acter stated in the complaint and their rea- that the services were performed for appelsonable value was $1,200; that no payments had been made thereon; and that demand had been made as alleged in the complaint. Judgment was ordered in plaintiff's favor against defendant Obear; plaintiff having dismissed the action as to the corporation. [1] Defendant upon this appeal for the first time raises a question as to the sufficiency of the complaint to state a cause of action, and this upon the authority of Fairchild v. King, 102 Cal. 323, 36 Pac. 649. It is unnecessary for us here to determine whether the case last cited is an existing authority, or whether a different rule is recognized in later cases, notably McDonald v. Pacific Debenture Co., 146 Cal. 667, 80 Pac. 1090, and Salinas Valley Lumber Co. v. Magne-Silica Co., 112 Pac. 1089, in which last case it is said, in referring to a complaint employing a common-law count: "Whatever may be thought of the sufficiency of such a pleading, we will not undertake to overthrow it at this late day." Irrespective of the effect of such decisions, we are of opinion that another well-established rule may be invoked, namely, that where the parties have proceeded to trial upon a pleading, without objection to its sufficiency to raise a particular issue, and evidence has been received as to the facts and the issue found upon, the party whose duty it was to object will not be heard in this court to say that the finding is not within the issue. Illinois T. & S. Bank v. Pac. Ry. Co., 115 Cal. 297, 47 Pac. 60; Wilkins v. Stidger, 22 Cal. 232, 83 Am. Dec. 64. [2] Appellant next claims that error intervened by reason of the action of the trial court in sustaining an objection to evidence tending to show that after the lease was procured plaintiff loaned the tenant money to inaugurate and carry on his business. We see no error in this ruling. It related solely to matters arising after the execution of the lease and the completion of the contract involved in this action. [3] The fact that the objection to this evidence was general and did not specify the particulars wherein the same was incompetent could not prejudice the appellant, when, as in this case, its immateriality was apparent from the question itself. [4] The mere fact that plaintiff advanced money to the tenant, either before or after the execution of the lease, in order that he might procure fixtures to be used in leased premises, would not evince bad faith upon the part of the plaintiff, or even tend to establish an interest inconsistent with the du ty he owed defendant, more especially when the uncontradicted evidence is to the effect that plaintiff had and owned no interest in the lease so procured to be executed. [5] It is further contended that the evi lant Obear, but, on the contrary, that the same were shown to have been performed for the corporation alone. The record discloses evidence tending to show that appellant owned all of the stock of the corporation, that he represented that he individually owned the property, and that the execution of the lease in the corporate name was done for the purpose of affording some personal protection to appellant. The evidence further tends to show that the whole contract was between appellant and plaintiff as individuals; that the promise to pay on the part of appellant was a personal one. [6] Appellant's admissions were competent to bind himself personally. [7] Relley v. Campbell, 134 Cal. 175, 66 Pac. 220, is authority for the statement that where one individual owns all the stock of a corporation the same is but the corporate double of the owner of the stock, and such proof destroys the separate entity of the corporation, and in such event the statements and admissions of the sole owner of the stock may be received as establishing facts from which an estoppel might arise as to the corporation. [8] It must be the rule that where one procures services to be performed in connec tion with property, based upon a belief of ownership from representations of the party sought to be charged, that such party is estopped, after such services have been performed, to deny ownership. [9] Appellant finally contends that the judgment is excessive. The action was to recover the reasonable value of services in procuring a tenant and a bond securing the rental. There is evidence in the record to the effect that $960 is the usual and ordinary charge for procuring a tenant alone for a like term at a similar rental, and other evidence to the effect that the sum found by the court was the reasonable value for services in procuring a tenant and a bond securing the rental. There is evidence in the record to the effect that after the tenant had been procured and a bond executed securing the rental, afterwards accepted by appellant as satisfactory, appellant offered plaintiff a thousand dollars if he would procure a brewing company to guarantee the entire $96,000 of rental. It is obvious from the fact that services had already been performed of the value of $1,200 that, if this offer of a thousand dollars was made, it was intended to be and was in addition to the reasonable value of the services theretofore rendered; but such particular surety was not furnished, nor was there any contract made in connection with the offer of a thousand dollars, and the same is in no sense material. We find no prejudicial error in the record, and the judgment is affirmed. (19 Wyo. 170) LOBELL v. STOCK OIL CO. (Supreme Court of Wyoming. April 25, 1911.) 