Wyo.]

HAINES V. TERRITORY.

A further objection is made to the indictment on the ground that it should state a delivery of the property to Faulds. We think the allegation that Faulds obtained the horses necessarily conveys and includes the idea that they were delivered to him; and this view has been adopted in Kennedy v. State, 34 Ohio St. 310, and affirmed in Tarbox v. State, 38 Ohio St. 581.

As to the objection made that the indictment is defective because it fails to apprise the accused of what crime they are charged with, we do not think the The distinction between larceny and false pretenses is objection well taken. well settled, and consists in the fact whether or not the owner intended or consented to part with the title to property. But the allegation of the indictment is that, by color and means of the pretenses, plaintiffs obtained the horses, presumably for the purpose which the pretenses and inducements held out would naturally accomplish. The object to be obtained by these means, it is apparent on the face of the indictment, was not merely the possession of the property, but its title also. They proposed to buy the horses, and thereby obtained them. By no construction could such an indictment be held to charge a larceny. This form of indictment has been held good in numerous cases. See 3 Chit. Crim. Law, 1006; Norris v. State, 25 Ohio St. 217; State v. Penley, 27 Conn. 587; Skiff v. People, 2 Parker, Crim. R. 139; Com. v. Hulbert, 12 Metc. 446; State v. Jordan, 34 La. Ann. 1219.

A large number of exceptions were taken at the time to the admission of testimony, but the first and most important one is as follows: The territory offered evidence tending to prove that Faulds bought the horses of Walker, paying him $1,000 in cash, and giving his note for $2,300 for the balance of the purchase money. The admission of this evidence was objected to, on the ground that no sale was alleged in the indictment. We have seen that, in the opinion of the court, no allegation of a sale was necessary in the indictment, and therefore the objection on this ground was properly overruled. But a more serious objection to the introduction of this evidence, and its effect after its introduction, suggests itself to the court. The indictment charges virtually the obtaining of the property in question by means of the false pretenses alone. The evidence as admitted discloses the fact that Walker did not part with the horses on the strength of the pretenses alone; but that the payment of the $1,000 was one of the inducements. Indeed, Walker says that he would not have sold the horses had he not received the money. The question immediately arises as to whether such proof constitutes a fatal variance from the allegations of the indictment. The principle is well settled that the false pretenses need not be the only inducement, (Whart. Crim. Law, par. 1176, and cases there cited,) if they are the controlling motive.

In People v. Haynes, 14 Wend. 547, Chancellor WALWORTH says: "It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner should have been induced to part with the property solely and entirely by pretenses which were false. If the jury are satisfied that the pretenses proved to have been false were a part of the moving causes inducing the owner to part with his property, and that the defendant would not have obtained the goods had not the false pretenses been superadded to statements which may have been true, and to other circumstances having a partial influence upon the mind of the owner, they will be justified in finding defendant guilty." See also, State v. Mills, 17 Me. 211; Com. v. Drew, 19 Pick. 179; People v. Haynes, 11 Wend. 557; People v. Herrick, 13 Wend. 87; Smith v. State, 55 Miss. 513; In re Snyder, 17 Kan. 542.

It may be said, of course, that Walker would not have made the sale had he not been paid the $1,000; but it is equally true that, being paid the $1,000, he would not have sold had he not believed from these representations that Faulds was a man who had the means and would pay for them.

We think this would constitute the controlling inducement. It being the controlling

The

inducement, the crime is completely proved when such state of facts appears; and it becomes immaterial whether it was the only inducement or not. accused are sufficiently informed of what they are charged with, viz., "the obtaining of the horses by the particular false pretenses;" and the fact that other things operated to bring about the sale, different from and contradictory of the allegations in the indictment, is a matter of defense, which, under the ordinary rules of pleading, the prosecutor is not obliged to anticipate. If it had been possible for him to have made a case under the indictment, without eliciting the fact of the payment, then it would have been competent for the defense below to have offered such fact in evidence; and it would have been a proper matter for the determination of the jury as to whether, in view of all the facts, the accused were guilty of obtaining the property charged by means of the false pretenses alleged. If this case had been brought before the jury in this order, we cannot see how the court could treat it as a fatal variance; and we are of the opinion that the principle would not be altered by the fact that such evidence was elicited by the prosecution.

