2. A law requiring the names of the witnesses who testified before the grand jury to be indorsed on the indictment does not require that such wit nesses be called to testify on the trial.

3. Failure to instruct that the jury, under such an indictment, might convict of simple assault, there being no request for the instruction, is not reversible error by virtue of 2 Comp. Laws Utah, 88, requiring that the court state to the jury all matters necessary for their information.

Appeal from district court, Third district. Arthur Brown, for appellant. Ogden Hiles, Asst. U. S. Atty., for the People.

to support his testimony in this regard, one | guilty, unless they believed him guilty as found in of them being a witness for the prosecution. the indictment. He gave the explanation when the claim was first made for the sheep, and insisted upon it all the way through the case. His purchases were proven by the parties from whom he had made them. They could not identify the sheep, except the four to which reference has been made, but it was proved by them that he bought of them 256 head; that they sold the sheep to him. The remaining few head were by his testimony shown to have been bought of various persons, one or two here and two or three there. All of the sheep in his possession were thus accounted for, and this almost wholly by the testimony of the men from whom he had purchased. No effort whatever was made to show that the defendant's explanation was false, nor even to cast any doubt upon it. It was not shown that he had owned other sheep, or that he had bought sheep from anybody else, or that he had not bought from the witnesses as they had testified, or that he had 78 or any other number of sheep more than he could account for. Manifestly his explanation, standing unchallenged, rebuts the idea that he came by the sheep dishonestly, and all the circumstances show that he was the honest possessor of the sheep, and had no criminal intent in placing his mark upon them. Without a criminal intent the crime was not committed. When he made a reasonable explanation, there should have been evidence given to the jury to show its falsity, or he was entitled to an acquittal. Id. pp. 64, 65, side p. 48; Jones v. State, 30 Miss. 653; Johnson v. State, 12 Tex. App. 385; Miller v. State, 18 Tex. App. 38; Gilliland v. State. 7 S. W. Rep. 241; Tarin v. State, 8 S. W. Rep. 473; People v. Elster, (Cal.) 3 Pac. Rep. 884; State v. Clifford, 14 Nev. 72. The rule that where a party finds lost property which shows the owner, then the finder is bound to know the owner, is not applicable. The evidence shows that the defendant did not find the property, but bought it. Take the whole case together, the evidence was not sufficient to warrant a verdict of guilty. As the case will have to be remanded on the ground stated, it will not be necessary for the court to consider the other points raised. The judgment and order of the court below are reversed, and the cause is remanded for a new trial.

BOREMAN, J. The defendant was indicted for assault with intent to murder, committed by assaulting one James Hair with a pistol, and discharging and shooting off one of the bullets with which said pistol was loaded “at and against the person of him, the said James Hair, with the intent him, the said James Hair, then and there willfully, feloniously, and of his malice aforethought to kill and murder." The court in the charge to the jury said: "And if you believe from the evidence in this case beyond a reasonable doubt that the defendant, at the time and place mentioned in the indictment, willfully, and with malice aforethought, shot out of a loaded pistol at Johnston, with intent to kill him, but missed him and shot and wounded James Hair, then you should find the defendant guilty." The facts show that the intent of the defendant was to shoot Johnson. The defendant was only about three feet from Johnson, and aimed the pistol directly at him, but Johnson knocked it to one side, and the bullet, instead of hitting Johnson, struck Hair. There was substantially no conflict of testimony on this point. The defendant was charged with having committed a statutory offense, of which intent was made a necessary ingredient. The act and the intent were combined to constitute the offense, and one was as necessary to be proved as the other. The intent was not a legal presumption, but an actual fact, and one to be found by the jury. The general rule is that a man is presumed to intend that which is the natural and probable consequence of his act. But that is a presumption which the law raises,—a legal presumption. In the present case the intent is not a legal presumption, but a fact to be proved,an actual intent existing in the mind of the accused at the time the act was done. It

SANDFORD, C. J., and HENDERSON, J., con- must be proven by circumstances. No one

cur.

(6 Utah, 101)

could look into the mind of the accused, and see the intent, but the evidence must show it existed. If the testimony had closed where PEOPLE . ROBINSON. the fact of shooting and hitting of Hair by the bullet had been introduced, the legal pre(Supreme Court of Utah. Jan. Term, 1889.) sumption might have been applicable in deSHOOTING WITH INTENT TO KILL. termining with what intent the shooting was 1. Where the indictment charged defendant with shooting at H. with intent to kill H., and the done. But it was necessary for the jury to evidence showed that he intended to kill J., an in- find as a fact whether the intent in the mind struction that if the jury find that defendant shot of the accused existed as charged, and in doat J., intending to kill him, but wounded H., they ing this the jury cannot be controlled by any should find him guilty, is erroneous, and is not cured by an instruction not to find defendant legal presumption, when the evidence shows