1. APPEAL AND ERROR (§ 405*)-SUMMONS IN ERROR-AUTHORITY TO ISSUE. In a proceeding in error, as well as in an original action, the clerk's authority to issue summons is the written precipe therefor. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 405.*] 2. APPEAL AND ERROR (§ 405*)-TIME FOR PROSECUTING. Under Comp. St. 1910, §§ 5111, 5112, requiring summons to issue on a writ of error as in commencing suit, on precipe; and under section 5122, requiring a proceeding in error to be commenced within one year, a writ of error must be dismissed, though the petition was filed within that time where no precipe was filed or summons issued within that time. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 405.*] Error to District Court, Natrona County. Action between Joseph H. Lobell and the Stock Oil Company. From the judgment, Lobell brings error. On motion to dismiss. Writ dismissed. Frederick J. Lobell, William H. Martz, and William E. Hardin, for plaintiff in error. Norton & Hagens, for defendant in error. BEARD, C. J. This case is before the court at this time on the motion of defendant in error to dismiss the proceeding in error for the reason that the same was not commenced within the time allowed by law. The judgment of the district court became final January 28, 1910, on which date the motion for a new trial was denied. The petition in error was filed in this court January 26, 1911, but no precipe for summons was filed until April 8, 1911, nor was any summons issued prior to that date. The motion to dismiss was filed March 29, 1911. or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of," etc. The statutes with reference to the commencement of an action are as follows: Section 4351: "A civil action must be commenced by filing in the office of the proper court a petition, and causing a summons to be issued thereon." Section 4352: "The plaintiff shall also file with the clerk of the court a precipe, stating therein the names of the parties to the action, and demanding that a summons issue." And in the chapter treating of the time of commencing actions, under the head of "general provisions" (section 4305), “An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served upon him, or on a codefendant who is a joint contractor, or otherwise interest ed with him," etc. The question in this case is whether the proceeding in error was cominenced within the meaning of the statute by the mere filing of the petition in error within one year from the rendition of the judgment-no precipe for summons having been filed or summons issued until long after the expiration of that time. It is not claimed that there was any waiver of the issuance or service of summons, or any attempt to commence the proceeding within the year except the filing of the petition. Such being the case, if it was an original civil action, it is clear that, under the provisions of section 4305, it could not be deemed to have been commenced prior to April 8, 1911; that being the date on which the precipe for summons was filed. [1] And in either an original civil action or a proceeding in error the authority of the clerk to issue summons is the written precThe statutes governing the question pre- ipe therefor. The statute does not presented by the motion are as follows: Comp. scribe what shall constitute the commenceSt. 1910, § 5109: "A judgment rendered or ment of a proceeding in error, but does prefinal order made by the district court, may scribe that it shall be by petition filed in the be reversed, vacated or modified by the su- proper court, and thereupon a summons shall preme court, for errors appearing on the issue and be served, or publication made, "as record." Section 5111: "The proceedings to in the commencement of an action." These obtain such reversal, vacation, or modifica- provisions of our statute were taken from tion, shall be by petition in error, filed in a the statutes of Ohio, and the Supreme Court court having power to make the reversal, of that state, as early as the December, 1865, vacation or modification, and setting forth term, held that, while a proceeding in error the errors complained of; thereupon a sum- is not in strictness a civil action under the mons shall issue and be served, or publica- Code, no good reason exists for adopting a tion made, as in the commencement of an ac- different rule in such proceedings from that tion, and a service on the attorney of record prescribed by the Code in civil actions. The in the original case shall be sufficient," etc. court said: "In all suits or proceedings of Section 5112: "The summons mentioned in an adversary character, the court can acthe last section shall, upon the written prec- quire no jurisdiction of the case for the puripe of the plaintiff in error or his attorney, poses of trial or judgment until the party be issued by the clerk of the court in which defendant is brought before it. And so long the petition is filed, to the sheriff of any as the plaintiff neglects to have process iscounty in which the defendant in error, or sued, or any other steps taken with a view his attorney of record is found," etc. Sec- to bringing in the