Rudolph Wetter was born in 1861 in Pennsylvania, to Ramsey Charles Wetter (1838-1924) & Rebecca Amey (1840-1915). Rudolph was a miner.
Inmate: #1044 Idaho State Prison
Rec: 16 Oct 1904
Crime: Murder 1st Degree
Term: Death by Hanging
Here are some great newspaper articles I found, just click on the links to read.
1904
https://www.newspapers.com/clip/50035853/rudolph-wetter/
1906
https://www.newspapers.com/clip/50036053/rudolph-wetter/
1910 Seeking a pardon:
https://www.newspapers.com/clip/50035343/rudolph-wetter/
1911
1912
1915
https://www.newspapers.com/clip/50036205/rudolph-wetter/
Rudolph Wetter spent 12 years in prison, finally getting out 16 June 1916.
Here is People Vs. Rudolph Wetter
Rudolph Wetter, on or about the 19th day of SULLIVA.V and AILSHIE, JJ., concur. July, 1904, at the county of Idaho, state of
Idaho, then and there being, did then and there, willfurly, deliberately, premellitatedly,
unlawfully, feloniously, and with malice (11 Idaho, 433)
aforethought kill and murder one Christ Long, STATI v. WETTER.
a human being, by then and there willfully, (Supreme Court of Idaho. Nov. 24, 1905)
deliberately, premeditatedly, unlawfully, fe1. CRIMINAL LAW-APPEAL-WAIVER OF OB loniously, and with malice aforethought, JECTIONS.
shooting at, in and upon the body and person Where an information charges murder, and a demurrer is filed which is overruled by the
of the said Christ Long, with a certain gun, court, and no error is predicated on such ruling to wit, a rifle, the same then and there being a in this court, it will be treated as waived.
deadly weapon, and then and there loaded with (Ed. Note.-For cases in point, see vol. 15,
powder and leaden ball and then and there Cent. Dig. Criminal Law, $8° 2954, 2961.)
held in the hands of the said Rudolph Wetter, 2. SAVE-REFT'SAL OF CONTINUANCE. Where an application for a continuance is
and the said Rudolph Wetter did then and filed and overruled by the court, it will only be there, willfully, deliberately, premeditatedly, reversed in this court where it is shown that unlawfully, feloniously, and with malice aforethere was an abuse of discretion in the court
thought, wound, kill, and murder him, the below, [Ed. Note. For cases in point, see vol. 15,
said Christ Long." Cent. Dig. Criminal Law, $ 3013.)
Counsel for appellant demurred to the 3. SAME – DEPOSITIONS — REFUSAL OF LEAVE
information: First, "that said information TO TAKE-DISCRETION OF (OURT.
does not state facts sufficient to constitute a Where there is an application to take depo public offense; second, that said information sitions outside of this state, and such applica
does not substantially comply with the retion is denied by the lower court, and it further appears that the evidence sought to be pro
quirements of sections 7677, 7678, 7679, of the cured would not change the result of the trial, Revised Statutes of Idaho of 1887.” This dethe action of the lower court will not be dis
murrer was overruled, and an exception sav. turbed. The granting or refusal of such application being within the discretion of the
ed, but counsel for appellant does not urge trial court, it will only be disturbed where it the ruling of the court as error; hence we is shown that there has been an abuse of such infer after more mature deliberation he abandiscretion.
doned it, at least we will treat it as waived. 4. SAME-OBJECTIONS TO EVIDENCE. Where a witness is asked a question that
It is also shown that at the time fixed for in itself is immaterial, and no foundation is laid
defendant to plead his counsel filed a motion by which it may become material, a ruling sus to set aside the information. This motion taining the objection will be sustained.
was overruled, to which ruling an exception 5. SAME-DEFENSE-INSANITY.
was saved. Counsel for appellant does not Where tlie defense is insanity, it is always brought into the case by the defendant, and un
urge this ruling as error; hence it will be til be furnishes such evidence of insanity, at treated waived also. least sufficient to raise a question of doubt in
On the 9th day of September W. N. Scales, the minds of the jurors, the prosecution may rest upon the legal proposition that all men are
counsel for appellant, filed a motion supported supposed to be sane and legally responsible for by his affidavit for a continuance of the case their acts.
until a future term of the court. In this aff(Ed. Note.-For cases in point, see vol. 14, davit it is shown that the preliminary exCent. Dig: Criminal Law, 88 742, 1286.]
amination was had on the 1st and 20 days 6. SAME-APPEAL-REVIEW.
of August, 1904, and the defendant held to Where it is shown that the instructions, taken as a whole, correctly state the law and are
answer, and that on the 5th day of September aniformly fair to the defendant, and that from 1 thereafter the county attorney iled an information charging defendant with murder, until the next regular term of this court, be in the first degree, and on the same day can either have a personal attendance of filed a second information, charging the de some person who will testify in regard to fendant with a like offense. The affidavit the insanity of the near relatives of the dethen states that one of the defenses to be fendant, otherwise he can obtain a deposiinterposed, and which will be a substantial tion of such person or persons, and a deposiand material part of the defense, will be | tion of the superintendent of the insane that at the time of the alleged offense defend- asylum in which said brother was detained; ant was insane and not responsible for any that affiant cannot obtain at the present term act committed at that time; that affiant has of court the facts necessary to make a fair been informed that some of the near relations and just defense of the defendant, and withof the defendant have been or are insane; out the evidence indicated herein the defendthat affiant has been informed that a brother ant cannot safely go to trial; that affiant of defendant is insane and was confined in cannot state the exact facts which he will the insane asylum in California. Then the be able to prove in regard to the insanity of affidavit states that affiant had addressed a the near relatives of the defendant, nor can letter to the “Superintendent Insane Asylum, he ascertain them from the defendant, who Asylum Station, California,” in which affiant has been, as affiant is informed, long absent had requested said superintendent to inform from his home, and knows nothing of his him whether said brother of defendant was own knowledge about the same, nor can afconfined in said asylum, the cause of such fiant give the names of the witnesses by insanity, how long he had been there, what whom he can prove the same, but affiant form it assumed, whether he was cured, and is certain that, if this cause be postponed, he where he now was; that affiant informed can prove that the brother of the defendant is said superintendent of the great importance or has been insane, and possibly other near of the information sought and the necessity relatives of defendant, can show the form for a prompt response; that said letter was such insanity assumed, and all necessary facts duly mailed; that afterward it was returned in connection therewith; that affiant is inwith the San Francisco and another post formed that the home of defendant was in mark, for better direction; that affiant has the state of Pennsylvania; that his relatives been informed that said address was correct. live there, and much of the evidence which Affiant was also informed that said brother he expects to procure in regard to such was admitted to the insane asylum under the insanity must come from said state. name of Jos (or Thomas) C. Brainbridge; that This motion was overruled on the 9th day thereafter defendant received a letter, ad- of September, 1904, and at that time the dressed on the inside "Dear Brother," and court fixed the time for trial for September signed "Your sister, Amelia," therein giving 19, 1904. On the 10th day of September anher address as New Hope, Pa.; that said other motion was filed, which counsel for letter bore the postmark “Grangeville, Idaho, appellant terms a renewal of his motion of Sept. 1st, 1904,” and “New Hope, Pennsyl. the 9th, and supports it by his own affidavit vania, Aug. 22, 1904," and was handed there and that of appellant. The affidavit of Mr. after to affiant, in which appears this, “I | Scales contains no new matter as to the had hoped Charley was the only one of the alleged insanity of defendant. It sets out family who would show any signs of in that he has not sufficient time to prepare sanity.” Affiant has never had any com for the defense of defendant; that the place munication with any member of the family, of the alleged offense is about 70 miles from did not know their address, and the last Grangeville, his residence, and the county mentioned letter seems from its reading to seat, in the mountains; "that it will be neceshave been written on account of information sary to take depositions of witnesses out of received from one Mrs. Campbell, post office, the state of Idaho in regard to the insanity Resort, that the defendant was in trouble. of the near relatives of defendant or to have From what affiant has heard and from said their personal attendance, neither of which letter, he is thoroughly convinced that the can be done in time to try the above entitled defendant has near relatives, or a near rela cause at this term of the above entitled tive, insane, or who has been insane. Then court." The affidavit of defendant shows it is stated that affiant will be unable to that he has a brother, Charles A. Wetter, ascertain the facts in regard to the insanity who is insane, the nature and form of which of the near relatives of defendant in time | insanity he does not know; that he has a for trial at the present term of court; that father, mother, and sister living in Pennsyldefendant has no relatives in Idaho, as far vania, post office, Furlong; that he has no as affiant knows or believes; that there is relatives in the state of Idaho; that there is no witness or person in this state that this no person in the state of Idaho by whom he affiant knows or has known of by which he can prove anything about the insanity of his can prove anything about the insanity of the said brother; that said brother was confined relatives of defendant; that such testimony in the insane asylum in the state of Caliwill be absolutely necessary and material in fornia; that the “Charlie" referred to in the the defense of the defendant; that affiant is letter of his sister mentioned in the affidavit convinced that, if this action is postponed l of W. N. Scales is that brother; that, if this action is postponed for the term, he can It is next shown that on the 10th day of and will have the depositions for personal September, 1904, defendant caused to be isattendance of his father, mother, or sister, sued a subpæna for William De Moss and giving the facts and circumstances of the others, and that said subpoena was placed in insanity of said brother, and possibly other the hands of the sheriff of Idaho county on members of the family; that he can and will the same day for service, and was returned have, at the next term, the deposition of the on the 16th day of September, 1904, with superintendent of the Insane Asylum in witness De Moss not served. Defendant files California, in which his brother was con a motion for continuance based on the affined; that since the alleged offense affiant fidavit of W. N. Scaies, his counsel, and the has been deprived of his liberty, and has affidavits of Mr. Scales and defendant in had no opportunity to prepare his defense, support of other motions for continuance and is not prepared at this time to go to heretofore referred to. After stating all the trial; that affiant has no money, but in a facts relative to the action of the court in letter of his said sister referred to she in sub denying his former motions for continuance, stance offers to aid said alfant in any way Mr. Scales testifies that on the 10th day of she can, but affiant did not receive said let September, 1904, he telegraphed to the sister ter until during the present month. This of defendant at Furlong, Pa., asking her to motion was overruled. The next step shown 1 come to Grangeville, Idaho, where this trial by the record was an “application for ex is to be held, and on September 16, 1904, amination of witnesses.” It was for an or received a letter from said sister, Mrs. der of the court that a commission be issued Amelia Magill, in which she stated: “It is to take the testimony of Rebecca Wetter, impossible for any of the family to come Ramsey C. Wetter, and Amelia Magill, all out, owing to lack of money." Also this: of Furlong, state of Pennsylvania, to be used "Personally, we have no doubt as to Ruon behalf of defendant at his trial. This | dolph's (meaning the defendant] insanity." application is supported by the affidavit of Affiant says that inclosed in said letter was defendant and W. N. Scales, his counsel, in | a letter to Mr. Wetter from A. Stanley Dolan support of the two applications for continu- signed as “Acting Medical Superintendent," ance. In his affidavit defendant recites the the letter head on which said letter was facts of the filing of the information on written bearing the name “Southern CaliSeptember 5, 1904, and the plea of not guilty fornia State Hospital.” The letter is atSeptember 8th, then recites that he desires tached and made a part of the affidavit. the testimony of his father, mother, and sis "Affiant is satisfied that, if time is given ter, and reiterates that they reside at Fur him, he can get the depositions of the offilong, Pa., and will testify as to the fact of cers of that asylum to be used in this action, the insanity of the brother of defendant, the showing the insanity of defendant's brother, form of such insanity, and all facts and cir with the facts and circumstances and form cumstances in connection therewith; that thereof. Affiant had learned today that such testimony is necessary and material in Peter Corlskin, of Meadows, Idaho, has behalf of defendant in the trial of his case. known defendant weil and intimately and
On the 14th day of September this applica will testify to the good character of defendtion was heard by the court, and the follow ant, and at least that he considered the de. ing order made: “The above entitled matter fendant off' at times, but the exact nature coming on to be heard on the 14th day of of his testimony affiant has been unable to September, 1904, at the hour of 9 o'clock learn, as the defendant gave him no informaa. m., on the motion and application of the tion as to this witness, and affiant learned defendant for the court to grant a commis- it from one of the witnesses now present, sion for the taking of depositions of witness Mr. Goodman; that De Moss, one of the es alleged to be residing outside of the 'witnesses for the defendant, and for whom state, it appearing to the court that the de. a subpoena was issued, has not been found, fendant in his showing, in support of his and alliant is informed that he is now in motion and application, has failed to make Walla Walla, Washington; said De Moss said showing until said cause was set for was a partner of defendant and lived with trial, and that the time is too short to pro defendant in the same cabin, as defendant cure any of said depositions, and witnesses informed affiant, and was present just behave been subpænaed on behalf of the state, fore defendant committed the alleged offense, and a great many of whom reside a long and knows what occurred just prior to said distance from here, and already a big ex- alleged offense; that affiant has not been pense in securing them has been incurred, able to learn what said De Moss will testify and that the granting of said commission to on account of the limited time which he would be useless for above reasons, and the has had to prepare the defense of defendshowing is too indefinite and uncertain as ant, and defendant has not been able to to what the defendant expects to prove by | inform affiant as to what said De Moss will said witness. It is therefore ordered that testify to, and defendant cannot safely go to said motion and application to take deposi trial without said witness." The letter above tions is hereby denied. Edgar C. Steele, | referred to is as follows: "Mr. Wetter, Dist. Judge."
