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but the marshal ascertained on his arrival right in adopting such a course, He comwith her that the state law did not allow fe- plains of the unlawfulness of his place of male prisoners in that institution. Later the imprisonment. He is only entitled to relief court, in her absence, made an order sub- from that unlawful feature, and that he stituting the Erie county penitentiary. The would obtain if opportunity be given to that court denied the petition for writ of habeas court for correction in that particular. corpus, and remanded the prisoner, on the

Some of the state courts have exground that the order fixing the place of pressed themselves strongly in favor of the Imprisonment was not necessarily a part of adoption of this course, where the defects the judgment.

complained of consist only in the judgment, In Re McDonald, 33 Pac. 22, 4 Wyo. 150, in its extent, or mode, or place of punishthe court cited with approval Elsner v. ment; the conviction being in all respects Shirgley, supra, and People v. Foster, 104 regular. In Beale v. Commonwealth, 25 Pa. Ill. 156, and said: “The judgment

11, 22, the Supreme Court of Pennsylvania does not in itself fix the term or rate of im- said: "The common law embodies in itself prisonment for the failure to pay

sufficient reason and common sense to reject the fine imposed; but, if this were erroneous, the monstrous doctrine that a prisoner, whose it could only be reached by proceedings in guilt is established, by a regular verdict, is error. It is not the office of a writ of habeas to escape punishment altogether, because the corpus to correct errors or irregularities of court committed an error in passing the sen& trial court."

tence. If this court sanctioned such a rule, In re Bonner, 151 U. S. 258, 259, 260, 14 it would fail to perform the chief duty for Sup. Ct. 323, 326, 327, 38 L. Ed. 149: “When which it was established.'” the jury have rendered their verdict, the This court has decided that the writ of court has to pronounce the proper judgment habeas corpus is not intended to take the upon such verdict, and the law, in prescrib- place of an appeal, writ of error, or certioring the punishment, either as to the extent, ari, and cannot be used for the purpose of or the mode, or the place of it, should be reviewing errors or irregularities in the profollowed. If the court is authorized to im- ceedings of a court having jurisdiction (Ex pose imprisonment, and it exceeds the time

parte Smith, 2 Nev. 338; Ex parte Maxwell, prescribed by law, the judgment is void for 11 Nev. 428; Ex parte Winston, 9 Nev. 71; the excess. If the law prescribes a place of Ex parte Twohig, 13 Nev. 302; Ex parte Imprisonment, the court cannot direct a dif. Bergman, 18 Nev. 331, 4 Pac. 209); that, if ferent place not authorized. It cannot di- the prisoner is held under a valid commitrect imprisonment in a renitentiary, when ment, the legality of other commitments the law assigns that institution for imprison- need not be considered until his term of ment under judgments of a different char- service under the good commitment has exacter.

• A question of some difficulty | pired (Ex parte Ryan, 17 Nev. 139, 28 Pac. arises, which has been disposed of in differ- 1040; Ex parte Ryan, 10 Nev. 261); that unent ways, and that is as to the validity of der this writ the court will review the quesa judgment which exceeds in its extent the tion of the constitutionality of an act under duration of time prescribed by law. With which petitioner has been convicted, and if many courts and judges- perhaps with the the act is unconstitutional discharge him majority-such judgment is considered valid (Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. to the extent to which the law allowed it to 298, 3 Am. St. Rep. 901; Ex parte Boyce, 27 be entered, and only void for the excess. Nev. 299, 75 Pac. 1, 65 L. R. A. 47; Ex parte * • * The prisoner is ordered to be confined Kair, 28 Nev. 127, 80 Pac. 463, and cases in the penitentiary, where the law does not therein cited); that the petitioner will be reallow the court to send him for a single hour. leased from an order committing him for To deny the writ of habeas corpus in such a contempt for an act not committed in the case is a virtual suspension of it, and it should immediate view of the court, when the court be constantly borne in mind that the writ was was without jurisdiction to make such order intended as a protection of the citizen from by reason of its failure to first require an encroachment upon his liberty from any affidavit and to cite the offender to show source, equally as well from the unauthoriz

cause why he should not be punished (Ex ed acts of courts and judges as the unau- parte Hedden, 29 Nev. — 90 Pac. 737); and thorized acts of individuals. 4 *

