGMENT-ENTRY BY CLERK-AUTHORITY, frained from testifying," which may have

A decree for a perpetual injunction entered

by the clerk was void on its face, where it was been proper if limited in its application to

unsupported either by the verdict rendered or the language of the counsel which was used by an order of the judge directing its entry. in that case, wherein the fact was directly [Ed. Note.-.For cases in point, see Cent. Dig. "used against" the defendant; but, if in

rol, 30, Judgment, $ 506.) tended as the declaration of a rule or a con

6. TRIAL-GENERAL AND SPECIAL V'ERDICT. struction of the provision in the section, it

Where there is a general and a special ver

dict. if either has force, the latter controls. is an enlargement of the language of the

[Ed. Note. For pases in point, see Cent. Dig. statute which in our opinion is unauthorized. vol. 46, Trial, 857.]

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7. WATERS AND WATER COURSES-APPROPRIA. the same excepting that one is indorsed TION OF WATER-BENEFICIAL USE.

"copy," and the motion to dismiss is upon Where plaintiffs claimed that S. had appropriated the water of a spring and had deeded

the ground that this, instead of the original, the same to them and sought an injunction is the one that has been settled by the disperpetually enjoining defendant from interfer trict judge. On the hearing in this court ing therewith, plaintiffs' right to the water was limited to the amount beneficially appropriated,

we directed that the latter might be filed. so that the jury having found that S. appropri

or that the other copy could be indorseilliy ated 20 gallons a day, plaintiffs were only en the district judge and filed. The volumes hietitled to that amount and could not restrain

ing the same, and both equally showing the defendant's use of the excess.

proceedings in the trial court, the fact that Appeal from District Court, Storey County. the certification of settlement was attached

Suit by T. Berry and others against the to the one marked "copy" after this court Equitable Gold Mining Company. From a had directed that the statement be settled we judgment in favor of complainants and from think is immaterial and should not deprive an order overruling defendant's motion to the appellants of the right of appeal or of set it aside, it appeals. On motion to dis presenting their case. As the one market miss appeal. Denied. Judgment set aside. "Coluy" bears the filing and signature of the Case remanded.

clerk and the certificate and signature of C. E. Mack, for appellant. F. N. Huf- the judge, it may be considered as the origfaker, for respondents.

inal and the indorsement of the word "coluy"

as a misnomer. TALBOT, C. J. The plaintiffs brought Respondents made a second motion to disthis action by a complaint, alleging that the miss the appeal upon other grounds, Part water of a spring had been appropriated by of which had been determined in the manJack Shepard and by him deeded to them, damus proceedings, but this motion, under and demanded an injunction perpetually en the court rule, comes too late, and the right joining the defendant from interfering there to make the same is waived because it was with. The case was tried by a jury, which not made before the day of the hearing nor brought in a verdict "in favor of the plain until after respondents had file their brief. tiffs," and found special issues, and among It is said that no question regarding the these that Shepard bad appropriated 20 gal- ¡ sufficiency of the order of the district judge lons per day of the water. At the time of directing that judgment be entered in accordreturning the general verdict the jury had ance with the verdict can be considered, beoniitted to find upon the special issues which (ause no exception was taken to the order at had been submitted to them, and the court the time it was made upon the rendition of bad them retire and find upon these special the verdict. It is true that no exception issues. The next day the clerk entered a was so taken, because the order was not then judgment, reciting and premised upon the heard by counsel or the clerk ; but, when the general verdict in favor of the plaintiffs for nunc pro tunc order was made, and as soon the water, and directing that the defendant as counsel was aware of the direction that be perpetually enjoined from interfering with judgment be entered, exception was taken, it. In reference to this entry it is stated in and due specification of error and the prothe record that "the county clerk, of his own ceedings of the court are contained in the motion, without any order from the court, record. without any findings from the court, without It is also claimed that any defect in the any order of the court adopting said findings judgment cannot be considered for the reason of the jury, entered judgment. Many months that by omission of the summons there is later the defendant moved to set aside this no judgment roll before this court. Although judgment. The court denied the motion, and the statute directs the clerk to include the directed the entry nunc pro tune of an order i summons as part of the judgment roll, it is for judgment in accordance with the verdiet. not necessary that there should be one in all The facts are more particularly stated in the cases. The object and purpose of the sulldecision on the proceedings in mandamus to mons is to bring defendants into court, und require the settlement of the statement on the practice act provides that they may appor appeal. State v. District Judge (Xev.) 88 without summons, and if they so appear no L'ac. 33:.