Borough of New Hope, Banks Co., Pa.
Dear Sir: Charles A. Wetter, who is a record is it shown just what defendant expatient in this hospital, has repeatedly writ- | pects to prove by his eastern relatives, exten to his friends and received no reply. He cepting that a brother was contined in the is very much distressed and quite despondent asylum of California, and a possibility that from this fact. Will you please answer him? it may be shown that other instances of He was committed here under the name of insanity might be traced in the past history Brainbridge. I enclose a letter addressed to of defendant's ancestors. Even if all these me by him, which shows how he feels re- | facts should be conceded by the prosecution, garding this matter. A. Stanley Dolan, Act still, upon the trial evidence of witnesses ing Medical Supt." The above letter is dated who were intimately associated with defendNovember 3, 1898, and from Patton, Cal. ant at and about the time of the alleged On the 19th day of September this motion homicide, who heard what he said, observed was denied.
what he did, his condition just prior to and It has seemed best to give almost verba immediately following the commission of the tim the showing made by the defendant in alleged crime, his threats and the reasons his affidavits for a continuance of the case he gave for the commission of the act, all until a future term of the court, for the these would be considered by the jury in reason that his learned counsel insists that their efforts to determine the condition of the court erred in not granting a continu defendant's mind, and whether or no he was ance, and also in refusing his application in that condition mentally that he did not to take the depositions of witnesses in Penn- | know he was committing a crime against the sylvania. An examination of the record con- | laws of nature and man. The mere fact vinces us that, unless there is error in the | that insanity may exist in his family is not orders of the court overruling defendant's of itself sufficient to excuse the defendant motions for continuance, bis application to from the responsibility he owes to his feltake depositions, or his instructious to the low men, neither would it avail him if he jury on the question of insanity, the judg. were able to prove by the witness Peter Corlment must be affirmed, as the record abund skin that he was "off" at times. antly shows that, unless the defendant was The question to be determined in cases of insane at the time of the commission of the this character is, was the defendant at the homicide to such an extent that he was not time of the homicide so mentally unbalanced responsible for his acts, the verdict of the that he was not responsible to God or man jury was entirely justified. Indeed, coun for the commission of the act? If he mensel for defendant rests his entire argument tally knew it was wrong to take the life of on the alleged errors of the court in re a human being, and under these conditions fusing to permit him to show that a brother did commit the offense charged to him by of defendant had been committed to the in the information with malice, hatred, or resane asylum in California, at some time in venge, he is morally and legally responsible the past, and the instructions of the court for the act and should suffer the conseon the law where the plea of insanity is quences. He might at times be "a little interposed.
off," and yet entirely responsible at the time It is first argued by counsel for appellant of the commission of the crime charged to that defendant was unduly forced to trial, him. It might be that insanity existed in and without sufficient time to prepare his his family from its earliest history, and yet defense. A careful reading of the affidavits that would not excuse him. It would only in support of the applications for a contin be a circumstance in his favor, to be conuance does not convince us that there is sidered with other evidence as to his past much merit in this contention. It is only history, his language, acts, and conduct at shown that a continuance of the bearing the time of the homicide and prior thereto. of the case would result in establishing the In fact, anything in his past life showing any fact that a brother of defendant had at some indication of insanity should and would be time been committed to an insane asylum in considered by the jury. It would be a very California. It is not shown or intimated the dangerous precedent to say that because nature or cause of such insanity, or wheth insanity existed in his family he should have er it was hereditary. Unless hereditary, it immunity. Further than that, it should be would certainly be of but little assistance considered in connection with other evidence to defendant in his defense on the plea of in the case showing the condition of defendinsanity. In the order of the court denying ant's mind at and about the time of the defendant's application to secure the evi homicide. It is true it would be a strong dence of the close relatives of defendant circumstance to show that he was not so in the state of Pennsylvania it is stated mentally and morally depraved as to take that this "application was not made until the life of two human beings and attempt after the cause was set down for trial, the life of the third, but, nevertheless, it * * * and the showing is too indefinite would still be incumbent upon him to show and uncertain as to what the defendant ex- that legal insanity, and not moral depravity, pects to prove by said witnesses." It will prompted the act. Human life is rery sabe observed that at no time or place in the cred in the eyes of the law, and, whilst courts
should always guard with the utmost dili- , of defendant had been committed to an ingence the rights of all parties charged with sane asylum in the state of California in the crime, at the same time they should be year 1898, or was an inmate of said inwatchful of the rights of the people and stitution at that time, as shown by a letter not permit parties charged with homicide to of the acting superintendent to the father go unpunished on the plea of insanity, unless | of defendant. It may be that the learned there is a foundation in fact, reason, and trial judge was satisfied that a continuance justice to believe that the insanity was of 1 of the case until a future term of court such a character that the party pleading it would result in no benefit to defendant from was so mentally unbalanced that he was not any evidence he might procure from his relaresponsible for his conduct. We do not wish tives in Pennsylvania. The evidence taken to be understood as holding that hereditary on the preliminary examination was accesinsanity, or the insanity of a brother or sible to him, and from that he may have sister, or the insanity of any near blood re
been thoroughly convinced that any evidence lation of the party charged, may not be
of hereditary insanity in the family of deshown; to the contrary, we are of opinion
fendant would be of little weight compared that such evidence is entirely competent,
with the threats, actions, and conduct of and when introduced should be carefully
defendant at and about the time of the comconsidered by the jury. The question is,
mission of the homicide, and it is not denied was the showing sufficient under the facts
that defendant committed the act. That the in this case to warrant the court in grant
granting or refusing to grant a continuance ing a continuance of the case or granting an
is largely within the discretion of the court order to take depositions, which would have
has long been settled in this state. In Ternecessitated a continuance until another
ritory v. Guthrie, 2 Idaho (Hasb.) 432, 17 Pac. 39, term of the court? It will be observed that
in an opinion by Mr. Justice Broderick, it is there is no positive statement that hereditary
said: “An application for a continuance is insanity exists in the family of the defend
addressed to the sound judicial discretion ! ant. There is a positive statement that a
of the court, and appellate courts have unibrother of defendant had been confined
formly refused to disturb a ruling on such in an insane asylum in California. This
questions, unless it appears that there was an may have been an isolated case in that
abuse of discretion." Practically the same
language is used in People v. Walter, decided family. There are numerous causes for this
by our territorial Supreme Court in 1891, 1 dreaded malady, and by no means always
Idaho, 386. The last expression of this court traceable to heredity. Intoxication and self
to wbich our attention has been called is in abuse are frequently responsible for insanity.
State v. Rice, 7 Idaho, 762, 66 Pac. 87. On In this case learned counsel for the state
this subject the syllabus says: “Refusal to in his oral argument in this court saw fit
grant a continuance being a matter legally to refer to the defendant as having “crow
within the discretion of the lower court, a bar" insanity, a specie with which we are
judgment of conviction will not be reversed pot familiar, but doubtless he based it on
by reason of such refusal, unless it is apparthe evidence of defendant who testified that
ent from the record that such discretion has at some time a crowbar had fallen on bis
been abused, and that defendant has been head and thereafter it had affected his mind
prejudiced thereby.” The reason of this rule at times. Counsel for appellant cites Law
is so sound and well settled that a discussion son's Criminal Defenses, vol. 2, p. 465; People
would seem unnecessary. It has its origin V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, by
in the fact that the trial judge is cognizant that eminent jurist and chief justice, Cooley.
of all the facts and conditions existing from We are in full accord with all that is said
the earliest stages of the proceedings and is in that opinion, but the facts in that case
presumed to enforce the law in such a manand the one at bar are entirely different.
