Imágenes de páginas
PDF
EPUB

property in a residuary clause as the rest and residue of testator's estate, but give such effect if it is made to appear by extrinsic circumstances such as may, under the rules of law, be resorted to in the interpretation of written instruments, that it was the testator's intention that the legacies should be charged on the land. (Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628; Hoyt v. Hoyt, 85 N. Y. 142; Scott v. Stebbins, 91 N. Y. 605; Wiltsie v. Shaw, 100 N. Y. 191, 3 N. E. Rep. 331; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480; In re City of Rochester, 110 N. Y. 159, 17 N. E. Rep. 740.) The fact that the testator must have known that the personal estate was not sufficient to pay all the legacies is to be considered in ascertaining his intention-to charge them on the lands, and raises a strong presumption that such was his purpose. It is said in the case of Hoyt v. Hoyt, 85.N. Y. 142: "It is assumed that no man, in making a final disposition of his estate, will make a legacy save with the honest, sober-minded intention that it shall be paid. Hence, when from the provisions of a will prior to the gift of legacies it is seen that the testatrix must have known that she had already so far disposed of her personal estate as that there would not be enough to pay the legacies, it is reasoned that the bare fact of giving a legacy indicates that it shall be made from the real estate. And ViceChancellor Bacon, in Bray v. Stevens, 12 Ch. Div. 162, says: "I cannot impute to the testator such an absurdity-such a mockery-as to these legatees, as to give them legacies when he knew his personal estate had no means of satisfying them." But in Johnson v. Poulson, 32 N. J. Eq. 390, Dodd, J., says: "Such however, is the presumption against a charge, unless distinctly imposed, that, though the insufficiency of the personal estate to pay legacies, when so made to appear, creates a strong impression in favor of her intention to charge them, yet, standing alone, it is not enough, as against heirs, to effect such a charge." The legatees are grandchildren of the testatrix. The fact that the beneficiary is not a stranger, but of the testatrix' blood, and that the legacy is the only provisions made for him, is entitled to great weight in ascertaining the intention, and also raises a presumption in favor of a charge on the real estate if the personal islinsufficient. (Hoyt v. Hoyt, 85 N. Y. 142-148; Van Winkle v. Van Houten, 3 N. J. Eq. 189.)

CRIMINAL PRACTICE-ELECTIONS-FRAUDULENT VOTING-INFORMATION.-In People v. Neil, 27 Pac. Rep. 260, the Supreme Court of California hold that an information charging that "defendant fraudulently voted at an election when he was not entitled to vote," though in the language of the statute, is not sufficient to state an offense, but must set forth the facts relied on to show fraudulent voting. Such information is also fatally defective unless it states the particular fact or facts showing that defendant was not entitled to vote. Fitzgerald, C., says:

The only question presented for decision involves the validity of the information, on the ground that it is not direct and certain, for the reason that it omits to set forth the particular circumstances of the offense charged, and which are necessary to be alleged in order to constitute a complete offense under the

law. Section 45 of the Penal Code, or rather that part of it upon which the information herein is founded, reads as follows: "Every person not entitled to vote, who fraudulently votes at any election * * * is guilty of a felony." Section 1 of article 2 of our State constitution prescribes the qualifications and disabilities of electors, and sections 1083 and 1084 of the Political Code are in the exact language of this section of the constitution. The information, as we have before stated, charges the offense in the language of the Code, and it is well settled, under our system of pleading in criminal cases, that this will generally be held to be sufficient; but where the particular circumstances of the offense are necessary to constitute a complete offense they should be stated and averred, and a failure to do so will vitiate the information or indictment. It is objected by appellant "that the allegation contained in the information that the defendant 'fraudulently voted' is insufficient, and this, notwithstanding those are the words of the statute." In Hirschfield's Case, 13 Blatchf. 331, it was said by Benedict, J., that "the averment that the accused fraudulently registered is insufficient, although those are the words of the statute. Something more must be stated in order to give the accused any proper notice of the charge which he is to meet. It is impossible for the accused to determine, from this indictment, whether he is required to show in his defense that he was twenty-one years of age, or to show that he resided in a certain place, or to show that he bore a certain name, or to show that he was a native, or that he was a naturalized citizen, of the United States. An indictment under this statute should point out the fraud which it is supposed the accused committed, so that he can know what it is that he is called on to explain, and be enabled to prepare his defense." And in People v. McKenna, 81 Cal. 159, 22 Pac. Rep. 488, it was said by Mr. Justice Patterson that "the question whether a thing has been done fraudulently is a matter of law, and an allegation of fraud, in general terms, presents no issuable fact." "It is a sound principle that an indictment charging fraud of any kind should aver with particularity the facts relied upon to show fraud. Many of the niceties and technicalities which existed under former methods of pleading are not allowed to prevail under the provisions of our Code, but the rule still exists that an indictment must be certain and clear as to the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.'" Id. On the authority of that case it

