Изображения страниц
PDF
EPUB

by the testimony, and we see no good reason for disturbing the findings. The judgment simply covered the amount of the liens, and falls within the sum still remaining in the hands of the defendant Clift, after deducting the $1,100 damages allowed him. The interest was properly added from the time of the date of the several liens, that being the time when the several sums should have been paid.

We think the description of the property set up in Culmer Bros.' and Gray's intention to hold a lien, taken in connection with the testimony upon that subject, is sufficient, and could not have misled or prejudiced the defendant.

The verification of Mr. Gray's lien by P. L. Williams, in behalf of and as attorney for Mr. Gray, was sufficient. Section 10, p. 26, Sess. Laws 1890, provides that the abstract of indebtedness shall be verified by the claimant, or by some other person in his behalf.

The record shows that P. L. Williams was called, and testified that he received a letter or telegram from Mr. Gray, authorizing him to assign the Gray lien to plaintiff, and he assigned the same accordingly; such instructions. were received in answer to a letter written by witness to Gray, in which witness was authorized to make the assignment suggested in his letter; that he had searched for the instructions in his office, where such matters were kept, but the same could not be found. Thereupon the following question was asked witness, and objection made thereto: "Q. To whom was the assignment to be made, as suggested in your letter? (Question objected to. Objection overruled, and exception taken.) A. To G. F. Culmer." This ruling of the court is assigned as error. The objection did not point out the ground upon which

it was made, and therefore does not merit consideration. The point of the objection should have been particularly stated, in order to entitle it to consideration. This is the uniform rule. General objections to the admission of evidence are unavailable to the party making them, either on motion for new trial or appeal. The particular grounds of the objection must be stated, so that the trial court may understand the nature of the objection before passing upon it. Kiler v. Kimball, 10 Cal. 268; Frier v. Jackson, 8 Johns. 496; Camden v. Doremus, 3 How. 515; 1 Greenl. Ev. § 421; State v. Moore, (Mo. Sup.) 22 S. W. 1086; Railway Co. v. Henson, 7 C. C. A. 349; Crocker v. Carpenter, (Cal.) 33 Pac. 271; U. S. v. McMasters, 4 Wall. 680; Curry v. Bratney, 29 Ind. 195.

The appellant contends that none of the liens were filed until after the completion of the contract, and therefore they did not attach. This contention is answered by sections 10, 11, c. 30, Sess. Laws 1890, and by the construction of the lien law by this court in the cases of Morrison v. Carey-Lombard Co., 9 Utah 70; and Lumber Co. v. Partridge, 10 Utah 322, to which reference may be had. The liens were filed within 40 days after the materials were furnished and labor performed.

The fact that the liens do not cover all the premises owned by Mr. Clift, upon which the building was erected, does not affect the validity of the liens filed. Mr. Clift cannot be injured by a lien that does not cover as much of his property as it might have covered. The land and building described in the decree upon which the lien is created is the same land upon which materials were furnished and labor performed by the several lienholders.

Other matters are discussed by counsel, but we do not consider them of sufficient importance for further consid

eration. We find no reversible error in the record. The judgment and decree of the court below are affirmed, with costs.

ZANE, C. J., and BARTCH, J., concur.

14 293

15 483

STATE v. BATES.

CONSTITUTIONAL LAW-MURDER-TRIAL BY EIGHT JURORS-PRIVI-
LEGES AND IMMUNITIES-EX POST FACTO LAWS.

1. The description of the offense in the indictment included murder
in the first degree, as well as in the second; but the crime was
characterized as murder in the second degree, and the record
showed that the defendant was actually tried for and con-
victed of that offense. Held, a trial by eight jurors did not
violate section 10 of article 1 of the State Constitution, nor
did such trial by eight jurors violate section 7 of the same
article, which declares that "no person shall be deprived of
life, liberty or property without due process of law."

