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Several assignments of error are relied up- witness was possessed of this intoxicating liqon for a reversal of this judgment. The as- our in violation of the prohibitory liquor laws signments that the court erred in overruling of this state. The motion for a new trial, in not sustaining The foregoing premises being conceded, the demurrer to the information, in not sus. counsel for these defendants strenuously containing the motion of defendants for a directed tend that because the prosecuting witness unverdict of not guilty, in refusing to give re- der the statute had no property rights in the quested instruction No. 1, in giving instruction whisky of which he was admittedly robbed, No. 8, and that the verdict is not supported by that the crime of robbery was not committed; sufficient evidence, all relate to one general that if these defendants are guilty of any proposition of law, and are grouped together crime, it is of some other offense, such as in the brief of counsel representing defendants. pointing a weapon at another, which is a misUnder these assignments of error, it is con- demeanor, and not of the felony of which they tended that the crime of robbery may not be were convicted. committed by the taking of whisky from a The argument advanced by counsel for deperson at a time and place, and under such fendants in support of these various assigncircumstances, as would render the person ments of error, and the contention made therefrom whom the whisky was taken guilty of under, is that, to constitute robbery there violating prohibitory liquor laws, even though must be the taking of personal property from it be considered that all the elements essen- another by means of force or violence, and tial to constitute the crime of robbery were that the thing taken must be of some value. present in the taking of the whisky.
Therefore, it is contended that because the The information jointly charged defendants prosecuting witness had no property rights of and two others with having robbed one Oscar any kind in the whisky of which he was Leming, in Jefferson county, of five cases of possessed for the purpose of violating the prowhisky, of which the said Leming was then hibitory liquor laws, no property was taken possessed, the same being the personal prop- from him, and therefore all the essential ele. erty of said Leming, by force and violence, ments of the crime of robbery were not presand by pointing a pistol and a Winchester rifle ent, in the taking of this whisky under the cirat the person of the said Oscar Leming.
cumstances disclosed by the evidence. The evidence disclosed that the said Lem- We cannot agree with this contention. Secing was to deliver to some of these defendants tion 3620, Revised Laws 1910, supra, does not the five cases of whisky for the sum and price have the effect of altering or changing the of $65 per case, and that, by previous arrange- inherent character or nature of whisky as ment, the said Leming was to meet some of personal property. An entire consideration these defendants at the point where the rob- of the prohibitory liquor laws of this state disbery took place, and that these defendants con- closes that the intent of the Legislature was spired together to rob the said Leming of said to provide that intoxicating liquors possessed whisky by means of force and violence, and by a person for the purpose of violating any putting him in fear, in the manner and form of the provisions of the prohibitory liquor laws as alleged in the information. The evidence should be contraband property as between the further disclosed that the said Leming had state, its officers, and such person; that a perconveyed said whisky to the said point in vio- son unlawfully possessed of intoxicating liqlation of the prohibitory liquor laws of this uors, etc., could not claim to have property state.
rights in such articles in a proceeding brought Section 3620, Revised Laws 1910, provides: by the state to confiscate them; not that the
“There shall be no property rights of any articles and things condemned, when unlaw. kind whatsoever, in any liquors, vessels, ap- fully kept or used, were not property. pliances, fixtures, bars, furniture and implements kept or used for the purpose of violat
The conclusion is reached, therefore, that ing any provisions of this chapter."
the pertinent inquiry is whether or not the Other provisions of the prohibitory liquor
chattel or thing taken is personal property, laws make it an offense to manufacture, sell,
and not whether the possessor from whom it barter, or give away intoxicating liquors with
was taken was holding the same in violation in this state, and also to convey the same from
of the laws of this state. point to point within the state, and also to Independent of the question of whether Lemhave the same in possession with intent to ing was unlawfully possessed of the whisky, violate any of the provisions of the act. It the whisky itself had all the characteristics is apparent, therefore, that the prosecuting personal property. It was personal prop
erty, and as such was the subject of larceny | ing instruction was given, over the exception and of robbery, whether possessed lawfully or of defendants: unlawfully, and this is true although the state, “The fact that the property taken was through its lawfully constituted officers, could
whisky, and was unlawfully in the possession
of Oscar Leming, and was being transported seize (and destroy the same) from one unlaw.
