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(8 Colo. 377)

SUPREME COURT OF COLORADO.

SNYDER V. BOARD OF CO. COM'RS OF BOULDER Co. and another. Filed November 13, 1885.

1. WRITTEN INSTRUMENT-CONTEMPORANEOUS VERBAL CONDITION, ETC., TO VARY. Verbal agreements, understandings, and conditions, made contemporaneously with the execution of the written instrument cannot be shown to vary the terms of the deed or written agreement.

2. SAME

PRIVITY OF CONTRACT-ASSIGNEE OF PARTY CONTRACTING NOTICEPRESUMPTION.

The recognition of a lease and the collection of rent carry a presumption of knowledge on the part of lessor's assignee of the proper terms of such lease, but such presumption cannot be extended to embrace a knowledge of a reservation of fixtures upon the land demised, and consent to their removal, which was not included in the written terms of the lease.

Error to district court, Boulder county.

Wright & Giffin and Owen & Stidger, for plaintiff in error.
Richard H. Whiteley, for defendants in error.

STONE, J. The board of county commissioners of Boulder county, one of defendants, sold to one L. P. Snyder certain lots in the town of Boulder, and conveyed the same by warranty deed. Situate upon the lots was a building previously used for a jail, and containing certain iron cells or cages for the keeping of prisoners, and had been in use several years for such purpose. At the time of the sale by the county to Snyder there was an agreement between them for the renting of said building to the county for the sum of $30 per month. Two days after this conveyance the purchaser, L. P. Snyder, sold and conveyed the same premises to L. C. Snyder, the plaintiff, by like warranty deed as that executed by the county. The county paid the rent aforesaid monthly to the agent of the plaintiff for nine or ten months, when the said cells were removed from the building by one Pauley, the co-defendant, by order of the board of county commissioners, who converted them to their own use. These cells were put up in sections, riveted together, and in removing them they were taken apart by cutting the rivet, the water-pipes connecting with the wash-stands and water-closets in the cells were disconnected by cutting, as were also several rafters and ventilating-pipes overhead, and the roof raised to effect the removal of the cells. It was testified by one of the county commissioners that at the same time the sale and conveyance were made by the county there was a verbal agreement that the county should have the privilege thereafter of removing the cells, and that the purchaser, L. P. Snyder, agreed thereto, but no written memorandum or record was made of such agreement. deed from the county, in addition to the usual warranty form, contained the following clause after the description of the premises, towit, "including all improvements thereon;" and a like clause was contained in the deed to plaintiff. The plaintiff testified that he had

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no notice at any time previous to the removal that there was any agreement for such removal or reservation of the cells in question, nor ever heard of any such claim on the part of the county; that when he heard of the intended removal, he instructed his agent to serve notice of protest on the county commissioners against such removal, and it is admitted that the commissioners' journal shows that such written protest was served upon the board. The suit was for value of the cells or return of the property. The defendants had judgment below.

Upon this state of facts, we have no hesitation in saying that the deed of the county conveyed to plaintiff's grantor the cells in question. That the cells were fixtures upon the property conveyed there can be no question. The jury were properly instructed upon this point. The law is too well settled to require argument or citation of authorities that verbal agreements, understandings, and conditions made contemporaneously with the execution of the written instrument cannot be shown to vary the terms of the deed or written agreement. The testimony that it was agreed between the county commissioners and plaintiff's grantor that the cells were reserved from the sale, and might be removed by the former at their convenience thereafter, is not contradicted, and must be assumed as a fact; but this will not avail them as a defense, since they neglected to incorporate such reservation in the deed, or in a contract of like binding effect. Whatever liability might have been incurred by plaintiff's grantor arising out of his verbal agreement to a reservation of the cells, and his consent to their removal, such agreement and consent could not affect the plaintiff, without notice such as to create thereby a privity of contract. His recognition of the lease and the collection of rent carry a presumption of his knowledge of the proper terms of such lease, but such presumption cannot be extended to embrace a knowledge of a reservation of the cells and consent to their removal. And counsel for defendants even admits that the presumption which the court instructed the jury to consider did not conclude the plaintiff, since it was rebutted by the positive denial by plaintiff of any knowledge or notice of such agreement.