defendant, and thus givtion 5122: "No proceeding to reverse, vacate, ing jurisdiction to the court, his action or *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes suit cannot properly be said to have been commenced or to be pending." And it was held that by analogy the rule in civil actions applied to a proceeding in error, and that such proceeding was not commenced by the mere filing of the petition. Robinson v. Orr, 16 Ohio St. 248. The decision in that case has been approved and followed in that state since that time in Bowen v. Bowen, 36 Ohio St. 312; McDonald v. Ketchum, 53 Ohio St. 519, 42 N. E. 322, R. R. Co. v. Ambach, 55 Ohio St. 553, 45 N. E. 719, and other cases, and was approved and applied by this court in Caldwell v. State, 12 Wyo. 206, 74 Pac. 496, and we see no reason for departing from that rule. [2] No precipe for summons having been filed by the plaintiff in error, and no summons having been issued within the time allowed for the commencement of proceedings in error, the motion to dismiss will have to be granted and the proceedings in error dismissed. sit. Dismissed. Though a verdict of guilty of "obtaining property by false representations as charged in the indictment" is insufficient to sustain a judgfor obtaining money by false pretense, for failment of conviction under Pen. Code 1901, § 489, ing to find intent to defraud, the judgment on being set aside is not a bar to another prosecution for the same offense. Cent. Dig. §§ 290-303; Dec. Dig. § 168.*] Generally, where a verdict is so uncertain that the jury's intent cannot be ascertained, accused cannot be deemed to have been in jeopardy so as to entitle him to discharge. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dec. Dig. § 168.*] Appeal from District Court, Graham County; before Justice Doan. Elias S. Kimball and another were convicted of false pretenses, and they appeal. POTTER, J., concurs. SCOTT, J., did not Reversed and remanded for new trial. (13 Ariz. 310) KIMBALL et al. v. TERRITORY. (Supreme Court of Arizona. March 25, 1911.) 1. CRIMINAL LAW ($ 881*) VERDICT OF "GUILTY"-SUFFICIENCY. A verdict of guilty implies a finding upon every element essential to constitute the offense as charged, but a verdict which convicts of but one of several essential elements of an offense is insufficient to sustain a conviction for the offense charged. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2093; Dec. Dig. § 881.* For other definitions, see Words and Phrases, vol. 4, p. 3192; vol. 8, p. 7676.] 2. CRIMINAL LAW (§ 300*) · GUILTY-EFFECT. PLEA OF NOT A plea of not guilty puts in issue every material allegation of the indictment, and there can be no conviction unless the jury expressly find against accused on the issue. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 684-686; Dec. Dig. § 300.*] 3. FALSE PRETENSES (§ 5*)-INTENT-ESSEN TIALITY. Frederick S. Nave, Archibald C. McKillop, and W. K. Dial, for appellants. John B. Wright, Atty. Gen., and A. G. McAlister, for the Territory. KENT, C. J. The appellants were indicted under the provisions of section 489 of the Penal Code. This section, so far as applicable, reads as follows: "Every person who, with intent to cheat and defraud, shall obtain # * from any other person * any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false or fraudulent representation, or statement of pretense, or by any other means or instruments, or device, commonly called the 'confidence game,' * shall be deemed guilty of a felony." The jury rendered a verdict as follows: "We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths do find the defendants guilty of obtaining property by false representations as charged in the indictment." [4] The first assignment of error urged by the appellants is that the verdict is insufficient to support a judgment of conviction, in that the verdict does not find against the defendants upon the issue raised in the case upon the indictment and plea of not guilty; the claim being that the verdict finds the defendants guilty of obtaining property by false representations, and does not find that the property was obtained with intent to cheat or defraud, or that the false representations were in the nature of a confidence game, or that the defendants, or either of them, knew that the representations, or any of them, were false or fraudulent; and, further, that the verdict does not find that the property was obtained within the county in | Ring v. State, 42 Tex. 282; State v. French, which the indictment was found, or that the 50 La. Ann. 461, 23 South. 606; Huffman v. representations were made within such coun- State, 89 Ala. 33, 8 South. 28; State v. ty. The appellants further claim that by Oakley, 103 N. C. 408, 9 S. E. 575; State v. the verdict the jury found the defendants Modlin, 197 Mo. 376, 95 S. W. 345; State v. guilty of a matter not charged against them, Stephanus, 53 Or. 135, 99 Pac. 428; State v. and that the verdict was a verdict of ac- Pollock, 105 Mo. App. 273, 79 S. W. 980; quittal upon the essential elements of the State v. Dewitt, 186 Mo. 61, 84 S. W. 956; offense charged, to wit, the element of in- Harris v. State, 53 Fla. 37, 43 South. 