Appeal from district court, First district. I was assigned for the attempt to rescind, and no offer to pay for the work done. A. insisted upon

David Evans, Asst. U. S. Atty., for appellant. John B. Millner, for the People.

his contract, and right to use the water under it,

and continued to use water from the ditch. Thereupon the owners, including the contracting persons, brought a joint action in trespass against A. tered. Held (1) that the defendant's acts did not for wrongful use of the water from the time he enconstitute trespass, and that the plaintiffs cannot recover; (2) that a party to a valid contract, in not rescind at pleasure; (3) that where there has the absence of fraud or other special reason, canbeen part performance a party cannot rescind and still retain the bonefits received under the agreement.

(Syllabus by the Court.)

Appeal from district court, Ada county.
This is an appeal from a judgment ren-

SANDFORD, C. J. The respondent was indicted by the grand jury, and tried on a charge of grand larceny. He was found guilty. A motion for a new trial was granted, and an appeal from the order granting a new trial has been taken to this court. The evidence below discloses that the defendant had stated to the pound-keeper that a certain animal which he pointed out, then confined in the pound, belonged to him, and which he sold to the pound-keeper for $11. It was shown that the accused did not owndered in the district court, Ada county. the beast, and never had had it in his posses- The action is for damages, in trespass, and sion. The pound-keeper, after paying the also praying equitable relief. The complaint money, took it from the pound, and turned it out on his range. Shortly afterwards the animal was claimed by its rightful owner. It is contended on the part of the appellant that the accused is guilty of larceny within the meaning of the statute defining that offense, and that the taking of the animal from the pound by the pound-keeper was a taking by the accused. We think the court did not err in ordering a new trial. It is a well-settled rule that, with probably a few exceptions, larceny necessarily involves a trespass, and that there can be no trespass unless there is an actual or constructive taking of possession, and this possession must be entire and absolute. 3 Greenl. Ev. § 154. There must not only be such caption as to constitute possession or dominion over the property for an appreciable moment of time, but also an as-answer puts in issue each allegation of the portation, which may be accomplished by any removal of the property from its original status. In this case the accused never had any dominion over, or possession of, the animal. To constitute larceny, the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete, and it would seem that there can be no asportation, within its legal meaning, without a previous dominion. The facts presented do not constitute the offense of larceny. The appeal must be dismissed, and the order below should be affirmed.

HENDERSON and BOREMAN, JJ., concur.

(2 Idaho [Hasb.] 465)

BOWMAN et al. v. AYERS. (Supreme Court of Idaho. March 11, 1889.)

TRESPASS-CONTRACTS-RESCISSION.

avers, in substance, "that in 1883 the plaintiffs were the owners and in possession of a certain ditch, necessary for irrigating the lands of plaintiffs; and that the defendant wrongfully entered upon and cut and tapped said ditch, also drew water from said ditch, to the plaintiffs' damages $500." It also avers that in 1883, 1884, and 1885 the defendant wrongfully placed dams in said ditch, and cut down its banks, to the further damage of the plaintiffs $200, it further avers that the defendant is continuing such trespasses, and threatens and intends to continue them; that the defendant is insolvent, and the plaintiffs remediless, unless the defendant be enjoined; and prays judgment for the sum of $500 damages sustained; also that an injunction issue against the defendant. The

complaint and avers ownership, in common with the plaintiffs, to the extent of onesixth of the whole ditch; that he also owns lands (describing them) to which onesixth of the waters of the ditch are necessary; that prior to 1887, the ditch being in part on and through the defendant's lands, the plaintiffs wrongfully entered upon his said lands, and enlarged the ditch, and did damage, etc.; and demands judgment, etc. The cause was tried before the court with a jury, and a general verdict was rendered in the following words: "We, the jury in the above entitled action, find for the plaintiffs, and assess the damages at the sum of nothing." The jury also, under instructions of the court, made special findings; the seventh, eighth, and ninth being as follows: "Question submitted to jury, by the court: (7) In the matter of the contract made between the defendant and the plaintiffs in the spring of 1883, by which the defendant was to enlarge and improve the ditch for an interest therein, did the defendant perform all the conditions of the agreement on his part? Answer. IIe did not.