* The that the addition of the words "at hard lajudges of all courts of record are magis- bor" in the sentence, although not authortrates, and their object should be, not to ized by statute, would be treated as mere turn loose upon society persons who have surplusage and in no manner affecting the been justly convicted of criminal offenses, validity of the judgment (Ex parte Maher, but, where the punishment imposed, in the 25 Nev. 424, 62 Pac. 1). mode, extent, or place of its execution, has From these cases it is apparent that a few exceeded the law, to have it corrected by call- courts have held that, where the sentence ing the attention of the court to such ex- upon a valid conviction is excessive or ercess. We do not perceive any departure from roneous in part, the whole of the judgment principle or any denial of the petitioner's | must fall as being without the jurisdiction

of the court, and that the convicted criminal must be discharged, while others hold that the sentence may be corrected and the proper punishment inflicted, others that it is void only as to the excessive punishment it orders, others that the erroneous sentence will stand and be enforced against habeas corpus proceedings, and can only be attacked or corrected by the regular methods of :ppeal or writ of error, and still other courts, among which are notably the Supreme Courts of the United States, of Massachusetts, and Nevada, adhere to the latter rule generally, but allow some elasticity and exceptions for the correction of errors, where the petitioner is restrained under an unconstitutional act, or there is some special urgency and hardship, and the sentence was wholly or partly unauthorized.

If the rule, supported by the decisions upon which petitioner relies, holding that the sentence is void where it specifies a longer period, or different place for the imprisonment, or a heavier fine, than the statute warrants, was adopted by this court, it might lead to grave injustice in the future, for under it, in cases having some omission or mistake in the judgment, criminals sentenced after due conviction of the mosc heinous (rimes would have to be released and turned loose upon the community. If, after conviction of murder in the first degree, the district court should sentence the accused to be hanged in the yard of the county jail under the former law and the practice in this commonwealth, instead of at the state prison, under the more recent statute now in force, the sentence would be void, and the defendant would have to be discharged. Justice ought not to be thwarted by such strained technicalities. We cannot favor such a rule, and we are impelled to join those courts which have determined against it.

It will be perceived that section 2267, Comp. Laws, is the only one which specifies the place of imprisonment in lieu of the payment of a fine, and that it directs that, whenever a prisoner, upon conviction for any criminal offense, fails to pay the fine, the district court may imprison him in the county jail at the rate of $2 per day until the fine or forfeiture imposed shall have been satisfied. In this connection no distinction is made in regard to the grade of the crime, and there is no limitation to misdemeanors. Under section 4701, the defendant was guilty of a felony, and could have been sentenced directly to the state prison for not less than one nor exceeding two years, or to a fine of not less than $1,000 nor exceeding $5,000, or to both. But the language of this section does not provide for confinement in the state prison or elsewhere in lieu of the payment of the fine, and there is nothing in this section or the others which authorized the court to commit the defendant to the state prison upon his failure to pay. And when we turn to

section 2207, the one which does provide for imprisonment as an alternative in lieu of nonpayment, the language fixes the place of confinement as such alternative in all cases, and without making any distinction between felonies and misdemeanors, at the county jail. The fine imposed was authorized, being the minimum amount specified in the statute, and the judgment follows the other provisions in ordering that the defendant be imprisoned at the rate of $2 per day upon his failu to pay the fine. The only error in the sentence was the direction that the defendant work out the fine in the state prison, when the statute specifies the county jail. If he had been fined the maximum of $5,000, instead of $1,000, it would take him about seven years to work out the fine at the rate of $2 per day. Whether it would be better to have a statute, such as exists in some states, providing that where the fine exceeds $300, or a specified amount, or the imprisonment may exceed six months or one year, the confinement in lieu of the payment of a fine shall be in the state prison, is a matter for the Legislature, and not for the courts, to regulate. It is our duty to enforce these statutes as we find them.

