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his plea of autrefois convict in the in his former plea. To this the Court of Oyer and Terminer, the state replied that the offense of robjudgment is reversed, to the end bery upon which he stood convicted that a judgment be entered in said upon his plea of guilty, and the ofcourt in favor of the defendant on fense of murder charged against his plea of autrefois convict, and him, were not one and the same, that he go without day, etc.
and the jury impaneled to try the The Chancellor and Williams, J., issue thus raised found that the of. dissent.
fense in the robbery indictment, on
which the defendant had been conThe Chief Justice, and Minturn, victed, and the offense of murder Kalisch, White, Heppenheimer, Tay charged against him in the other lor, and Gardner, JJ., concur.
indictment, were not one and the Walker, Ch., dissenting:
same offense, but divers and difMowser, the plaintiff in error,
ferent acts, crimes, and offenses. was indicted by the Morris county Mowser was then put upon his trial grand jury on May 8, 1917, for the for murder in the oyer and termimurder of Frederick Richardson ner, and was convicted of murMay 5th, then instant. On May 22, der in the first degree, with recom1917, the same grand jury indicted mendation to life imprisonment. the plaintiff in error for robbery of He sued out a writ of error from the deceased on May 5th, then in- the supreme court to review his stant. On May 25, 1917, in the conviction, included in the record of Morris county court of oyer and which was the judgment sustaining terminer, Mowser pleaded guilty to the state's demurrer to the plea of the second indictment, the one
autrefois convict. The judgment charging robbery. On June 11, under review in the supreme court 1917, he filed a plea of autrefois was affirmed by that tribunal, and convict in that court, in which he plaintiff in error has removed the alleged that the offense in the in- judgment entered on that affirmdictment charging him with murder ance into this court for review. was one and the same offense as
I have examined the assignments that charged in his indictment for of error and causes for reversal rerobbery, and that the alleged mur- lied upon by the plaintiff in error, der was committed in the perpetra- and am of opinion that the judgtion of the robbery. To this plea ment under review herein should be the state demurred, and the pro- affirmed, for the reasons expressed ceedings were removed by certiorari in the opinion by Mr. Justice Swayze into the supreme court. The de
The de- in the supreme court, affirming the murrer was there sustained, and judgment of conviction of murder judgment of respondeat ouster was rendered in the Morris county oyer given, and the record remitted to and terminer, and for the reasons the Morris oyer and terminer, in expressed in the opinion of Mr. Juswhich court the defendant after- tice Bergen in the supreme court, wards filed a new plea of autrefois on the demurrer to the plea of auconvict, averring the same facts as trefois convict.
Acquittal or conviction of offense during commission of which homicide is
committed as bar to prosecution for homicide.
The note does not include cases where the first trial was for a crime included in homicide, which conse
quently excludes cases where the first trial was before death occurred.
For acquittal on charge as to one as bar to charge as to the other, where son burned in the house, where the one person is killed or assaulted by statute provided, with respect to ar, acts directed at another, see the anno- son, etc., that if “the death of anyone tation to Spanell v. State, 2 A.L.R. shall ensue from the committing, or 606.
attempting to commit, any such crime It will be seen that in the reported or act as aforesaid," "such person, or case (STATE V. MOWSER, ante, 695), persons, so killing as aforesaid, shall the court, in referring to the decision be adjudged to be guilty of murder.” of the court below, says:
It was held in Ex parte Torres preme court proceeded upon the the- (1906) 11 P. R. R. 98, that a convicory that the true test to be applied tion before a justice of the crime of in a case of a plea of second jeopardy carrying a pistol is no bar to a proseis that, where the facts required to cution for murder done with the pisconvict on the second indictment tol on the same day, as “the misdewould necessarily have convicted on meanor is not necessarily included in the first, a conviction on the first will the felony." bar the prosecution of the second. Where a prisoner, convicted of murAnd since the evidence to convict un- dering her infant bastard child, buryder the indictment for robbery would ing it in a small hole, covering the not have been sufficient to convict of body with hay and straw, moved in armurder, therefore the legal identity rest of judgment that she had been of the offenses fails." This statement convicted and punished for the offense is taken in substance from the su- of concealing the birth of same bastard preme court opinion on the demurrer child, the court, while stating that the (1917) 91 N. J. L. 90, 102 Atl. 363. question was raised too late, said: “But The second sentence seems to be a non had the matter been properly brought sequitur from the first. The first sen- forward as a bar to the indictment for tence in effect is that, if the facts re- murder, it would not have availed, quired to convict of the murder would for the misdemeanor imputed is a dishave convicted of the robbery, the tinct offense from the crime now murder charge is barred, while the charged. Whar. Crim. Law, § 565. second sentence states that the murder Moreover, the statute distinguishes charge is not barred because the evi- the offenses, and, after declaring the dence required to convict of the rob- constituents of the misdemeanor, exbery would not have convicted of the pressly provides that nothing in this murder. The application of the rule, section shall be construed to prevent as stated in the first sentence, would, the mother who may be guilty of the of course, have discharged the prison- homicide of her child from being proser, and such rule is laid down in ecuted and punished for the same, acmany of the cases.