311; tent to cheat and defraud, the element of State v. Parker, 152 N. C. 790, 67 S. E. 35. knowledge or design, the element of the Counsel for the respondent do not, as we knowledge of the falsity of the representa-understand their position, controvert the gentions, the element of the confidence game, eral rule, but they claim that, by reason of and the element of venue. [1] The rule is universal that a verdict of guilty is a finding of the jury upon every element necessary to constitute the crime as laid in the indictment, and that a verdict which finds a defendant guilty of but one of a number of essential elements of a crime is not a verdict sufficient to sustain a judgment of conviction for the crime charged. [2] Under our statutes, the plea of not guilty puts in issue every material allegation of the indictment, and no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue. The verdict of the jury in the case before us found the defendants guilty of obtaining property by false representations as charged in the indictment. The obtaining property by false representations alone is not a crime under any of the provisions of our Penal Code. Under section 481 of the Penal Code, any person who knowingly and designedly by false or fraudulent representations defrauds any other person of money or property is guilty of a misdemeanor, but there the mere obtaining of money by false or fraudulent representation or pretense is not sufficient to constitute the crime specified in that section, unless the money so obtained falsely and fraudulently was obtained knowingly and designedly. [3] Under section 489, under which the indictment in this case was drawn as found by the trial court, the obtaining of property by false representation is not in itself made a crime, except that it be done with intent to cheat and defraud. The intent is a material and necessary element of the crime. Therefore, if the verdict before us simply finds the defendants guilty of obtaining property by false representations and does not find that the defendants, with intent to defraud, obtained the property by false representations, then an essentially necessary element of the crime has not been found by the jury. Cases holding that a verdict which specifies one element of a crime and omits other essential elements will not support a judgment of conviction are numerous, and there are none, so far as we are aware, holding the contrary. Wharton, Crim. | Pl. & Prac. (9th Ed.) 756; Commonwealth v. Call, 21 Pick. (Mass.) 513, 32 Am. Dec. 284; People v. Small, 1 Cal. App. 320, 82 Pac. 87; People v. Cummings, 117 Cal. 497, 49 Pac. 576; People v. Tilley, 135 Cal. 62, 67 Pac. 42; the insertion in the verdict of the words "as charged in the indictment," the verdict in this case is not within the rule. A verdict of "not guilty as charged in the indictment" is, of course, equivalent to a verdict of not guilty, and is a finding by the jury upon all of the essential allegations of the indictment. It is also true that in many verdicts there occur words which can be ignored as surplusage, but they are words which have not to do with the issues directly raised by the plea of not guilty, as, for example, in the case. of People v. Jochinsky, 106 Cal. 640, 39 Pac. 1077. There the verdict was, "We, the jury, find the defendants guilty of burglary in the first degree, and we further find that the goods taken from Prince's store on the night of the 13th or 14th of April, 1893, were brought from Sonoma county into the city and county of San Francisco, state of California, by the defendant." There the jury directly found the defendant guilty of burglary in the first degree. This was a finding of all the essential elements of the crime. The court properly held that the general verdict of guilty implied proof of all the facts necessary to conviction, and that the latter part of the verdict was mere surplusage, resulting in no prejudice to the appellant. We do not see how it is possible to treat the words in the indictment, "of obtaining property by false representations," as mere surplusage, because they are words which have to do with one of the issues directly raised by the plea of not guilty. It is a direct finding of the jury that upon one of the ele ments of the statute the defendants were guilty, to wit, the obtaining of the money by false representations, and it is also a direct refusal to find upon another essential element, to wit, the intent to cheat and defraud. The words "as charged in the indictment" qualify the phrase "of obtaining property by false representations." They serve to specify the property obtained and the false representations made, but with the expression in the verdict of one of the elements of the crime and the omission of another essential element the defendants, by the words "as charged in the indictment," are not found guilty of anything else as charged in the indictment, and the words in question cannot be held to incorporate by reference other facts upon which there is no finding. In the case of People v. Lee, 237 Ill. 272, 86 N. E. any juror who was convinced of the guilt of the defendants as to the obtaining property by false representations and was not convinced as to the intent to cheat and defraud might have been very easily induced to sign the verdict in the form rendered in the proper belief that he was thereby only giving expression to the facts that he was satisfied had been proved by the evidence. 