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it at his own house or at the house of a neighbor. That is a good test of this entire matter -no man is content to do his drinking at home, that is, no man who desires to drink more than is good for him. There is no use in trying to raise vice and folly to the plane of laudable Christian missionary work.

upon the power of the court whenever the record shall disclose the existence of either fact. There is no onus probandi cast on the recriminating party. It may crop out in the plaintiff's proofs, and there would then be neither necessity nor occasion for plea, or the offer of evidence in support of one. If the court learn by evidence which is properly before it that collusion exists, or adultery has been committed by both parties, it can render no decree of divorce. As it is well put by Sir William Scott Redington v. Redington, Court of Appeals of in Timmings v. Timmings, 3 Hagg. Ecc. 76 (5 Eng.

NOTES OF CASES.

IN Y. Redington,, it was held that in EC. 32).

an action for divorce, brought by a wife against her
husband on the ground of desertion, defendant
may recriminate with a charge of adultery or any
other statutory ground of divorce; and where it
appears that each party has been guilty of offense
charged, no relief will be granted to either. The
court said: "In the hopeless conflict among the
authorities, both English and American, and with-
out the guiding and controlling force of an adjudi-
cation in our own State, we must follow what
seems to be the current of the main stream of judi- |
cial determination, influenced perhaps by our own
judgment of what the law should be in such cases.
Since it is the conclusion of this court that the cases
of Ristine v. Ristine, 4 Rawle, 460, and Buerfening
v. Buerfening, 23 Minn. 563, are not in harmony
with the general doctrine of the American courts,
it may be well to advert to the difference between
the statutes of these States and that of Colorado
upon this subject. Both these decisions are wholly
rested on the supposed necessity to observe well-
established rules of statutory construction. The
Pennsylvania court seems to have been justified in
the construction which they put on their act.
That act definitely provided that if the defendant
should allege and prove' certain things, they
should in such actions be a good defense and a
perpetual bar.' Very properly that court held that
such certain and express provisions must, by well-
settled canons of construction, be taken to exclude
any other defenses which might be supposed to
exist because a right of action upon some other
statutory ground had come to the plaintiff in the
suit or the cross bill. A similar statute led the
Minnesota court to follow the Ristine Case. It
would serve no good purpose to analyze the Buer-
fening Case, and demonstrate, were it possible,
that in so far as it varied from the authority which
it followed, it was not well sustained. It is
enough for this court to hold that it is unhampered
by any such authoritative legislative expression of
purpose. Under the fourth section of our divorce
act it is wholly unimportant whether the collusion
or adultery be alleged by the defendant or by
either party.
These matters are not made the
proper subject of a plea, either in express terms or
by implication. It is of no consequence how the
court obtains the requisite legal information. If

·

it shall appear, * * * no divorce shall be de

creed.' It is more in the nature of a limitation

'In cases of this nature it is incumbent on the husband to make such strict proof of the fact charged as shall not involve himself, or create a legal bar; for if, by evidence which he brings to establish adultery, he at the same time involves and implicates himself, the wife has the full benefit of this evidence.' The court would only be bound to accept these adjudications as authority on the principle that an affirmative statute which enacts that certain offenses shall constitute a good defense, and a bar must be taken to exclude the consideration of any other. We are unembarrassed by this principle of construction, and we are not forced to question the accuracy of these cases. 2 Bish. Mar. & Div. (5th ed.), § 95; Bish. St. Crimes, §§ 153, 154. These preliminary statements of fact, and this conclusion concerning the statute, simplifies and narrows the investigation to the single question already stated. Since the courts of this country first commenced to discuss this question they were hampered by what seemed to be an unavoidable necessity to rest their decisions upon the only precedents then available from the English tribunals. It occasioned this difficulty. The English courts, until the recent divorce act, only granted divorces a mensa et thoro, and did not accord to any other offense than that of adultery equal force for the purposes either of a bill or of a plea. The earlier American adjudications followed this line of reasoning, adopted those cases as authority for their decisions, and there are in the American reports cases which adjudicate that neither cruelty, nor desertion, nor any other statutory ground can be made the subject of a valid and successful recriminatory plea. They rest on no correct doctrine, and unless the conclusion be forced by some affirmative statute, it should not be accepted. It is a rule recognized in all courts, and applicable to all classes of actions, that every suitor who seeks redress at the hands of a court should come unfettered and unsullied by faults and wrongs of his own commission against the contending party. This principle has become aphorized in the law as