Four persons owned in common a water-ditch, and while in the joint possession and use of the water three of said tenants in common entered into an agreement in writing with A., agreeing that if A. would do certain work in enlarging and improving the ditch he should have an interest therein, and right to use water therefrom. A. entered upon the performance of his contract, and did work upon the ditch to the value of $50, and (8) What was the cost to the plaintiffs of began to use water from the ditch, and was proceeding to complete his contract, when he was stopped by the owners, including the persons with whom he had contracted, and who declared the contract rescinded, whereby A. was prevented by them from the completion of his work. No reason der the contract made in the spring of 1883?

the construction of the ditch under controversy? A. $500. Q. (9) What was the value to plaintiffs of the work done, or caused to be done, by the defendant on the ditch un

A. $50." The special findings of the jury, except the fifth, are on the alleged trespass of the defendant, and are, in substance, included in the general verdict. The fifth special finding is that the enlargement of the ditch on defendant's land by the plaintiffs was not without defendant's consent. On this verdict judgment was entered for the plaintiffs decreeing the said ditch to be the property of the plaintiffs; that the defendant be barred of all interest therein; and for $271

costs of this action.

Brumback & Lamb, for appellant. Huston & Gray, for respondents.

work done, or caused to be done, on the ditch by the defendant under the contract made in the spring of 1883? Answer. $50.” But the respondent seeks to avoid the consequences of this error of the court in refusing to charge as requested, and in giving the modified charge, by claiming that, even if the charge was wrong, and the finding of the jury was wrong in consequence of it, still it does not prejudice the defendant, for the reason that the verdict of the jury was only advisory, and not conclusive upon the court; that the court still had the evidence before it, and could make its own findings on this point; and that the court did in fact act on this BERRY, J., (after stating the facts as view of its duties, and in the fifteenth findabove.) There are numerous assignments of ing of fact found as follows: "That the deerror in this case, but we shall not find it fendant did, in the spring of 1883, enter into necessary to consider them all. Evidence a contract with the plaintiffs Bowman, Butwas given upon the trial, tending to show ler, and McDowell, to enlarge the ditch dean agreement in 1883, and before the acts scribed in the plaintiffs' complaint, and have complained of, between the plaintiffs, or some and interest therein; that the defendant failed of them, and the defendant, for a purchase to perform the conditions of said agreement, by the defendant of the right to take water and plaintiffs terminated said agreement." from this ditch; the plaintiffs claiming to be This the court had no right, as an original tenants in common of the right to the water finding, to do. The question submitted to flowing in the ditch. The counsel for the the jury was one of fact, in a common action defendant requested the court in its charge to at law, for damages arising from trespass. the jury to instruct them that "if you find In the seventh amendment to the constitufrom the evidence that the plaintiffs, or a tion of the United States it is provided that portion of them, proposed in writing that the "in suits at common law no fact tried by a defendant should be entitled to water if he jury shall be otherwise re-examined in any should do certain work on the ditch, and de-court of the United States than according to fendant accepted such proposition, and pro- the rules of common law." We are aware ceeded to do such work, and offered to com- of no rule of law authorizing such re-examplete the same, but was prevented by the ination, except through the regular proceedplaintiffs, the defendant is entitled to the ing of appeal. That the court followed the rights the plaintiffs proposed to give him. jury makes no difference with its right to They cannot rescind the contract if the de- make an original finding on this point. Its fendant had accepted, and partly performed, duty, if it did anything as to stating this as and offered to perform the rest, but was pre- a fact found, was to follow the verdict; and vented by plaintiffs." The court refused to the only allowable presumption is that it did so instruct, but modified the request, and so. And it is equally presumable that the gave the modified charge as follows: "If you jury found that the acts of the defendant find from the evidence that the plaintiffs, or were unlawful, from the erroneous charge a portion of them, proposed in writing that given them. The charge as given could have the defendant should be entitled to water if been followed by no other results, providing he should do certain work on the ditch, and any part of the work the defendant was to defendant accepted such proposition, and do had not been done; and this, although the proceeded to do such work, and performed cause of that failure was the unlawful acts all the conditions of the contract on his part, of the plaintiffs themselves. then he was entitled to his proportion of the and willingness to perform, if indeed such water." This charge was objectionable for was the fact, (and the evidence on that point ambiguity, and as it really made the jury the raises a strong presumption on his part of judges of the legal obligations of the defend- such readiness and willingness,) was not alant. But, given as it was, in contradistinc-lowed to go to the jury, or to have any contion to a request clearly defining the rights of the defendant, and the obligations of the plaintiffs, it could be understood by the jury only as charging that acts of the plaintiffs could not excuse the defendant from the full completion of all the work to be done. The evidence tended to show his acceptance of the plaintiffs' terms, and a part performance. Indeed, the court submits the question to the jury as to the value of the defendant's work on this agreement; and the jury found upon it as follows: "Question for special finding. What was the value to the plaintiffs of the

His readiness

sideration by them. It may be further said that no notice was taken by either the court or the jury of the work done under this contract, further than to assess its value. But that work had been done by the defendant on that contract, and it appears that the plaintiffs, without repaying it or offering to do so, "rescinded the contract." A party to a valid contract, where there is no fraud or other special reason, (and none is here shown,) cannot rescind at pleasure, and especially where, as in this case, there has been a part performance, and still retain the benefits re

ceived under it. 2 Pars, Cont. 679, 680; 1|their oaths, by this indictment, of the crime Whart. Cont. § 285, and cases cited in notes. The judgment should be reversed. Judgment reversed. All concur,

(2 Idaho [Hasb.] 480)

UNITED STATES v. KUntze. (Supreme Court of Idaho. March 11, 1889.)