It has been urged upon the court that the evidence adduced below was insufficient to warrant a conviction. We think there was sufficient evidence upon which to base a verdict of guilty.

The third error complained of is that an open venire was issued to the sheriff of the county to serve in impaneling a jury in the trial of the case below. The record disclosing no objection, and no exceptions taken to this proceeding below, this court cannot pass upon that question.

The fourth error assigned is that the court below erred in permitting the prosecuting witness, Walker, to remain in the court-room, having excluded the other witnesses. The matter of the exclusion of any and all witnesses from the court-room during the progress of the trial is wholly in the discretion of the court, and will not be reviewed, except for gross abuse. No such abuse has been shown here. 1 Bish. Crim. Proc. pars. 1188, 1189.

The twelfth error assigned is that the court below erred in permitting Faulds to testify as to Russell's declaration of whọ was in the conspiracy, before the fact of a conspiracy existing had been fully proven. "In an action for conspiracy, it is within the discretion of the trial court to allow evidence of the declaration of one of the alleged conspirators to be given prior to proof of the conspiracy, and conditional upon the production of such proof thereafter." Place v. Minster, 65 N. Y. 89; Miller v. Barber, 66 N. Y. 558; 1 Greenl. Ev. par. 111. “If the proof subsequently given had failed to connect S. with the fraud, it would have been the duty of the court to have instructed the jury to disregard them." Miller v. Barber, supra. From a review of the testimony, we are satisfied that sufficient evidence was afterwards introduced to justify the court below in refusing to exclude the declarations of Russell, so far as they affect Haines and himself, from the jury. It is different in Branner's case. Upon a review of the evidence, we find this state of facts to exist: Branner came down from Oregon with Walker, and, at his suggestion, Walker stopped at Laramie to sell his horses. Walker, after talking to Haines and Russell, asked Branner about the man Faulds. Branner said that he knew nothing whatever about Faulds, but that whatever Haines and Russell said would be all right. The only further uncontradicted evidence which would tend to inculpate Branner is that when, after the discovery of the fraud, Walker met Russell in the hotel and threatened to kill him, he, Branner, acted as peace-maker, and while so acting repaid Walker the $100 commission which Russell had received for selling the horses. There is one other bit of evidence, to the effect that he had seen Faulds pay Russell $1,000 that morning in another deal. Walker so testifies, but is squarely contradicted by Branner. Some question is made as to the competency of such statement, and we think, under the circumstances, it is not entitled to much weight. We cannot see that sufficient evidence of Branner's connection with the con

Wyo.]

KETCHUM v. DAVIS.

spiracy was given to justify the court in admitting Russell's declaration in regard to Branner's being one of the conspirators. This, we think, was manifest and reversible error, and, as to Branner, the judgment of the court below will be reversed, and a new trial will be granted him. The court is unanimous on the point that the conspiracy was not afterwards sufficiently proven, and the majority of the court find that he is entitled to a new trial.

The thirty-first error assigned is directed to the charge of the court below to the jury. The portion objected to is as follows: "The court instructs the jury that, although the law makes the defendants in this case competent witnesses, still the jury are the judges of the weight which ought to be attached to their testimony; and, in considering what weight should be given it, the jury should take into consideration all the facts and circumstances surrounding the case, as disclosed by the evidence, and give the defendants' testimony such weight as they believe it entitled to in view of all the facts and circumstances proved in the trial; that, although defendants have a right to be sworn and give testimony in their own behalf, still their credibility, and the weight to be attached to such testimony, are matters exclusively for the jury, and their interest in the result of the trial is a matter proper to be taken into consideration by the jury in determining what weight ought to be given to their testimony." It is conceded that the above instruction contains nothing but We do sound legal propositions, and the only complaint made is that defendants were singled out by the court from the body of the witnesses for comment. not think the court erred in giving the instruction as it did. People v. Cronin, 34 Cal. 204; Gray v. State, 8 N. E. Rep. 16; State v. Maguire, 69 Mo. 197; People v. Calvin, 26 N. W. Rep. 851; State v. Sanders, 76 Mo. 35.

