Van Horn v. State

• Decision Date: 01 July 1895
• Citation: 40 P. 964,5 Wyo. 501
• Parties: VAN HORN v. STATE
• Court: Wyoming Supreme Court

40 P. 964

5 Wyo. 501

VAN HORN v. STATE

Supreme Court of Wyoming

July 1, 1895

Information filed in District Court October 24, 1893.

ERROR to District Court for Natrona County. HON. JOHN W. BLAKE Judge.

T. C Van Horn was informed against under Section 10, ch. 40, L 1888, for unlawfully cutting down, leveling, demolishing, destroying, injuring and removing a certain building erected upon a certain oil placer mining claim, the property of W. Tennant and Boney Earnest. He was convicted, and sentenced to pay a fine of three hundred dollars. A motion for new trial, incorporated in the bill of exceptions, was filed. Several of the grounds assigned for new trial were the giving of certain instructions which were set out in full in the motion. Such instructions did not appear elsewhere in the bill. Some loose sheets of typewritten paper were attached to the front of the record by a pin. They were entitled "Instructions of the Court," and marked "Exhibit A." In the appellate court a motion was made by plaintiff in error for leave to attach the papers, containing the instructions, in the place where, it was claimed, they were originally inserted in the bill of exceptions. The certificate of the judge to the bill was that "the foregoing bill of exceptions, including exhibits A, B, C, G, E, F, and H, include all the evidence offered or given by either party on the trial of said cause, together with the rulings of the court thereon and the exceptions of the counsel thereto, and also a copy of the motion for a continuance, and the motion for a new trial, with the rulings of the court thereon and the exceptions of the counsel thereto." Exhibit "A" in the bill was the motion for continuance. The motion to make correction in the bill was supported by affidavits which in substance stated that the instructions were in the original bill before it was signed by the judge, but were in the shape of newspaper clippings, and the judge requested that typewritten copies be inserted in the place of such clippings. There was also filed in support of the motion another set of papers certified to by the clerk of the district court, containing the original instructions, given and refused, and the original motion for new trial. To such original motion the entire charge of the court to the jury, taken out of a newspaper, was attached as Exhibit "A." The other material facts are stated in the opinion.

Judgment affirmed.

C. C. Wright, for plaintiff in error.

The gist of the offense is the character of the land and the ownership thereof. Vacant government land only can be located as mineral land. (Min. Co. v. Smith, 2 Dak., 377; Min. Co. v. Mahler, 4 Mining Rep., 390; Armstrong v. Lower, 6 Colo., 393.) Lands, to be held as mineral, must not only contain minerals, but must be more valuable for minerals than for agriculture. (128 U.S. 673; Min. Co. v. Rowen, 2 L. D., 719; Potter v. Hoffman, 18 Copp's L'd A., 172; Roberts v. Jepsu, 4 L. D., 60; Woodruff v. McGinnis, 10 Copp's L'd A., 88; Creswell v. Johnston, 15 id., 241; Case of Downs, 7 L. D., 462; 40 Cali., 484.) The evidence as to assessment work was incompetent. Possession is a fact, not a conclusion. It is one fact which may go to prove ownership. (2 Rice on Ev., p. 1228, and citations; Greenleaf Ev., sec. 34, & n.) The court should have instructed the jury that, to convict, they must find beyond a reasonable doubt that the lands are mineral lands. It is not sufficient that there may be good reason to believe them so. Only the discoverer of minerals may locate a mining claim. The initial step is discovery. (O'Reilly v. Campbell, 116 U.S. 419; Hansworth v. Butcher, 4 Mont. 307; Upton v. Larkins, 5 id., 600; Erhardt v. Boaro, 113 U.S. 527; Burke v. McDonald (Idaho), 33 P. 49; Alford v. Banner, 45 Cal. 482; Merrill v. Dixon, 15 Nev. 401; U. S. v. Reed, 28 F. 482; Diffeback v. Hawke, 115 U.S. 392; Cutting v. Riminghaus, 7 L. D., 265; Min. Co. v. Ferguson, 6 id., 218; Savage v. Boynton, 12 id., 612; Perano v. Pendalo, 10 id., 536; Finkham v. McCafferey, 13 id., 517; Com. &c. v. Alexander, 5 id., 126; Hooper v. Ferguson, 2 id., 712; Clegham v. Berry, 4 id., 78; Roberts v. Jepsum, id., 60; Lentz v. Victor, 17 Cal. 482; Davis v. Wibbald, 139 U.S. 507; White v. Lee, 78 Cal. 593; M. Co. v. M. Co., 1 F. 522; M. Co. v. M. Co., 11 id., 666; Sullivan v. M. Co., 143 U.S. 431; Shriver v. Copper Bell, 11 Mont. 309; McFesters v. Pierson, 15 Colo. 201; Shafer v. Constrans, 3 Mont. 369; McEvay v. Hyman, 15 Nev. 383; M. Co. v. M. Co., id., 401; Camey v. M. Co., 65 Cal. 40; Newbill v. Thurston, id., 419; Bryan v. McCaig, 10 Colo. 309; Sweet v. Webber 7 id., 443; Cheesman v. Shreeve, 40 F. 787.) The rule is the same as to placer mines. (65 Cal. 40; 109 U.S. 440; 104 id., 636.) The evidence fails to show any valid location of the claim. No discovery is shown. The ground was not marked. The amount of work done was not sufficient to hold it.