by him in violation of the law of this state, fully possessing it. .
does not make the act of robbery, if it was That said property was of some value is
committed, any less a crime." clearly disclosed by the evidence. In fact, no
It necessarily follows from that heretofore contention is made that the whisky taken was stated to be the law of this case that the givwithout value. Counsel rely solely, to sustain
ing of the foregoing instruction was not error. their contention, upon the proposition that the
For reasons stated, the judgment is affirmed. prosecuting witness had no property rights in
Nore.—Unlawfully Possessed Intoxicating Liq
uor as Subject of Theft.-In the case of Tom It is not the policy of the law to encourage
Thomas v. State, 13 Okl. Cr. 414, 164 Pac. 995, culpable defenses to criminal actions. It is which was a conviction for the crime of murthe duty of this court to so construe the crim der committed by defendant while engaged in inal laws of this state as to effectuate their
the perpetration of a whisky robbery, the conten
tion was made that defendant was not guilty of purposes and give force and effect to the evi
the crime of murder committed in the perpetradent legislative intent. It is the business of
tion of a robbery, because whisky used in vivthe state, through its duly constituted peace lation of the law was not the subject of robbery. officers, to bring such action as the law pre
In passing upon this contention, this court, in scribes against contraband property and its
the body of the opinion said :
“The contention that because whisky is conusers, and it is not the privilege of highway
traband property in this state, as against the men to hold up at the point of a gun the pos
state and its officers, others are entitled to rob sessors of contraband property and take it and murder * * * to obtain possession of it away from them by force, nor did the Legis
from one who is using it unlawfully, is wholly
without merit. Neither robbery nor murder may lature so intend by merely providing that such
be justified or excused on such a ground.” possessor should have no property rights in
In Mance v. State, 5 Ga. App. 229, 62 S. E. the property when unlawfully kept. Ample 1053, it is held: provision of law is made for the confiscation "Intoxicating liquor may be the subject-matter and taking of such contraband personal prop of larceny, though it is not the subject-matter of erty, and it must be taken in the manner pre
lawful sale.” scribed.
"In Osborne v. State, 115 Tenn. 717, 719, 92
S. W. 853, 5 Ann. Cas. 797, it is held to be 'well The contention of counsel for defendants settled that a chattel kept for an unlawful purconfound matters necessary to be distin
pose, such as intoxicating liquors kept for sale
in violation of law, or gambling paraphernalia, guished. The effect of their contention is to
the possession of which is prohibited, may be the urge the right of the state to extinguish prop subject of larceny.'” erty rights in contraband things, such as whis In Smith v. State, 187 Ind. 253, 118 N. E. 954, ky, as a defense to criminal conduct resorted
L. R. A. 1918D, 688, it is held :
“Although property is illegally held and used to by them to obtain possession of the con
for gambling purposes, in violation of Burns' traband property, with intent to make the Ann. St. § 2474, it is nevertheless a subject of same unlawful use of it against the state which larceny." they assert as a defense to its taking. The One of the leading cases on this subject is fallacy of this contention is apparent-a law
Commonwealth v. Rourke, 10 Cush. (Mass.) 397,
399. In that case it was said: “The law punful right of the sovereign people is urged to
ishes larceny because it is larceny; and theresustain the unlawful conduct of the individual. fore one may be convicted of theft, though he The right of the state to seize and confiscate do but steal his own property from himself or intoxicating liquor, when unlawfully possessed,
his bailee. 7 H. VI 43a; 3 Co. Inst. 110. And through proper court action, does not include
the law punishes the larceny of property, * * *
because of its own inherent legal rights as propthe right of the individual to confiscate such erty; and therefore even he who larcenously property at the point of a gun.
takes the stolen object from a thief whose hands
have but just closed upon it may himself be conThe alleged error of the trial court in re victed therefor in spite of the criminality of the fusing to give a requested instruction is with possession of his immediate predecessor in crime. out merit. An examination of the instructions
Of the alternative moral and social evils, which given discloses that the substance of the mat.
is the greater, to deprive property unlawfully ac
quired of all protection as such, and thus to dister contained in the requested instruction was
courage unlawful acquisition, but encourage larcovered in the general charge. The follow. | ceny, or to punish, and so discourage larceny,
though at the possible risk of thus omitting so far forth to discourage unlawful acquisition? The balance of public policy, if we thus attempt to estimate the relative weight of alternative evils, requires, it seems to us, that the larceny should be punished.”