2. Section 10 of article 1 of the constitution of Utah, which declares
that "in courts of general jurisdiction, except in capital
cases, a jury shall consist of eight jurors," is not in conflict
with article 6 of the amended constitution of the United States,
wherein it says that "in all criminal prosecutions the accused
shall enjoy the right to
a trial by an impartial jury
of the state and district wherein the crime shall have been
committed." The last article does not apply to trials under
state laws.

*

*

*

3. Nor is section 10 of the state constitution repugnant to the first section of the fourteenth amendment of the federal constitutution. The first clause of that section makes all persons born

al5 489

14 293

119 441

14 293

22 68

or naturalized in the United States, and subject to its jurisdiction, citizens of the United States, and of the state wherein they reside; and the second clause, which declares that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, has no application to jury trials under state laws in state courts. It does not refer to the privileges or immunities of the individual as a citizen of the state; it refers to the privileges and immunities of the individual as a citizen of the United States.

4. Nor does section 10 of the state constitution conflict with the third provision of section 1 of article 14 of the federal constitution, which declares that no state shall " deprive any person of life, liberty or property, without due process of law." That provision left the power with the people of the state, by a constitutional provision, to reduce the number of jurors for the trial of a cause in the state courts from 12 to 8. 5. The defendant was tried by 8 jurors on April 7, 1896, upon an

indictment charging him with murder in the second degree, and convicted. The offense was committed on the 22d day of September, 1895, and the provision of the state constitution reducing the number of jurors from 12 to 8 took effect on January 4, 1896. Held, that the change did not deprive the defendant of a substantial right, and that the constitutional provision making the change was not ex post facto and void.

(No. 712. Decided Dec. 10, 1896.)

Appeal from the Third District Court, Tooele county. Hon. John A. Street, Judge.

George Bates was convicted of murder in the second degree and sentenced to ten years' imprisonment, and appeals. Affirmed.

Powers, Straup & Lippman, for appellant.

The court had no jurisdiction to try the defendant with less than twelve men as a jury.

Section 10, of article 1, of our constitution is repugnant to the 14th amendment to the United States constitution.

It abridges the privileges of citizens and deprives citizens charged with crime of due process of law. Thompson on Juries 810, and cases cited; Hill v. People, 16 Mich. 355; Cancemi v. People, 18 N. Y. 128; Work v. State, 2 Ohio St. 296; Flint River Steamboat Co. v. Roberts, 48 Am. Dec. 186, note; Hurtado v. People, 110 U. S. 516; Opinion of the Justices, 41 N. H. 550.

Section 10 of article 1, of the constitution of Utah, in so far as it provides for the trial of criminal cases by eight men, is repugnant to and in conflict with section 12, of article 1, of the constitution of Utah, and is therefore void.

Section 12 guarantees to the accused the right "to have a speedy public trial by an impartial jury." This is without limitation or qualification. It means a jury of twelve State of Nevada v. McClear, 11 Nev. 40; Carpenter v. State, 34 Am. Dec. 116; Wynehamer v. People, 13 N. Y. 378, 446; Cruger v. Hudson R. Railroad, 2 Kern. 190; People v. O' Niel, 48 Cal. 257; People v. Powell, 87 Cal. 348.

men.

When one section of a public act limits or abrogates a right existing prior to its enactment, and another section of the same act preserves that right, the courts, in giving force to the act, will disregard the section of limitation or abrogation and enforce the right.

Section 10 of the constitution must receive a strict construction for it deprives citizens of pre-existing rights. Sherwood v. Reade, 7 Hill 431; Striker v. Kelley, 2 Denio 323; Sheup v. Spier, 4 Hill 76.

Section 10 is clearly contradictory of section 12. There are several direct adjudications that the provision which is latest in position repeals the other. Packer v. Sunbury R. R. Co., 19 Pa. St. 211; Ryan v. State, 5 Neb. 276, 282; Gibbons v. Brittenum, 56 Miss. 232; Harrington v. Rochester, 10 Wend. 547, 553; Brown v. County Comr's, 21 Pa. St. 37,

« ПредыдущаяПродолжить »