reason exists why they may not have their The notice and undertaking on appeal cases reviewed on ajreal in the same manner state that this appeal is from the judgment as in others where there may be a summons and from the order of the distri«t court over- ; in the case. In fact, the summons is imperruling defendant's motion to set it aside. · ative only in default cases in which no appeal Respondents moved to dismiss the appeal up lies. Here we have before us all the papers on the ground that no statement had been directed to be placed in the judgment roll settled. There are two volumes duplicates, excepting the summons, which is not essenentitled "Statement on Appal," both indlors tial, as the defendant was in (ourt and the ed as filecl September S, 1.8i, bx, and shown judgment itself is sufficient without reference to be in the handwriting of the clerk of the to any other paper to indicate its invalidity. district court. These appear to be identically, It shows that it was entered by the clerk

1

upon the verdict, and that it attempted to has been succeeded in office. Jerrett v. Magrant relief by perpetual injunction, which un han, 20 Nev. 90, 17 Pac. 12. der the statute he was not authorized to Respondents' motions to dismiss the appeal give. It is not signed by the judge, and con are denied, the judgment is set aside, and, tains no reference to any order of the court. if within 20 days after filing of the remittiIf the order entered nunc pro tunc be con tur the plaintiff's file their written consent sidered, it directs the entry of the judgment that judgment be entered in favor of them in accordance with the verdict, without speci for the use of 20 gallons per day of the Wilfying the general or special verdict.

ter of the spring in controversy and for costs For respondents it is argued that they had of suit and for a perpetual injunction rea constitutional right to a jury, and were en straining defendant and its agents and emtitled to the result of the verdict and to have ployés from interfering with the free use a judgment entered upon it by the clerk. If by the plaintiffs of that quantity of the water this were true, and the case were not one in per day, a decree will be so entered by the equity (Duffy v. Moran, 12 Yev. 97), still nei clistrict court, but otherwise a new trial will ther the verdict nor the order of the judge

be had. directs the entry of the decree for perpetual injunction which was made by the clerk.

XORCROSS and SWEEXCY, JJ., concur. Consequently, and too clearly for argument, this judgment shows upon its face that it is void and cannot be sustained upon any legal

(73 Kan, 414) principle, because it was entered by the clerk,

BARVETT V. SCHAD. a ministerial officer who could not act judi

(Supreme Court of Kansas. Jan. Term, 1900.) cially in this regard and who was not directed to enter such decree by any order of the

Petition for rehearing. Denied. court, and was not, and could not have been,

For former opinion, see 85 Pac. 411. authorized to enter it by the verdict of the jury. On a motion for that purpose the

SMITH, J. All the questions raised , by court could bare set aside this decree as hav.

the defendant in error in his petition for a ing been inadvertently entered by the clerk

rehearing were considered and determined and unauthorized, and the appeal is properly

adversely to him before the decision was

handed down. from his order in that regard and from the

It may be well, however, to judgment as presented with the papers essen

state more clearly the ground upon which tial to be brought here in the judgment roll.

the first paragraph on the syllabus is basell, As the plaintiffs base their claim upon an

as it seems to be misapprehended.