Benjamin F. Fowler, attorney general, for the State.

A continuance on the ground of the absence of evidence will be granted only when proper legal means to obtain have been used. (State v. Norman, 16 Ind. 192; Kuland v. Sedgwick, 17 Cal. 123; Bank v. Bank, 16 Wis. 125; Jeter v. Heard, 12 La. Ann., 3; Trommel v. Pilgrim, 20 Tex. 158; Wheeler v. Stytes, 28 id., 240.) The matter of continuance is addressed to the discretion of the trial court, and will not be reviewed except in case of grave abuse. The evidence clearly proved a sufficient compliance with the laws of the United States to establish a valid oil placer mining claim. A judgment will not be reversed on account of error in the instructions when it is clear that the verdict is right. (Miller v. State, 3 Wyo. 658.) The rule is the same as to the admission of incompetent testimony. (Thomp. on Tr., sec. 707; Aufdencomp v. Smith, 96 Ind. 328.) The certificate of location is presumptive evidence of discovery. (Chessman v. Hurt, 43 F. 98.) Location is valid though no valuable mineral is actually discovered before location. (Gregory v. Parshbaker, 73 Cal. 109.) There are no instructions in the record. (France v. Bank, 3 Wyo. 187; Thomp. on Tr., sec. 2792.) The statute under which the prosecution was had was evidently enacted for the purpose of protecting those who make investments in time and capital in mineral development, and to punish those who resort to forcible methods of asserting opposing claims. If the plaintiff in error had any right to the property, the law furnished him an ample remedy.

GROESBECK, CHIEF JUSTICE. CONAWAY and POTTER, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The plaintiff in error, T. C. Van Horn, was convicted of the offense of unlawfully removing a certain building from an oil placer mining claim situate in the county of Natrona, and was fined in the sum of three hundred dollars and judgment was rendered against him for the costs of the prosecution. The offense is defined by chapter 40, Sess. Laws 1888, section 10, which reads as follows: "Any person who shall unlawfully cut down, break down, level, demolish, destroy, injure, remove, or carry away any sign, notice, post, mark, monument, or fence upon or around any shaft, pit, hole, incline, or tunnel, or any building, structure, machinery, implements on (or) other property, on any mining claim or mineral property, ground or premises, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in a penal sum of money not less than fifty dollars nor more than one thousand dollars, or be imprisoned for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court."

1. A large number of the assigned errors relate to the alleged errors of the trial court in its instructions to the jury, but these we must not consider. Accompanying the record are a number of loose sheets, purporting to be the instructions of the court, marked as "Exhibit A," but they are not referred to or identified in the bill of exceptions, either under that designation or otherwise. The only exhibit so marked in the bill is a motion for a continuance and the supporting affidavits. In the motion for a new trial, the instructions appear, but this is not sufficient, as it is but the statement of counsel that certain instructions were given or refused, and they are not therein identified by the court or the judge thereof. Nowhere else in the bill is there any reference to the instructions to the jury, although minute reference is made designating and identifying the oral and documentary evidence received in the court below. It is urged by counsel for the plaintiff in error upon certain affidavits of himself and one of the attorneys for the prosecution that this exhibit purporting to contain the instructions but nowhere incorporated in the record or referred to or identified in the bill of exceptions, contains the instructions of the court to the jury, and were in the original bill when signed by the judge of the trial court in the form of newspaper clippings, and were removed at the suggestion of the judge and typewritten instructions inserted in lieu thereof. But there is nothing in the bill that refers to or identifies these so-called instructions, except the motion for a new trial, to which they were attached as an exhibit, and which is merely the work of counsel for one of the parties and not the judge. The judge must include in the bill of exceptions all matters not a part of the record in order to make them of the record, and neither counsel nor the clerk of the court may do this.

It would be a loose and a dangerous practice to supply omissions in the bill by affidavits of the counsel or others, and the statute does not permit it. What is not made by the statute a part of the record of the trial court,...