Louis Vogt and P. B. Godsman, for appel- | him on the written grounds stated in the molant. J. E. Simonson and W. G. Simonson, tion is not material error. for appellee. SCOTT, P. J. This was an action by appellee, plaintiff below, to quiet title to the S. E. 4 of section 5, township 9 S., range 44 W., sixth P. M., situated in Kit Carson county, Colo. The appellant, defendant below, filed an answer, denying that the plaintiff was the owner and entitled to the tract of land in question, and a cross-complaint, alleging ownership, and asking that the title be quieted in it. The plaintiff below relies upon a patent from the government to himself, dated December 10, 1900. The defendant relies on a tax deed dated November 3, 1904. The plaintiff objected to the introduction of the tax deed in evidence for the reason, among others, that the deed was void on its face, which objection was sustained by the court, and judgment was thereupon rendered for the plaintiff. The tax deed upon its face shows that several distinct and noncontiguous tracts of land were offered and sold en masse, and not separately as the law requires, and that the tax for which the sale was made was the tax for the entire property, and does not show the amount of tax on each separate and distinct tract, and particularly upon the tract in question. It is not necessary to cite authorities in support of the conclusion that the tax deed is void upon its face. There is no other claim of title upon the part of the defendant than the tax deed. The judgment of the district court is affirmed. All the Judges concurring. (34 Nev. 297) STATE v. ORR. (No. 1,934.) (Supreme Court of Nevada. March 27, 1912.) 1. CRIMINAL LAW (§ 919*)-TRIAL-IMPROPER ARGUMENT OF DISTRICT ATTORNEY. The remarks of the district attorney in his argument that accused on trial for assault with intent to murder was a resident of the tenderloin district, and resided with a prostitute, are improper, when not justified by the evidence, and, where exception was taken at the time, the court, satisfied that the jury was prejudiced thereby, may grant a new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3190, 3191; Dec. Dig. § 1176.*] 4. CRIMINAL LAW (§ 1090*) - MOTION FOR BILL OF EXCEPTIONS- STATE NEW TRIAL A motion for a new trial under Rev. Laws. §7234, authorizing a new trial on the ground that the verdict is contrary to law or evidence, may be determined without any bill of exceptions, or statement or affidavit. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. & 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*] 5. CRIMINAL LAW (§ 1090*) — GRANTING ▲ NEW TRIAL-APPEAL-RECORD. The state appealing from an order granting a new trial without any bill of exceptions or statement must present a bill of exceptions or statement on appeal to show wherein the order of the trial court was erroneous, or otherwise the order will be affirmed. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. 1090.*] Appeal from District Court, White Pine County; Thomas L. Mittchell, Judge. Robert Orr was convicted of assault with a deadly weapon with intent to do great bodily injury, and from an order granting a new trial the State appeals. Affirmed. Cleveland H. Baker, Atty. Gen., and C. R. Reeves, Ex-Dist. Atty., for the State. C. A. Eddy, for respondent. PER CURIAM. This is an appeal by the state from an order granting a new trial. The respondent, Orr, was indicted for the crime of assault with intent to kill. Upon his trial the jury returned a verdict of "guilty of assault with a deadly weapon, with intent to do great bodily injury." The attorney for the defendant thereupon moved for a new trial upon several grounds, all of which were overruled excepting the third ground assigned, which reads: "That one C. R. Reeves, district attorney of the county of White Pine and state aforesaid, who prosecuted this action on the behalf of the state, trespassed the rights of defendant in the argument of the cause to the jury, and made remarks which were prejudicial, and were calculated to influence and prejudice the minds of the jury." The district attorney excepted to the ruling of the court, and took an appeal from the order. much of the bill of exceptions as is material to a determination of the question presented reads as follows: "The evidence established that George Fagan was cut with a knife by the defendant, he admitting the cutting and relied upon the grounds of self-defense to justify his acts. The evidence showed that the cutting took place in the Autumn Leaf Club, which is situated in the tenderloin district in the town of Ely, White Pine The failure of counsel for accused to sign county. Nev.; that after the submission of a motion for new trial made in open court by the evidence in the case by the state and •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2197-2201; Dec. Dig. 8 919.*] 2. CRIMINAL LAW (§ 1090*)—APPEAL-PRESUMPTIONS. An order granting a new trial for improper remarks of the district attorney in his argument will be affirmed, in the absence of a bill of exceptions showing error in the ruling. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*] 3. CRIMINAL LAW (§ 1176*)-NEW TRIAL. So taken to them by the defendant at the time they were made, and the trial judge was satisfied that they prejudiced the jury, he was justified in granting a new trial upon the authority of the recent decision of this court in the case of State v. Rodriguez, 31 Nev. 342, 102 Pac. 863. On the argument in this court, it was said on behalf of appellant that there was testimony on the trial that the defendant lived with a woman in a crib in the redlight district, and that no exception was taken on the trial to the statement of the district attorney in this regard made before the jury, and to which objection is now made. The bill of exceptions, statement, or record on appeal does not indicate, as is required for bringing the matter before this court for consideration, whether such testimony was given or whether the defendant failed to except to the statement of the district attorney. defendant, which was argued to the court | evidence to sustain them, and exception was and the jury by the respective counsels, the jury returned a verdict of 'guilty of assault, with a deadly weapon with intent to do great bodily harm'; that upon the 26th day of September, A. D. 1910, defendant, through his counsel, C. A. Eddy, moved for a new trial; that said motion for a new trial was filed and came on to be heard before the court, whereupon attorney for the state interposed an objection and demurred to the motion upon the ground that said motion was not signed by any person, and that said motion was improperly before the court, and the said motion was not supported by affidavit, statement of facts settled by the court, bill of exceptions, depositions, copy of the minutes of the court, or by any evidence before the court, to which the court then and there overruled the objections of the state to which the state took exceptions upon the ground stated in the objections; that thereafter the motion was submitted to the court, and the court then and there overruled defendant's said motion on all matters and causes except as to the third cause, wherein the defendant alleged that remarks of the prosecution to the jury during the course of the argument was prejudicial to the defendant's interests, and the jury was unduly influenced by said remark, said remark being more fully set forth in defendant's motion for a new trial. The court then and there ruled and ordered the verdict set aside and a new trial granted to defendant, to which the state excepted on the ground that said rulings [here follows the grounds of exception, which are substantially the same as those stated in the objection to the motion above quoted]." [1] The remarks of the district attorney which were deemed prejudicially objectionable by the trial court are neither set out in the motion for a new trial, nor embodied in the bill of exceptions contained in the record on appeal. Counsel for respondent in his brief sets out that the objectionable language was as follows: "That the defendant was a resident of the tenderloin district of the city of Ely, and resided with a common prostitute." While these remarks, if correctly quoted, are not properly before the court for consideration, the district attorney in arguing the case upon appeal did not question their correctness. Conceding for the purposes of the case that they may be considered in connection with the bill of exceptions, then there is no showing that there was any evidence before the jury justifying the use of such a statement in the argument of the district attorney. The fact that the trouble occurred "at the Autumn Leaf Club, which is situated in the tenderloin district of the town of Ely," will not of itself warrant an assertion that the defendant resided in that district with a common prosti [2] The affirmance of the order of the trial court should be upon the ground that the bill of exceptions fails to show any error in the ruling of the trial court, and that all presumptions will be indulged in favor of such ruling. State v. Stanley, 4 Nev. 71. [3] The fact that counsel for defendant neglected to sign the motion for a new trial could not be regarded as a material error. Evidently the motion was made in open court by counsel for defendant upon the written grounds stated in the motion filed. [4] On behalf of appellant, it is urged that the motion for a new trial was not properly denied or determined because the motion was not supported by affidavit, depositions, copy of minutes, bill of exceptions, or statement of fact settled by or before the court. Our statute relating to criminal practice (Comp. Laws, § 4394, Rev. Laws, § 7234), similarly to section 1181 of the California Penal Code, provides that "the court in which a trial is had upon the issue of fact, has power to grant a new trial where a verdict has been rendered against the defendant upon his application," specifying different grounds, among which are: "(6) When the verdict is contrary to law or evidence, but no more than two new trials shall be granted