페이지 이미지
PDF
ePub

of this kind, the state, in order to make out a case, must prove that the offense charged was committed on the precise date alleged in the information. What we do say is this: That, the information having been quashed and set aside on the ground that the defendant could not be prosecuted for the specific offense therein alleged because of the bar of the statute of limitations, the court could not legally authorize the district attorney to file a new information and place the de fendant on trial for an offense separate and distinct from the one charged in the first information, and for which he had never been committed and held to answer by a committing magistrate.

The judgment is reversed, with directions to the lower court to proceed in accordance with the views herein ex

pressed.

FRICK, J., concurs.

STRAUP, J. (concurring).

I am of the same opinion. As suggested by the Chief Justice, we are not now required to pass upon the question whether the court correctly ruled in quashing the first information. On the theory that the state might have been able to prove that the defendant was absent from the state a sufficient length of time to have tolled the running of the statute, or, not being bound by the exact date alleged, might have been able to prove the specific offense charged in the information to have been committed on a date within the statutory period of limitation, it is somewhat doubtful whether such ruling was correctly made; but when the second information was filed, it is not made to appear that it was an amended or new information charging the same offense or describing the same transaction as alleged in the first information. That is to say, it was not made to appear that the offense stated or the transaction described in the second information as having been committed or having occurred on the 15th day of December, 1904, was the same as stated or described in the first information; the only difference being

[ocr errors]

as to the time when the offense was committed.' Had such been the case, I think the ruling made denying the motion to quash the second information would not have been erroneous; but it was very clearly made to appear to the trial court that there were two separate and distinct offenses charged and two different transactions described. The evi- . dence which would support the one would not support the other. Now it is apparent that, if A. is charged with the crime of fornication as having been committed with a certain female on a particular day at a particular dwelling in the northern part of the county, and at the preliminary hearing such facts, and none other, are testified to, and, after the information based upon such transaction has been quashed, to then permit the state to file a new information charging him with the crime of fornication as having been committed with the same person on another and different date at another and different building in the southern part of the county, and concerning which no evidence whatever was offered or produced at the preliminary hearing, A., the defendant, is de prived of the benefit of a preliminary hearing as is in such case made and provided. In such case it is very clear that the transactions were wholly separate and distinct, and that the evidence which would support the one would not support the other. Such seems to be the situation here.

I therefore concur in the judgment of reversal.

SMITH v. HANSON.

No. 1918. Decided July 29, 1908 (96 Pac. 1087).

34 f34

171 184

1. EVIDENCE-DECLARATIONS BY DECEDENT—ADMISSIBILITY. Declara

tions, verbal or written, are admissible, when relevant to the matter at issue when declarant is dead, when the declaration was, at the time it was made, against a pecuniary or proprietary interest of declarant, when it was of a fact in relation to a matter of which he was personally cognizant, and when he had no probable motive to falsify the fact declared, which is gen. erally shown by proof that it was made ante litem motam.

[graphic]

2. SAME. Declarations otherwise admissible are not inadmissible

because declarant was in privity with the party offering the declarations.

3. SAME. Declarations by a father, who had conveyed land to a

daughter, that he had not started a suit to cancel the deed and that he had no knowledge of such suit, made about the time a suit to cancel the deed was brought, and shortly thereafter, are declarations of facts presumably within the knowledge of the declarant, and are relevant to the matter at issue in an

action by an attorney for services rendered in such suit. 4. SAME. In the absence of a statute, declarations by a decedent,

to be admissible, must be against declarant's pecuniary or pro

prietary interest, and such interest must be clear and undoubted. 5. SAME. Declarations by a father, who had conveyed land to a

daughter, that he had not started a suit to cancel the deed and that he had no knowledge of such suit, made about the time a suit to cancel the deed was brought, and shortly thereafter, were not, at the time when made, against the father's proprietary and pecuniary interest, for the declarations do not show that he did not claim any interest in the subject-matter of the action.

ITY.

6. SAME—COMPARISON OF HANDWRITING—DOCUMENTS—ADMISSIBIL

In the absence of a statute, where the genuineness of handwriting is involved, documents not otherwise admissible may be received in evidence for the sole purpose of furnishing a standard of comparison, provided their introduction will not raise collateral issues as to their genuineness, and on such question much must be left to the sound discretion of the trial court.