Numerous other errors are assigned; but, upon a careful examination, it does not appear to the court that there were any material errors which would justify us in reversing the judgment of the court below.

The judgment of the court below, so far as the same affects Alanson L. Haines and William W. Russell, plaintiffs in error, is affirmed, and it is ordered that the judgment of the court below be enforced. The judgment of the court below, so far as it affects A. W. Branner, is reversed, and a new trial is hereby ordered, and the cause remanded as to him.

CORNS, J., dissenting.

(3 Wyo. 164)

KETCHUM v. DAVIS.

(Supreme Court of Wyoming. February 7, 1887. APPEAL-EVIDENCE-FINDINGS OF TRIAL COURT.

The supreme court, on appeal, will not reverse the decision of the trial court, when the evidence is conflicting, and when there is evidence tending to sustain the findings of the court, unless the findings are so clearly against the weight of the evidence as to make it manifest that the evidence was entirely disregarded, or that the court was influenced by passion or prejudice, or acted from some improper motive.

Action on verbal agreement for grazing cattle. Judgment for plaintiff. Defendant appealed.

C. N. Potter, for plaintiff in error.

error.

Willis Vandevauter, for defendant in

BLAIR, J. This case comes here upon a writ of error from the district court held in and for the county of Laramie. The facts are that the defendant in error here sued the plaintiff in error here in the court below on an alleged verbal agreement or understanding, under which Davis was to ranch certain cattle belonging to Ketchum, at the price of five dollars per head per annum. Ketchum appeared to the action, and in his amended answer filed a general denial to the first, second, and third causes of action in the plaintiff's

petition contained; and for a second and further defense pleaded, in substance, by way of avoidance, that the cattle received by the plaintiff from the defendant, to ranch under said verbal agreement or understanding, were turned and put into a certain field and inclosure, which the plaintiff claimed, controlled, and used, and of which he claimed the possession, to be pastured and inclosed; that said field was surrounded by a good and substantial fence maintained by the plaintiff, and that the said plaintiff agreed to and with the defendant, for the consideration of five dollars per head per annum, to maintain said inclosure, and to allow defendant's cattle to pasture in said field and inclosure, and graze upon the lands embraced in said field; that said field or inclosure embraced and contained a large body of government or public lands belonging to the United States of America, and subject to disposal, settlement, and entry under the pre-emption, homestead, and other laws of the United States; that the lands thus inclosed, and which were a part of the public domain, largely exceeded in area and quantity 160 acres, were not claimed or held by said plaintiff under any of the land laws of the United States, and that the plaintiff had no right to the possession of the same, and that they were not settled upon or occupied or entered by any other person or persons under any of said laws; that the maintaining of said fence, and the inclosing of said public lands, thereby separating them from the rest of the public domain, and appropriating them to the plaintiff's own use, was and is unlawful and illegal, constituting an unwarranted trespass upon said lands, and was and is a public nuisance; that the maintaining said fence prevented the free disposal of the said lands under the various laws of the United States, preventing and retarding settlement upon and occupation of said land under said laws, deprived the public of their rights in and to said lands, and violated the policy of the government in regard to the use, settlement, and disposal of its public domain; that to carry out and comply with said contract the plaintiff was obliged and bound to maintain said fence and inclosure, and prevent others from interfering with his possession of said public land, and that in the absence of said unlawful fence the cattle of said defendant could have grazed upon said lands freely and without molestation, and at no expense to the defendant; and, further, that although it is true that some of the lands embraced within said field or inclosure were what is known as lands granted to the Union Pacific Railroad Company by congress, that the consideration aforesaid is not capable of severance, either by an agreement of said parties or computation; that for these reasons the said verbal agreement entered into by the parties was against public policy, and consequently illegal and void, and without any valid or meritorious consideration. To this defense the plaintiff filed a denial to each and every allegation therein contained. The parties to the action, it would seem, having more confidence in the judgment of the court than a jury, waived the right of a trial by a jury, and submitted all questions, both of law and fact, to the decision of the court. The court heard the evidence, and found, upon the issue joined, for the plaintiff. The defendant filed his motion for a new trial upon the following grounds, to-wit: First, because the findings and the decision of the court are not sustained by sufficient evidence; second, because the findings and decision of the court are contrary to law; third, because the court erred in finding and deciding upon the issue joined in favor of the plaintiff and against the defendant. The motion being overruled, the defendant excepted, and brings the case here upon a writ of error for review.