clean hands.' It is plainly and palpably violated and infringed whenever a litigant who prays a divorce has been guilty of any act which, under the statute, would furnish the defendant a cause of action as against him. This alone ought to be sufficient to defeat the plaintiff's right of recovery, for she was guilty of a great offense against the marital obligation before she filed her bill. It has

has also an undivided interest in the latter, cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this ab

never been sufficient, even under the English authorities, to respond, that 'Even though this be true, you first sinned, and I may therefore recover.' The law left them where it found them. This conclusion finds strong support in the consideration that under the statute every offense which is thereby made a ground for divorce is of equal force and validity, and, when presented and proved, en-surdity: that Kaufman, at the time when he and titles the litigant to identically the same relief. It is therefore impossible for the courts in determining the obligations of the marriage contract to hold that there is any difference in the legal character of the breaches when their action is invoked upon any one of them. Whatever may be the ethical considerations, and the gravity of the offenses laid in a moral point of view, they are of no value in this respect. Conant v. Conant, 10 Cal. 250; Hoff v. Hoff, 48 Mich. 281; Nagel v. Nagel, 12 Mo. 53; Johns v. Johns, 29 Ga. 718; Shackett v. Shackett, 49 Vt. 195; Ribet v. Ribet, 39 Ala. 348; Adams v. Adams, 17 N. J. Eq. 324; Handy v. Handy, 124 Mass. 394. Under the law as established by these authorities, on the coming in of the verdict establishing the desertion by the husband, the court, being advised by the wife's admission that she had been guilty of adultery, should have dismissed both bill and cross bill, and left the parties bound by the tie which they had severally dishonored."

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Kinney were severally the owners of an undivided half of the land, might have sold that, and as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only.' In Morrison v. Berry, 42 Mich. 389, the ownership of the land and of the thing affixed was in one and the same person. It was there held that the annexation of the thing to the freehold was not the wrongful act of the landowner, but that by act and intervention of the claimant the articles became a part of the freehold In Knowlton v. Johnson, 37 Mich. 47, T. owned the land and mill. S. was the lessee. The water-wheels were a part of the structure. Plaintiffs furnished the water-wheels to S., with the understanding that they were to be put in the mill and there used; and, against the objection of T., the old wheels were taken out and the new put in. Six months

The machin

In Lansing Iron & Engine Works v. Walker, Supreme Court of Michigan, April 22, 1892, plain-afterward S. surrendered his lease, and T. leased to tiff sold a portable saw-mill, consisting of a boiler, engine, etc., to be paid for by installments, the title and right of possession to remain in plaintiff until the price was paid in full. The purchaser, being permitted by the contract of sale to run the machinery in several townships of a certain county, set it up on a farm in which he had an undivided interest. The boiler was bricked in, and the engine set up on brick-work, and bolted down to the foundation. Part of the machinery was roofed over. The purchaser afterward conveyed his interest in the farm by quit-claim deed to defendant, who afterward operated the mill as sole owner. Held, that the machinery remained personal property. The court said: The case is ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 id. 777. In Adams v. Lee, the court says: All the time therefore the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for to constitute a fixture there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold

M. T. finally sold the mill property to defendant,
and plaintiffs brought trover. The court say: 'The
plaintiffs deliberately agreed that the water-wheels
should be converted in all outward appearance into
real property, and thereby put it in the power of.
Trimmer to make sale of the wheels as part of the
mill.' In the present case the contract of sale pro-
vided for the use of the machinery, not only in the
township of Sandstone, bnt in adjoining townships.
Myers was not the sole owner of the land upon
which it was placed, but he was sole owner of the
interest in the machinery, and operated it solely in
his own behalf. The structure covering the boiler
and engine was but a temporary one.
ery in question did not consist simply of a pulley,
shaft or wheel which was to be attached to other
machinery already a part of the saw-mill, and as
such, a part of the realty, but it was a complete
outfit, designed by the agreement to be portable,
There was nothing done by the plaintiff indicative
of an intent to permit the machinery to be so
annexed to realty as to change its character. The
state of the title to the realty, and the conduct of
Myers regarding the machinery, negatived any in-
tent on his part to allow his interest in the ma
chinery to be absorbed by the owners of the realty,
or to permit it to be merged. The circumstances
of the purchase by the defendant clearly indicate
that he took the entire interest in this machinery,
while he took but an undivided interest in the
realty. He afterward operated the machinery as

sole owner.