7. SAME. In an action involving the genuineness of handwriting,

the exclusion of documents offered for the sole purpose of furnishing a standard of comparison was not erroneous, where the genuineness of such documents was not admitted by the

adverse party, who might dispute their genuineness. 8. EXECUTORS AND ADMINISTRATORS—ACTIONS-JUDGMENTS_VALID

ITY. Under Revised Statutes 1898, sec. 3862, providing that a judgment against an executor or administrator on a claim for . money against the estate must be that the executor or administrator pay in due course of administration the amount due, etc., a judgment against an administrator on a claim against the estate is improperly entered against him personally.2

1

1 Tucker v. Kelley, 8 Utah 11, 28 Pac. 870.
2 Clayton v. Dinwoodey, 33 Utah 251, 93 Pac. 723.

APPEAL from District Court, Third District; T. D. Lewis,

Judge.

Action by H. A. Smith against Emma Hanson, administratrix of John Peter Johnson, deceased. From a judgment for plaintiff defendant appeals.

MODIFIED AND AFFIRMED.

Bailey & Vickery and E. A. Walton for appellant.

Edwards, Smith & Price for respondent.

STRAUP, J.

is an

In 1892 and 1895 John Peter Johnson, since deceased, conveyed to his daughter, Emma Hanson, two parcels of land, one a five-acre tract, the other a ten-acre tract, situate in Salt Lake county. It is claimed by the respondent, who

attorney at law, that he was employed to commence proceedings in the name of the deceased and for his benefit to cancel the deeds. Such an action was commenced in July, 1900, and thereafter prosecuted by him, which resulted in a judgment canceling the deeds. On appeal the judgment was modified, canceling the deed to the ten-acre tract only. The deceased died in August, 1901, after the judgment was rendered in the lower court, but before the appeal was taken to the Supreme Court. Thereafter the respondent brought this action against Emma Hanson, the administratrix with the will annexed of the deceased's estate, to recover compensation for his services. The defendant denied that the respondent was employed at the instance or request of the deceased, and alleged that he was employed by her brothers and sisters, who desired the cancellation of the deeds, and that the action was prosecuted for their benefit, and not for the benefit or at the request of the deceased. The jury rendered a verdict for the plaintiff. The defendant appeals.

When the action was commenced to cancel the deeds, the deceased was more than eighty years of age. He was ill and feeble, and unable to leave the house. The respondent had

[graphic]

no personal transactions with the deceased. It was not claimed that he was employed by him personally, but by some of his sons and daughters, whom the deceased had authorized to employ counsel to commence the action. It was testified to by some of them that the deceased requested one of his sons to consult a lawyer and ascertain if there was “any show to recover his property.This son, together with some of his brothers and sisters, consulted the respondent, who advised them and told them to communicate with their father. They did so, and afterwards employed the respondent to commence and prosecute the suit. They further testified that such fact was communicated to the deceased, who approved of it, and that, when the judgment was rendered canceling the deeds, the deceased expressed himself well pleased with the result. The appellant gave evidence tending to show that the deceased, since the execution of the deeds, resided with her and was cared for by her; that shortly before the commence ment of the action her brothers took the deceased against his will from her house to the home of one of her brothers, where neither she nor immediate members of her family were permitted to see him until the suit had been instituted. In sup port of her defense that the deceased had not authorized the bringing of the action and had not authorized his sons to employ counsel, the defendant offered to prove statements or declarations made by the deceased, not in the presence of the respondent, about the time the suit was commenced and shortly thereafter, to the effect that he was not going to sue" his daughter, that he had not started the suit and that he did not know anything of such a lawsuit having been started. The testimony was excluded by the court on the ground that it was hearsay and self-serving. This ruling presents the principal question for review.

The appellant urges that the declarations, when made, were not self-serving, but disserving, and were therefore exceptions to the giving of hearsay testimony. The general rule is that declarations, whether verbal or written, made by a person as to facts presumably within his knowledge, are an

« 이전계속 »