The herald., 1896-04-07

| business was proceeded with. an interest
| ing episode took place. On Saturday a
Misunderstanding arose between Judge
| smith and LIE Compte Davis, of the firm of
Davis q Rush, in regard to one of the in
| structions submitted in the Marshall bur-
| glary case by the defense, represented by
| Messrs. Davis & Rush. The word "alone'
had been written in the matter in pencil,
and when this was called to Judge Smiths
attention, his honor hastily expressed the
| opinion that it had been inserted after the
instructions had been passed upon. Mr..
Davis was greatly affected at what he re-
| garCied as an unjust accusation, and one
which reflected on his honor, and when
Judge Smith realized the effect of his
| words. in a manly, straightforward way,
he stated that he had been hasty, and said
that he would look into the matter. This
he did at once, and on convincing himself
| that he was in error, he stated that he
would make full amends for the injustice
thoughtlessly inflicted, and when court
convened yesterday morning, his honor
said:
"Before we proceed want to correct an
impression that po ssibly got abroad Satur-
| day morning in the hearing upon a motion
for a new trial in the Marshall case. In the
course of the discussion a question came
up in regard to an instruction, and upon
looking the instructions over l saw the word
"Alone" interlined in rather a fine, small
hand in lead pencil. At the time I looked
the instructions over l recollect that was
strongly impressed with the fact that it was
not there, from the fact that that word was
the one that thought would possibly make
am satisfied now that would not have
given it had the word been there.
"Having that impression strongly in my
mind, l announced that the word 'alone'
| was not in the instructions when l passed
| upon them, and not thinking at the time
rlN m ton m f0 0nGtn
Election upon the attorney. Mr.. Davis,
who was attending to the matter, insisted
that it was not there when l passed upon
the instructions
"Upon reflection, after the little episode,
| in trying to reconcile in my mind how
could be SO strongly impressed that l did
not see the word, l remembered that it was
an instruction which was handed up after
had passed on the main instruction, and
| my recollection is that it was handed up
early in the morning, when the court came
in. ! did not sign the instruction until
after the jury went out. passed upon it
when it was first handed up.. Now it is
very pos sible that the instruction, being
here during the whole forenoon, that may
| have been interlined afterwards, and Mr..
Davis. seeing that the instruction was not
| passed upon, and thinking, LoHsibly, as
had inserted the word 'alone' in other in
| structions in the case, he inserted it before
| it was signed. 1t might have occurred in
that way. 1t is very possible that in looking
over that instruction the word may have
been there and l not have seen it when
signing it.
| upon mature reflection am inclined to
think that q man like Mr.. Davis, whose
word / would take as soon as ! would any
lawyers at this bar, and whose integrity
believe in as much rs 1 do in any attorneys
who comes into this court, that if Mr.. Davis
says so and SO L am inclined to think he is
right about it, because would not for a
moment insinuate nor take the position,
| nor undertake to maintain it. that MIR.
Davis would do thing of that kind. His
whole character and conduct in this court
are such that there would be nothing for it
to stand upon. l consider him a man OF in
tegrity, as much SO as any attorney who
comes into my court, and desire to make
this statement publicly as know that the
papers The Times alone have taken it up
and said what was not warranted. and have
to the matter, and to correct any false inn
pressions that may have got abroad in re-
gard to that matter / think it duty to Mr..
Davis that it should be done. The word
Alone may appear in the instructions"
Thus ended the episode, which was as
deeply regretted by Judge Smith as any
one else. and the regular business of the
court was proceeded with.
Possessory Interest Subject to Taxation
In sustaining the demurrer to the COM
plant in the case of W. b. cullen vs.. A.
H. Merwin, tax collector of Los Angeles
county, in which an injunction is asked
against the defendant to prevent him from
issuing a deed to certain land sold for
taxes, Judge Van Dyke yesterday gave an
opinion which virtually settles about 400
of the 1000 cases involving the taxation of
possessory interests in government lands
while the title is still in the government.
Judge Van Dyke says that it has been held
in California from quite an early period
that the poesessory interest or claim on
public lands of the United States was prop
erly subject to taxation, and that the trans
fers of such possession and improvements
have always been held to constitute vau-
able consideration for q promise. The
Judge further holds that the contention
that a deed should not issue on such taxa
tion and sale because it would cloud the
title acquired from the government is not
we'll taken. The complaint therefore does
not show a cause of action justifying the
issuing of the injunction, and the de-
murrer is sustained, and the order to show
cause why an injunction should not issue
is discharged.
Suing His Wife for AIimony
In the divorce case of Samuel w. Liv-
ingston vs.. M. A. Livingston, the parties
were before Judge Van Dyke yesterday on
an order to show cause why the defendant
should not pay alimony pending the de-
termination of the suit. The couple are
over 20 years of age each, and live at
Pasadena. Some weeks ago Livingston
was charged by his wife with insanity, but
was discharged on the examination. There
is about 10000 worth of property at is
sue, all of which is in the wifes name.
although the husband claims that much of
| 1t was bought with his money. After the
insanity proceedings, the old couple could
1Nf ndI hair A.