It has been held that larceny of gaming checks can be committed, although gaming is illegal (Bales v. State, 3 W. Va. 685), and that it is no defense to an indictment for stealing intoxicating liquors that the liquors stolen were kept for sale in violation of law (State v. May, 20 Iowa, 305; State v. Sego, 161 Iowa, 71, 140 N. W. 802; August v. State, 11 Ga. App. 798, 76 S. E. 164).
One who loses his money in a gambling game and surrenders it to his adversary, may be guilty of robbery in regaining it by force, but if he was induced to part with it through deceit or fraud, he would not be guilty, as one obtaining property by false pretenses is guilty of theft. Temple v. State, Tex. Cr. App., 215 S. W. 965.
involve interstate relations. He attained a deserved leadership in the deliberations of the American Bar Association and of the National Conference of Commissioners on Uniform State Laws, of which latter he was president during the two years preceding his election, in 1920, as president of the American Bar Association.
While Mr. Blount's success in his profession gave him pre-eminence as a practitioner, his great accomplishments were through his constructive work in connection with the building up of the legal systems of his own state and of the nation.
In both phases of his activities he was alwas a thorough student and showed up at the critical moment with the utmost preparation. He presented his points with such clearness and incisiveness of statement and in such logical form as to compel conviction.
He was always considerate of the opinion of others and judicial in his approach to and consideration of any subject. He was a high-class Southern gentleman, genial, lovable, a loyal friend and inspired in others the utmost friendship and respect.
The news of his sudden death, in this, the seventieth year of his life, will be a great shock to thousands of American lawyers who had the privilege of his acquaintance.-ROME G. Brown in the Minneapolis Tribune.
ITEMS OF PROFESSIONAL
A TRIBUTE TO MR. W. A. BLOUNT.
SUPPLEMENTARY ANNOUNCEMENT OF
THE AMERICAN BAR ASSOCIATION
In the closing days of his year's service as president of the American Bar Association, William A. Blount, of Pensacola, Florida, died last Wednesday, at the Johns Hopkins Hospital, Baltimore, Maryland. Well known in Minnesota by those lawyers of this state who had the privilege of contact with him during his many years of service with the American Bar Association, Mr. Blount was a representative American lawyer. His death deprives the American Bar of a member of the highest standing in character and efficiency.
He prepared for his profession at the University of Georgia, where he graduated with the highest honors, both in the Bachelor of Arts course and in law. In his own state of Florida he was pre-eminently the leader of the bar. He was a member of the Florida Constitutional Convention of 1885, and chairman of many state commissions from time to time to revise the statutes of his state and to simplify the system of pleading and practice in Florida courts.
He was for years a Florida member of the National Conference of Commissioners on Uni. form State Laws and was responsible, perhaps more than any other one lawyer, for the preparation and adoption by the various states of uniform state legislation upon commercial and other subjects, and thereby the elimination of unnecessary conflict of laws as to rights or remedies in business and other matters which
Former President William H. Taft will act as toastmaster at the annual dinner of the American Bar Association, to be held in Cincinnati in connection with the convention of the organization from August 30 to September 2. Mr. Taft's acceptance of the invitation to preside at the dinner, which will be held at the Hotel Gibson on the evening of September 2, was received on Monday by Province M. Pogue, Chairman of the Executive Committee, having charge of the arrangements for the convention.
There will be a number of other noted speakers at this dinner, among them Rt. Hon. Sir John Simon, of London, former Secretary of State for Home Affairs of England; Hon. John W. Davis, ex-Ambassador to Great Britain; ex-United States Senator Charles S. Thomas, of Colorado; Hon. Elihu Root; Hon. Harry M. Daugherty, United States Attorney General; Senators Atlee Pomerene and Frank Willis, several foreign ambassadors and probably President Harding, who will endeavor to ar
range his affairs so that he may attend the convention.