ner that all parties charged with crime shall It is earnestly urged by counsel for ap
have a fair and impartial trial. It is equally pellant that he was not given sufficient time
| his duty to see that the law is administered within which to prepare his defense. It is and guilty parties brought to justice and shown that the alleged homicide was com
required to pay the penalty of their crimes mitted on or about the 19th day of July, | without unnecessary delay. 1904. The preliminary examination was held It is urged by the Attorney General and on the 1st day of August, 1904. The in
his associates that many witnesses could have formation was filed September 5th, and the been produced at the trial who were actime for trial fixed for September 19th there- quainted with the defendant at that time after. It will thus be seen that counsel had and for months just prior to the homicide. from the 1st day of August until the time of Indeed, many witnesses were examined who the trial to correspond with the relatives of | were acquainted with defendant, and who defendant in Pennsylvania. The only infor testified as to his threats, actions, and conmation he could get was that they were un- duct immediately before the commission of able to be present at the trial for “lack of the act, and what he said and did thereafter. money," as stated by the sister of defendant. With all these facts before us, can we say that It seems that the family knew that a brother the testimony of his father, mother, or sister
(who have not seen him for years) that a, trial court to determine questions of this brother of defendant had been an inmate of character, with the evidence of defendant an insane asylum, or the testimony of the himself that he only attributes the condition superintendent of such institution that at of his mind at times to an injury, with his one time he had in his care a brother of threats repeated to different ones and his defendant, or the testimony of Peter Corl execution of them, we do not think the trial skin that he thought at times defendant was judge abused the discretion reposed in him "a little off,” could overcome the direct and by the refusal of the application for conpositive statements of witnesses who were in tinuance or the refusal to grant the order to his company and observed his actions, heard take testimony. his language in the way of threats just prior The next assignment of error is based upto the homicide, and what he said after the on the refusal of the court to permit the decommission of the act? We are of the opin- fendant to answer the following questions: ion that the presence in court of all the wit “Where was your brother the last you knew nesses whose testimony defendant asked time of him ?” The witness prior to the question to procure would not have changed the re had testified where he had resided for a sult in the least. In State v. Rice, supra, in number of years; that he had lived in Idaho the fifth clause of the syllabus, it is said: county about 10 years; was born in Pennsyl"An order denying a continuance upon the vania; had no relatives in Idaho; his sister, ground that a witness whose testimony is brother-in-law, father, and mother reside in desired by the defendant is not ground upon Pennsylvania; that he had a brother not in which a reversal can be based, where it ap- Pennsylvania. Then follows the above quespears from the record that the testimony of tion. The county attorney objected to the such witness could not have changed the re- question as immaterial. The objection was sult of the trial.” It is shown by the record sustained. It will be observed that there that defendant testified that he attributed was no foundation laid for this question. his trouble to an accident, and not traceable The court was not informed of the purpose to his parents or ancestors, and that a crow or why it was material. Until there is some bar had once fallen on his head and ever reason shown why it was material where since he has had severe headaches, accom the brother of defendant was the last he panied by dizziness. That he fully knew and | knew of him, it was certainly immaterial, understood what he was doing is shown by and there was no error in sustaining the the testimony of Wm. Allen, who testified: | objection. "I heard him make threats about ten days Specification of error No. 6 is based upon before this. He always called Mr. Long 'this the first instruction given by the court, to Dutchman.' He says: 'If that Dutchman wit: “Murder is the unlawful killing of a ever comes over here, I'll fix him plenty.' | human being with malice aforethought. An He was sitting in a wheelbarrow and the unlawful killing means any killing of a handle of a revolver was sticking out of human being which is not justifiable or exhis pocket. I could see it all the time. “I cusable by the law as explained herein. have got a little thing right here that will The phrase 'malice aforethought' means a do the business,' he says, 'I am carrying it thing done with a wicked and corrupt moon purpose for him.'” Other threats are tive. It is not confined to anger, hatred, and shown, and it is also shown that after the revenge by one, against another, although homicide he met some parties on the trail it evidences a thing done through anger, and said to them: “I have meat over there. hatred, or revenge. It also evidences any I think I have killed a dutchman in the other unjustifiable motive with which the cabin; I don't know whether I got any more, act is done. Hence, malice is not confined to they ran so fast. They were too swift for ill will which one individual holds toward me." A number of witnesses testified that he another, but it is intended to denote any had been drinking liquor that day and was action flowing from a wicked and corrupt intoxicated at the time he started to the motive. A thing done with a wicked mind, cabin, the scene of the homicide. In pre- | when the act has been attended with such scribing the duties of the court in applica circumstances as evince plain indications of tions to take testimony outside of the state ! a heart which regards not its social duty. and of the character of the one in this case, and which is fatally bent on mischief, is done section 8181, Rev. St. 1887, says: “If the with malice.” It is suggested by counsel for court or judge to whom the application is the state that this instruction is almost a made is satisfied of the truth of the facts literal copy of the definition of malice found therein stated, and that the examination of in Mr. Blashfield's excellent work on Instructhe witness is necessary to the attainment of tions to Juries, vol. 2, instruction 1482, p. justice, an order must be made that a com- | 611. An examination of this authority susmission be issued to take his testimony, and tains the contention of the Attorney General, the court or judge may insert in the order | Mr. Blashfield cites Davis v. People, 19 III. a direction that the trial of the indictment 74, 75; Comm. v. Webster, 5 Cush. (Mass.) be stayed for a specified time, reasonably 295, 52 Am. Dec. 711. We find no error in sufficient for the execution and return of the this instruction. commission,” With the discretion given the 1 The objection most seriously urged by counsel for defendant to the instructions | Larkins, 47 Pac. 945, and State v. Shuff, 72 given by the court relates to the question of Pac. 665. The authorities are collated in insanity, being instruction No. 8. It fol- these decisions and the position of this court lows: "Under the plea of not guilty, testi- | clearly defined. Of course, that part of the mony as to the sanity or the insanity of the instruction wherein the jury were told that accused may be introduced. Every man is "to establish a defense on the ground of inpresumed to be sane and to possess a sum- | sanity, it must be clearly proven that at the cient degree of reason to be responsible for time of committing the act the accused was his crimes, until the contrary be proven to laboring under a defective reason," etc., was the satisfaction of the jury. To establish erroneous, and not the law. It is not ina defense on the ground of insanity, it must cumbent on the defendant to "clearly prove" be clearly proven that at the time of com that he was insane; but, on the other hand, mitting the act, the accused · was laboring when he succeeds in establishing in the under such a defective reason from disease minds of the jurors a reasonable doubt as of the mind as not to know the nature to his sanity, he is entitled to an acquittal. and quality of the act he was doing, or, if State V. Shuff (Idaho) 72 Pac. 664. The he did know the nature and quality of the remainder of the instruction correctly stated act, that he did not know he was doing what the law on the subject. The erroneous porwas wrong. By saying that it must be tion of the instruction, however, could not shown that he did not know he was doing have prejudiced 'the defendant in this case, what was wrong the law means moral wrong. for the reason that he utterly failed to show A man may want the capacity to distinguish | insanity or any indication thereof as existbetween the various shades of illegality | ing at the time of the commission of the which the law assigns to a particular act, offense charged. It must, therefore, follow and yet be sane. This is not what is meant that, having failed to produce any evidence by the power to distinguish between right which would tend to raise in the minds of and wrong as one of the tests of sanity, and the jurors any doubt as to his sanity, the because an accused has not the mental capa- | instruction on this point could not have prej. city to know whether an act is legal or il udiced him in any respect. legal, or believes his act to be legal, is no Judgment affirmed. defense. The meaning of the law is that he had not the mental capacity to know that he
AILSHIE, and SULLIVAN, JJ., concur. was doing a moral wrong. If his mind is not so diseased at the time of the killing as to prevent him from knowing the nature
(11 Idaho, 405) and quality of his act, or if he did know the SAND POINT WATER & LIGIIT CO. v. nature and quality of his act, that he was PANHANDLE DEVELOPMENT CO. morally doing a wrong, he has sufficient (Supreme Court of Idaho. Nov. 10, 1903.) mental capacity to be responsible for his acts.
1. WATERS – APPROPRIATION – NOTICE OF * * * This last I will read again: If CLAIM. his mind is not so diseased at the time One who posted and recorded notice of in
| tention to appropriate waters under Act Feb. of the killing as to prevent him from know
2, 1899 (Sess. Laws 1899, p. 380), and within ing the nature and quality of his act, or if 60 days thereafter commenced work on his he did know the nature and quality of his proposed diverting works, and continued the act, that he didn't know he was morally do.
prosecution of such work with reasonable dili
gence, is entitled to have his appropriation date ing a wrong, he has sufficient mental ca
from the posting of his notice; and the right thus pacity to be responsible for his acts, * * * acquired is prior and superior to the rights of or if he did know he was doing morally any subsequent appropriator claiming either wrong, he has sufficient mental capacity to
by posting of notice and compliance with the
statute, or an actual diversion and application be responsible for his acts in so far as his
of the water. insanity is concerned. If the defendant at 2. SAME-TIME OF APPROPRIATION. the time of the killing of Christ Long was One who posts and records notice, and in insane as above defined, he would not be all respects pursues the successive steps pre
cribed by Act Feb. 25, 1899 (Laws 1899, p. guilty of either murder in the first degree,
380), is entitled to have his right relate back to or murder in the second degree, or man the date of posting notice. slaughter, and should be acquitted; and if 3. SAME. from the evidence you have a reasonable
In such case the appropriation is initiated doubt as to whether the defendant was in
by posting the notice, and an inchoate right
thereby arises which may ripen into a complete sane you should acquit the defendant."
appropriation upon the final delivery of the Whilst this instruction is somewhat vague, waters to the place of intended use. and could have been given in fewer words 4. SAME-APPROPRIATION-How EFFECTED. and less argumentative, and with equal force A person desiring to appropriate the waters
of a stream may do so either by actually divertand effect to the jury, still we think there
ing the water and applying it to a beneficial use. was but one conclusion to be drawn from it,
or he may pursue the statutory method by postand that was, if he knew the nature and ing and recording his notice, and commencing natural effect of his act, he was guilty,
and prosecuting his work within the time and
in the manner prescribed by the statute; and in otherwise he should be acquitted. On the the latter case his right will relate back to the question of insanity, we refer to State v. date of posting his notice.