It is conceded that a district judge should appropriation alleged to have been made by

make no order allowing an injunction until al Shepard, they are limited to the amount

suit for an injunction has been commenceal which was beneficially used by him. The ju

in his court. A suit is commenced by filing ry found that this was 10 gallons for mining

a petition and causing a summons to be isand 10 gallons for domestic purposes each

sued thereon (Code, $ 57; Gen. St. 1901, S day. Where there is a general and a special

1187). and, when an injunction is allowedl at verdict, if either has any force, the latter

the commencement of the suit, the clerk controls. If the jury desired to give the

should indorse upon the summons “injuncplaintiffs all the water flowing from the

tion allowed" (Code, $ 243; Gen. St. 1:001, spring or more than 20 gallons per day be

$ 1690). Thus it appears the summons should cause they found that their grantor Shepard

Issue before the making of the order, and had used that quantity, nevertheless the law the order should be made before the issuwould limit the right to the amount bene

ance of the summons. The difficulty is usuficially appropriated. By directing judgment

ally overcome by first filing the petition, then in accordance with the verdict, it may be as

procuring the order, and then procuring the sumed that the district court approved of the issuance of summons with the indorsement. finding of the jury and found in favor of an This solution, however, is more apparent appropriation by Shepard to the extent of at

than real. least 20 giullons per day. The defendant The contention that there was a defent of complains because the decree was not modi parties defendant in railing to join the judg. fied so as to allow the plaintiffs this quantity. ment creditor with the sheriff was not overThe judgment being void because its nature looked, although not mentioned in the des was such that its entry was unauthorized cision. The judgment creilitor was a propby the clerk, the condition of the case is er party, but was not a necessary party. Ile not so materially different than it would be

could make any defense he had through his if no decree had been entered. At least, agent, the sheriff, or, if he bad desireil, le with the consent of the parties, the findings could have asked, by motion, to be miude a may be considered a correct determination party, and such application, in the discretion of the facts and as warranting the entry of the court, could have been allowed. The of a proper decree upon them by the district. sheriff, however, could have made any dlecourt, even if the judge who tried the case fense which he and the creclitor, jointly or

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severally, could have made. Hence the cred were introduced in evidence were not filed with itor was not a necessary party. Taylor v. the clerk of the trial court. Hosick, Adm'r, etc., 13 Kan. 518, 526.

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, 2318.] The petition for a rehearing is denied. All the Justices concurring.

Appeal from Circuit Court, Clatsop Coun

ty; Thomas A. McBride, Judge. (51 Or. 457)

Action by George W. Sanborn against SANBORN V. FITZPATRICK et al. Nora Fitzpatrick and others. From a judg. (Supreme Court of Oregon. Sept. 3, 1907.)

ment in favor of plaintiff, defendants appeal, 1. APPEAL-BOND – JUSTIFICATION OF SURE

On motion to dismiss the appeal and to TIES.

strike from the files the evidence taken in Where an appeal bond was conditioned that the trial court and exhibits. Denied. appellants and their sureties would pay all

This is a motion to dismiss the appeal, damages, costs, and disbursements that might be awarded against them on appeal, it was suf accompanied, in the same instrument, with ficient and not defective, as limiting the lia a motion to strike from the files all of what bility to $500, because the sureties only quali- | purports to be tlfe evidence taken in the court fied in that sum,

below, including the exhibits. The motion 2. SAME-REPORT OF EVIDENCE REPORTER'S CERTIFICATE.

to strike is urged on the ground that (1) it Where the evidence was taken in short does not appear that any of the exhibits hand by an official reporter, whose duty it was were received in evidence, nor the documents to report the entire proceedings, a certificate

purporting to be the exhibits are all the exto the reporter's transcript that it was a full,

hibits introduced in evidence at the trial; true, and correct transcript of the shorthand notes taken at the trial and of the whole thereof (2) that the exhibits are not attached to, nor should be construed as certifying that it includ form any part of the testimony; (3) that ed the entire proceedings had at the trial.

they are not properly identified; (4) that the (Ed. Note. For cases in point, see Cent. Dig.