follows that the objection to the information on this ground was well taken.

It is further objected that the information is fatally defective for omitting to state facts showing that the accused was not entitled to vote." The facts which constitute a qualified elector are those which are prescribed by the sections of the constitution and the Political Code above referred to, and there are many causes of disqualification therein enumerated, but as to which one of them the defendant labored under the information does not disclose. The averment that the defendant was not entitled to vote is not the averment of a fact, but of a conclusion of law. The material facts necessary to be charged, and upon which this legal result, that he is not entitled to vote, is founded, are those facts prescribed by the constitution and the Code as constituting the qualifications and creating the disabilities of electors. Mr. Bishop, in the first volume of his work on Criminal Procedure, (3d Eq. § 627), says: "Whether one is a qualified voter or not is a result deduced by the law from the facts, and, though a statute may mention a legal result in

defining an offense, this is not the province of an indictment. It must state the facts out of which such result comes; thus giving the defendant notice of what is charged against him, and putting upon the record a proper case for the adjudication of the court." In People v. Standish, 6 Parker, Crim. R. 111, it is said: "Prima facie every white man of the age of twentyone years is entitled to vote, and when he offers a vote it must be received, unless some fact is shown or appears which disqualifies him; and, when charged with voting without being legally qualified, the indictment should show the fact or facts which disqualify him." To the same effect are State v. Moore, 27 N. J. Law, 105; State v. Tweed, Id. 111; Gallagher v. State, 10 Tex. App. 469; Pearce v. State, 1 Sneed, 63; Gordan v. State, 52 Ala. 308; U. S. v. Hirschfield, 13 Blatchf. 331; Quinn v. State, 35 Ind. 487. When these cases were decided, the statutes of most of those States were substantially the same as our own. The principal cases to the contrary are State v. Douglass, 7 Iowa, 414; Com. v. Shaw, 7 Metc. (Mass.) 52; State v. Marshall, 45 N. H. 281; U. S. v. Quinn, 12 Int. Rev. Rec. 153. Upon a careful examination of these cases on this point, we are satisfied with the reasoning and the conclusion reached in the former. It therefore follows that the information is fatally defective in omitting to state the particular fact or facts showing that the defendant was not entitled to vote.

PARTNERSHIP-GIVING NOTE AFTER EXPIRATION.-In Leithauser v. Baumeister, decided by the Supreme Court of Minnesota, it appeared that one member of a copartnership which had been dissolved agreed with his copartners to individually pay and be responsible for a certain copartnership debt. The creditor, with knowledge of such facts,

accepted a note given in the copartnership name by the partner individually liable as aforesaid, extending the time for payment. It was held that no authority to execute such note in the copartnership name existed; that the liability of the other partners, under the circumstances, were merely that of sureties, and that they had been discharged by such extension without their consent. The following is from the opinion:

We think that the case showed, contrary to the finding of the court, both that Comes had assumed the obligation, as respects the other defendants, of paying this debt, and that the plaintiff was informed of it when he took from Comes the note, in form expressing the obligation of the partnership, payable at a future day, at a rate of interest in excess of what the law would allow in the absence of express agreement. These facts are material. While such an agreement between the joint debtors, to which the plaintiff was not a party, could not prejudice him or affect his right of action against them all, yet it would affect the rights of the parties growing out of any new contract which he, having knowledge of such agreement between the defendants, might thereafter make with one of them. When comes took upon himself the legal obligation of the defendants to pay this debt, they occupied towards him the position of sureties; and the creditor, know.