5. SAME-DIVERSION-DILIGENCE.
| for a permit to divert, appropriate, and use Where an appropriator posted his notice on the waters of those streams to the extent December 16, 1902, claiming a certain amount |
1 of 20 cubic feet per second. The court finds of the waters of a stream, and thereafter, and ! on the 14th day of January, 1903, commenced that plaintiff and its grantor had performed work on roads, surveys, etc., preparatory to all the acts and requirements necessary or constructing the diverting works, and kept at
imposed by the statute for the protection of least one man at the work continuously from that date until date of trial, and expended over
its appropriation, and bad diverted the $1,700 on the work from the coinmencement waters and applied them to a beneficial use thereof until February 8, 1904, and had built in supplying the village of Sand Point and one mile of wagon road along the course of the
its inhabitants with water for domestic uses stream and had built 3,400 feet of flume, and such work was prosecuted in a mountainous
and fire purposes. The court also finds that country where the winters are long and rough the respondent's appropriation was and is and the snow fall is heavy, held, that the work prior to that of the appellant and so ordered has been prosecuted with reasonable diligence
and decreed. The appellant contends that as required by section 6 of Act Feb. 25, 1899 (Sess. Laws, 1899, p. 381).
the undisputed facts as disclosed by the eri(Syllabus by the Court.)
dence and appearing upon the record show Appeal from District Court, Kootenai
clearly and beyond question that the court's
findings are unsupported by the evidence, County : R. T. Morgan, Judge.
and that he should have found that appelPlaintiff, the Sand Point Water & Light
lant's water right from these streams is Company, commenced an action against the
prior and superior to the rights of responddefendant, the Panbandle Derelopment Com
ent, and that the findings of the court in this pany, praying an injunction against the defendant to restrain and enjoin defendant
respect are wholly unsupported. The facts
as they appear from the record upon this from diverting the waters of Switzer and
point are substantially as follows: West Sand creek, or in any manner inter
On December 16, 1902, appellant's grantors fering with them or depriving plaintiff of
located a water right on West Sand or Mill the use thereof. Judgment for plaintiff,
creek in Kootenai county, and the location from which judgment and an order denying
notice thereof was posted and duly filed defendant's motion for a new trial, defend
and recorded in the office of the county ant appealed. Reversed.
recorder of Kootanai county, and there. Wm. H. Batting, E. M. Heyburn, and My after, in due time, was filed in the office ron A. Folsom, for appellant. Chas. L. Heit of the State Engineer at Boise city. Withman, for respondent.
in a few days thereafter the same par
ties duly and regularly made two additionAILSIIIE, J. Prior to hearing this case ) al locations on these streams. On the 14th on its merits, the respondent filed and pre day of January, 1903, and about 29 days afsented a motion to dismiss the appeal, and ter making the first location, work was comalso a motion to strike from the transcript menced, which consisted in cutting out a the appellant's statement on motion for a | trail up the canyon, and making a survey new trial. We have carefully examined the for flumes and ditches. Work was conrecord and affidavits used on the hearing tinuously prosecuted from that time until of these motions and have concluded that the date of the trial of this cause, with at both motions should be overruled, and it least one man on the ground all the time is so ordered.
engaged in building a road, and a flume and This action was commenced by the re ditch through which to carry the waters of spondent corporation to restrain the appel these streams, and the general work incident lant corporation from diverting and ap to the construction of the diverting work propriating the waters of Sand creek and for carrying out the purposes for which the Switzer creek in Kootenai county, and to | appropriation was being made. An itemized restrain and enjoin the defendants from in statement of expenditures made in carrying terfering with or diverting the waters of on this work appears to have been presented those streams in any way or manner that | upon the trial showing an expenditure of would interfere with the rights and ap- | $714 for wages, groceries, tools, and supplies, appropriation of the plaintiff. The case went between the 14th day of January, 1903, and to trial upon complaint and answer, and re- the 1st day of September, 1903. It was also suited in a judgment for the plaintiff, from shown that an expenditure of more than which judgment and an order denying a mo $1,700 was made on these works between the tion for a new trial, the defendant has ap 14th day of January, 1903, and the 8th day pealed.
of February, 1904. At the time of the trial The substance of the trial court's findings in this case it appeared that the appellant of fact is that the plaintiff's grantor was had built about one mile of road up the canthe prior appropriator of the waters of | yon, for the purpose of reaching the point of Switzer creek and the west branch of Sand diversion on the stream, and conveying matecreek, situated in Kootenai county, and that rial and supplies, and had also erected and such appropriation dates from September 26, constructed a flume 3,400 feet in length. 1903, the date on which respondent's grantor None of these facts are directly disputed by made his application to the State Engineer the respondent, but at the trial the respondent placed witnesses upon the stand, who the ground and its continued prosecution testified that in passing through this country was ample actual notice to respondent, or in the neighborhood of this work they had any other subsequent claimant to these wanoticed some work bad been done, but the ters, as to the nature of the claim asserted witnesses estimated the value thereof as very by appellant. small--something like $200 or $300, perhaps. It seems to us that the real difficulty in But it does not appear that these witnesses this case has arisen from a wrong construchad made very much examination or pre tion and misapplication of the word approtended to have seen all the works or were priate as used in our statutes. Section 8 at all accurate or positive as to their of the act of February 25, 1899, provides that estimates. It remains, nevertheless, a fact, where an appropriator has complied with that they admit that work had been done the preceding sections in the posting and there, and, in fact, one of plaintiff's wit recording of notices and the commencement nesses was one of the first men enploved by and prosecution of work, “the claimant's the defendant's grantor, and had made the right to the use of water relates back to original survey for the defendant's divert the time the notice was posted." Section 7 ing works. The fact stands upon the record of the act provides that by a completion of practically undisputed, that on the 29th day the work "is meant conducting the waters of September, 1903, the date on which re to the place of intended use." A person spondent's grantor obtained his permit from desiring to appropriate the waters of a the State Engineer to divert and appropriate stream may do so either by actually divertthe waters of these streams, the appellant ing the water and applying it to a beneficial was actively engaged in the construction of use, or he may pursue the statutory method its diverting works, and bad at that time by posting and recording his notice and expended from $700 to $800 in the prosecu commencing and prosecuting his work within tion of the work.
the statutory time. De Necochea v. Curtis, It should be observed that appellant's 10 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Wells cation and the prosecution of its work was | v. Mantes, 99 Cal. 583, 34 Pac. 324; Wattermade under the act of February 25, 1899 son v. Saldunbehere, 101 Cal. 112, 35 Pac. (Sess. Laws 1899, p. 380), wbile the respond 432. In the latter case his appropriation ent's right was initiated under act approved will be entitled to date from the time of March 11, 1903 (Sess. Laws 1903, p. 223). | posting his notice (section 8, p. 381, Sess. By the latter act a permit is obtained from Laws 1899; Wells V. Mantes, supra; Nethe State Engineer to divert and appropriate vada Ditch Co. v. Bennett, 30 Or. 59, 45 the waters of any of the public streams of Pac. 472, 60 Am. St. Rep. 777, and note the state, while under the act of 1899, notice thereto; Works on Irrigation, pp. 44-46; Long was required to be posted and a copy thereof on Irrigation, $ 37), and any intervening filed and recorded with the county recorder, locator or claimant of the waters will be and a duplicate thereof filed with the State treated as subsequent both in time and right. Engineer. By section 6, p. 381, of the act | In such case the appropriation is initiated of 1899, under which appellant initiated its by the posting of the notice, and an inchoate right, it is provided: “Within sixty days right thereby arises which may ripen into after the notice is posted, the claimant must a legal and complete appropriation upon the commence the excavation or construction of final delivery of the waters to the place of the works by which he intends to divert the intended use. In other words, by pursuing water, and must prosecute the work dili- ! the successive steps prescribed in the statute, gently and uninterruptedly to completion, and completing his diverting works, and apunless temporarily interrupted by snow, rain, plying the water to a beneficial purpose, or cold weather.” Respondent claims that the appropriation is completed. The only the appellant failed to show that it had difference between an appropriation initiated prosecuted the construction of its diverting by posting notice and one initiated by diworks with the diligence required by section version and application of the waters is that 6, supra, and for that reason, if for none the appropriator, who claims under notice, other, the judgment was properly entered is allowed the extra 60 days within which against appellant. It seems to us, however, to commence his work, and reasonable time when we consider that this work was being thereafter in which to complete the same. prosecuted in a mountainous section of the It appears that the lower court proceeded state where there is a beavy snow fall and on the theory that the appropriation, rea long winter season with much rough and | gardless of the posting of notice, dates from stormy weather which would interrupt and the actual diversion of the water, and its delay the character of work that was being application to the use intended, and the carried on, that the amount and kind of court accordingly finds that "the plaintiff work which is shown to have been done did on or before the 14th day of August, evidences good faith, reasonable diligence, 1904, complete its water system and did and a purpose to complete the work and actually appropriate the waters flowing in apply the waters to the beneficial use desig the said stream described in the complaint, pated. Saying nothing of the record notice and has ever since said date actually apwhich the respondent had, the work upon propriated and used all the waters in said stream described in the complaint in sup- , of his claim, in that there was no evidence plying the inhabitants of the village of Sand in the record of the discovery of mineral in Point with water for domestic uses and place within the limits of the claim. In our fire purposes.” This theory is incorrect as former opinion (80 Pac. 331) we based our applied to appellant, so long as appellant conclusion that there was sufficient evidence continued to prosecute its work with rea- | to sustain a compliance with the statutes in sonable diligence. So long as it did so, it this regard largely upon the testimony of the was entitled to have its appropriation relate plaintiff that, when his claim was located back to the posting of its notice; and, in by him (the two claims being nearly identhat event, appellant would be entitled to tical in surface area), there was gold and protection as a prior appropriator as against silver bearing rock showing upon the surface the respondent. Some importance seems to of his claim. Upon the rehearing, it was have also been attached to the fact that claimed by the appellant that this discovery the appellant was cognizant of the work of the plaintiff was made outside of the limbeing done by respondent, and the large ex- its of the defendant's claim, and hence the penditure being made by it in constructing its | plaintiff's discovery there of mineral could diverting works and water system, and that | not serve to show mineral within the limits it should have made some demonstration or of the defendant's claim. A further examitaken some action sooner to prevent respond nation of the evidence shows that the disent further prosecuting its work. This posi covery of the mineral by the plaintiff, retion, however, is without merit. The appel ferred to, was in fact made outside the limlant was also prosecuting its work at the its of the defendant's claim. We have made same time and for a similar purpose, but i a further careful examination of the eviin the meanwhile neither one was actually dence, and we fail to find in the record evidiverting the water to the detriment or dam dence which we can hold shows a discovery age of the other, nor was there any apparent of mineral within the limits of the claim reason why appellant could or should have of the defendant. prerented respondent carrying on its work. The appellee urges that, as the discovery There is no contention made in this case of the plaintiff, though without the limits but that respondent has a valid water right į of the defendant's claim, showed mineral, and appropriation, and would be entitled to and the plaintiff's ocation notice claimed whatever of the waters of those streams 1,500 feet “of this vein or lode * * * in the appellant fails to use or at any such a northerly direction along the ledge," which times as the appellant fails to use and apply would carry it across the whole length of those waters. The only difliculty is that the defendant's claim, that this is evidence upon the undisputed facts of the case, re- | of the existence of the ledge or vein within spondent's right is subsequent and subordi- the defendant's claim sufficient to satisfy nate to appellant's right. On the facts as the statute. If we might consider this as presented by this appeal, the trial court sufficient evidence of such fact, we are never should have found that the defendant, the theless precluded from doing so, as the Development Company, had a prior and su
evidence is not before us, since the court prior right to that of plaintiff', the Water below-and rightly, as we held-sustained & Light Company, and that defendant had the objection of the defendant to the introduc
ecuted the construction of its diverting tion of this location notice in evidence, and works with reasonable diligence.
ordered it stricken out. The judgment is reversed, and cause re
We think the defendant has failed to prove manded, with instructions to the trial court
that there was a discovery of mineral with to make findings of fact in accordance with
in the limits of the claim, and that for this the views herein expressed, and enter judge reason the judgment of the lower court ment in accordance therewith. Costs award
awarding affirmative relief to the defendant ed to appellant.
must be reversed, and the case remanded
for a new trial. STOCKSLAGER, C. J., and SULLIVAN, J., concur.
DOAN and CAMPBELL, JJ., concur.
