The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-10-10

Justice votsw IL Sustainsd In His Dsei.
sion In the Slim mons. Carter suit
for Possession.
The supreme court handed down fouy
decisions yesterday, Justices Dc Witt ana
Harwood concurring n both. One was In
the case of the state Of Montana versus
John Esohbaok. Eschbaek vas tried In
Cascade county on an information oha.g-
ing assault with : deadly wsapon," under
section sixty Of tho criminal laws. which
says: IAN assault with = deadly weapon
with intent to intict bodily injury. whsss
no comfortable provooation appears. o.
whore the oirsumstanoss- show m aban-
donsd or malignant heart" shall BE- pun
ishabls by from one 10 two years In tho
peuitentiary. or . nus Of from $500 10
$1,000 or both hns and imprisonment.
a. The discretion Of the court
The jury brought in . verdict Of
guilty and Judge Benton sentenced Esoh-
back 10 two years in the psnitentiasy. He
appealed on the ground that he was son
tenced 70, . felony. AZ described IN section
sixty. whereas the jury found him guilty
only Of assault, which under section atty.
eight. OF The criminal laws, ia . misds-
ennor, punishable BY from $6 TO $50 fns.
Tho opinion Of the supreme court sustains
Esohback's position. II rays: 1T il OBJ
served that there arc several elements con-
stitutinR the onsnse described in section
sixty Of ths criminal laws. Thsss elements
are: First. On assault; second. that II -
with . deadly weapon; third. that II 10 with
tho intent to inhiot upon the person Of
another . bodily injury; and fourth. either
where no considerable provoCation appears,
or whore the circumstance Of tho sssauls
The verdict of the jury found the defend
ant guilty Of an assault with . deadly
weapon. The verdict thus found element
one and element two. il did not find tho
intent to inhiot upon the 70 soa Of an
other a bodily injury; nor did II
vocation, or that the circumstances Of the
nssault showed IN abandoned or malignant
heart. II 10 clear that ths jury did not ind
the defendant guilty Of felony. because
they omitted to find the elements required
to constitute the felony. Ths verdict
that assault was made with q deadly
weapon. The judgment, being for a fol-
ony. when the verdict found only u misds-
meanor. is reversed, and the district court
10 directed to nssess . penalty upon the YER
dict TOR assault, and IL tho 6ne 10 enforced
by imprisonment then the imprisonment
already undergone BY defendant shall apply
in satisfaction Of any such confinement"
Opinion by Justice Dewitt.
state of Montana W. A. Dsslaurias. Ap-
peal from the order Of the district cou't OF
Deer Lodge county. arresting Judgment
rendered for costs against a complaining
witness in the Irosecution, for . dismissal.
The case wal originally state ~. Slaughter.
for petit larceny. commenced and tried in
the Justices court. The jury found for the
defendant and recommended that the costs
be taxed to the complaining witness.
Judgment was accordingly 90 entered and
Deslauries appealed TO the district court.
where the jury found ''thsre was no prob
able cause for commencing the proseou.
ton and it was malicious" DssIauries
moved for arrest Of Judgment on the ground
that the justice court had no Jurisdiction
to enter judgment against the complaining
in that it did not find that "shs prossou-
ton was without probable cause" or ma.
lioious. The district SQUIRT sustained she
motion of Deslaulies and ordered that no
Judgment be entered against him. The
state appealed. The supIeme court
AA0A ~
of arrest Of judgment. AZ to arrest of
Judgment the criminal practice act pro-
vides as follows: IA motion in Arrest OF
Judgment 10 an application ON the part of
the defendant that no judgment be rendered
on q verdict of guilty, or finding OF the
either of the following causes: That the
grand jury who found the indictment bad
no legal authority to inquire into the
offense cha ged, BY reason OF its not being
within the jurisdiction OF tbs court; that
the facts stated do not constitute = public
offense." The motion for arrest OF judg-
msnt in this case was not made upon any
of the grounds mentioned in the statute,
but was upon the ground of extra judicial
action by the Justices court hefole the
CASE was appealed to the district court. II
Deslau les had suffered n wrong he had NOT
| urf ued a remedy given by law. The judg-
ment is reversed aud cause remandcd. and
the district court is di ectsd 70 enter a
Judgment on the verdict. for costs. against
the complaining witness. Opinion by JUS
t.ce Do Witt.
State of Montana. ex rel J.. A. Carter. re-
lator. versus A. G. Votnw, justice Of the
reace, respondent. Application for 4 witt
Of c.rtiosari against the justice Of tho peace
TO review his action in giving Judgment on
the pleadines in the case of H.. j. Simonds, |
administrator Of the estate OF A. D.. Simons, |
against j. A. Carter. The action in the
Justice court sought to obtain, unde tho
provisions of the forcible entry and unlaw-
full detainer act. possession Of q dwelling |
house in the city of Helena. for default in
pay ment Of rent. Justice Votaw gave
judgment for plaintiff and issued . writ of
restitution. Carter contended that the
JUSTICES Judgment WINS void 20 being In
excess Of jurisdiction; that the rule 80 to
the tenant not %disputing the landlord's
title does not apply to an administrator
when the landlord made the leass; and that
he denied the allegations by which plaintiff
set forth right Of possession Of the real
estate in question. and that hence the JUS
tice was without jurisdiction TO entsr With
out q trial the Judgment for restitution.
The supreme court Gays that the denial OF
tho administrators right Of possession
loses all force In the face Of admissions
Carter leased the premises and that he |
10 in default for rent. This and all other
are overEulsd. Opinion by Jus.
tics De Witt.
The Williams Mercantile company. ap-
reilant. vs.. James II. Fussy. respondents.
Appeal from Missoula county. Motion OF
overruled. Opinion BY Justice
New Suits Instituted.
The Montana company. limited. brought
suit in the district court yesterday saainst
the st. Louis Mining company. asking
81, 600 damages. The grounds Of The snit
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