ing the fact, should not be allowed to make a new contract extending the time for payment, without their consent. (Millerd v. Thorn, 56 N. Y. 402; Smith v. Sheldon, 35 Mich. 42; Oakley v. Pasheller, 10 Bligh, N. S. 548, 589.) If the plaintiff knew that Comes had thus assumed the payment of this debt, he must be deemed to have known that the mere general partnership relation which he may have supposed to be still existing did not authorize Comes to give the note of the partnership for a debt which it had become his own personal obligation to pay. While the note, taken under those circumstances, would not be obligatory on the other defendants, it would be enforceable against Comes, and would be effectual, as between the plaintiff and Comes, as a new contract, to extend the time for the payment of the debt (Wheaton v. Wheeler, 27 Minn. 464, 8 N. W. Rep. 599), and that would release the other defendants (see authorities above cited), even though there be no proof as to what, if any, injury the sureties may have suffered. (Rees v. Berrington, 2 Ves. Jr. 540; Miller v. McCan, 7 Paige, 451; Calvo v. Davies, 73 N. Y. 211, 216.) It may be that if the plaintiff had not known of the agreement between the defendants, and if he could be deemed to have supposed that the note was rightfully given as the note of the partnership, the result would have been different. (Agnew v. Merritt, 10 Minn. 308, Gil., 242.)

STATUTE OF FRAUDS

EMPLOYMENT FROM MONTH TO MONTH. In Kiene v. Shaeffing, 49 N. W. Rep. 773, the Supreme Court of Nebraska decided that a verbal contract of employment, to be void by the statute of frauds, must be one that from its terms the parties did not intend should be completed within the year, and that a contract of em

ployment from month to month although continued for three and a half years, is not within the statute. Maxwell, J., says:

The plaintiff asked the following instruction: "You are instructed that an oral contract which by its terms cannot be performed within one year is void. If therefore, you find from the evidence that a contract was made between the plaintiff and the defendant, not in writing, by the terms of which the defendant was to work for the plaintiff for a longer time than one year, the defendant would be entitled only to such compensation as his services were reasonably worth. The value of such services in that case you are to determine from the evidence, and, if less than the amount defendant has received from the plaintiff, you will find for the plaintiff, and assess his damages at the amount of the excess so received." This the court refused to give, and such refusal is now assigned for error, and is the principal ground on which a reversal is sought.

The instruction was properly refused. The statute only applies to contracts which cannot be fully performed, according to the intent of the parties, within the year. To be void, the contract must be one that by its very terms shows that it was not to be completed within the year. Fenton v. Emblers, 3 Burrows, 1278; Boydell v. Drummond, 11 East, 142; Roberts v. Tucker, 3 Exch. 632; Eley v. Positive, etc., Co., 1 Exch. Div. 20; Giraud v. Richmond, 2 C. B. 835; In re Pentreguinea Fuel Co., 4 De Gex, F. & J. 541; Walker v. Johnson, 96 U. S. 424; Hinkle v. Fisher, 104 Ind. 84

3 N. E. Rep. 624; Insurance Co. v. Greene, 77 Ind. 590; Saunders v. Kastenbine, 6 B. Mon. 17; Farwell v. Tillson, 76 Me. 227; Lawrence v. Cooke, 56 Me. 187; Herrin v. Butters, 20 Me. 119; Linscott v. McIntire, 15 Me. 201; Somerby v. Buntin, 118 Mass. 279; Chaffe v. Benoit, 60 Miss. 34; Kimmins v. Oldham, 27 W. Va. 258; Day v. Railroad Co., 22 Hun, 412; 8 Amer. & Eng. Enc. Law, 688. A somewhat similar question was before the Supreme Court of Minnesota in Manufacturing Co. v. La Du, 31 N. W. Rep. 938. In that case there was an oral contract of employment for five years, which was terminated, on account of sickness, in two years. The court held that, although the contract was void, yet, in so far as it had been voluntarily executed, the terms thereof would govern as to the compensation. In the case at bar, so far as appears, the employment was from month to month, and the contract could have been terminated at the expiration of any month. The fact that the defendant continued in the plaintiff's employment for three years and a half does not, of itself, make the contract one for more than a year.