(There errors are not mine).
Rudolph died 16 Nov 1930 in Baker, ID.
Inmate: #1044 Idaho State Prison
Rec: 16 Oct 1904
Crime: Murder 1st Degree
Term: Death by Hanging
Here are some great newspaper articles I found, just click on the links to read.
1904
https://www.newspapers.com/clip/50035853/rudolph-wetter/
1906
https://www.newspapers.com/clip/50036053/rudolph-wetter/
1910 Seeking a pardon:
https://www.newspapers.com/clip/50035343/rudolph-wetter/
1911
1912
1915
https://www.newspapers.com/clip/50036205/rudolph-wetter/
Rudolph Wetter spent 12 years in prison, finally getting out 16 June 1916.
Here is People Vs. Rudolph Wetter
Rudolph Wetter, on or about the 19th day of SULLIVA.V and AILSHIE, JJ., concur. July, 1904, at the county of Idaho, state of
Idaho, then and there being, did then and there, willfurly, deliberately, premellitatedly,
unlawfully, feloniously, and with malice (11 Idaho, 433)
aforethought kill and murder one Christ Long, STATI v. WETTER.
a human being, by then and there willfully, (Supreme Court of Idaho. Nov. 24, 1905)
deliberately, premeditatedly, unlawfully, fe1. CRIMINAL LAW-APPEAL-WAIVER OF OB loniously, and with malice aforethought, JECTIONS.
shooting at, in and upon the body and person Where an information charges murder, and a demurrer is filed which is overruled by the
of the said Christ Long, with a certain gun, court, and no error is predicated on such ruling to wit, a rifle, the same then and there being a in this court, it will be treated as waived.
deadly weapon, and then and there loaded with (Ed. Note.-For cases in point, see vol. 15,
powder and leaden ball and then and there Cent. Dig. Criminal Law, $8° 2954, 2961.)
held in the hands of the said Rudolph Wetter, 2. SAVE-REFT'SAL OF CONTINUANCE. Where an application for a continuance is
and the said Rudolph Wetter did then and filed and overruled by the court, it will only be there, willfully, deliberately, premeditatedly, reversed in this court where it is shown that unlawfully, feloniously, and with malice aforethere was an abuse of discretion in the court
thought, wound, kill, and murder him, the below, [Ed. Note. For cases in point, see vol. 15,
said Christ Long." Cent. Dig. Criminal Law, $ 3013.)
Counsel for appellant demurred to the 3. SAME – DEPOSITIONS — REFUSAL OF LEAVE
information: First, "that said information TO TAKE-DISCRETION OF (OURT.
does not state facts sufficient to constitute a Where there is an application to take depo public offense; second, that said information sitions outside of this state, and such applica
does not substantially comply with the retion is denied by the lower court, and it further appears that the evidence sought to be pro
quirements of sections 7677, 7678, 7679, of the cured would not change the result of the trial, Revised Statutes of Idaho of 1887.” This dethe action of the lower court will not be dis
murrer was overruled, and an exception sav. turbed. The granting or refusal of such application being within the discretion of the
ed, but counsel for appellant does not urge trial court, it will only be disturbed where it the ruling of the court as error; hence we is shown that there has been an abuse of such infer after more mature deliberation he abandiscretion.
doned it, at least we will treat it as waived. 4. SAME-OBJECTIONS TO EVIDENCE. Where a witness is asked a question that
It is also shown that at the time fixed for in itself is immaterial, and no foundation is laid
defendant to plead his counsel filed a motion by which it may become material, a ruling sus to set aside the information. This motion taining the objection will be sustained.
was overruled, to which ruling an exception 5. SAME-DEFENSE-INSANITY.
was saved. Counsel for appellant does not Where tlie defense is insanity, it is always brought into the case by the defendant, and un
urge this ruling as error; hence it will be til be furnishes such evidence of insanity, at treated waived also. least sufficient to raise a question of doubt in
On the 9th day of September W. N. Scales, the minds of the jurors, the prosecution may rest upon the legal proposition that all men are
counsel for appellant, filed a motion supported supposed to be sane and legally responsible for by his affidavit for a continuance of the case their acts.
until a future term of the court. In this aff(Ed. Note.-For cases in point, see vol. 14, davit it is shown that the preliminary exCent. Dig: Criminal Law, 88 742, 1286.]
amination was had on the 1st and 20 days 6. SAME-APPEAL-REVIEW.
of August, 1904, and the defendant held to Where it is shown that the instructions, taken as a whole, correctly state the law and are
answer, and that on the 5th day of September aniformly fair to the defendant, and that from 1 thereafter the county attorney iled an information charging defendant with murder, until the next regular term of this court, be in the first degree, and on the same day can either have a personal attendance of filed a second information, charging the de some person who will testify in regard to fendant with a like offense. The affidavit the insanity of the near relatives of the dethen states that one of the defenses to be fendant, otherwise he can obtain a deposiinterposed, and which will be a substantial tion of such person or persons, and a deposiand material part of the defense, will be | tion of the superintendent of the insane that at the time of the alleged offense defend- asylum in which said brother was detained; ant was insane and not responsible for any that affiant cannot obtain at the present term act committed at that time; that affiant has of court the facts necessary to make a fair been informed that some of the near relations and just defense of the defendant, and withof the defendant have been or are insane; out the evidence indicated herein the defendthat affiant has been informed that a brother ant cannot safely go to trial; that affiant of defendant is insane and was confined in cannot state the exact facts which he will the insane asylum in California. Then the be able to prove in regard to the insanity of affidavit states that affiant had addressed a the near relatives of the defendant, nor can letter to the “Superintendent Insane Asylum, he ascertain them from the defendant, who Asylum Station, California,” in which affiant has been, as affiant is informed, long absent had requested said superintendent to inform from his home, and knows nothing of his him whether said brother of defendant was own knowledge about the same, nor can afconfined in said asylum, the cause of such fiant give the names of the witnesses by insanity, how long he had been there, what whom he can prove the same, but affiant form it assumed, whether he was cured, and is certain that, if this cause be postponed, he where he now was; that affiant informed can prove that the brother of the defendant is said superintendent of the great importance or has been insane, and possibly other near of the information sought and the necessity relatives of defendant, can show the form for a prompt response; that said letter was such insanity assumed, and all necessary facts duly mailed; that afterward it was returned in connection therewith; that affiant is inwith the San Francisco and another post formed that the home of defendant was in mark, for better direction; that affiant has the state of Pennsylvania; that his relatives been informed that said address was correct. live there, and much of the evidence which Affiant was also informed that said brother he expects to procure in regard to such was admitted to the insane asylum under the insanity must come from said state. name of Jos (or Thomas) C. Brainbridge; that This motion was overruled on the 9th day thereafter defendant received a letter, ad- of September, 1904, and at that time the dressed on the inside "Dear Brother," and court fixed the time for trial for September signed "Your sister, Amelia," therein giving 19, 1904. On the 10th day of September anher address as New Hope, Pa.; that said other motion was filed, which counsel for letter bore the postmark “Grangeville, Idaho, appellant terms a renewal of his motion of Sept. 1st, 1904,” and “New Hope, Pennsyl. the 9th, and supports it by his own affidavit vania, Aug. 22, 1904," and was handed there and that of appellant. The affidavit of Mr. after to affiant, in which appears this, “I | Scales contains no new matter as to the had hoped Charley was the only one of the alleged insanity of defendant. It sets out family who would show any signs of in that he has not sufficient time to prepare sanity.” Affiant has never had any com for the defense of defendant; that the place munication with any member of the family, of the alleged offense is about 70 miles from did not know their address, and the last Grangeville, his residence, and the county mentioned letter seems from its reading to seat, in the mountains; "that it will be neceshave been written on account of information sary to take depositions of witnesses out of received from one Mrs. Campbell, post office, the state of Idaho in regard to the insanity Resort, that the defendant was in trouble. of the near relatives of defendant or to have From what affiant has heard and from said their personal attendance, neither of which letter, he is thoroughly convinced that the can be done in time to try the above entitled defendant has near relatives, or a near rela cause at this term of the above entitled tive, insane, or who has been insane. Then court." The affidavit of defendant shows it is stated that affiant will be unable to that he has a brother, Charles A. Wetter, ascertain the facts in regard to the insanity who is insane, the nature and form of which of the near relatives of defendant in time | insanity he does not know; that he has a for trial at the present term of court; that father, mother, and sister living in Pennsyldefendant has no relatives in Idaho, as far vania, post office, Furlong; that he has no as affiant knows or believes; that there is relatives in the state of Idaho; that there is no witness or person in this state that this no person in the state of Idaho by whom he affiant knows or has known of by which he can prove anything about the insanity of his can prove anything about the insanity of the said brother; that said brother was confined relatives of defendant; that such testimony in the insane asylum in the state of Caliwill be absolutely necessary and material in fornia; that the “Charlie" referred to in the the defense of the defendant; that affiant is letter of his sister mentioned in the affidavit convinced that, if this action is postponed l of W. N. Scales is that brother; that, if this action is postponed for the term, he can It is next shown that on the 10th day of and will have the depositions for personal September, 1904, defendant caused to be isattendance of his father, mother, or sister, sued a subpæna for William De Moss and giving the facts and circumstances of the others, and that said subpoena was placed in insanity of said brother, and possibly other the hands of the sheriff of Idaho county on members of the family; that he can and will the same day for service, and was returned have, at the next term, the deposition of the on the 16th day of September, 1904, with superintendent of the Insane Asylum in witness De Moss not served. Defendant files California, in which his brother was con a motion for continuance based on the affined; that since the alleged offense affiant fidavit of W. N. Scaies, his counsel, and the has been deprived of his liberty, and has affidavits of Mr. Scales and defendant in had no opportunity to prepare his defense, support of other motions for continuance and is not prepared at this time to go to heretofore referred to. After stating all the trial; that affiant has no money, but in a facts relative to the action of the court in letter of his said sister referred to she in sub denying his former motions for continuance, stance offers to aid said alfant in any way Mr. Scales testifies that on the 10th day of she can, but affiant did not receive said let September, 1904, he telegraphed to the sister ter until during the present month. This of defendant at Furlong, Pa., asking her to motion was overruled. The next step shown 1 come to Grangeville, Idaho, where this trial by the record was an “application for ex is to be held, and on September 16, 1904, amination of witnesses.” It was for an or received a letter from said sister, Mrs. der of the court that a commission be issued Amelia Magill, in which she stated: “It is to take the testimony of Rebecca Wetter, impossible for any of the family to come Ramsey C. Wetter, and Amelia Magill, all out, owing to lack of money." Also this: of Furlong, state of Pennsylvania, to be used "Personally, we have no doubt as to Ruon behalf of defendant at his trial. This | dolph's (meaning the defendant] insanity." application is supported by the affidavit of Affiant says that inclosed in said letter was defendant and W. N. Scales, his counsel, in | a letter to Mr. Wetter from A. Stanley Dolan support of the two applications for continu- signed as “Acting Medical Superintendent," ance. In his affidavit defendant recites the the letter head on which said letter was facts of the filing of the information on written bearing the name “Southern CaliSeptember 5, 1904, and the plea of not guilty fornia State Hospital.” The letter is atSeptember 8th, then recites that he desires tached and made a part of the affidavit. the testimony of his father, mother, and sis "Affiant is satisfied that, if time is given ter, and reiterates that they reside at Fur him, he can get the depositions of the offilong, Pa., and will testify as to the fact of cers of that asylum to be used in this action, the insanity of the brother of defendant, the showing the insanity of defendant's brother, form of such insanity, and all facts and cir with the facts and circumstances and form cumstances in connection therewith; that thereof. Affiant had learned today that such testimony is necessary and material in Peter Corlskin, of Meadows, Idaho, has behalf of defendant in the trial of his case. known defendant weil and intimately and
On the 14th day of September this applica will testify to the good character of defendtion was heard by the court, and the follow ant, and at least that he considered the de. ing order made: “The above entitled matter fendant off' at times, but the exact nature coming on to be heard on the 14th day of of his testimony affiant has been unable to September, 1904, at the hour of 9 o'clock learn, as the defendant gave him no informaa. m., on the motion and application of the tion as to this witness, and affiant learned defendant for the court to grant a commis- it from one of the witnesses now present, sion for the taking of depositions of witness Mr. Goodman; that De Moss, one of the es alleged to be residing outside of the 'witnesses for the defendant, and for whom state, it appearing to the court that the de. a subpoena was issued, has not been found, fendant in his showing, in support of his and alliant is informed that he is now in motion and application, has failed to make Walla Walla, Washington; said De Moss said showing until said cause was set for was a partner of defendant and lived with trial, and that the time is too short to pro defendant in the same cabin, as defendant cure any of said depositions, and witnesses informed affiant, and was present just behave been subpænaed on behalf of the state, fore defendant committed the alleged offense, and a great many of whom reside a long and knows what occurred just prior to said distance from here, and already a big ex- alleged offense; that affiant has not been pense in securing them has been incurred, able to learn what said De Moss will testify and that the granting of said commission to on account of the limited time which he would be useless for above reasons, and the has had to prepare the defense of defendshowing is too indefinite and uncertain as ant, and defendant has not been able to to what the defendant expects to prove by | inform affiant as to what said De Moss will said witness. It is therefore ordered that testify to, and defendant cannot safely go to said motion and application to take deposi trial without said witness." The letter above tions is hereby denied. Edgar C. Steele, | referred to is as follows: "Mr. Wetter, Dist. Judge."