Whether the court below erred in its findings depends upon the question whether the defendant made good his second defense set up in his amended answer to the first, second, and third causes of action set forth in the plaintiff's petition. This defense, being of an affirmative character, must be proven by a preponderance of evidence. We have read with due care the testimony given on the trial, and find, as is usually the case in actions founded on verbal agreements or understandings, that the parties had no difficulty in dis

agreeing as to all material matters. This court has time and again decided that it will not reverse the decision of the trial court when the evidence is conflicting, and when there is evidence tending to sustain the findings of the court, unless the findings of the court are so clearly against the weight of the evidence as to make it manifest that the evidence was entirely disregarded, or that the court was influenced by passion or prejudice, or acted from some improper motive. Western Union Tel. Co. v. Monseau, 1 Wyo. 17; Bank of Wyoming v. Dayton, 1 Wyo. 336; Byrne v. Myers, 1 Wyo. 352; Hilliard Flume, etc., Co. v. Woods, 1 Wyo. 396; Fein v. Tonn, 2 Wyo. 113; Garbanati v. Hinton, 2 Wyo. 271; Edwards v. O'Brien, 2 Wyo. 493.

We think under the pleadings there is sufficient evidence to sustain the findings and decision of the trial court, and for this reason the judgment of the court below is affirmed.

(5 Utah, 147)

CORINNE MILL, CANAL & STOCK Co. v. JOHNSTON.

(Supreme Court of Utah. February 5, 1887.)

1. APPEAL-TRANSCRIPT-TIME FOR FILING-RULES 2 and 3, SUPREME COURT OF UTAH. By rules 2 and 3, supreme court of Utah, the transcript must be filed within 30 days after the appeal shall have been perfected, unless longer time be allowed by the court or one of the justices of the supreme court. The transcript not having been filed within the time prescribed, and no good reason being shown why the transcript was not filed within time, the appeal of the plaintiff is dismissed. 2. SAME-MOTION TO DISMISS APPEAL.

The denial of a motion to dismiss the defendant's appeal, on the ground that the transcript had not been filed within time, contemplates the immediate filing of the transcript by the defendant, where no additional time for filing said transcript is granted in the order denying the motion to dismiss.

3. SAME-ABANDONMENT OF APPEAL-ESTOPPEL.

After appearing, and resisting a motion to dismiss his appeal on the ground that the transcript has not been filed in time, a defendant is estopped from saying that he has no appeal in the supreme court, and he cannot be held to have abandoned his appeal by delaying to file the transcript for six months. Defendant's appeal dismissed without prejudice to another appeal. Code Civil Proc. Utah, 2 844; Laws Utah 1884, p. 308.

J. N. Kimball, for plaintiff. Thos. Maloney, for defendant.

BOREMAN. J. There were two appeals in this case, one being taken by the defendant from the judgment, and the other by the plaintiff from the order of the district court granting the defendant's motion for a new trial, and each party filed a motion to dismiss the appeal of the opposite party, upon the ground that the appeal was not filed in the time required by rules 2 and 3 of this court. On the fifth day of March, 1886, a judgment was rendered in the case by the district court against the defendant, and on the tenth day of April following defendant took his appeal therefrom to this court. At the last June term of this court the plaintiff moved the court to dismiss the appeal of defendant thus taken, for the reason that the transcript had not been filed in the time required by said rules. The reasons why the transcript was not filed in time-there being some disagreement as to the time granted by the district court--were satisfactory to the court, and the motion to dismiss was overruled. Afterwards, on the twenty-seventh day of July last, and before any hearing had been had on the appeal in this court, the district court granted defendant's motion for a new trial, which motion was pending in the district court, when defendant's appeal was taken. From said order granting a new trial the plaintiff, on the sixteenth day of August following, took his appeal to this court. At the present term of this court the defendant moved the court to dismiss the appeal of the plaintiff, for also the reason that the transcript was not filed within the times required by said rules. Thereupon the plaintiff renewed his motion to dismiss the appeal of the defendant from v.13p.no.1-2