[ocr errors]

TELEPHONE

IN

ELECTRIC RAILWAYS JUNCTION- INTERFERENCE.- Cases involving a conflict of interests between telephone and electric railway companies are becoming more numerous. The Supreme Court of New York, in Hudson River Tel. Co. v. Watervliet Turnpike and Railroad Co., 15 N. Y. Supp. 752, considered the question, and seems to have held in opposition to the later current of authorities. The decision in that case was that a grant by the legislature and municipal authorities to a street railway company, to use electricity as a motive power, though it does not designate the particular system by which the power is to be supplied, does not give the company a right to use a system by the use of which the electricity will pass from the street and interfere with the current of a telephone company, which has previously lawfully erected its poles and wires on private property, where there are other systems which might be used by the railway company at a greater expense, but at less additional expense than would be required for the telephone company to change its system. When a street railway company is about to use electricity as a motive power, to be supplied by a system which will allow the current to escape to the wires of a telephone company, erected on private property, and to continuously interfere with and injure the business of the telephone company, an injunction will lie, there being no ade quate remedy at law. From the lengthy opinion of the court we quote the following:

It will be observed in this case that the language in the legislative and municipal grant of authority to the

defendant relates only to the power to be used by it, and specifies no particular mode of its application. If the single trolley system was the only method of applying electricity as a motive power to cars, then the authority to use electricity might be said to contain an authority for the use of that system, notwithstanding its injurious effect upon others, provided the legislature has the constitutional power to grant a right to a corporation to invade private rights or destroy the property of other corporations or individuals; but, as the case discloses that the single trolley system is not the only method of applying electricity as a motive power for the propulsion of railroad cars, we are not called upon to examine the constitutional question. The referee having found that all injury to the plaintiff's business and property can be obviated by the adoption of the double trolley system or storage battery system, it follows that enjoining the use of the single trolley system would not deprive the defendant of the use of electricity as its motive power, but leave it in the beneficial enjoyment of the grant by the legislature and of the ordinance of the common council, neither of which confines the grant of the use of electricity to the single trolley system. The defendant having it in its power to avail itself of the use of electricity, conferred by the statute and ordinance, in a manner in which the rights of the plaintiff would not be affected injuriously, cannot be permitted to justify an injury to the plaintiff under such statute and ordinance. In the case of Hill v. Managers, 4 Q. B. Div. 433, the act of parliament authorized the erection of an asylum for infirm and insane paupers in the Metropolitan asylum district in London, to be designated by the "poor-law bord," and authorized the purchase and leasing and fitting up a building for that purpose. The act referred to small-pox patients as among the class of persons to be provided for. Under this act the managers erected a hospital in close proximity to the plaintiff's house, which the jury declared a nuisance. No precise definite site was fixed by the act of parliament, except a general designation of the Metropolitan asylum district in London. The commissioners might have selected a site which would not have injured the plaintiff. The defendant sought to justify under the act. But it was held that the statutory sanction sufficient to justify the commission of a nuisance must be expressed; that the particular land or site for the hospital must have been defined in the act; that it must appear by the act, while defining certain general limits, that it could not be complied with at all without creating the nuisance. Lord Watson used this language: "If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to show that the legislature has directed it to be done. Where the terms of the statute are imperative, but submissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put in execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for that purpose." The reasoning and conclusion of the court of queen's bench in the above case was adopted and fully acquiesced in by the court of appeals in the case of Cogswell v. Railroad Co., supra. The rule, therefore, seems settled and of universal application that when a grant is given by

the legislature to conduct a business in the conduct of which two or more ways exist, and by one of which the rights of others will be injuriously affected, and by the adoption of the other methods other parties will not be injured, a court of equity will interfere, and enjoin the use of the mode by which the rights of others will be injuriously affected. We are cited to numerous cases by the learned counsel for the defendant where it is held that injuries remote and consequential must be submitted to by the citizen in the march of public improvements, and that the injury in such cases is damnum absque injuria; such as building docks in navigable rivers, cutting down on the line of abutting premises in excavating for public streets, and the like; but I have found no case like this, where the injury is direct and not remote, and where the act has not been ordered by the legislature, where the court has refused relief or redress to the party injured.