for this cause alone." For the purposes of that case, it was said in State v. Stanley, 4 Nev. 76, that, where the ground upon which the new trial is granted is of a character that cannot otherwise properly be presented, it should be presented by bill of exceptions, affidavit, or statement. Regarding this point, the following is a later and more definite expression of this court: "The misconception alluded to is the notion that the same preliminary steps are necessary in moving for a new trial in criminal cases that are prescribed in civil cases, and particularly that it is necessary to prepare and settle a statement or bill of exceptions in advance of * judge to consider the testimony which is to be relied on in support of it. In Stanley's Case (4 Nev. 76), this proposition is 'conceded'; but it will be observed that the concession was made merely for the purposes of the argument in that opinion, and that the point was not so decided. It never has been so decided in this state, nor, according to our observation, in California. But the expression above adverted to, and perhaps some others that may be found in the Nevada reports, will always induce counsel in criminal cases to insist upon having the bill of exceptions settled preliminary to the motion for new trial, for fear an order sustaining the motion might be reversed upon the ground that it was made without authority. The result is that whenever one of the grounds of the motion is that the verdict is contrary to the evidence, as it was in this, and is in most cases, every particle of the evidence must go into the bill of exceptions, and must be brought here with the rest of the record, although in nine cases out of ten it is of no possible use for the purposes of the appeal, but, on the contrary, is a positive drawback. * # We desire to call attention to the fact that this court has not decided that a statement or bill of exceptions must be settled before the motion for new trial is made. We think, on the contrary, that a comparison of all the provisions of the practice act as to the time when the motion for new trial must be made, and the time allowed for settling the formal bill of exceptions which is to become a part of the record of the case, will clearly show that the statute contemplates that in all cases the bill of exceptions may, and in many cases it must, be settled after the motion for new trial is decided. Compare sections 429, 444, 445, 436, 450, 423. If it be asked upon what would the judge act if he had no settled bill of exceptions before him, we answer he acts upon affidavits so far as they are necessary to present the grounds of the motion, and, for the rest, upon his own observation and recollection of the occurrences of the trial, including the exceptions noted. The record of the trial, according to the old books, is in the breast of the judge during the term, and a motion for a new trial in a criminal case is always made during the term. For the purposes of the motion, therefore, the recollection of the judge is record enough of all that transpired within his observation, and which he can properly state in a bill of exceptions. When the motion has been granted or refused, it is then the proper time to except to the order and to settle a bill of exceptions which will present those points only which are to be reviewed in the appellate court. In fact, the only proper office of a formal bill of exceptions is to get the matter on the record for the purposes of review in the appellate court. The advantages of following the practice here indicated would, we think, be manifold. In the first place, if counsel were allowed ample time for the preparation of their bill of exceptions, they would satisfy themselves of the inutility of including many things, which, when hurried, they put in by way of precaution merely. It is easier and safer to dump in the whole proceedings of the trial, ore and waste together, than it is to sort and arrange in a hurry. In the next place, the argument of the motion for new trial often develops many points of agreement between the prosecution and defense, and either leads to the abandonment of points, or renders it possible to present the law question on the record in the briefest possible terms." State v. Huff, 11 Nev. 23. A part of the California cases cited in the brief of the Attorney General in the Stanley Case are civil actions under a section of the civil practice act of California which required a bill of exceptions or statement under certain conditions before a motion for a new trial was determined, and part of those cases hold that a bill of exceptions is necessary to bring certain errors before the Supreme Court for review in criminal cases-a different question from the one as to whether a bill of exceptions is required before disposition of a motion for a new trial. Formerly our civil practice act provided for a statement on motion for a new trial before the determination of a motion for a new trial on certain grounds (Comp. Laws, § 3292), and the taking of a bill of exceptions during the trial was optional (Comp. Laws; § 3860); but under the new Code (Rev. Laws, § 5321), which became effective the first of this year, motions for a new trial in civil cases on the ground of excessive damages, or if the decision is against law or the evidence, or for error in law occurring at the trial, may be determined without the preparation of any bill of exceptions, statement, or affidavit; and hereafter motions for new trial on the ground that the verdict is contrary to the law or evidence, or that the court erred in the decision of any question of law, may be determined in both civil and criminal cases without any bill of exceptions, statement, or affidavit being presented. The Supreme Court of California has held, under a statute similar to ours, that it is not necessary for the defendant in a criminal case to have a bill of exceptions or statement prepared before making a motion for a new trial, and that in presenting the motion without a bill of exceptions or statement the defendant does not waive the right to have a bill of exceptions settled after the motion is determined, but is entitled for use on appeal to a record of so much of the evidence and proceedings had on the trial as may be necessary to explain the grounds of the motion. People v. Ah Yute, 56 Cal. 119; People v. Keyser, 53 Cal. 183; People v. Fischer, 51 Cal. 319. [5] The state being appellant in this case, the motion for a new trial having been a new trial after a verdict of guilty of burglary. The motion was made upon several grounds, and was granted upon the two that the verdict is contrary to law and contrary to the evidence. The evidence in the case was circumstantial, and in some respects may be said to be conflicting. The trial judge heard the testimony, and had an opportunity to observe the witnesses. granted by the district court without any bill of exceptions or statement having been filed, and the presumption being in favor of the action of the district court, it became necessary for appellant to present a bill of exceptions or statement on appeal showin wherein the order of the district court was erroneous. As the bill of exceptions on appeal does not show that there was evidence to justify the statement made by the district attorney before the jury, or that no exception was taken to the remarks of the district attorney at the time they were made, the presumption follows that the remarks for the making of which the district judge granted a new trial were not supported by the evidence, were excepted to, and were prejudicial to the defendant. If, instead of granting, the court had overruled the motion for a new trial, and the defendant had appealed from the order instead of the state, it would be incumbent upon the defendant as appellant to present to this court a bill of exceptions stating facts which would overcome the presumption in favor of the correctness of the order and showing error by the district court in overruling the motion for a new trial on the ground stated. The new criminal and civil practice acts (Rev. Laws, §§ 7235, 5321) pro- | exceptions, statement, or affidavit had been vide specifically that motions for a new trial upon the first four designated grounds must be based upon affidavit. [1] A certain amount of discretion is reposed in the trial court in the matter of granting or refusing new trials, and, where a new trial is granted upon the ground of insufficiency of the evidence to support the verdict, the action of the trial court will not be disturbed except in case of an abuse of discretion. We cannot say from the record that there was such an abuse of discretion. State v. Stanley, 4 Nev. 71; Worthing v. Cutts, 8 Nev. 121; Treadway v. Wilder, 9 Nev. 70; Golden v. Murphy, 27 Nev. 379, 75 Pac. 625, 76 Pac. 29. The statute provides that not more than two new trials shall be granted for the cause that the verdict is contrary to law or evidence. Comp. Laws, § 4393; Rev. Laws, § 7234. [2] It is also claimed that the order 'granting the new trial was improperly made because at the time it was presented no bill of filed on which it could be based. In the opinion this day filed in the case of State v. Orr. 122 Pac. 73, we have considered this ques The order from which the appeal is taken tion at length, and have held that the court is affirmed. (34 Nev. 305) STATE v. BAUER. (Supreme Court of Nevada. March 27, 1912.) 1. CRIMINAL LAW (§ 1156*) - NEW TRIALINSUFFICIENCY OF EVIDENCE-REVIEW. An order granting accused a new trial for insufficiency of evidence to support a conviction will not be disturbed on appeal, except in case of abuse of discretion. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.*] 2. CRIMINAL LAW (§ 955*)-NEW TRIAL-BILL OF EXCEPTIONS. A motion for new trial may be heard by the trial court without a bill of exceptions, statement, or affidavit, when it is based on matters which transpired before, and are within the knowledge of the court. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2368-2372; Dec. Dig. § 955.