The sentence being in accordance with the law and within the discretion vested in the district court as to the amount of the fine and the time of the alternative imprisonment imposed, and being erroneous only as to a matter which is definitely fixed by the statute, the place of confinement, and regarding which no court has any discretion or power to change, it seems unnecessary to have the judgment of the district court modified, even if the mistake may be considered as one apparent upon the record and of the kind usually corrected by courts upon mere suggestion or of their own volition. The direction that the confinement be in the state prison may be rejected as surplusage and of no force or effect, in the face of the statute which controls and fixes the county jail as the place of imprisonment, without it being so designated in the judgment. There was a necessity for the correction of the sentence as ordered by the Supreme Court of the United States in the Bonner Case, which does not exist here. When it was held there that imprisonment in the penitentiary was not authorized by the federal statute, it became necessary for the trial court to exercise the discretion vested in it and correct the sentence by designating some one of the different jails it had power to select, no particular one of which was fixed by the statute for the imprisonment, as in this state.

The warden of the state prison is directed to deliver the petitioner to the sheriff of Washoe county upon his appearance and demand at the state prison and the latter is ordered to take the petitioner into custody, and detain him in the county jail of that county for the remainder of the term of im

prisonment imposed by the sentence of the front of me, headed me off. I asked him: district court, unless a part of the fine re- “What do you mean, do you intend to make maining unsatisfied is sooner paid.

another gun play like you tried at the dance

hall?' He answered: Yes (uttered an oath), VORCROSS and SWEENEY, JJ., con- and I am going through with it. As he said cur.

that I stepped back, he threw his hand back to his hip like that (witness illustrating by

throwing his left hand back to hip), and as (23 Vev. 403)

le did so I shot him. * * * I thought he STATE v. JACKMAX. (No. 1,710.) was going to shoot me; that he was going to (Supreme Court of Nevada. Aug. 1, 1907.) kill me if I gave him the chance. I would

not have shot him otherwise, if I did not 1. IIOMICIDE-EVIDENCE ADMISSIBILITY TITREATS.

think he was going to shoot me. 率

* I Where, on a trial for murder, self-defense is shot once; that is, two shots were fired from pleaded, threats by decedent to kill defendant

the gun. One was my intention and purpose. the first time he saw him, made within an hour

The first I shot on purpose. of the shooting, are admissible, though they

After the first were not corimunicated to defendant, on the is- shot he staggered, and I cocked my gun, that sue of who was the aggressor.

is, to see if he was going to pull his gun to Eil. Note. -For cases in point, see Cent. Dig. shoot or kill me. I stepped sideways toward vol. 20, IIonicide, $ 103.)

the Mohawk, and as I did he fell. . As he 2. CRIMINAL LAW-APPEAL -- HARMLESS ER

fell my finger was on the trigger and my ROR-ERRONEOUS ExcLI'SION OF EVIDENCE. An instruction, on a trial for murder, where

thumb cocking the hammer. I had the trigin self-defense was pleaded, not to consider evi- ger pulled back with my finger, and as he dence of threats which were not communicated fell my thumb slipped off the hammer, and to defendant, was none the less prejudicial er

the gun exploded the second time. ror because the threats were testified to by a prostitute; her testimony, no matter what her

I did not fire the second shot intentionally." character, being admissible for such weight as There were no witnesses to the commencethe jury might give it.

ment of the tragedly. It appears further from Appeal from District Court, Esmeralda

the testimony that the defendant about 1

o'clock of the same morning was in company County.

with one Sherman Crumley, when (rumley Albert T. Jackman, indicted under the name of John Thompson, Wils convicted of

was accidentally run into by deceased on a

bicycle in an alley in the red light district murder in the first degree, and from the

of Goldfield, whereupon Crumley and Moritz judgment and an order denying his motion for a new trial he appeals. Reversed, and

had a wordy argument, culminating in the

deceased, Moritz, drawing a revolver and orremanded for a new trial.