TERRITORIAL COURTS-JURY-BIGAMY.

1. The judges of the district court have the power, when assembled at the capital, to fix the time and places for holding court in their respective districts. 2. They also have the power to fix the time and places for holding terms of court for the trial of causes where the United States is a party, or where such causes arise under the constitution

and laws of the United States.

of unlawful cohabitation, committed as follows, to-wit: The said Samuel Kuntze, at Bear Lake county, within said Third judicial district of Idaho territory, on the first day of December, A. D. 1884, and thereafter, on divers other days, and continuously from the said first day of December, A. D. 1884, up to and including the day of finding this indictment, did unlawfully cohabit with more than one woman, to-wit, with Mrs. Samuel Kuntze and one Caroline Wuthrick, against the peace and dignity of the United States, and contrary to the form, force, and effect of the United States statute in such case made and provided." To this indictment the defendant demurred upon the ground that the same did not state facts sufficient to constitute an offense, in this: That it charges a mere conclusion of law; that it did not state whether he cohabited with the two women named as his wives or otherwise; and that the court, being a district court for Bingham county, had no jurisdiction of the offense attempted to be charged, it being alleged to haye been committed in Bear Lake county. 5. In the trial of a cause arising under said sec- The demurrer was overruled by the court betion the prosecuting attorney referred to the fact that the defendant had failed to testify as a wit-low, which decision is assigned as error by ness in his own behalf when he had the right so to the defendant. do. This is held error, but is cured by the court subsequently, at the request of the defendant, charging the jury, in substance, that the fact that the defendant did not testify in his own behalf should not in any manner be considered by the jury as a circumstance against him.

3. In such cases it is proper to issue the venire to the marshal of the United States, directing him to summon jurors from the body of the district at large.

4. In an indictment under section 3 of the act of

congress approved March 22, 1882, c. 47, entitled "An act to amend section 5352 of the Revised Statutes of the United States in reference to bigamy and for other purposes," the use of the word "cohabit" is sufficient, and it is not necessary to set out at large in the indictment the meaning or def

inition of the word itself.

(Syllabus by the Court.)

Appeal from Third district court. Smith & Smith, for appellant. J. H. ley, U. S. Dist. Atty., for the Territory.

The first objection goes to the meaning of the word "cohabit," used in section 3 of the This word act, and also in the indictment. has several meanings, as defined by Webster and Worcester, and among its definitions we find that it is defined, "To dwell or live together as husband and wife;" and this unHaw-questionably is the sense in which it is used both in the statute and in the indictment. The context in which it is found, and the LOGAN, J. The defendant was indicted manifest evils which gave rise to the statute by the grand jury at Blackfoot, Idaho terri- in regard to cohabitation, require that the tory, in October, 1887, for a violation of sec-word should have the meaning assigned to it. tion 3 of the act of congress approved March 22, 1882. c. 47, entitled "An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy and for other purposes." The section reads as follows: "Sec. 3. That if any male person, in a territory or other place over which the United States have exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than three hundred dollars, or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court." The defendant was tried and convicted at the June term, 1888, of the district court of Bingham county, for a violation of the preceding section, and sentenced to suffer the extreme penalty of the law, and from that judgment he has appealed to this court.

The indictment referred to reads as follows: "Samuel Kuntze is accused by the grand jury of the United States within and for the Third judicial district of Idaho territory, duly summoned and impaneled upon

Cannon v. U. S., 116 U. S. 55, 6 Sup. Ct. Rep. 278. Taking the meaning of the word as defined, and the manner in which it is used in the indictment, we think it is sufficient to charge the defendant with the crime he is alleged to have committed. Certainly, the defendant was fully aware of the nature of the offense with which he was charged; and, taking into consideration sections 7684 and 7686 of the Revised Statutes of Idaho, we think the indictment is sufficient.

The second objection is practically disposed of by this court when it has disposed of the first objection. At any rate, it becomes more a question of evidence than of law, if the meaning of the word "cohabit" is to be in the sense used. The opinion of the supreme court is very full upon this subject, as will appear on page 71 of Cannon v. U. S. Although it is true that this case cannot be considered as authority, yet the opinion of the court upon the questions raised is of as much value as if the case was of the most binding authority.

The third objection goes to the jurisdiction of the court, and the construction of the jury by which the defendant was convicted. No