*] Appeal from District Court, White Pine County; Thomas L. Mittchell, Judge. Frank Bauer was convicted of burglary, and from an order granting a new trial the State appeals. Affirmed. Cleveland H. Baker, Atty. Gen., and C. R. Reeves, Ex Dist. Atty., for the State. A. L. Haight, for respondent. PER CURIAM. This is an appeal by the state from an order granting the defendant may determine the motion for a new trial in a criminal case without the presentation of a bill of exceptions, statement, or affidavit when the order is based upon matters which transpired before, and are in the knowledge of the court. The order appealed from is affirmed. (18 Cal. App. 70) PEOPLE v. MARIO (two cases). (Cr. Nos. 171, 172.) (District Court of Appeal, Third District, California. Jan. 22, 1912.) 1. CRIMINAL LAW (§ 1130*)-APPEAL-BRief— NECESSITY. Where accused fails to file a brief or comply with Supreme Court rule 2 (119 Pac. x), requiring appellant to file his points and authorities, and thereby subjects his appeal to discourt need not make an independent investiga missal under rule 5 (119 Pac. x), the reviewing tion into the legality of his conviction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2965-2970; Dec. Dig. § 1130.*] 2. ROBBERY (§ 24*)-EVIDENCE-SUFFICIENCY. Evidence held sufficient to support conviction of robbery. [Ed. Note. For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.*] Appeals from Superior Court, Plumas County; J. O. Moncur, Judge. Celestino Mario and Guiseppe Mario were convicted of robbery, and they separately | witness, shortly after the latter had retired appeal. Appeals dismissed. W. W. Kellogg and J. D. McLaughlin, for appellants. U. S. Webb, Atty. Gen., and J. Charles Jones, for the People. HART, J. The defendants above named were jointly charged, by information filed by the district attorney of Plumas county, with the crime of robbery. They were given separate trials, and each was convicted of the crime charged in the information. Each of the defendants appeals from the judgment under the method prescribed by for the night, and, while one held a pistol over him, the other abstracted the sum of $90 in gold from a pocket in the shirt in which he retired, and which was on his body at the time of the robbery. This testimony is sufficient to support the verdict tions given in both cases fully, fairly, clearly, and correctly covered every phase of each case as disclosed by the charge and returned in each of the cases. The instruc the evidence. For the reasons stated in the foregoing, the appeal in both cases will have to be dismissed. It is therefore ordered that the appeal in the case of People v. Mario (No. 171) be dismissed, and that the appeal in the case of People v. Mario (No. 172) be dismissed. We concur: CHIPMAN, P. J.; BURNETT, J. (18 Cal. App. 35) MACHADO v. CANTY. (Civ. 872.) (District Court of Appeal, Third District, California. Jan. 13, 1912.) 1. JUDGMENT (§ 256*)-ACTION-FINDINGS TO SUPPORT JUDGMENT. Findings, in an action to quiet title, that the plaintiff was, and for more than three years prior to the beginning of his action had been, the owner in fee and entitled to the possession, that defendant claimed title under a tax deed from the state, that the tax sale was based upon an assessment levied when the property was not subject to taxation by the state, and that the plaintiff afterwards received a patent from the United States, conveying to him the absolute title, support a judgment for the plaintiff. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 446-454; Dec. Dig. § 256;* Injunction, Cent. Dig. § 432.] 2. JUDGMENT (§ 256*) CONSTRUCTION OF FINDINGS - FINDING OF FACT OR CONCLUSION OF LAW. In an action to quiet title, a finding that the plaintiff "is the owner in fee" of the property is not a conclusion, but a finding of an ultimate fact, sufficient to support a judgment for plaintiff. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256;* Injunction, Cent. Dig. § 432.] 3. TAXATION (§ 811*)- FINDINGS ENCY. CONSIST Where it is found, in an action to quiet title, that plaintiff had no right to the premises until about June, 1897, when he made application to enter upon the land as a homestead entryman, a further finding that during a period from and including the year 1895 to March, 1905, title to the property was in the United States, "subject only to the rights of plaintiff as a homestead entryman thereon, as aforesaid," is not inconsistent therewith. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1609, 1610; Dec. Dig. § 811.*] 4. JUDGMENT (§ 256*)-FINDINGS-CONSTRUCTION-SEPARATE JUDGMENT. [2] We have, however, notwithstanding the omission to file briefs in these cases, carefully read the testimony and examined the instructions in each case. The principal testimony upon which the verdicts are founded came from the prosecuting witness. It involves a direct statement that the defend[Ed. Note. For other cases, see Judgment, ants went to the room of the prosecuting Cent. Dig. §§ 446-454; Dec. Dig. § 256.*] Any uncertainty in findings is to be construed so as to support the judgment, rather than defeat it. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |