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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 female prisoners in that institution. Later the court, in her absence, made an order substituting the Erie county penitentiary. The court denied the petition for writ of habeas corpus, and remanded the prisoner, on the ground that the order fixing the place of Imprisonment was not necessarily a part of the judgment.

In Re McDonald, 33 Pac. 22, 4 Wyo. 150, the court cited with approval Elsner v. Shirgley, supra, and People v. Foster, 104 Ill. 156, and said: "The judgment * does not in itself fix the term or rate of imprisonment for the failure to pay

the fine imposed; but, if this were erroneous, it could only be reached by proceedings in error. It is not the office of a writ of habeas corpus to correct errors or irregularities of a trial court."

plains of the unlawfulness of his place of imprisonment. He is only entitled to relief from that unlawful feature, and that he would obtain if opportunity be given to that court for correction in that particular. Some of the state courts have expressed themselves strongly in favor of the adoption of this course, where the defects complained of consist only in the judgment, in its extent, or mode, or place of punishment; the conviction being in all respects regular. In Beale v. Commonwealth, 25 Pa. 11, 22, the Supreme Court of Pennsylvania said: "The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for which it was established.'"

This court has decided that the writ of habeas corpus is not intended to take the

In re Bonner, 151 U. S. 258, 259, 260, 14 Sup. Ct. 323, 326, 327, 38 L. Ed. 149: "When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict, and the law, in prescrib-place of an appeal, writ of error, or certioring the punishment, either as to the extent, or the mode, or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of Imprisonment, the court cannot direct a different place not authorized. It cannot direct imprisonment in a penitentiary, when the law assigns that institution for imprisonment under judgments of a different character. A question of some difficulty arises, which has been disposed of in different ways, and that is as to the validity of a judgment which exceeds in its extent the duration of time prescribed by law. With many courts and judges-perhaps with the majority-such judgment is considered valid to the extent to which the law allowed it to be entered, and only void for the excess.

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ari, and cannot be used for the purpose of reviewing errors or irregularities in the proceedings of a court having jurisdiction (Ex parte Smith, 2 Nev. 338; Ex parte Maxwell, 11 Nev. 428; Ex parte Winston, 9 Nev. 71; Ex parte Twohig, 13 Nev. 302; Ex parte Bergman, 18 Nev. 331, 4 Pac. 209); that, if the prisoner is held under a valid commitment, the legality of other commitments need not be considered until his term of service under the good commitment has expired (Ex parte Ryan, 17 Nev. 139, 28 Pac. 1040; Ex parte Ryan, 10 Nev. 261); that under this writ the court will review the question of the constitutionality of an act under which petitioner has been convicted, and if the act is unconstitutional discharge him (Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. 298, 3 Am. St. Rep. 901; Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47; Ex parte Kair, 28 Nev. 127, 80 Pac. 463, and cases therein cited); that the petitioner will be released from an order committing him for contempt for an act not committed in the immediate view of the court, when the court was without jurisdiction to make such order by reason of its failure to first require an affidavit and to cite the offender to show cause why he should not be punished (Ex parte Hedden, 29 Nev., 90 Pac. 737); and that the addition of the words "at hard labor" in the sentence, although not authorized by statute, would be treated as mere surplusage and in no manner affecting the validity of the judgment (Ex parte Maher. 25 Nev. 424, 62 Pac. 1).

From these cases it is apparent that a few courts have held that, where the sentence upon a valid conviction is excessive or erroneous in part, the whole of the judgment 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 appeal 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 most heinous crimes 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 2267, 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 failure 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 $500, 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 district court, unless a part of the fine remaining unsatisfied is sooner paid.

NORCROSS and SWEENEY, JJ., con

cur.

(Nev. 403)

STATE v. JACKMAN. (No. 1,710.) (Supreme Court of Nevada. Aug. 1, 1907.) 1. HOMICIDE-EVIDENCE- ADMISSIBILITY

THREATS.

Where, on a trial for murder, self-defense is pleaded, threats by decedent to kill defendant the first time he saw him, made within an hour of the shooting. are admissible, though they were not communicated to defendant, on the issue of who was the aggressor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, § 405.]

2. CRIMINAL LAW-APPEAL HARMLESS ERROR-ERRONEOUS EXCLUSION OF EVIDENCE.

An instruction, on a trial for murder, wherein self-defense was pleaded, not to consider evidence of threats which were not communicated to defendant, was none the less prejudicial error because the threats were testified to by a prostitute; her testimony, no matter what her character, being admissible for such weight as the jury might give it.

Appeal from District Court, Esmeralda County.

Albert T. Jackman, indicted under the name of John Thompson, was convicted of murder in the first degree, and from the judgment and an order denying his motion for a new trial he appeals. Reversed, and remanded for a new trial.

Thompson, Morehouse & Thompson and Wm. Woodburn, for appellant. R. C. Stoddard. Atty. Gen., for the State.

SWEENEY, J. Defendant was indicted for killing John Moritz at Goldfield, Nev., on September 16, 1906, tried and convicted of murder in the first degree in the district court of the First judicial district of the state of Nevada in and for the county of Esmeralda, and sentenced by the court to be hanged by the neck until dead. From an order denying defendant's motion for a new trial, and from the final judgment convicting defendant of murder in the first degree, defendant appeals.

It appears from the testimony that the defendant, 21 years of age, a gambler by occupation, about 3 o'clock a. m. of the 16th day of September. 1906, was crossing the main stree of Goldfield on his way to the Royal Café for breakfast, when he saw the deceased, John Moritz, aged 23, whose business appeared to be that of a messenger in the tenderloin district, coming down the sidewalk on a bicycle, when, according to the defendant, "he rode almost to me, jumped off his bicycle, and I would not say for sure whether he leaned his bicycle up against a post or the building. He walked down in

front of me, headed me off. I asked him: 'What do you mean, do you intend to make another gun play like you tried at the dance hall?' He answered: Yes (uttered an oath), and I am going through with it.' As he said 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 he did so I shot him. * *** I thought he was going to shoot me; that he was going to kill me if I gave him the chance. I would not have shot him otherwise, if I did not think he was going to shoot me. * I shot once; that is, two shots were fired from the gun. One was my intention and purpose. The first I shot on purpose. After the first shot he staggered, and I cocked my gun, that is, to see if he was going to pull his gun to shoot or kill me. I stepped sideways toward the Mohawk, and as I did he fell. As he fell my finger was on the trigger and my thumb cocking the hammer. I had the trigger pulled back with my finger, and as he fell my thumb slipped off the hammer, and the gun exploded the second time.

I did not fire the second shot intentionally." There were no witnesses to the commencement of the tragedy. It appears further from the testimony that the defendant about 1 o'clock of the same morning was in company with one Sherman Crumley, when Crumley was accidentally run into by deceased on a bicycle in an alley in the red light district of Goldfield, whereupon Crumley and Moritz had a wordy argument, culminating in the deceased, Moritz, drawing a revolver and ordering Crumley to "stand back." A revolver was found on the person of the deceased when brought to the hospital after the shooting. To the indictment charging defendant with murder in the first degree, defendant pleaded not guilty," and interposed a plea of self-defense. During the progress of the trial, a prostitute by the name of Myrtle Smith was introduced as a witness on the part of the defense, and testified as follows: "By Mr. Morehouse: Q. Where do you reside? A. Goldfield. Q. Did you know in his lifetime a young man by the name of Moritz? A. Yes, sir. Q. Where did you know him? A. In Goldfield. Q. Did you see him on or about the morning of the 16th of September? A. Yes, sir. Q. Where? A. Down to my house. Q. What was he doing there? He brought me a lunch down to my house. Q. About what time was this? A. Some time between 2 and 3 o'clock; I could not exactly tell the time. Q. In the morning? A. In the morning. Q. On that occasion did he make any remark of and concerning Albert Jackman, known as Jack Thompson? A. Yes, sir. Q. Will you state to the jury what he said, and how he came to say it? A. Yes, sir. He brought a lunch from the Palm Restaurant to me. He went back and got one for Miss Florence and came back with Miss Florence's lunch and was to take

A.

important fact, all threats against the life of the defendant by the deceased, even though uncommunicated, are admissible, and the exclusion of this evidence, so vitally important to the defendant, is reversible error. State v. Hennessy, 90 Pac. 221 (to be published in 29 Nev.); People v. Arnold, 15 Cal. 481; People v. Scoggins, 37 Cal. 676; People v. Alivtre, 55 Cal. 263; Wigmore on Evidence, vol. 1, § 110; Stokes v. People, 53 N. Y. 174, 13 Am. Rep. 492; Wilson v. State, 30 Fla. 242, 11 South. 556, 17 L. R. A. 654.

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my empty dishes. I heard him in my room, and stepped into the room, and he said: 'For Christ's sake, don't scare me.' I said to him: Why are you so frightened?' He said: 'Well, I had trouble down the street with Jack Thompson.' And made the remark: 'I am going to kill the son of a bitch the first time I see him.'" The court gave the following instruction to the jury, asked for by the state, which is assigned as error by the defendant: "Threats, however deliberately made, do not justify an assault and battery, much less the taking of the life of the party making them, and evidence of threats previously made, if any threats were made, but not communicated to the defendant, should not be considered by the jury in arriving at their verdict."

The threat, as testified to, was: "I am going to kill the son of a bitch the first time I see him." The shooting, according to the testimony, took place about 3 o'clock a. m. and this threat is testified to as having been made within an hour previous to the shooting. In arriving at their verdict, the fact of who was the aggressor became of vital importance to the jury in determining the innocence or degree of guilt of the defendant, and one which they must necessarily have passed upon in arriving at their verdict. The jury in the present case were instructed, in effect, not to consider the testimony of Myrtle Smith because the threat, being uncommunicated, was inadmissible, and the jurors, whose duty it is to be governed by the instructions given by the court as to the law, we must presume acted in accordance with their obligation, and did not consider this testimony. It will not do to say that the jury did not believe Myrtle Smith because the threat testified to in her testimony was expressly ruled out by the court. Her testimony, no matter what her character, was admissible for such weight as the jury might give to it, and, no matter from what source the testimony came, the defendant was entitled to have this testimony passed upon by the jury. In the case of State v. Hennessy (very recently determined) 29 Nev., 90 Pac. 225, this court, in passing upon testimony of uncommunicated threats assigned as error, said: "Such threats, even if uncommunicated, would be competent for the purpose of aiding the jury in determining who was the aggressor in the encounter which subsequently occurred between Ganahl and Cole, on the one hand, and Elftman, on the other." The rule as to the admissibility of uncommunicated threats made by the deceased against the life of the defendant, where the plea of self-defense is interposed, is succinctly stated in the late work of Wigmore on Evidence, vol. 1, § 110, as follows: "Where, on a charge of homicide, the excuse is self-defense, and the controversy is whether the deceased was the aggressor, the deceased's threats against the accused are relevant. The deceased's design to do violence upon the defendant is of some value to show that on the occasion in question he did carry out, or attempt to carry out, his design. Moreover, it is the fact of his design, irrespective of its com

The effect of this instruction was to preclude the jury from considering the testimony of Myrtle Smith testifying to a threat made by the deceased less than an hour before the shooting against the life of the defendant. The evidence of Myrtle Smith testifying to the threat made by the deceased against the life of the defendant, under the circumstances in this case, though uncommunicated to the defendant, was clearly admissible and of such vital importance to the defendant that the instruction of the court, commanding the jury not to consider this threat in arriving at their verdict, was of such a prejudicial nature that this case must be reversed. In cases of self-defense, where the question is doubtful as to who was the aggressor, as is the fact in the present case, there being no witnesses to the homicide, evidence of threats made against the life of a defendant preceding the affray, even though uncommunicated, are admissible. In the present case, a material point at issue was: Who was the aggressor? The defendant says the deceased was the aggressor; that he shot the deceased when the latter "threw his hand back into his hip pocket" for the purpose, as defendant believed, according to his testimony, of killing him if he got the chance. No one was present at this fatal moment but the deceased and the defendant. If this threat testified to by Myrtle Smith was true, and was made by the deceased, how vitally important this fact then became to the defendant when the testimony discloses that the first time the deceased saw the defendant after the making of this threat was the very time when the shooting took place. The jury were considering whether or not the defendant, according to his plea of self-defense, was justified in defending his life at the time he shot Moritz. The determination of this fact by the jury as to who was the aggressor is in this case and in most if not all murder cases wherein the plea of self-defense is interposed, almost decisive of the innocence, or, if guilty, the degree of guilt of the defendant, and in the determination of this

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., con

cur.

(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 demurrer 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, §§ 643, 644.]

2. PLEADING-AMENDMENT-ERROR-EFFECT.

Granting leave to plaintiff to amend his pleading is within the power of a court, and, though the power be exercised erroneously, the order is not void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 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. Dig. vol. 3, Appeal and Error, § 3162.]

Appeal from Circuit Court, Marion County; Wm. 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 licenses, and recording various papers in his office, and neglected and refused to deliver the same or any part thereof to his successor in office, or to any one authorized to receive the same, but has converted the same Rehearing denied September 3, 1907. 01 P.-10

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, which 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 Oregon ex rel. J. H. McNary, as district attor ney, 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 leave 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 will lie.

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

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 determines 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 from

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