It was held in Wheeler v. Bedell, 40

Mich. 693-696, that there is no universal test by which the character of what is claimed to be a fixture can be determined in the abstract; neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned. In Coleman v. Manuf. Co., 38 Mich. 3040, the court, commenting upon a line of authorities which seem to regard the manner of the attachment to the realty as the test, say: "This however is a very extreme view, and is hardly compatible with the tenor of our own previous decisions. It seems to overlook or ignore one test, namely, the intent of the party making the annexation.' See also Manwaring v. Jenison, 61 Mich. 117."

CONTRACTS-GAMBLING

OPTION DEAL-
INGS-RECOVERY OF AMOUNT LOST.
OHIO SUPREME COURT, MARCH 22, 1892.
LESTER V. BUEL.

"

A contract whereby one of the parties is to have the option
to buy or sell at a future time a certain commodity, on
the understanding of both that there is to be no delivery
of the commodity, the party losing to pay to the other the
difference in the market price simply, is by common law,
as well as by statute, in this State (§ 6934a, Rev. Stat., as
adopted April 15, 1882), a "gambling contract or wager
upon the future price of the commodity, and therefore
void.
Where the purchase or sale of a commodity is adopted as a
mode of disguising a wager upon the market price of the
commodity at a future time, the fact that one of the par-
ties assumes to make the purchase or sale as a commis-
sion merchant only will not alter the relation in which
they stand as parties to the wager. Each is in law par-
ticeps criminis to the wager, and either may, as loser,
recover from the other as "winner," under the provis-
ions of section 4270, Revised Statutes.

White, Johnson & McCaslin, for plaintiff in error.
George A. Groot, for defendant in error.

MINSHALL, J. Two questions arise upon this record. The first relates to the right of the plaintiff to recover upon his petition, and the second relates to the right of the defendants to recover upon their counter-claim, although the plaintiff may have no right to recover upon his petition; in other words, whether the purchases and sales of grain on which the plaintiff has charged and seeks to recover commissions were wagers upon the future price of the commodities bought and sold; and if so, whether under the statutes of this State, the defendants may recover from him the amount claimed, as the "winner" of the money so "lost" and paid to him. Though all the evidence is set forth in a bill of exceptions, it is not the province of this court to consider it for the purpose of determining whether the finding of the jury is right as a matter of fact. If the evidence was submitted to the jury under proper instructions, we must accept its finding as an affirmation of the claim of the defendants as to the character of the alleged purchases and sales of grain, on which the plaintiff seeks to recover the commissions charged in the account on which he has brought his suit. It is well settled that purchases or sales of commodities of any kind for future delivery are valid, although the seller may not own the commodity at the time the contract is made, and will have no other means of performing than by going into the market and making the requisite purchase when the time for delivery arrives. "But such a contract is

only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and if under the guise of in the rise or fall of prices, and the goods are not to be such a contract, the real intent be merely to speculate delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the

contract, then the whole transaction constitutes nothing more than a wager, and is null and void." Benj. Sales, § 542.

*

This is so well settled that we think it unnecessary to do more than refer to a few of the leading cases on the subject: Irwin v. Williar, 110 U. S. 499, 508, 510: Embrey v. Jemison, 131 id. 336, 344; Bigelow v. Benedict, 70 N. Y. 202, 206; Kahn v. Walton, 46 Ohio St. 195, 215. In this State, by an act adopted April 15, 1882, and embodied in section 6934a, Revised Statutes, such contracts are declared to be "gambling contracts," and the parties making them liable to fine and imprisonment. Its language, applicable to this case, is: "Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain or other commodity, * * where the intent of the parties thereto is that there shall not be a delivery of the commodity sold, but only a payment of differences by the parties losing upon the rise or fall of the market," shall be fined and imprisoned, and the contracts so made "shall be considered gambling contracts, and shall be void." So that in this State the character of such contracts rests not merely upon judicial decision, but also upon statute, and there is no room for question as to what the law is in such cases. Many of the other States have similar statutes. And indeed Mr. Bishop says: "By common consent, all bargains for the purchase and sale of things-for example, stocks and commodities-where it is the understanding of the parties, whether expressed or not, that the things are not to be delivered, but at the agreed time the difference' between the market values at the two periods are to be adjusted, and all other transactions of this nature, are illegal or against public policy, to the extent that courts will not enforce them. These are all gambling contracts, disturbing the course of trade, and not tolerated by law. But," he adds, "a sale in good faith, for future actual delivery, is valid, even though at the time of the sale the seller has not the article in his possession." Bish. Cont., § 534, and notes.

