Citation
Canal Zone Supreme Court reports

Material Information

Title:
Canal Zone Supreme Court reports cases adjudged in the Supreme Court of the Canal Zone from July term, 1905, to June, 1914
Spine title:
Canal Zone reports
Creator:
Canal Zone -- Supreme Court
Place of Publication:
Ancon
Publisher:
Isthmian Canal Commission Press
Publication Date:
Language:
English
Physical Description:
2 vols. : ; 23 cm.

Subjects

Subjects / Keywords:
Law reports, digests, etc -- Canal Zone ( lcsh )
Genre:
serial ( sobekcm )
federal government publication ( marcgt )
periodical ( marcgt )

Notes

Dates or Sequential Designation:
v. 1-2; 1905-1914.
General Note:
Imprint for v. 2 : Mount Hope, C.Z. : Panama Canal Press.

Record Information

Source Institution:
University of Florida
Holding Location:
UF Legal Information Center
Rights Management:
This item is a work of the U.S. federal government and not subject to copyright pursuant to 17 U.S.C. §105.
Resource Identifier:
020926433 ( ALEPH )
11368863 ( OCLC )
22015883 ( LCCN )
Classification:
W 73.2:Su 7/pt.1-2 ( sudocs )

Related Items

Succeeded by:
Canal Zone reports

Full Text
m
41RI-iiiA jig ip ix i4i Roia
7 7
0 '4
qOk
iw
W* do k*
IN 60 W
4vo
ob
hp -W
to
14 lp l I
O 04 we lip
NJ I I I 0
00 *,a WeA do
- -W "W WWI a )IP w -lob A 00 io
-V-eA, v - M --m-1011"ll SP W-4- !W qw
A 12 00 W 4 fit W
ON so
-41 &46 410'I Ali 191 11" 60 -$,w ts 4w Op
---- l 14 1 V
'N 'W 00 *A'
A "4A
0 o I J-11; I
i sio R A o4
W A
op 1-0,114 vv *-*w k" I'll 4W*~
4 a I AL
WOW
*40 4p j k
wq
to -0 Iq
0 lit, I l of 1 O4%1
-411o'
14
M2
41 619
4, ZiM.7, 7
j -Na jim Ili
q lipm All io l
;:i aaT4 wap
I's 61
Aga f, igbvkwd- i"
1 1110 T"IT
A& 6




DENNIS & CO., INC.
Law Book Publishers 251 MAIN STREET
BUFFALO 3, N. Y.
J: v ncoi
LIVJ" :
y r;:
,UL.f _______.______










FOREWORD

This volume is an exact photo reproduction of an original copy of the CANAL ZONE SUPREME COURT REPORTS
Volume 1
July Term, 1905, to October Term, 1908
WALTER EMERY Reporter
ANCON
ISTHMIAN CANAL COMMISSION PRESS 1909
in the Chicago Law Institute Libirary. Special acknowledgment is made to the Chicago Law Institute and Mr. William S. Johnston, Librarian, for the kind permission to use the original volume in this reproduction.
As a copy of the original is practically unobtainable, this copy is offered to enable law libraries to complete their collection of reports.
The edition has a limited printing.
DENNIS & CO., INC. Buffalo, N. Y.
May., 1941
Registered Copy No.







t i
CANAL ZONE SUPREME COURT REPORTS VOLUME I
CASES ADJUDGED
IN
THE SUPREME COURT
OF THE
CANAL ZONE
1FR()M
JULY TERM, 1905, TO OCTOBER TERM, 1908

WALTER EMERY
JREPOA J-'rR

A

ANCON
ISTHMIAN CANAl COMMISSION PRESS
1909







JUSTICES

OF THE
SUPREME COURT OF THE CANAL ZONE.
DURING THE TIME OF THESE REPORTS.
FACUNDO MUTIS DURA.N, CHIEF JUSTICE. HEZEKIAH A. GUDGER, ASSOCIATE JUSTICE. LORIN C. COLLINS, ASSOCIATE JUSTICE.
J. M.. KEEDY, PROSECUTING ATTORNEY (To September 1, 1906.) G. M. SHONTZ, PROSECUTING ATTORNEY (After September 1, 1906.) WALTER EMERY, CLERK. GEO. R. SHANTON, ACTING MARSHAL.







TABLE OF CONTENTS.
TABLE OF CASES REPORTED.
A cebo v. G aravel ............................................................ 87
Achurra v. Olivares ......................................................... 6
Allen, Cruise v........... ................................ 36
American Bazaar v. Kee Chong Chang et al.................. 134
A ndrade, Janel v ............................................................. 117
Andrade v. Panama" Railroad Co................................. 76
Andrade v. Seymour et al................................ 13
Andrade, Seymour v ................................... 134
Andrade, Seymour et al. v............................ 19
Andrade, United States v............................................. 64
Andrade, Canal Zone ex rel., v. Goolsby ....................... 134
Barnett, Canal Zone v ..................................... 135
B arril, B oilleau v ........................................................... 21
Boilleau v. Barril.................................. 21
B osquez v. Solis ......................................................... 42
Calder6n v. Coquard ................................................. 8, 32
Canal Zone v. Barnett ........................................... 135
Canal Zone v. Christian .............................................. 1
Canal Zone v. Clark .................................................. 45, 128
Canal Zone v. Colinas .................................................. 58
Canal Zone v. Coulson.............................. 50
Canal Zone ex rel., v. Galindo ....... .............................. 89
Canal Zone ex rel., v. Goolsby........ ........... 134
Canal Zone v. Gonzalez ................................................ 135
Canal Zone v. Hardem an ................................................ 82
Canal Zone v. Hodgson et al........................................ 123
Canal Zone v. Levy................................. 135
Canal Zone v. MacMurray........................ 136
Canal Zone v. M orado ................................................... 5
Canal Zone v. O'Brien ................................................. 121
V