Borough of New Hope, Banks Co., Pa.
Dear Sir: Charles A. Wetter, who is a record is it shown just what defendant expatient in this hospital, has repeatedly writ- | pects to prove by his eastern relatives, exten to his friends and received no reply. He cepting that a brother was contined in the is very much distressed and quite despondent asylum of California, and a possibility that from this fact. Will you please answer him? it may be shown that other instances of He was committed here under the name of insanity might be traced in the past history Brainbridge. I enclose a letter addressed to of defendant's ancestors. Even if all these me by him, which shows how he feels re- | facts should be conceded by the prosecution, garding this matter. A. Stanley Dolan, Act still, upon the trial evidence of witnesses ing Medical Supt." The above letter is dated who were intimately associated with defendNovember 3, 1898, and from Patton, Cal. ant at and about the time of the alleged On the 19th day of September this motion homicide, who heard what he said, observed was denied.
what he did, his condition just prior to and It has seemed best to give almost verba immediately following the commission of the tim the showing made by the defendant in alleged crime, his threats and the reasons his affidavits for a continuance of the case he gave for the commission of the act, all until a future term of the court, for the these would be considered by the jury in reason that his learned counsel insists that their efforts to determine the condition of the court erred in not granting a continu defendant's mind, and whether or no he was ance, and also in refusing his application in that condition mentally that he did not to take the depositions of witnesses in Penn- | know he was committing a crime against the sylvania. An examination of the record con- | laws of nature and man. The mere fact vinces us that, unless there is error in the | that insanity may exist in his family is not orders of the court overruling defendant's of itself sufficient to excuse the defendant motions for continuance, bis application to from the responsibility he owes to his feltake depositions, or his instructious to the low men, neither would it avail him if he jury on the question of insanity, the judg. were able to prove by the witness Peter Corlment must be affirmed, as the record abund skin that he was "off" at times. antly shows that, unless the defendant was The question to be determined in cases of insane at the time of the commission of the this character is, was the defendant at the homicide to such an extent that he was not time of the homicide so mentally unbalanced responsible for his acts, the verdict of the that he was not responsible to God or man jury was entirely justified. Indeed, coun for the commission of the act? If he mensel for defendant rests his entire argument tally knew it was wrong to take the life of on the alleged errors of the court in re a human being, and under these conditions fusing to permit him to show that a brother did commit the offense charged to him by of defendant had been committed to the in the information with malice, hatred, or resane asylum in California, at some time in venge, he is morally and legally responsible the past, and the instructions of the court for the act and should suffer the conseon the law where the plea of insanity is quences. He might at times be "a little interposed.
off," and yet entirely responsible at the time It is first argued by counsel for appellant of the commission of the crime charged to that defendant was unduly forced to trial, him. It might be that insanity existed in and without sufficient time to prepare his his family from its earliest history, and yet defense. A careful reading of the affidavits that would not excuse him. It would only in support of the applications for a contin be a circumstance in his favor, to be conuance does not convince us that there is sidered with other evidence as to his past much merit in this contention. It is only history, his language, acts, and conduct at shown that a continuance of the bearing the time of the homicide and prior thereto. of the case would result in establishing the In fact, anything in his past life showing any fact that a brother of defendant had at some indication of insanity should and would be time been committed to an insane asylum in considered by the jury. It would be a very California. It is not shown or intimated the dangerous precedent to say that because nature or cause of such insanity, or wheth insanity existed in his family he should have er it was hereditary. Unless hereditary, it immunity. Further than that, it should be would certainly be of but little assistance considered in connection with other evidence to defendant in his defense on the plea of in the case showing the condition of defendinsanity. In the order of the court denying ant's mind at and about the time of the defendant's application to secure the evi homicide. It is true it would be a strong dence of the close relatives of defendant circumstance to show that he was not so in the state of Pennsylvania it is stated mentally and morally depraved as to take that this "application was not made until the life of two human beings and attempt after the cause was set down for trial, the life of the third, but, nevertheless, it * * * and the showing is too indefinite would still be incumbent upon him to show and uncertain as to what the defendant ex- that legal insanity, and not moral depravity, pects to prove by said witnesses." It will prompted the act. Human life is rery sabe observed that at no time or place in the cred in the eyes of the law, and, whilst courts
should always guard with the utmost dili- , of defendant had been committed to an ingence the rights of all parties charged with sane asylum in the state of California in the crime, at the same time they should be year 1898, or was an inmate of said inwatchful of the rights of the people and stitution at that time, as shown by a letter not permit parties charged with homicide to of the acting superintendent to the father go unpunished on the plea of insanity, unless | of defendant. It may be that the learned there is a foundation in fact, reason, and trial judge was satisfied that a continuance justice to believe that the insanity was of 1 of the case until a future term of court such a character that the party pleading it would result in no benefit to defendant from was so mentally unbalanced that he was not any evidence he might procure from his relaresponsible for his conduct. We do not wish tives in Pennsylvania. The evidence taken to be understood as holding that hereditary on the preliminary examination was accesinsanity, or the insanity of a brother or sible to him, and from that he may have sister, or the insanity of any near blood re
been thoroughly convinced that any evidence lation of the party charged, may not be
of hereditary insanity in the family of deshown; to the contrary, we are of opinion
fendant would be of little weight compared that such evidence is entirely competent,
with the threats, actions, and conduct of and when introduced should be carefully
defendant at and about the time of the comconsidered by the jury. The question is,
mission of the homicide, and it is not denied was the showing sufficient under the facts
that defendant committed the act. That the in this case to warrant the court in grant
granting or refusing to grant a continuance ing a continuance of the case or granting an
is largely within the discretion of the court order to take depositions, which would have
has long been settled in this state. In Ternecessitated a continuance until another
ritory v. Guthrie, 2 Idaho (Hasb.) 432, 17 Pac. 39, term of the court? It will be observed that
in an opinion by Mr. Justice Broderick, it is there is no positive statement that hereditary
said: “An application for a continuance is insanity exists in the family of the defend
addressed to the sound judicial discretion ! ant. There is a positive statement that a
of the court, and appellate courts have unibrother of defendant had been confined
formly refused to disturb a ruling on such in an insane asylum in California. This
questions, unless it appears that there was an may have been an isolated case in that
abuse of discretion." Practically the same
language is used in People v. Walter, decided family. There are numerous causes for this
by our territorial Supreme Court in 1891, 1 dreaded malady, and by no means always
Idaho, 386. The last expression of this court traceable to heredity. Intoxication and self
to wbich our attention has been called is in abuse are frequently responsible for insanity.
State v. Rice, 7 Idaho, 762, 66 Pac. 87. On In this case learned counsel for the state
this subject the syllabus says: “Refusal to in his oral argument in this court saw fit
grant a continuance being a matter legally to refer to the defendant as having “crow
within the discretion of the lower court, a bar" insanity, a specie with which we are
judgment of conviction will not be reversed pot familiar, but doubtless he based it on
by reason of such refusal, unless it is apparthe evidence of defendant who testified that
ent from the record that such discretion has at some time a crowbar had fallen on bis
been abused, and that defendant has been head and thereafter it had affected his mind
prejudiced thereby.” The reason of this rule at times. Counsel for appellant cites Law
is so sound and well settled that a discussion son's Criminal Defenses, vol. 2, p. 465; People
would seem unnecessary. It has its origin V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, by
in the fact that the trial judge is cognizant that eminent jurist and chief justice, Cooley.
of all the facts and conditions existing from We are in full accord with all that is said
the earliest stages of the proceedings and is in that opinion, but the facts in that case
presumed to enforce the law in such a manand the one at bar are entirely different.