dering Crumley to "stand back.” A revolver Thompson, Morehouse & Thompson iunil was found on the person of the deceased Wm. Woodburn, for appellant. R. C. Stoul- when brought to the hospital after the shootcard, Atty. Gen., for the State.

ing. To the indictment charging defendant

with murder in the first degree, defendant SWEENEY, J. Defendant was inelicted pleaded “not guilty," and interposed a plea for killing John Moritz at Goldtield. Ver., on of self-defense. During the progress of the September 10, 19904, trieil and convicted of trial, a prostitute by the name of Myrtle murder in the first degree in the district Smith was introduced as a witness on the court of the First judicial district of the part of the defense, and testified as follows: state of Nevala in and for the county of Es- "By Jr. Morehouse: Q. Where do you remeralda, and sentenced by the court to be side? A. Goldfield. Q. Did you know in his hanged by the neck until dead. From an lifetime a young man by the name of Moritz? order denying defendant's motion for a new A. Yes, sir. Q. Where did you know him? trial, il ne f:'om the final judgment convicting

A. In Goldfield. Q. Did you see him on or defendant of murder in the first degree, de- about the morning of the 16th of September? fendant ap:eals.

A. Yes, sir. Q. Where? A. Down to my It appears from the testimony that the de- house. Q. What was he doing there? A. fendant, 21 years of age, a gambler hy oc- He brought me a lunoh down to my house. (upation, about 3 o'clock a. m. of the 16th Q. About what time was this? A. Some lay of September. 1.906, was crossing the time between 2 and 3 o'clock; I could not main stree" of Goldfield on his way to the exactly tell the time. Q. In the morning? Royal (aft for breakfast, when he saw the A. In the morning. Q. On that occasion did deceased, John Moritz, aged 23, whose busi- he make any remark of and concerning Alness appeared to be that of a messenger in bert Jackman, known as Jack Thompson: the tenderloin district, coming down the side- A. Yes, sir. Q. Will you state to the jury Walk on a bicycle, when, according to the what he said, and how he came to say it? defendant, "he rode almost to me, jumped 4. Yes, sir. IIe brought a lunch from the off his bicycle, and I would not say for sure Palm Restaurant to me. He went back and whether he leaned his bicycle up against a got one for Miss Florence and came back post or the building. He walked down in | with Miss Florence's lunch and was to take my empty dishes. I heard him in my room, important fact, all threats against the life and stepped into the room, and he said: 'For of the defendant by the deceased, even Christ's sake, don't scare me.' I said to him: though uncommunicated, are admissible, and Why are you so frightened?' He said: 'Well, the exclusion of this evidence, so vitally imI had trouble de vn the street with Jack portant to the defendant, is reversible error. Thompson.' And made the remark: 'I am State v. Hennessy, 90 Pac. 221 (to be publishgoing to kill the son of a bitch the first time ed in 29 Nev. ---); People v. Arnold, 15 Cal. I see him.'” The court gave the following | 481; People v. Scoggins, 37 Cal. 676; People instruction to the jury, asked for by the V. Aliytre, 55 Cal. 263; Wigmore on Evistate, which is assigned as error by the dence, vol. 1, $ 110; Stokes v. People, 53 N. defendant: "Threats, however deliberately Y. 174, 13 Am. Rep. 492; Wilson v. State, 30 inade, do not justify an assault and battery, Fla. 212, 11 South. 556, 17 L. R. A. 654. much less the taking of the life of the The threat, as testified to, was: “I am goparty making them, and evidence of threats ing to kill the son of a bitch the first time previously made, if any threats were made, I see him.” The shooting, according to the but not coinmunicated to the defendant, testimony, took place about 3 o'clock a. m. should not be considered by the jury in ar- and this threat is testified to as having been riving at their verdict."