573, the Supreme Court of Illinois considered | which they were "warranted by the law to the following verdict: "We, the jury, find find," and to place undue emphasis upon two the defendant, Leona Garrity, guilty of har- elements, to wit, the obtaining of the propboring a female under the age of 18 years in erty and the falseness of the representations a house of prostitution in manner and form enumerated in the indictment, to the neglect as charged in the indictment." The court of the elements that the property must have said: "To authorize a judgment against the been obtained "with intent to cheat and dedefendant, the verdict in a criminal case fraud." The trial judge charged that intent must respond to the issues submitted to the must be proved, and then by the form of the jury. Its sufficiency is determined by as- verdict submitted to the jury prevented any certaining whether it is responsive to and juror who desired to vote for a conviction covers the offense charged in the indictment. upon this essential element of the offense It must contain either in itself or by refer- from expressing his conviction that such ence to the indictment every material ele-element had been proved. On the other hand, ment of the crime. * 串 * The verdict does not find directly or by necessary implication that plaintiffs in error were the keepers of the house of prostitution, or that the female harbored therein was unmarried. These were both essential elements of the offense and constituted material facts in issue at the trial. * * * The clause in the verdict in manner and form as charged in the indictment' refers to the indictment for the facts which are specially found in the verdict, and cannot be held to incorporate by reference other facts upon which there is no finding. The verdict is insufficient to authorize a judgment of guilty." It is claimed by counsel for the respondent that it appears from the record that the trial judge at the conclusion of his instructions handed the jurors two verdicts, one being a verdict of not guilty and the other being the verdict in controversy herein, explaining to them that, if they found the defendants guilty as alleged in the indictment, they would return the verdict which is in controversy here, otherwise they would return the verdict of not guilty. * you [5] We agree with the counsel for the appellee that, if the intention to convict of the crime is unmistakably expressed in the verdict, any mere irregularity or surplusage contained in the verdict is immaterial, but we are of the opinion that, upon the verdict before us, we cannot say that the intention of the jury to convict of the crime was unmistakably expressed. Our conclusion that the verdict does not support the judgment is strengthened by the form of the judgment itself, which reads in part as follows: "You were indicted by the grand jury of this county for obtaining property by false representation in the nature of a confidence game with intent to defraud. To this indictment On * you pleaded not guilty. It is claimed that the jury having brought were given a fair and impartial trial in this in the verdict in question, this fact alone un-court before a jury of your peers and said qualifiedly demonstrates the intention of the jurors. We do not think this contention, even if the record bore out the contention of counsel, aids them in their position that the verdict expresses the intention of the jury to find a general verdict of conviction. The court charged the jury at length of its own motion, and further gave a great number of instructions requested by counsel; the instructions covering some 50 folios. The trial judge specifically charged the jury that it was necessary that they should find that the defendants had obtained the money with the intent to cheat and defraud. At the close of the instructions, the record shows that the trial court stated to the jury: "You will be furnished with blank forms of verdict that express the findings that you are warranted by law to find in the case." We think, as contended by counsel for the appellants, that the effect of that statement, together with the instructions given by the court and the submission of a verdict in the form returned by them, coming as the court's final directions to the jury, was calculated to mislead jury returned into open court their verdict finding you guilty of obtaining property by false representations as charged in the indictment. Have you anything to say or legal cause to show why the judgment of this court should not now be pronounced against you? The defendant replied, 'No, sir.' No legal cause being shown or appearing to the court, the court doth render its judgment that whereas you, Elias S. Kimball, having been on the 25th day of June, A. D. 1910, after a fair and impartial trial in this court, found guilty by a jury of your peers of the crime of obtaining property by false representations in the nature of a confidence game with intent to defraud, it is ordered, adjudged, and decreed that you, Elias S. Kimball, are guilty of obtaining property by false representations in the nature of a confidence game with intent to defraud, and that you be punished therefor," etc. [6] It is further contended by appellants that upon the state of the record the defendants have been in jeopardy and are entitled to be discharged. After the rendition of the |