ner that all parties charged with crime shall It is earnestly urged by counsel for ap
have a fair and impartial trial. It is equally pellant that he was not given sufficient time
| his duty to see that the law is administered within which to prepare his defense. It is and guilty parties brought to justice and shown that the alleged homicide was com
required to pay the penalty of their crimes mitted on or about the 19th day of July, | without unnecessary delay. 1904. The preliminary examination was held It is urged by the Attorney General and on the 1st day of August, 1904. The in
his associates that many witnesses could have formation was filed September 5th, and the been produced at the trial who were actime for trial fixed for September 19th there- quainted with the defendant at that time after. It will thus be seen that counsel had and for months just prior to the homicide. from the 1st day of August until the time of Indeed, many witnesses were examined who the trial to correspond with the relatives of | were acquainted with defendant, and who defendant in Pennsylvania. The only infor testified as to his threats, actions, and conmation he could get was that they were un- duct immediately before the commission of able to be present at the trial for “lack of the act, and what he said and did thereafter. money," as stated by the sister of defendant. With all these facts before us, can we say that It seems that the family knew that a brother the testimony of his father, mother, or sister
(who have not seen him for years) that a, trial court to determine questions of this brother of defendant had been an inmate of character, with the evidence of defendant an insane asylum, or the testimony of the himself that he only attributes the condition superintendent of such institution that at of his mind at times to an injury, with his one time he had in his care a brother of threats repeated to different ones and his defendant, or the testimony of Peter Corl execution of them, we do not think the trial skin that he thought at times defendant was judge abused the discretion reposed in him "a little off,” could overcome the direct and by the refusal of the application for conpositive statements of witnesses who were in tinuance or the refusal to grant the order to his company and observed his actions, heard take testimony. his language in the way of threats just prior The next assignment of error is based upto the homicide, and what he said after the on the refusal of the court to permit the decommission of the act? We are of the opin- fendant to answer the following questions: ion that the presence in court of all the wit “Where was your brother the last you knew nesses whose testimony defendant asked time of him ?” The witness prior to the question to procure would not have changed the re had testified where he had resided for a sult in the least. In State v. Rice, supra, in number of years; that he had lived in Idaho the fifth clause of the syllabus, it is said: county about 10 years; was born in Pennsyl"An order denying a continuance upon the vania; had no relatives in Idaho; his sister, ground that a witness whose testimony is brother-in-law, father, and mother reside in desired by the defendant is not ground upon Pennsylvania; that he had a brother not in which a reversal can be based, where it ap- Pennsylvania. Then follows the above quespears from the record that the testimony of tion. The county attorney objected to the such witness could not have changed the re- question as immaterial. The objection was sult of the trial.” It is shown by the record sustained. It will be observed that there that defendant testified that he attributed was no foundation laid for this question. his trouble to an accident, and not traceable The court was not informed of the purpose to his parents or ancestors, and that a crow or why it was material. Until there is some bar had once fallen on his head and ever reason shown why it was material where since he has had severe headaches, accom the brother of defendant was the last he panied by dizziness. That he fully knew and | knew of him, it was certainly immaterial, understood what he was doing is shown by and there was no error in sustaining the the testimony of Wm. Allen, who testified: | objection. "I heard him make threats about ten days Specification of error No. 6 is based upon before this. He always called Mr. Long 'this the first instruction given by the court, to Dutchman.' He says: 'If that Dutchman wit: “Murder is the unlawful killing of a ever comes over here, I'll fix him plenty.' | human being with malice aforethought. An He was sitting in a wheelbarrow and the unlawful killing means any killing of a handle of a revolver was sticking out of human being which is not justifiable or exhis pocket. I could see it all the time. “I cusable by the law as explained herein. have got a little thing right here that will The phrase 'malice aforethought' means a do the business,' he says, 'I am carrying it thing done with a wicked and corrupt moon purpose for him.'” Other threats are tive. It is not confined to anger, hatred, and shown, and it is also shown that after the revenge by one, against another, although homicide he met some parties on the trail it evidences a thing done through anger, and said to them: “I have meat over there. hatred, or revenge. It also evidences any I think I have killed a dutchman in the other unjustifiable motive with which the cabin; I don't know whether I got any more, act is done. Hence, malice is not confined to they ran so fast. They were too swift for ill will which one individual holds toward me." A number of witnesses testified that he another, but it is intended to denote any had been drinking liquor that day and was action flowing from a wicked and corrupt intoxicated at the time he started to the motive. A thing done with a wicked mind, cabin, the scene of the homicide. In pre- | when the act has been attended with such scribing the duties of the court in applica circumstances as evince plain indications of tions to take testimony outside of the state ! a heart which regards not its social duty. and of the character of the one in this case, and which is fatally bent on mischief, is done section 8181, Rev. St. 1887, says: “If the with malice.” It is suggested by counsel for court or judge to whom the application is the state that this instruction is almost a made is satisfied of the truth of the facts literal copy of the definition of malice found therein stated, and that the examination of in Mr. Blashfield's excellent work on Instructhe witness is necessary to the attainment of tions to Juries, vol. 2, instruction 1482, p. justice, an order must be made that a com- | 611. An examination of this authority susmission be issued to take his testimony, and tains the contention of the Attorney General, the court or judge may insert in the order | Mr. Blashfield cites Davis v. People, 19 III. a direction that the trial of the indictment 74, 75; Comm. v. Webster, 5 Cush. (Mass.) be stayed for a specified time, reasonably 295, 52 Am. Dec. 711. We find no error in sufficient for the execution and return of the this instruction. commission,” With the discretion given the 1 The objection most seriously urged by counsel for defendant to the instructions | Larkins, 47 Pac. 945, and State v. Shuff, 72 given by the court relates to the question of Pac. 665. The authorities are collated in insanity, being instruction No. 8. It fol- these decisions and the position of this court lows: "Under the plea of not guilty, testi- | clearly defined. Of course, that part of the mony as to the sanity or the insanity of the instruction wherein the jury were told that accused may be introduced. Every man is "to establish a defense on the ground of inpresumed to be sane and to possess a sum- | sanity, it must be clearly proven that at the cient degree of reason to be responsible for time of committing the act the accused was his crimes, until the contrary be proven to laboring under a defective reason," etc., was the satisfaction of the jury. To establish erroneous, and not the law. It is not ina defense on the ground of insanity, it must cumbent on the defendant to "clearly prove" be clearly proven that at the time of com that he was insane; but, on the other hand, mitting the act, the accused · was laboring when he succeeds in establishing in the under such a defective reason from disease minds of the jurors a reasonable doubt as of the mind as not to know the nature to his sanity, he is entitled to an acquittal. and quality of the act he was doing, or, if State V. Shuff (Idaho) 72 Pac. 664. The he did know the nature and quality of the remainder of the instruction correctly stated act, that he did not know he was doing what the law on the subject. The erroneous porwas wrong. By saying that it must be tion of the instruction, however, could not shown that he did not know he was doing have prejudiced 'the defendant in this case, what was wrong the law means moral wrong. for the reason that he utterly failed to show A man may want the capacity to distinguish | insanity or any indication thereof as existbetween the various shades of illegality | ing at the time of the commission of the which the law assigns to a particular act, offense charged. It must, therefore, follow and yet be sane. This is not what is meant that, having failed to produce any evidence by the power to distinguish between right which would tend to raise in the minds of and wrong as one of the tests of sanity, and the jurors any doubt as to his sanity, the because an accused has not the mental capa- | instruction on this point could not have prej. city to know whether an act is legal or il udiced him in any respect. legal, or believes his act to be legal, is no Judgment affirmed. defense. The meaning of the law is that he had not the mental capacity to know that he
AILSHIE, and SULLIVAN, JJ., concur. was doing a moral wrong. If his mind is not so diseased at the time of the killing as to prevent him from knowing the nature
(11 Idaho, 405) and quality of his act, or if he did know the SAND POINT WATER & LIGIIT CO. v. nature and quality of his act, that he was PANHANDLE DEVELOPMENT CO. morally doing a wrong, he has sufficient (Supreme Court of Idaho. Nov. 10, 1903.) mental capacity to be responsible for his acts.
1. WATERS – APPROPRIATION – NOTICE OF * * * This last I will read again: If CLAIM. his mind is not so diseased at the time One who posted and recorded notice of in
| tention to appropriate waters under Act Feb. of the killing as to prevent him from know
2, 1899 (Sess. Laws 1899, p. 380), and within ing the nature and quality of his act, or if 60 days thereafter commenced work on his he did know the nature and quality of his proposed diverting works, and continued the act, that he didn't know he was morally do.
prosecution of such work with reasonable dili
gence, is entitled to have his appropriation date ing a wrong, he has sufficient mental ca
from the posting of his notice; and the right thus pacity to be responsible for his acts, * * * acquired is prior and superior to the rights of or if he did know he was doing morally any subsequent appropriator claiming either wrong, he has sufficient mental capacity to
by posting of notice and compliance with the
statute, or an actual diversion and application be responsible for his acts in so far as his
of the water. insanity is concerned. If the defendant at 2. SAME-TIME OF APPROPRIATION. the time of the killing of Christ Long was One who posts and records notice, and in insane as above defined, he would not be all respects pursues the successive steps pre
cribed by Act Feb. 25, 1899 (Laws 1899, p. guilty of either murder in the first degree,
380), is entitled to have his right relate back to or murder in the second degree, or man the date of posting notice. slaughter, and should be acquitted; and if 3. SAME. from the evidence you have a reasonable
In such case the appropriation is initiated doubt as to whether the defendant was in
by posting the notice, and an inchoate right
thereby arises which may ripen into a complete sane you should acquit the defendant."
appropriation upon the final delivery of the Whilst this instruction is somewhat vague, waters to the place of intended use. and could have been given in fewer words 4. SAME-APPROPRIATION-How EFFECTED. and less argumentative, and with equal force A person desiring to appropriate the waters
of a stream may do so either by actually divertand effect to the jury, still we think there
ing the water and applying it to a beneficial use. was but one conclusion to be drawn from it,
or he may pursue the statutory method by postand that was, if he knew the nature and ing and recording his notice, and commencing natural effect of his act, he was guilty,
and prosecuting his work within the time and
in the manner prescribed by the statute; and in otherwise he should be acquitted. On the the latter case his right will relate back to the question of insanity, we refer to State v. date of posting his notice.