exhibits were not filed in the office of the vol. 3, Appeal and Error, 88 2698, 2699.]

clerk of the county where the cause was 3. SAME-RECORD-IDENTIFICATION BY JUDGE tried; (5) that the volume purporting to con

B. & C. Comp, $ 827, provides that in suits in equity which have gone to a decree the trial

tain a transcript of the shorthand reporter's judge shall identify the testimony and exhibits notes of the proceedings is not properly cerwithin 10 days thereafter, and that, where the tified, in that it does not appear from the cerevidence is taken by a stenographer, he shall extend the same and certify to its correctness,

tificate of the official reporter that the tranand that all documentary evidence shall be pre

script certified to contains all the testimony, served and incorporated in the report of the evidence, and proceedings had at the trial; evidence by the referee. Held, that the evidence and (6) that all the exhibits and documents is only required to be identified by the judge when the case is tried before a referee, and,

are not attached to nor made a part thereof. on a trial before the court, the transcript of The certificate to the testimony filed is as the evidence is to be certified by the stenog. follows: "State of Oregon, County of Clat. rapher.

sop—Ss.: I, Charles E. Runyon, official re 4. SAME-CERTIFICATION OF EXHIBITS.

porter of the Fifth Judicial District of the B. & C. Comp. $ 827, requires the testimony to be certified by the official stenographer State of Oregon, do hereby certify, that the where the case is tried before the judge and a above and foregoing is a full, true and corstenographer, and B. & C. Comp. § 553, and

rect transcript of my short hand notes taken Supreme Court Rule 1 (91 Pac. vii), declare that.

at the trial of the above-entitled cause, and when an appeal is from a decree, the clerk shall attach together the testimony, depositions,

of the whole thereof. Witness my hand this and other papers on file in his office containing 29th day of January, 1907. Chas. E. Runthe evidence offered at the trial, and deliver the

yon.” The exhibits are bound in a separate same to appellant, taking his receipt therefor in duplicate, which depositions, exhibits, and other

volume, and have affixed thereto the followpapers may be certified by the clerk. Heid ing certificate: "State of Oregon, County of that, where the case is tried before the trial Clatsop-ss.: I, J. C. Clinton, county clerk judge and an official stenographer, the exhibits

in and for said county and state, and clerk may be properly certified by the clerk without a certificate from the trial judge or the re

of the circuit court in and for said county, porter.

hereby certify that the hereto attached Ex[Ed. Note.-For cases in point, see Cent. Dig. hibits marked 'Plaintiff's Exhibits A, B, C, vol. 3, Appeal and Error, $ 2714.]

D, E, F, G, H, I, J, K, L, M, and Defendants' 5. SAME-FORM OF RECORD.

Exhibits A, B, C, D, E, F, G, H, I, K, L, B. & C. Comp. & 53 (Supreme Court Rule

M, N, P,' are the original exhibits offered on 1 [37 Pac. v]), providing that, where an appeal is taken from a decree, the clerk shall attach

the trial of the case of George W. Sanborn, together the testimony, depositions, and other Plaintiff, vs. Nora Fitzpatrick. E. M. Linden papers on file in his office containing the evi and Robert J. Linden, Defendants, in the dence, etc., in so far as it requires the evi

above-entitled court. In testimony whereof dence and exhibits to be bound in a single volume, is directory only, so that it is not a

I have hereunto set my hand seal of said fatal defect that the pleadings, exhibits, and circuit court this 31st day of May, A. D. evidence are bound in separate volumes held | 1907.

1907. J. C. Clinton, Clerk of Circuit Court. together by rubber bands.

[Official Seal.l" The motion to dismiss alleges 6. SAME-FILING EXHIBITS.

that the undertaking on appeal limits the It was no objection to the sufficiency of an appeal record that the exhibits which were

liability therein to $500. for which reason properly identified by the stenographer as they a dismissal of the appeal is demanded.

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