It is also urged by the learned counsel for the defendant that, as the electrical system to be used by the defendant in the propulsion of its cars has not been defined by the legislature, it must be left to the determination of the defendant as to what method or system it will adopt, and that the power of selection is not the subject of review. The doctrine, when applied to public bodies and municipalities, is sound, and supported by authority; but I think with private corporations and individuals a different rule obtains, and, while they may adopt such devices as they please, so long as their selection does not affect the rights of others, they are bound so to use their own as not to injure others. An individual may use for his own purposes a powerful, ferocious, and dangerous animal; but he must do so at his peril, and, if others are injured by such animal, known by the owner to be dangerous, no one would question the liability of the owner. But it is also said that the defendant has selected the best known method, and therefore cannot be interfered with in its use. It is true that the referee has found that the system of the defendant in the use of electricity as a motive power is the most efficient and economical system in use. It is equally true that the plaintiff's system of telephoning is shown to be the usual and approved method, and it is not claimed that its use in any way injures the business of the defendant. Assuming, as we must, that each company, within their chartered privilege, is in the pursuit of laudable and useful business, no reason is perceived why they should not each be accorded the protection guarantied by law to other business and pursuits, and in like manner be subject to the duties and obligations imposed by law. Wood in his Law of Nuisances, defines such rights and obligations as follows: "Every person who, for his own benefit, profit, or advantage, brings upon his premises, and collects and keeps there, anything which, if it escapes, will do damage to another, (subject to some exceptions for industrial interest), is liable for all consequences of his acts, and is bound at his peril to confine and keep it upon his own premises." Wood, Nuis. p. 115, § 111. We see no reason why this principle is not applicable to the parties in action.

BIGAMY.

II.

Cohabitation, Repute and Holding Themselves out as Husband and Wife.-Undoubtedly in civil cases, where the object is to establish the legitimacy of children, or, in a divorce suit, to establish the existence of the marriage relation between the parties, and in criminal cases, where such evidence would tend to sustain the presumption of innocence, evidence that the parties had held themselves out to the world as husband and wife, cohabited together as such and raised children, and, probable general repute, would be sufficient to establish marriage. Such evidence is not sufficient in an action for criminal conversation; and, as from such evidence there arises simply a presumption of marriage, it should not be held to be sufficient to establish an actual, valid marriage, when it comes in direct, antagonistic contact with the presumption of innocence, and would have a tendency to convict the party of a crime;" but it might be admissible as corroborative of other competent evidence tending to prove a valid marriage. Yet in the case of Com. v. Hurley, it was held that "evidence that a woman occupied the same bed with the defendant in this tenement and was seen getting dinner and doing other household duties there in his absence is competent to prove' her to be his wife." And in Green v. State, the court said: "Marriage may be proved by cohabitation and the confession of the parties."7

6

Confessions or Admissions of Defendant.— In cases of this character the first and second marriages, I presume, constitute the corpus

1 Murray v. Murray, 6 Oreg. 26.

2 Jacobson v. Siddal, 12 Oreg. 280.

3 State v. Johnson, 12 Minn. 476; State v. Armstrong,

4 Ib. 251, 14 Am. & Eng. Ency. of Law, 530. 4 Contra, State v. Johnson, supra.

5 14 Gray, 411.

6 59 Ala. 68, 70.

7 To the same effect, see, Com. v. Jackson, 1 Bush, 679, 21 Am. Rep. 225; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17. And even by admissions of defendant, if jury believe that he admitted a valid marriage. Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Parker v. State, 77 Ala. 47, 54 Am. Rep. 43; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; State v. Libbey, 44 Me. 469, 69 Am. Dec. 115; Finney v. State, 3 Head, 544; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Cameron v. State, 48 Am. Dec. 115.