5. SAME-DIVERSION-DILIGENCE.
| for a permit to divert, appropriate, and use Where an appropriator posted his notice on the waters of those streams to the extent December 16, 1902, claiming a certain amount |
1 of 20 cubic feet per second. The court finds of the waters of a stream, and thereafter, and ! on the 14th day of January, 1903, commenced that plaintiff and its grantor had performed work on roads, surveys, etc., preparatory to all the acts and requirements necessary or constructing the diverting works, and kept at
imposed by the statute for the protection of least one man at the work continuously from that date until date of trial, and expended over
its appropriation, and bad diverted the $1,700 on the work from the coinmencement waters and applied them to a beneficial use thereof until February 8, 1904, and had built in supplying the village of Sand Point and one mile of wagon road along the course of the
its inhabitants with water for domestic uses stream and had built 3,400 feet of flume, and such work was prosecuted in a mountainous
and fire purposes. The court also finds that country where the winters are long and rough the respondent's appropriation was and is and the snow fall is heavy, held, that the work prior to that of the appellant and so ordered has been prosecuted with reasonable diligence
and decreed. The appellant contends that as required by section 6 of Act Feb. 25, 1899 (Sess. Laws, 1899, p. 381).
the undisputed facts as disclosed by the eri(Syllabus by the Court.)
dence and appearing upon the record show Appeal from District Court, Kootenai
clearly and beyond question that the court's
findings are unsupported by the evidence, County : R. T. Morgan, Judge.
and that he should have found that appelPlaintiff, the Sand Point Water & Light
lant's water right from these streams is Company, commenced an action against the
prior and superior to the rights of responddefendant, the Panbandle Derelopment Com
ent, and that the findings of the court in this pany, praying an injunction against the defendant to restrain and enjoin defendant
respect are wholly unsupported. The facts
as they appear from the record upon this from diverting the waters of Switzer and
point are substantially as follows: West Sand creek, or in any manner inter
On December 16, 1902, appellant's grantors fering with them or depriving plaintiff of
located a water right on West Sand or Mill the use thereof. Judgment for plaintiff,
creek in Kootenai county, and the location from which judgment and an order denying
notice thereof was posted and duly filed defendant's motion for a new trial, defend
and recorded in the office of the county ant appealed. Reversed.
recorder of Kootanai county, and there. Wm. H. Batting, E. M. Heyburn, and My after, in due time, was filed in the office ron A. Folsom, for appellant. Chas. L. Heit of the State Engineer at Boise city. Withman, for respondent.
in a few days thereafter the same par
ties duly and regularly made two additionAILSIIIE, J. Prior to hearing this case ) al locations on these streams. On the 14th on its merits, the respondent filed and pre day of January, 1903, and about 29 days afsented a motion to dismiss the appeal, and ter making the first location, work was comalso a motion to strike from the transcript menced, which consisted in cutting out a the appellant's statement on motion for a | trail up the canyon, and making a survey new trial. We have carefully examined the for flumes and ditches. Work was conrecord and affidavits used on the hearing tinuously prosecuted from that time until of these motions and have concluded that the date of the trial of this cause, with at both motions should be overruled, and it least one man on the ground all the time is so ordered.
engaged in building a road, and a flume and This action was commenced by the re ditch through which to carry the waters of spondent corporation to restrain the appel these streams, and the general work incident lant corporation from diverting and ap to the construction of the diverting work propriating the waters of Sand creek and for carrying out the purposes for which the Switzer creek in Kootenai county, and to | appropriation was being made. An itemized restrain and enjoin the defendants from in statement of expenditures made in carrying terfering with or diverting the waters of on this work appears to have been presented those streams in any way or manner that | upon the trial showing an expenditure of would interfere with the rights and ap- | $714 for wages, groceries, tools, and supplies, appropriation of the plaintiff. The case went between the 14th day of January, 1903, and to trial upon complaint and answer, and re- the 1st day of September, 1903. It was also suited in a judgment for the plaintiff, from shown that an expenditure of more than which judgment and an order denying a mo $1,700 was made on these works between the tion for a new trial, the defendant has ap 14th day of January, 1903, and the 8th day pealed.
of February, 1904. At the time of the trial The substance of the trial court's findings in this case it appeared that the appellant of fact is that the plaintiff's grantor was had built about one mile of road up the canthe prior appropriator of the waters of | yon, for the purpose of reaching the point of Switzer creek and the west branch of Sand diversion on the stream, and conveying matecreek, situated in Kootenai county, and that rial and supplies, and had also erected and such appropriation dates from September 26, constructed a flume 3,400 feet in length. 1903, the date on which respondent's grantor None of these facts are directly disputed by made his application to the State Engineer the respondent, but at the trial the respondent placed witnesses upon the stand, who the ground and its continued prosecution testified that in passing through this country was ample actual notice to respondent, or in the neighborhood of this work they had any other subsequent claimant to these wanoticed some work bad been done, but the ters, as to the nature of the claim asserted witnesses estimated the value thereof as very by appellant. small--something like $200 or $300, perhaps. It seems to us that the real difficulty in But it does not appear that these witnesses this case has arisen from a wrong construchad made very much examination or pre tion and misapplication of the word approtended to have seen all the works or were priate as used in our statutes. Section 8 at all accurate or positive as to their of the act of February 25, 1899, provides that estimates. It remains, nevertheless, a fact, where an appropriator has complied with that they admit that work had been done the preceding sections in the posting and there, and, in fact, one of plaintiff's wit recording of notices and the commencement nesses was one of the first men enploved by and prosecution of work, “the claimant's the defendant's grantor, and had made the right to the use of water relates back to original survey for the defendant's divert the time the notice was posted." Section 7 ing works. The fact stands upon the record of the act provides that by a completion of practically undisputed, that on the 29th day the work "is meant conducting the waters of September, 1903, the date on which re to the place of intended use." A person spondent's grantor obtained his permit from desiring to appropriate the waters of a the State Engineer to divert and appropriate stream may do so either by actually divertthe waters of these streams, the appellant ing the water and applying it to a beneficial was actively engaged in the construction of use, or he may pursue the statutory method its diverting works, and bad at that time by posting and recording his notice and expended from $700 to $800 in the prosecu commencing and prosecuting his work within tion of the work.
the statutory time. De Necochea v. Curtis, It should be observed that appellant's 10 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Wells cation and the prosecution of its work was | v. Mantes, 99 Cal. 583, 34 Pac. 324; Wattermade under the act of February 25, 1899 son v. Saldunbehere, 101 Cal. 112, 35 Pac. (Sess. Laws 1899, p. 380), wbile the respond 432. In the latter case his appropriation ent's right was initiated under act approved will be entitled to date from the time of March 11, 1903 (Sess. Laws 1903, p. 223). | posting his notice (section 8, p. 381, Sess. By the latter act a permit is obtained from Laws 1899; Wells V. Mantes, supra; Nethe State Engineer to divert and appropriate vada Ditch Co. v. Bennett, 30 Or. 59, 45 the waters of any of the public streams of Pac. 472, 60 Am. St. Rep. 777, and note the state, while under the act of 1899, notice thereto; Works on Irrigation, pp. 44-46; Long was required to be posted and a copy thereof on Irrigation, $ 37), and any intervening filed and recorded with the county recorder, locator or claimant of the waters will be and a duplicate thereof filed with the State treated as subsequent both in time and right. Engineer. By section 6, p. 381, of the act | In such case the appropriation is initiated of 1899, under which appellant initiated its by the posting of the notice, and an inchoate right, it is provided: “Within sixty days right thereby arises which may ripen into after the notice is posted, the claimant must a legal and complete appropriation upon the commence the excavation or construction of final delivery of the waters to the place of the works by which he intends to divert the intended use. In other words, by pursuing water, and must prosecute the work dili- ! the successive steps prescribed in the statute, gently and uninterruptedly to completion, and completing his diverting works, and apunless temporarily interrupted by snow, rain, plying the water to a beneficial purpose, or cold weather.” Respondent claims that the appropriation is completed. The only the appellant failed to show that it had difference between an appropriation initiated prosecuted the construction of its diverting by posting notice and one initiated by diworks with the diligence required by section version and application of the waters is that 6, supra, and for that reason, if for none the appropriator, who claims under notice, other, the judgment was properly entered is allowed the extra 60 days within which against appellant. It seems to us, however, to commence his work, and reasonable time when we consider that this work was being thereafter in which to complete the same. prosecuted in a mountainous section of the It appears that the lower court proceeded state where there is a beavy snow fall and on the theory that the appropriation, rea long winter season with much rough and | gardless of the posting of notice, dates from stormy weather which would interrupt and the actual diversion of the water, and its delay the character of work that was being application to the use intended, and the carried on, that the amount and kind of court accordingly finds that "the plaintiff work which is shown to have been done did on or before the 14th day of August, evidences good faith, reasonable diligence, 1904, complete its water system and did and a purpose to complete the work and actually appropriate the waters flowing in apply the waters to the beneficial use desig the said stream described in the complaint, pated. Saying nothing of the record notice and has ever since said date actually apwhich the respondent had, the work upon propriated and used all the waters in said stream described in the complaint in sup- , of his claim, in that there was no evidence plying the inhabitants of the village of Sand in the record of the discovery of mineral in Point with water for domestic uses and place within the limits of the claim. In our fire purposes.” This theory is incorrect as former opinion (80 Pac. 331) we based our applied to appellant, so long as appellant conclusion that there was sufficient evidence continued to prosecute its work with rea- | to sustain a compliance with the statutes in sonable diligence. So long as it did so, it this regard largely upon the testimony of the was entitled to have its appropriation relate plaintiff that, when his claim was located back to the posting of its notice; and, in by him (the two claims being nearly identhat event, appellant would be entitled to tical in surface area), there was gold and protection as a prior appropriator as against silver bearing rock showing upon the surface the respondent. Some importance seems to of his claim. Upon the rehearing, it was have also been attached to the fact that claimed by the appellant that this discovery the appellant was cognizant of the work of the plaintiff was made outside of the limbeing done by respondent, and the large ex- its of the defendant's claim, and hence the penditure being made by it in constructing its | plaintiff's discovery there of mineral could diverting works and water system, and that | not serve to show mineral within the limits it should have made some demonstration or of the defendant's claim. A further examitaken some action sooner to prevent respond nation of the evidence shows that the disent further prosecuting its work. This posi covery of the mineral by the plaintiff, retion, however, is without merit. The appel ferred to, was in fact made outside the limlant was also prosecuting its work at the its of the defendant's claim. We have made same time and for a similar purpose, but i a further careful examination of the eviin the meanwhile neither one was actually dence, and we fail to find in the record evidiverting the water to the detriment or dam dence which we can hold shows a discovery age of the other, nor was there any apparent of mineral within the limits of the claim reason why appellant could or should have of the defendant. prerented respondent carrying on its work. The appellee urges that, as the discovery There is no contention made in this case of the plaintiff, though without the limits but that respondent has a valid water right į of the defendant's claim, showed mineral, and appropriation, and would be entitled to and the plaintiff's ocation notice claimed whatever of the waters of those streams 1,500 feet “of this vein or lode * * * in the appellant fails to use or at any such a northerly direction along the ledge," which times as the appellant fails to use and apply would carry it across the whole length of those waters. The only difliculty is that the defendant's claim, that this is evidence upon the undisputed facts of the case, re- | of the existence of the ledge or vein within spondent's right is subsequent and subordi- the defendant's claim sufficient to satisfy nate to appellant's right. On the facts as the statute. If we might consider this as presented by this appeal, the trial court sufficient evidence of such fact, we are never should have found that the defendant, the theless precluded from doing so, as the Development Company, had a prior and su
evidence is not before us, since the court prior right to that of plaintiff', the Water below-and rightly, as we held-sustained & Light Company, and that defendant had the objection of the defendant to the introduc
ecuted the construction of its diverting tion of this location notice in evidence, and works with reasonable diligence.
ordered it stricken out. The judgment is reversed, and cause re
We think the defendant has failed to prove manded, with instructions to the trial court
that there was a discovery of mineral with to make findings of fact in accordance with
in the limits of the claim, and that for this the views herein expressed, and enter judge reason the judgment of the lower court ment in accordance therewith. Costs award
awarding affirmative relief to the defendant ed to appellant.
must be reversed, and the case remanded
for a new trial. STOCKSLAGER, C. J., and SULLIVAN, J., concur.
DOAN and CAMPBELL, JJ., concur.
(There errors are not mine).
Rudolph died 16 Nov 1930 in Baker, ID.
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