It was announced Monday that through the recent death of Hon. William A. Blount, President of the American Bar Association, Mr. Hampton L. Carson, of Philadelphia, Chairman of the Executive Committee of the Asso ciation, would automatically become president of the organization until such time as a successor to the presidency was elected.
In honor of the late Judge John W. Warrington, who had been appointed Honorary Chairman of the Reception Committee for the convention, it has been decided by the Executive Committee to continue his name at the head of this committee, no appointment of a successor being made. Mayor Galvin, who was appointed chairman of the Reception Committee, will have as his assistants many of the leading barristers of the middle west, including seven members of the Supreme Court of the State of Ohio.
HUMOR OF THE LAW.
When Jones' rich grandmother passed away, all his poverty-stricken friends rallied about him with words of cheer and comfort; but Jones remained sad and dejected.
"She left a last will and testament, I suppose?” murmured Jenkins carelessly.
"Oh, yes," said Jones, "she left a will and testament."
They hung expectant while sobs choked back his words.
“I," he declared at last, "am to have the testament."-Jack Canuck (Toronto).
BOGERT ON TRUSTS.
William Ryan is the only man in a New York town who says that he understands Einstein's theory of relativity. Ryan states that after reading the book carefully three times he had a dream or a revelation, during which the earth had left him and he was treading air inside a sphere, the walls of which were in. visible. He further explains:
“The eonglomeration of cosmos apparently retarded the continuity of motion, and the distance decreased depressingly as the altitude reached the zenith, near the apex. While the electro-dynamics in evidence at short periods, the rays of the radio decline in ratio with the apparent lengthening of the declination. To simplify the problem, let G equal the length of the declined ray; let I equal the alti, tude, plus the base; and add N, the result be. ing a transparent concoction of juniper, used for many years by the scientists before Prof. Pussyfoot propounded the problem of prohibi. tion."
The police asked Ryan where he got it, and now he's arrested, but still talking of relativity. -St. Louis Post-Dispatch.
A new general treatise on the subject of trusts has just appeared from the pen of Mr. George C. Bogert, Professor of Law in the Cor: nell University College of Law. It is a handbook primarily intended for students, but so thorough is the author in his discussion of the origin and history of the principles of the law of trusts that lawyers will find in its pages convenient starting points from which to begin their researches into more complicated questions of the law of trusts.
The author has made a few changes in the customary classification of the law of trusts, these changes being made mainly with a view to classify the material under headings "which represent the principal, practical problems arising in the administration of trusts." The author's classification is as follows:
Chapter I, Introduction and History; II, Distinction Between Trusts and Other Relations; III, Creation of Express Trusts; IV, Creation of Resulting Trusts; V, Creation of Constructive Trusts; VI, The Trust Purpose-Private Trusts; VII, The Trust Purpose-Charitable Trusts; VIII, The Settlor; IX, The Subject Matter; X, The Trustee: His Qualifications, Appointment and Removal; XI, The Powers of the Trustee; XII, The Duties of the Trustee; XIII, The Interest of the Cestui Que Trust-Its
“Yes," said the man who was proud of his library, “whenever I find one of my books with a torn leaf I put it through a legal process."
"What legal process?” his visitor asked.
“I have bound over to keep the piece."Boston Transcript.
Weekly Digest of Important Opinions of the
State Courts of Last Resort and of the Federal Courts, Copy of Opinion in any case referred to in this digest may be procured by sending 35 cents to us or to the West Pub. Co., St. Paul, Minn.
.36, 48, 54, 57, 58, 63
.49 .9. 13. 50
21, 39, 43, 51 11, 18, 24
7 31 .45
30 20, 38, 65 8, 27, 35, 60
.32, 42 15, 23, 29, 33, 34, 46
25, 56, 61 14, 17, 19, 22, 37, 53, 62 |
.1, 3, 10, 12, 16, 26, 44
6, 40, 41, 59
.28, 47, 55
Animals-Dipping Cattle.-Acts 36th Leg. (1920), Third Called Sess. c. 38, § 15, authorizing the Live Stock Sanitary Commission to require the dipping of cattle exposed to fevercarrying tick within nine months prior to the passage of the act, and making violation of such direction a misdemeanor, is not an ex post facto law.-Walker v. State, Tex., 229 S. W. 513.
released, but the court may require the attachment lien to be vacated before an adjudication is entered.-In
Automatic Typewriter & Service Co., U.S. C. C. A., 271 Fed. 1.