made within an hour previous to the shootThe effect of this instruction was to pre- ing. In arriving at their verdict, the fact clude the jury from considering the testi- of who was the aggressor became of vital mony of Myrtle Smith testifying to a threat importance to the jury in determining the made by the deceased less than an hour be- innocence or degree of guilt of the defendfore the shooting against the life of the de- ant, and one which they must necessarily fendant. The evidence of Myrtle Smith have passed upon in arriving at their ver

de- dict. The jury in the present case were inceased against the life of the defendant, un- structed, in effect, not to consider the tesder the circumstances in this case, though timony of Myrtle Smith because the threat, uncommunicated to the defendant, was clear- being uncommunicated, was inadmissible, ly ad issible and of such vital importance to and the jurors, whose duty it is to be governthe defendant that the instruction of the

ed by the instructions given by the court court, commanding the jury not to consider

as to the law, we must presume acted in acthis threat in arriving at their verdict, was cordance with their obligation, and did not of such a prejudicial nature that this case consider this testimony. It will not do to must be reversed. In cases of self-defense, say that the jury did not believe Myrtle where the question is doubtful as to who was Smith because the threat testified to in her the aggressor, as is the fact in the present testimony was expressly ruled out by the case, there being no witnesses to the hom

court. Iler testimony, no matter what her icide, evidence of threats made against the character, was admissible for such weight life of a defendant preceding the affray, as the jury might give to it, and, no matter even though uncommunicated, are admissi- from what source the testimony came, the ble. In the present case, a material point defendant was entitled to have this testiat issue was: Who was the aggressor? The mony passed upon by the jury. In the case defendant says the deceased was the aggres- of State v. Hennessy (very recently detersor; that he shot the deceased when the lat- mined) 29 Nev-,90 Pac. 225, this court, ter "threw his hand back into his hip in passing upon testimony of uncommunicatpocket" for the purpose, as defendant be- ed threats assigned as error, said: “Such Hieved, according to his testimony, of kill- threats, even if uncommunicated, would be ing him if he got the chance. No one was

competent for the purpose of aiding the present at this fatal moment but the de

jury in determining who was the aggressor ceased and the defendant. If this threat in the encounter which subsequently occurred testified to by Myrtle Smith was true, and between Ganahl and Cole, on the one hand, was made by the deceased, how vitally im- and Elftman, on the other.” The rule as to portant this fact then became to the defend- the admissibility of uncommunicated threats ant when the testimony discloses that the made by the deceased against the life of the first time the deceased saw the defendant defendant, where the plea of self-defense is after the making of this threat was the very interposed, is succinctly stated in the late time when the shooting took place. The jury work of Wigmore on Evidence, vol. 1, $ 110, were considering whether or not the defend

as follows: “Where, on a charge of homiant, according to his plea of self-defense, was cide, the excuse is self-defense, and the conjustified in defending his life at the time he

troversy is whether the deceased was the shot Moritz. The determination of this fact aggressor, the deceased's threats against the by the jury as to who was the aggressor is accused are relevant. The deceased's design in this case and in most if not all murder to do violence upon the defendant is of some cases wherein the plea of self-defense is in- value to show that

that on the occasion in terposed, almost decisive of the innocence, question he did carry out, or attempt to or, if guilty, the degree of guilt of the de- carry out, his design. Moreover, it is the fendant, and in the determination of this fact of his design, irrespective of its com

munication to the defendant, that is evidential.”

The judgment and order of the trial court are reversed, and cause remanded for a new trial,

TALBOT, C. J., and NORCROSS, J., concur.

(50 Or. 36)

SEARS et al. V. DUNBAR.* (Supreme Court of Oregon. July 30, 1907.) 1. APPEAL-ORDERS APPEALABLE-FINALITY.