But the supreme cording to the principles of the comcourt bases its decision on the differ- mon law. Code, s 1004." State v. ent rule that, unless the same evidence Morgan (1886) 95 N. C. 641. would be sufficient to convict of both It should be noted that in Wilcox crimes, the second prosecution is not v. State (1880) 6 Lea (Tenn.) 571, 40 barred, although it does in one place Am. Rep. 53, it was held that a constate the rule in substance as given viction of robbery from the person in the first sentence quoted above. of A. B. was a bar to a prosecution
Very few cases have been found for an assault upon him, with intent within the scope of this note.
to commit murder in the first degree. In State v. Cooper (1833) 13 N. J. While no attempt has been made to L. 36:, 25 Am. Dec. 490, which is fol- search for cases where the trial for lowed by the court of errors and ap- homicide preceded the prosecution for peals in the reported case (STATE v. another offense, it may be noted that MOWSER), and was sought to be dis- it has been held that an acquittal of tinguished by the supreme court in murder is no bar to a prosecution for that case, it was he hat a convic- carrying a pistol (Brown v. State tion of arson of a dwelling house was (1914) 74 Tex. Crim Rep. 234, 167 S. a bar to a charge of murdering a per- W. 1107), that an acquittal of murder in an attempt to perpetrate a robbery for carrying the pistol quashed. State is no bar to a prosecution for the rob- v. Hall (1887) 50 Ark. 28, 6 S. W. 20. bery (Warren v. State (1907) 79 Neb. An acquittal on a count in an indict526, 113 N. W. 143), and that an ac- ment, charging the defendant with quittal of murder in the first degree, killing another purposely and with committed in causing a miscarriage, premeditated malice, does not work an is no bar to an indictment for using acquittal upon another count in the instruments and medicine with intent
same indictment, charging the killing to produce the miscarriage (State
to have been done purposely and with v. Elder (1879) 65 Ind. 282, 32 Am.
premeditated malice, in the perpeRep. 69). But it has also been held
tration of a burglary, so as to overthat an acquittal of murder of A. B.
turn a conviction upon a verdict of is a bar to a prosecution for arson in
guilty on the second count. Bissot v. the first degree, in burning in the
State (1876) 53 Ind. 408. nighttime, a dwelling house in which the said A. B. then was. Reg. v. Lau
The reader will understand that
this note does not include a general Kin Chew (1891) 8 Haw. 370. In the same connection reference
discussion of the interesting question may be made to the two following cas
whether the test of the identity of
offenses, in considering the question es:
Where the prisoner was at the same of former jeopardy, should be the one time indicted (1) for carrying a pistol
stated in the first sentence heretofore as a weapon, (2) for murder, the two quoted from the opinion in the reindictments referring to the same ported case, or whether it should be transaction, it was held that he was the test applied by the lower court in not entitled to have the indictment its decision of the case. B. B. B.
(53 Okla. 666, 157 Pac. 756.) Notice - contents of deed - witness to signature.
1. One who signs an instrument as an attesting witness to the signature of the maker is not thereby, and from that fact alone, charged with knowledge of the contents of the document signed by him.