The court erred in admitting testimony to contradict the terms of the deed, and in giving the instruction on behalf of defendants touching the presumption above referred to, and for either of these errors the judgment should be reversed. The motion for new trial should have been allowed. The judgment is reversed, and the cause remanded.

(8 Colo. 429)

SOUTH BOULDER DITCH & RESERVOIR Co. v. COMMUNITY DITCH & RESERVOIR CO.

Filed December 1, 1885.

1. APPEALS-TRANSCRIPT-CONSTRUCTION OF LAWS OF 1885, p. 350, § 9.

Section 9 of Laws of 1885 should be read in connection with section 16 et seq. of the same act, and should be so construed as to require the clerk to transmit, among other things, "so much of the record of the case as the appellant in writing may direct," but this requirement does not relieve a party of the necessity of presenting the last-mentioned part to the court in the printed abstract as well.

2. SAME-AUTHENTICATION.

Although the statute does not declare a particular mode of authentication for the transcript, the latter should be duly certified by the clerk, under.the seal of the court, in the same manner as are transcripts lodged in the supreme court in cases upon error.

Appeal from district court, Boulder county.

B. L. Carr, for appellant, South Boulder Ditch and Reservoir Co. PER CURIAM. This is an action at law, and the appeal is taken under the act adopted by the last general assembly regulating appeals to this court. Sess. Laws, 1885, p. 350. Appellant now presents a motion for additional time within which to file the transcript required by statute. It is evident from the nature of this application that counsel is in doubt concerning the construction which should be placed upon section 9 of the act above mentioned. Inasmuch as several similar applications have been made, and uncertainty seems to exist in the minds of the bar generally as to its meaning, we have deemed it advisable to here construe this provision. The difficulty alluded to exists in determining what is to be embraced in the transcript.

The section mentioned contains, inter alia, the following:

"The clerk shall forthwith transmit to the clerk of the supreme court a transcript of the judgment or order appealed from, or so much thereof as is mentioned in the notice; the notice of appeal, and the undertaking in appeal, if any; and so much of the record in the case additional as the appellant in writing may direct."

Section 16 of the act reads as follows:

"The cause shall be submitted to the supreme court upon the printed abstracts of record, and amended abstracts as herein provided, and no transcript in writing shall be filed, and no costs shall be taxed therefor, except as herein provided."

These provisions of the statute must be construed together; they must also be viewed in connection with all the other sections thereof, particularly those numbered 17, 18, 19, and 20. Had the portion of the extract from section 9 which we have italicized been omitted, there could have arisen no doubts as to the legislative intent in the premises; but it is clear, we think, that in ordinary cases the only matters essential to the transcript are a copy of the order or judgment appealed from or the part thereof mentioned in the notice, a copy of the notice of appeal, and a copy of the appeal-bond, if any be filed.

As a general rule, all matters contained in a bill of exceptions or in the record proper, aside from the above named, must be submitted to this court upon the printed abstract required by said section 16 et seq. But the law-makers saw fit to incorporate into section 9 the expression which tends to create the ambiguity complained of; and, in obedience to a familiar rule of statutory construction, it is our duty to give effect thereto if any reasonable meaning can be deduced therefrom. We suggest that it may have occurred to the members of the legislature that occasionally some matter entered in the record proper, or some paper upon the files, such as written findings of law or fact, and the like,-might be so closely connected with the judgment or order appealed from as that the same would be unintelligible without it; so they concluded, through an abundance of caution, to say that the appellant might order into the transcript matters other than those specifically mentioned. As already remarked, however, the review of the case here is had upon the printed abstracts. Counsel may order into the transcript a copy of matters other than the notice of appeal, the undertaking on appeal, the judgment or order appealed from, and the additional record entry or paper above mentioned, but such extra matters will not be considered in this court unless also included in the abstract. The cost thereof will in no event be taxed to the appellee; nor will the attempt to incorporate the same be accepted as a ground for extending the time fixed by statute for filing the transcript. The statute does not expressly declare that the transcript under consideration shall be authenticated in any particular way; but we are of opinion that it should be duly certified by the clerk, under the seal of the court, in the same manner as are transcripts lodged here in cases upon error.