Under B. & C. Comp. $ 547, as amended by Laws 1907, p. 313, c. 102, limiting appeals to orders affecting substantial rights and in effect determining suits, etc., an order, in a suit by a taxpayer against a former Secretary of State to require him to account for moneys received, denying defendant's motion to dismiss on de murrer being sustained to the complaint for plaintiff's incapacity to sue, and granting substitution of the state as plaintiff, was not appealable; the sustaining of the demurrer and the substitution under B. & C. Comp. $ 101, providing that if a demurrer be sustained the court may allow an amendment, and section 102, authorizing the name of a party to be added or stricken before trial, not being final as to the suit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $8 643, 644.) 2. PLEADING-AMENDMENT-ERROR-EFFECT.

Granting leave to plaintiff to amend his pleading is within the power of a court, and, thoughtbe power be exercised erroneously, the order is oot void.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, $8 575, 601.) 3. APPEAL-MOTION TO DISMISS-MERITS.

The merits of an appeal may not be decided on a motion to dismiss.

[Ed. Note.-For cases in point, see Cent. Dis. vol. 3, Appeal and Error, $ 3162.)

to his own use, and asks for an accounting thereof and a decree requiring him to pay the same to the state of Oregon. The defendant demurred to this complaint, wbicb was sustained by the court on March 29, 1907, upon the ground, as we understand, that plaintiff had not legal capacity to sue, and thereafter, on the same day, John H. McNary, district attorney for the Third judicial district, moved the court that the state of Ore gon ex rel. J. H. McNary, as district attorney, be substituted for Sears as plaintiff in said suit, said motion being based on affidavit; and also tenders an amended complaint entitled, “The State of Oregon, upon the relation of J. H. McNary, as District Attorney of the Third Judicial District of Oregon, Plaintiff, v. F. I. Dunbar, Defendant." Except the title, such amended complaint is in substance and effect the same as the original, and seeks the same relief, Afterward, on April 9, 1907, the defendant filed a motion to dismiss the suit, for the reason that the demurrer was sustained and no amended complaint filed by Sears within the time provided by law. This motion was, on April 12, 1907, overruled, and the motion of 2. H. McNary for substitution of the state of Oregon as plaintiff and leare to file the amended complaint was allowed, and defendant was given until April 25th to answer thereto. Thereafter, on April 22d, defendant took this appeal from the order of the court denying his motion to dismiss the suit and granting plaintiff's motion for substitution, and on May 21, 1907, plaintiff filed a n'otion here to dismiss the appeal for the reason that the order appealed from is not a final order, nor one from which an appeal wil lie.

(1. C. Fulton and Geo. G. Bingham, for appellant. L. E. McMahan and John H. McNary, for respondent,

Appeal from Circuit Court. Marion County; Win. Galloway, Judge.

Proceeding by J. K. Sears to require F. I. Dunbar, former Secretary of State, to account for moneys received; the state of Oregon, upon the relation of J. H. MeNary, district attorney, being substituted as plaintiff. Defendant appealed from an order denying his motion to dismiss and granting substitution, and plaintiff moves to dismiss the appeal. Appeal dismissed.

Upon motion to dismiss the appeal. This proceeding was originally commenced by J. K. Sears, a citizen and taxpayer of the state of Oregon, against F. I. Dunbar, who was the Secretary of State of the state of Oregon from January 9, 1899, to January 14, 1907. It is alleged that during that time he collected and received for the benefit of the state of Oregon a large amount of money, viz., $100,000, as fees for various filings, copies of records, issuing various commissions and Ilcenses, and recording various papers in his office, and neglected and refused to deliver the same or any part thereof to his succes sor in otice, or to any one authorized to receive the same, but has converted the same

EAKIN, J. (after stating the facts). The question is whether the order appealed from is a final order, or one from which an appeal will lie at this stage of the proceeding. Our statute (section 547), as amended (Laws 1907, P. 313, c. 162), provides: "A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect deterinines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or de cree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree." It is held in State v. Security Savings Co., 28 Or. 410, 43 Pac. 162, and School District v. Irwin, 34 Or. 431, 56 Pac. 413, that an appeal is statutory and cannot be extended to cases not within the statute. and it has frequently been decided by this court that an appeal will not lie except fron

• Rehearing denied September 3, 1907.

01 P.--10

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