[See note on this question beginning on page 716.] Parent and child support of step- affecting the estate of the ward. From child - liability.
the confidential relations between 2. A husband who receives into his them, it will be presumed that the family and supports his wife's child ward was acting under the influence by a former marriage will be pre- of the guardian, and all transactions sumed to have done so as a parent; between them prejudicially affecting and where such is the case, said child the interests of the ward will be held is not liable to him for its support. to be constructively fraudulent. This Rev. Laws 1910, § 4378.
presumption extends to transactions [See 20 R. C. L. 594.]
between them after the guardianship Guardian and ward grant to guard- has ended, but where the influence reian validity.
mains, and the control and dominion 3. Courts watch with great jealousy over the former ward's property still transactions of guardians with their continues. wards, or any dealings between them [See 12 R. C. L. 1169.]
Head notes by SHARP, J.
(53 Okla. 666, 157 Pac. 756.) - dealings between - equitable rules. stepfather and former guardian, and
4. The equitable rules concerning with whom she at the time resided, and dealings between guardian and ward who was at the time her attorney in are very stringent. The relation is so fact and in control of her allotted intimate, the dependence so complete, lands, in consideration of her support the influence so great, that any trans- by said grantee during her minority, actions between the two parties, or by it not appearing that she was advised the guardian alone, through which the of her legal rights, is constructively guardian obtains a benefit, entered in- fraudulent. In such circumstances, to to while the relation exists, are in the bind the grantor, it must appear that highest sense suspicious; the pre- she acted after the termination of her sumption against them is so strong legal disability, with deliberation and that it is hardly possible for them to with full knowledge of all the material be sustained. The general doctrine of facts respecting her rights. equity applies to the parties after the [See 12 R. C. L. 1169, 1170.] legal condition of guardianship has ended, and as long as the dependence on
Notice - of record - purchaser.
— one side and influence on the other pre- 6. A purchaser of lands, who buys sumptively or in fact continue. This in reliance upon the record title, is influence is presumed to last while the chargeable with all the notice brought guardian's functions are to any extent to him by the records; and if the recstill performed, while the property is ord contains matters that would put still at all under his control, and un- a person of ordinary prudence upon til the accounts have been finally set- inquiry into the nature of the title of tled. Any conveyance, purchase, sale, the grantor, or of the rights and equicontract, and especially gift, by which ties of a former owner, then the law the guardian derives a benefit at the charges such purchaser with all the expense of the former ward, made aft- knowledge an inquiry upon his part, er the termination of the legal rela- prosecuted with reasonable diligence, tion, but while the influence lasts, is would have brought home to him. presumed to be invalid and voidable. [See 23 R. C. L. 194.] The burden rests heavily upon the guardian to prove all the circum
- failure to inquire – effect. stances of knowledge, free consent,
7. Every person who has actual nogood faith, absence of influence, which
tice of circumstances sufficient to put alone can overcome the presumption.
a prudent man upon inquiry as to a [See 12 R. C. L. 1169, 1170.] ]
particular fact, and who omits to make - conveyance after majority.
such inquiry with reasonable dili5. A deed by an illiterate Creek gence, is deemed to have constructive freedwoman, of the major part of her notice of the fact itself. Rev. Laws allotment, made one week after the 1910, $ 2926. discharge of her legal guardian, to her [See 20 R. C. L. 346 et seq.]
ERROR to the District Court for Creek County (Stanfield, J.) to review a judgment in favor of defendants in an action brought to cancel a purported deed. Reversed.
The facts are stated in the opinion of the court.
Mr. George James, for plaintiff in Kellerman, 32 Ohio St. 239, 39 Am. error:
Rep. 577; Goodrick v. Harrison, 130 Under the proved, admitted, and un- Mo. 263, 32 S. W. 661; Garvin v. Wildisputed evidence of this case, under liams, 44 Mo. 465, 100 Am. Dec. 314, the fiduciary relations existing be- 50 Mo. 206. tween plaintiff and defendant Tolon, Tolon cannot be permitted to charge the deed should have been canceled. plaintiff for her keep, and therefore no
2 Pom. Eq. Jur. 3d ed. $S 955, 956, consideration which he claims to have 961; 21 Cyc. 105b; McParland v. Lar- paid for the land can be allowed him kin, 155 Ill. 84, 39 N. E. 609; Williams by the court, he having received her v. Davison, 133 Mich. 344, 94 N. W. into his family and supported her, she 1048; Eberts v. Eberts, 55 Pa. 110; being his stepchild. Gillett v. Wiley, 126 Ill. 310, 9 Am. St. Fidelity Trust Co. v. Butler, 28 Ky. Rep. 587, 19 N. E. 287; Berkmeyer v. L. Rep. 1268, 91 S. W. 676; Williams
v. Davison, 133 Mich. 344, 94 N. W. prior to the foregoing transactions, 1048.