2. Attorney and Client-Authority of Attorney.--Except in an emergency, there is no authority in an attorney to enter a stipulation to settle and compromise a cause of action without the knowledge or consent of his client.-Matteson v. Blaisdell, Minn., 182 N. W. 442.
3.-Knowledge of Attorney.--Knowledge acquired by an attorney prior to his employment by a client could not be imputed to the client.Ives v. Culton, Tex., 229 S. W. 321.
4.-Unpatriotic Conduct. - Acts committed and opinions expressed by an attorney of this court during the war which were not in accord with the standard of patriotism set by the Bar Association and observed by the average citizen theless did not amount to treason, nor to a vioand member of the profession, but which neverlation of the espionage law then in force, or of any federal or state statute, nor to a violation of the oath and duties of an attorney, as prescribed by the statutes and the decisions and rules or this court, do not constitute legal ground for disbarment or suspension.-In re Clifton, Idaho, 196 Pac. 670.
5. Bankruptcy-Action by Creditor.—That a creditor has in good faith attached his debtor's property within four months does not disqualify him from presenting or joining in a petition to have the debtor adjudicated a bankrupt, although the attachment has not been formally
6. -Farming.–Under Bankruptcy Act, $ 46. an act committed by a person who was at the time engaged chiefly in farming cannot be charged as an act of bankruptcy and made the basis of involuntary proceedings.-In re Doroski, U. S. D. C., 271 Fed. 8.
7. Banks and Banking-Duty of Commissioner. -The statute making it the duty of the bank commissioner to take charge of a bank immediately upon a showing of insolvency, or of a willful violation of the banking act by its officers, does not require the closing of the bank under such circumstances, nor does it deprive the commissioner of his discretionary power to take such steps to meet a particular situation as may be called for by the circumstances.State v. Wilson, Kan., 196 Pac. 759.
8.-Joint Bank Deposits.—Comp. Laws 1915, § 8040, relative to joint bank deposits payable to the survivor, is valid, and in the absence of competent evidence to the contrary the presumption created is sufficient to establish title to the deposit in the survivor.--In re Taylor's Estate, Mich., 182 N. W. 101.
9. Bills and Notes-Failure of Consideration. -In action against drawer of a check indorsed by payee to plaintiff, it was not error to refuse to compel plaintiff to make the payee as indorser a party defendant to the action.-Murphree v. Wrens Motor Co., Ga., 106 S. E. 741.
10.—Stipulation.—Where a note contained a stipulation that under certain contingencies it should be surrendered to the maker without payment, the payee cannot avoid the provision on the theory that it did not sign the same. Cooper Grocery Co. v. H. T. Hammick & Co., Tex., 229 S. W. 356. 11.
-Transfer. -Transferee of negotiable notes who takes note by method of transfer other than indorsement under the statutes and law merchant takes note subject to the rules that govern the transfer of non-negotiable paper.-Jones County Trust & Savings Bank v. Kurt, Iowa, 182 N. W. 409.
12. Brokers-Commission.—If a sale is made by the owner on more liberal terms to a buyer produced by the broker, the broker is not entitled to recover where the sale was not made by the owner until the broker's efforts, after fair opportunity and without fault of the wwner, had come to naught.-Wilcoxsın v. Suddeth, Tex., 229 S. W. 352.
13.-Unilateral Contract.-In an action on a contract giving plaintiff an exclusive agency to sell defendant's real estate signed only by defendant, a petition alleging that defendant procured a purchaser ready, able and willing to buy, and who actually offered to buy, held not subject to demurrer on the ground that the contract alleged was unilateral.--Porter V. Forsyth, Ga., 106 S. E. 746.
14. Canals–Village a "Person."-Under Canal Law, $ 47, giving "every person" sustaining damages from canals the right to recover damages in proceeding before the Court of Claims, a village could recover for damage to sewer system and sewage disposal plant sustained in the construction, maintenance, and operation of