And the law is the same where the suit is by one who acted as broker to recover commissions for making the purchases or sales, where he had knowledge of the character of the transactions, for in such case he is a purticeps criminis, and has no better right to recover than either of the other parties so the wager. Embrey v. Jemison, supra; Kahn v. Walton, 46 Ohio St. 195; Pearce v. Foote, 113 111. 229.

The evidence in the case tended to show that the transactions between the parties were simply wagers upon the course of the grain market at Chicago, although the plaintiff and his witnesses testified that the purchases and sales were real, and that deliveries would have been made if required by the customer. The defendants testified that there was no such understanding, and that the transactions were simply wagers; and, looking at the circumstances as detailed in evidence, we are unable to see how either party could have had any other understanding. The account attached to the petition shows that in the brief period of about two months five hundred and thirty-five thousand bushels of grain were bought, and that exactly the same number were sold without a single delivery having been made. The customer was required to deposit a certain amount in the way of " margins," and which he has to keep good by adding thereto,

when in the course of the transaction he met with losses. There were, it seems, twenty-three different but continuous deals. When a certain number of bushels of corn or wheat was bought for future delivery, on the next, or a few days thereafter, a like number was sold. If the sale was at a price higher than the purchase, commissions were deducted, and the remainder, if any, went to the credit of the customer's account; if for less than the purchase, the commissions were added to the difference, and the sum went to his debit. Or if the first transaction was a sale, it would be closed by a purchase of a like number of bushels. And here, if the purchase was upon a rising market, the customer lost, if upon a declining market, he gained, and his account was in each case debited or credited accordingly. Now when it is remembered that neither of the defendants had any actual connection with the grain business, had no need to buy or sell grain of any kind-the one being a young physician and the other an assistant in the office of the city treasury, and without the means, as the plaintiff knew, of purchasing such large quantities of grain, and as no grain was in fact delivered, each transaction being settled according to the difference in the market between the time of purchasing and the time of selling, or conversely, between the time of selling and the time of purchasing-what inference should be drawn from such a state of facts other than that reached by the jury? The court charged the jury that "a contract for the sale of grain or other commodity, to be delivered at a future day, is not invalidated by the fact that it was to be delivered at a future day, nor by the additional fact that at the time of the making of the contract the vendor had not the goods in his possession, nor by the additional fact that at the time he had not entered into any contract to buy or procure the goods, nor by the further fact that at the time he had no reasonable prospect of procuring them for delivery, according to the tenor of the contract. In such case, if either party to the contract has the right to compel a delivery or receipt of the goods, it is a valid contract, although the parties thereto thereafter settle and agree to close up the transaction by a payment of differences. Nor does the statute of Ohio, which has been read and commented upon in your hearing, apply to sales of grain or other goods for future delivery, where the only option is as to the time of delivery within certaim limits." And then charged that "an understanding between the vendor and vendee, at the time the contract is made, that the goods shall not be delivered or received, but merely to pay or receive the difference between the price agreed upon and the market price at the time agreed upon for its delivery, brings the transaction within the statute, and is void. Nor does it matter what form the parties give to their contracts. No amount of painstaking or legal exactness," they were told, could change the result, if the intention of the parties appeared to have been to deal in future options simply. The case was in this regard fairly submitted to the jury, and we may add, that if it was proper for us to weigh the evidence, we would not feel at all disposed to disturb the verdict. It matters little what devices may be used, or what phraseology may be adopted, for the purpose of giving to a transaction a fair mercantile appearance; if a court and jury are satisfied from all the circumstances in evidence that it is simply a wager in disguise, there is no rule of law nor principle of reason that can require them to disregard their convictions upon the subject. Persuasions so obtained are no more than the result of the aggregate proof of the evidence, by which, in every case, the verdict of the jury should be rendered; and no amount of what they may honestly believe to be perjury can require them to disregard conclusions forced upon their minds by all the evidence in the case.