said Eliza executed a power of atDefendant Dickson had actual no
torney to said Tolon, authorizing tice, constructive notice, and knowl
him to lease the south one half of edge of sufficient facts, that he cannot
the north one half of section 13. escape by a plea of bona fide purchase for a valuable consideration without township 15 north, range 8 east, for notice.
agricultural purposes, and to collect Hatfield v. Lotty, 48 Okla. 173, 149 and receipt for all rentals or inPac. 1171; Fisher v. Bush, 133 Ind. come arising therefrom, and also to 315, 32 N. E. 924; Merrart v. Allen, 139 make and execute an oil lease on Ind. 644, 39 N. É. 239; Price v. Ward, said land. Said power of attorney 26 Nev. 387, 69 Pac. 72; Loser v. Plain
was filed for record in the office of field Sav. Bank, 149 Iowa, 672, 31
the register of deeds on March 1, L.R.A.(N.S.) 1112, 128 N. W. 1101; 39
1912. On February 13, 1912, Eliza Cyc. 1762 (D); Pom. Eq. Jur. 3d ed. $$ 614, 625; Wilkins v. Bevier, 43 Minn. gave a warranty deed to 120 acres 213, 19 Am. St. Rep. 238, 45 N. W.
of her land to said Tolon, for a con157; League v. Snyder, 5 Tex. Civ. sideration, as shown by the deed, App. 13, 23 S. W. 825; Glendenning v. of $1,500. Said deed was placed of Bell, 70 Tex. 632, 8 S. W. 324; Peck v. record on the same day and at the Bartelme, 220 Ill. 199, 77 N. E. 216;
same hour as the power of attorney A. R. Beck Lumber Co. v. Rupp, 188 Ill.
previously executed. On May 17th 562, 80 Am. St. Rep. 190, 59 N. E. 429;
thereafter said Tolon, in his own Tiffany, Real Prop. § 479, p. 1086. Messrs. McDougal & Lytle, Charles
right and as attorney in fact for A. Dickson, and C. W. Holbrook for
Eliza, executed to J. W. Teter and defendants in error.
N. T. Gilbert a three-year agriculSharp, J., delivered the opinion of tural lease on the 120 acres of land the court:
included in Tolon's deed, the term
of which lease was to begin JanuOn the application of Clinton
ary 1, 1913, the consideration thereTolon, the county court of Okmul
for being $175; and in addition to gee county, on October 15, 1910, ap
which the lessees agreed to put in pointed said Tolon guardian of the
cultivation as much as 15 acres of persons and estates of his stepchildren, Eliza West, Kizzie West,
new land, and to make certain reand George West, minors. Said pairs on the premises. The lease minors were, at the time of Tolon's purports to be the joint lease of
said Tolon and Eliza, and was filed appointment, according to the recit
for record on May 18th following als of his petition, aged, respectively, fifteen, thirteen, and ten years,
its execution. On February 13,
1912, and on the same day that and were freedmen citizens of the Creek Nation, each possessed of an
Eliza gave her deed to Tolon, she
executed to A. D. Kennedy a mortallotment of land. Eliza, whose estate alone is involved in the present
gage on 120 acres of her land for action, according to the evidence, the purported consideration of $500, arrived at the age of eighteen years
which mortgage was filed for record on or about the 20th day of Novem
on the day following its execution. ber, 1911. On February 6, 1912, joined by his wife, Lucy, executed a
On June 19, 1912, Clinton Tolon, said guardian made his final re
deed to the lands described in the port, showing an indebtedness due him from the estate of his ward in
deed from Eliza to Tolon, to Charles
A. Dickson for the consideration of the sum of $154.95, and at the same time filed in the county court a final $200, which deed was shortly therereceipt of said ward, signed and
after placed of record. Eliza lived marked, and on the same day said with her mother and stepfather uncourt made and entered an order til April, 1911, when her mother, approving the final report, and dis- Nancy, died. Thereafter she concharged said Tolon as guardian of tinued to live with Tolon until NoEliza. On February 5th, or the dayvember, 1912, when she married one