9

delicti. It is held, however, by some courts that these marriages may be proved by the admissions or confessions of the defendant;8 but there is a general rule of law that admissions or confessions of a defendant are not sufficient to convict, unless there be other evidence of the corpus delicti, or body of the offense with which the defendant is charged. Thus, it is said in Harris v. State, "the corpus delicti consists not merely of an ohjective crime, but also of defendant's agency in the crime; and, unless it is proved in both these respects, a confession by the defendant is not of itself enough to sustain a conviction.' If there is no evidence of the corpus delicti, except the confessions of the prisoner, the court should direct the jury to render a verdict of not guilty," 11 and the corpus delicti must be proved independently of extrajudicial confessions, and beyond a reasonable doubt.12 "Confessions are divided into two classes, namely, judicial and extrajudicial.' Judicial confessions are those which are made on open court; extrajudicial confessions are those which are made out of court. Judicial confessions are sufficient to sustain "a conviction, even if to be followed

13

10

by a sentence of death."'14 But the general rule in the United States is that the prisoner's confession (extrajudicial), when the corpus delicti is not otherwise proved, is insufficient for his conviction, "and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases. 15 Burrill adds: "From this it might be inferred that a confession, with proof of a corpus delicti, was sufficient for a conviction; and in some cases the rule is so laid down. But, in others, additional corroborating circumstances seem to be required." If, then, in other criminal cases, confessions or admissions, made out of court, are not sufficient to

16

8 State v. Nadal, 29 N. W. Rep. 679, 69 Iowa, 478, and cases cited in note 38.

919 Am. St. Rep. 83, 28 Tex. App. 308.

10 See, also, Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698; State v. German, 54 Mo. 526, 14 Am. Rep. 481.

11 People v. Jones, 31 Cal. 565.

12 Pitts v. State, 43 Miss. 472.

13 Burrill's Cir. Ev. 496.

14 1 Greenl., on Ev. § 216.

15 Id. § 217.

16 Burrill's Cir. Ev., 499 and notes.

warrant and sustain a conviction, there can certainly be no good and valid reason why one, who is charged with the crime of bigamy should be convicted on proof of confessions only, and without independent and additional evidence of the corpus delicti.

Second Marriage.-The proof of the second marriage is governed by the same rules as the first, and there must be evidence of an actual, valid marriage, except in those States where the statute expressly provides that where a party, who has a husband or wife living, marries another, or lives or cohabits with another as husband or wife, such person shall be deemed guilty of bigamy. There it is not necessary to prove a valid second marriage, but proof that the defendant lived and cohabited with another as husband or wife will be sufficient.

Having a Husband or Wife Living and not Divorced. The first and second marriages having been satisfactorily proved, and it appearing that the first wife was alive at a period within the time limited, but from two to seven years prior to the second marriage, will this evidence be sufficient to warrant a verdict of guilty, or will it sustain such a verdict, if rendered? Or must the prosecution prove the first wife to have been alive at the time of the celebration of the second marriage? In other words, will the presumption that the first wife still lives and that the marriage relation still exists prevail over the presumption of innocence and the presumption of the legality of the second marriage? In, the American and English Encyclopedia of Law, it is said: "A party is, independently of statute, presumed alive for seven years after he is last heard from. After seven years he is presumed dead. But in marriage

cases the presumption of life often conflicts with that of innocence;18 as where a husband, believing his wife dead, but having heard from her within seven years, marries again. 19 In such cases the two presumptions neutralize

17 Vol. 14, page 521.

18 Citing, Dixon v. People, 18 Mich. 84, and Gibson v. State, 38 Miss. 313.

19 Citing, Reg. v. Lumley, Law R. 1. C. C. 196, where it was held that there was no presumption of law either in favor of or against the continuance of life, but that it was a question for the jury, as a matter of fact, whether or not the first wife was alive at the date of the second marriage.

« AnteriorContinuar »