*

**

The next question is, had the defendants the right on their counter-claim to recover back the sums paid the plaintiff in the way of margins? This the court charged they had the right to do, "less the amount they received by the way of profits," if the jury found under the instructions before given them that the "contracts were gambling transactions," and were known at the time to be such by the plaintiff. The plaintiff makes two objections to the right of the de fendants to recover: (1) That he simply acted as agent of the defendants in making the purchases and sales, and that the money received by him was paid to the persons with whom he dealt on behalf of the defendants; and that he is therefore not the “winner”—the statute, section 4270, Revised Statutes, simply providing for a recovery against the "winner" by the loser on any bet or wager. (2) That he paid the money over, according to the understanding, before notice or suit brought. If these purchases and sales of grain were in fact wagers on the future price of the grain ostensibly dealt in, then it is clear that the relation of principal and agent did not exist between the defendants and the plaintiff; and that they were such was found by the verdict of the jury under proper instructions from the court. The parties to a wager stand in opposed relations, each acting for himself in the matter of making it. Both may be particeps criminis with respect to the crime-in other words, principals in its commission-but neither acts for the other. And this is so in many offenses against public policy, as in usury and the like. It is not doubted but that in a sense either party to a wager may have an agent-that is, either may act for himself through another; as in this case, the defendants at first acted through Hale, who by their direction, put up the margins for them, and so the plaintiff may have acted for or with other parties in Chicago. But under the finding of the jury that the transactions between the parties were wagers, neither could have acted for the other. The assump tion of the plaintiff that he was buying or selling wheat for the defendants was a mere disguise adopted for the purpose of concealing the nature of the real transaction, and as it had no foundation in fact, the agency based upon it is alike a mere assumption, and had no real existence. The transactions were had directly with the plaintiff, through his agent, Collins, at Cleveland. The money was received of the defendauts by Collins, and transmitted to him at Chicago. If he saw fit to divide with others associated with him in making the wager, that was a matter of his own concern, but it cannot alter the case, nor affect the right of the defendants to recover from him as a "winner" under the statute.

The cases cited and relied on by counsel for the plaintiff in error are without application here, for the reason that they are all cases where there was no question about the agency of the party from whom a recov ery was sought. Smith v. Bromley, 2 Doug. 696, note: Bone v. Ekless, 5 Hurl. & N. 925, 928; Whart. Ag.. § 250. They established the well-settled principle that where money is delivered to an agent, to be applied to an illegal purpose, while the agent has no right to retain it, yet where he has paid it over in accordance with the instructions to him, before notice from the princi pal not to do so, no recovery can be had against him. For example, if suit had been brought by Buel and Watkins to recover of Hale the money placed in bis hands to be put up as margins with Lester, Hale, by way of defense, might have shown that he had placed the money as instructed before notice to him not to do But Lester can make no such defense, the character of agent having been simply assumed, to conceal the real nature of the relation between himself and the defendants, and to disguise what was known to be a crime. The relation was an assumed, and not a real

80.

one, and is therefore no defense to the action given the loser by statute to recover of the winner money lost on a wager.

CRIMINAL LAW-ASSAULT WITH DEADLY

WEAPON-FAILURE ΤΟ PROVE THAT
RIFLE WAS LOADED.

MONTANA SUPREME COURT, MAY 2, 1892.

STATE V. HERRON.

Ou a prosecution for an attempt to commit an assault with a deadly weapon it appeared that defendant met a traveller in a road, and pointing a rifle toward him, commanded him to halt, saying to him, "Turn around quick, or I will blow your head off;" and "If you move another step forward I will blow your head off." It was not shown that the rifle was loaded. Held, that the fact that the rifle was not loaded was a matter of defense, and the court erred in ruling as a matter of law that it was not a deadly weapon.

Henri J. Haskell, attorney-general, W. S. Shaw, county attorney, and H. F. Titus, for State.