A large part of the act in question is taken from the statutes of Iowa and Wisconsin; but the language of section 9 is unlike that contained in the corresponding provisions of those states. So far as we are advised, it is not copied from any legislation elsewhere in the union. We have, therefore, been unable to examine or cite cases giving a construction thereof.

Under the circumstances, we have concluded to grant the motion, and allow appellant in this court 10 days' additional time within which to file his transcript.

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1. CRIMINAL LAW AND PRACTICE-TRIAL-VERDICT-ABSENCE OF DEFENDANT. In a criminal case the presence of the defendant at the rendition of the verdict is essential to the validity of the conviction.

2. SAME

ARGUMENT OF PROSECUTING ATTORNEY-IMPROPER UTTERANCES. The utterances of the prosecuting attorney in his closing argument before the jury, imputing to the defendant graver crimes than that for which she is being tried, and as to which he had not been permitted by the court to offer testimony, will, if not restrained by the court, invalidate the conviction.

3. SAME-PREVIOUS WARNING TO JURY-ERROR NOT THEREBY CURED.

The fact that the court, before the prosecuting attorney had begun his argument, warned the jury against improper utterances which would probably be made in such argument, will not cure the invalidity of a conviction had after the prosecuting attorney had made such utterances unrestrained by the court.

Error to criminal court, Lake county.

Taylor & Ashton and E. T. Taylor, for plaintiff in error.

T. H. Thomas, Atty. Gen., for the State.

BECK, C. J. The plaintiff in error was tried and convicted of the criminal offense of receiving stolen property, knowing it to have been stolen, at the December term, 1884, of the criminal court of Lake county. The jury stated in their verdict that the property so received by the defendant was of the value of $50. A motion for a new trial was overruled, and thereupon the court sentenced the prisoner to confinement in the penitentiary for a term of three years.

One of the errors assigned is that the prisoner was not present when the jury returned this verdict of guilty. It is a general rule of law that the prisoner, in cases of felony, must be present at every step in the proceedings, or the proceedings will be invalid. So important is this right that, except in cases of misdemeanor, it cannot be waived by counsel. If the prisoner is deprived of the privilege of being present when the verdict is returned, the verdict must be set aside and a new trial granted, or the judgment will be reversed. Green v. People, 3 Colo. 68; 3 Whart. Crim. Law, §§ 2991, 3364. Exceptions are made as to the necessity for the continued presence of the prisoner throughout the entire trial, which include voluntary absence from the court-room for a few moments, also such violent conduct on the part of defendant as to render it necessary to remove him in order that the trial may proceed. Where absence occurs from such causes, it is said to be no ground of error, provided the prisoner is brought into court before the verdict is formally announced. 3 Whart. Crim. Law, § 3365.

Another error assigned, and one which we regard as fatal to the judgment below, was the refusal of the court to grant the defendant's motion for a new trial, based on the ground of certain misconduct of the acting district attorney which was prejudicial to the rights of the defendant. The record shows that the special district attorney, who had been appointed by the court to appear and prosecute this case on behalf of the people, in his closing address to the jury, "stated and argued to the jury that he had stated in the opening of this case that he expected to prove that the defendant had stated, 'As Mollie Gorman was dead, she did not fear a conviction,' but the court had prevented him from so doing; to which statement, so made by said attorney, the defendant then and there duly excepted, and protested against counsel making any other or further statements of like import, and that the judge cautioned said attorney from making any further comments of like import, and further stated to the jury that

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