H. R. Whitehill, for respondent.

The provisions of section 4270 are not directed against any particular form of gambling. The language is: "If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner," the person who so loses and pays may, within the time named, recover the same "6 from the winner thereof." The evil is the same whether the money is wagered upon the turn of a card, the result of a horse-race, or the course of the market; and the language is broad enough to include not only either of these forms of betting, but any form in which money is lost and paid to the "winner" upon a bet or wager. A wager is generally defined by lexicographers as something hazardous upon an uncertain event, and this agrees with its legal acceptation. As defined by Anson: "A wager is a promise to pay money or transfer property upon the determination or ascertainment of an uncertain event." Anson Cont. 166. With regard to the future, the market is always a matter of uncertainty and speculation. When left to its natural course, it will fluctuate from day to day, but still more so when manipulated by gamblers, who, under the disguise of buying and selling, simply lay wagers upon its future course. on Such transactions the Legislature has, in section 6934a, Revised Statutes, declared to be gambling, and this section should be construed with section 4270, id., so as to suppress gambling upou the future price of grain and other commodities, as upon any other uncertain event, not merely because of its evil influence upon public morals, but because of its ruinous effect upon legitimate trade and commerce. In Pearce v. Foote, 113 Ill. 228, 239, Scott, J., in construing similar statutes in the State of Illinois, said: "Although the statutes being considered are highly penal, there is no warrant for construing them with any unreasonable strictness. They ought rather to have a just, if not liberal, construction, to the end the legislative intention may be accomplished-to prohibit all dealings in options in grains or other commodities. Nothing is productive of more mischievous results. Considerable fortunes secured by a life of honest industry have been lost in a single venture in 'options.' The evil is all the more dangerous from the fact it seemingly has the sanction of honorable commercial usage in its support. It is a vice that has in recent years grown to enormous proportions. Legiti

mate transactions on the board of trade are of the ut

most importance in commerce. Such contracts, whether for immediate or future delivery, are valid in law, and receive its sanction and all the support that can be given to them. It is only against unlawful 'gambling contracts' the penalties of the law are denounced, and no subtle finesse of construction ought to be adopted to defeat the end it is to be hoped may be ultimately accomplished."

It may well be doubted whether it required the legislative declaration contained in section 6934a, Revised Statutes, that contracts for such options as are made punishable by it should be construed to be "gambling contracts," to bring them within the remedy given the loser against the winner by section 4270, id., for, being wagers upon an uncertain event, they would come within the letter and spirit of that section, without such legislative provision; and to so hold is not to give to the statute a liberal, but a strict, construction. We see no error in the charge of the court. It was liberal to the plaintiff, and in some respects more so than was required by the law and facts of the case.

Judgment affirmed.

DE WITT, J. It is not questioned but a loaded rifle is a deadly weapon. In this case a rifle was used. It was used with threats. The defendant said that he would blow Nelson's head off. He thus threatened to do that which he could do only if the gun were loaded. The gun could be used, as threatened to be used, only when loaded. Under these circumstances, au information for an attempt, must the State prove that the gun was loaded, or is it a matter of defense to show the fact (if it be a fact) that there was no load in the gun? This was the proposition fairly before the District Court, and that upon which we will docide the appeal. It seems to be a first impression in this jurisdiction. Whether the instrument in question was a deadly weapon has been held to be a question of fact for the jury. Deering v. State, 49 Ind. 56. Also that it was a matter of law for the court. State v.

.....

Rigg, 10 Nev. 284: Bish. Crim. Law, § 335. It has also
been held that it is sometimes a mixed question of law
and fact. Id., § 335, note 4. But we may pass a de-
cision of that point. The District Court took the
matter as a question of law, and we will only inquire
whether it was correctly decided from that point of
view. The authorities are not uniform. In State v.
Napper, 6 Nev. 113, it was directly held, in a case of
this nature, that the court should have directed a ver-
dict for the defendant, for the reason that it was not
proven that the pistol was loaded. This case cites
State v. Swails, 8 Ind. 524. But the latter was a very
There it seems to have appeared af-
different case.
firmatively that the gun was charged with only pow-
der and a light cotton wad, and the court held, In the
State's appeal, that the following instruction was not
error: If you believe from the evidence that at the
time the defendant fired the gun at said Lee it was not
charged with any thing but powder and a light cotton
wad, Swails being at the distance of forty feet from
Lee at the time, and that at that distance the life of
Lee was not at all endangered or put in jeopardy by
the act of Swails in discharging the gun at him, iu
consequence of the manner in which it was loaded, the
defendant cannot be convicted, although he may have
thought that the gun was properly loaded with powder
and ball, and although he may have intended to mur-
der Lee." This case is also referred to in Wharton on
Criminal Law, section 1280, cited in the Nevada case
above. The Novada case also cites State v. Neal, 37
Me. 468. But the Maine case does not go to any such
extent as does the Nevada case. The case of Fast-
binder v. State, 42 Ohio St. 341, decided by a divided
court, and cited by respondent, was decided largely
upon the ground that the circumstances of the case did
not show an intent to commit the offense charged. It
is said in State v. Shepard, 10 Iowa, 126: "Mr. Green-

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