vi CASES REPORTED
Canal Zone v. ON Nifou .................................................. 135
Canal Zone v. Penniston ................................................. 63
Canal Zone v. Raseindo ........................................78
Canal Zone v. Sm ith ................................................ ......13
Canal Zone v. Stout ....................................................... 120
Canal Zone v. Trotman........................... 136
Canal Zone v. Wright............................. 39
Christian, Canal Zone v..... .......................1
Clark, Canal Zone v ................................................... 45, 128
Colinas, Canal Zone v............ .... .............................. 58
Coquard. Calder6n v ....... ............ ............8, 32
Coulson, Canal Zone v .......... ........................50
Cruise v. Allen. ...........................36
Fairman, Canal Zone ex rel., V. Galindo ........................89
Galindo, Canal Zone ex rel., v ........................................ 89
Garavel, Acebo v............................ 87
Gonzalez, Canal Zone v .....................................135
Goolsby, Canal Zone ex rel., v ........................................134
Hardeman, Canal Zone v..............................8!2
Hodgson et al., Canal Zone v .........................123
Huey, Frank J., In re ...................... .......... 137
Janel v. Andrade .............................................................117
Janel, Lavergneau v. ..................................30
Kee Chong Chang et al., American Bazaar v.................134
Kee Chong Chang et al., Maduro-Lupi Co. v ............. 115
Lavergneau v. Janel................................ 30
Levy, Canal Zone v ........................................................ 135
MacMurray, Canal Zone v .............................. 136
Maduro-Lupi Co. v. Kee Chong Chang et al ................. 115
M elendez v. Union Oil Co ................................................106
Morado, Canal Zone v .................................5
O'Brien, Canal Zone v ................................ 121
Oli Nifou, Canal Zone v-.................................135
Olivares, Achurra v......... ...........................6




CASES REPORTED. vii
Panama" Railroad Co., Andrade v .................................. 76
Penniston, Canal Zone v................................................ 63
Perrenoud v. Salas ........ ................................................ 24
Raseindo, Canal Zone v ................................................... 78
Rom e, Tricoche v ............................................................ 135
Salas, Perrenoud v.................................. 24
Seymour v. Andrade................................134
Sevm our et al. v. Andrade ............................................. 19
Seym our et al., Andrade v .............................................. 13
Smith, Canal Zone v ................................. 134
Solis, B osquez v ............................................................ 42
Stout, Canal Zone v ...................................................... 120
Tricoche v. Rome.....................................135
Trotm an, Canal Zone i. ................................................. 136
Union Oil Co., M elendez v .............................................. 106
United States v. Andrade............. ..............64
Wright, Canal Zone v.................... .......39




TABLE OF CASES.
CITED IN OPINIONS.

Armistead v. State ................... 127
Brown v. State .........................47
Cameron v. Bryan .................... 109
Chonneller v. State ...................47
Connor v. Ewell............. 108
Dorr v. United States ............... 55
Downes v. Bidwell........55, 57 Edwards v. Elliott ....................56
Goether v. State ........................47
Gray v. State ..........................47
Hooks v. Fitzenreiter ............... 108
In re Farez................... 143
Johnson v. State ...................... 127
McCabe ex parte ......................141

Pearson v. Yewdall............
Parsons v. State ......................
Rasmussen v. United States ...... Simmons v. United States ........ Simmons v. Van Dyke ..........
State v. Adams.................
State v. Fredericks.............
State v. McGraw...............
State v. MQultree...............
State v. Speight................
Thompson v. United States. Trivdale v. State............
Williams v. Hert................
Wilson v. Shaw................

viii

56 127 55 130 141 47 127 127 47 47 130 47 56 55




TABLE OF LAWS.
CITED IN OPINIONS.
(A) LAWS OF T14E CANAL ZONE.

ACT No. 1
See. 9 ...........................
24 ...........................
41 ...........................
ACT No. 4 ................... ..............
ACT No. 14
See. 11 ..........................
12 ..........................
81 ..........................
322 ..........................
382 ..........................

ACT No. 715
See. 7 7 ......................... 80
197 ......................... 126
207 ......................... 47
217 ......... ........ ...... 129
222 ........ ................ 129
224 ......................... 41
282 ......................... 121

35 35 10
5
86 86 60
64 60

(B) TREATY OF FEB. 26 190-1, BETWEEN U. S. AND PANAMA".

Article 11 .............................. 3 53
III .............................. 31 53
v .............................. 54
VI .............................. 75, 77

Article X IV ................................. 51
X V ................................. 76
X X I .................. ............... 3

CIVIL CODE OF PANAMA.

Article 17 .................... ............ 29
656 ................................. 38
669 ................................. 74
673 ................................. 71
685 ................................. 71
739 ............................ 44 75
756 ............... to# .......... *. 38
764 ........................... I ..... 88
775 ..................... ......... 114
786 ........................ 1141 115
923 .................. ............ 110
937 ............ .................. 114
964 ................................. 89
1053 ........... ........... s ........ 116
1126 .................. ............ 116
1129 ............................... 115
1132 ........................ 1151116
1136 .............................. 116

Article 1203 .............................. 115
1204 .............................. 115
1506 ................................ 33
1523 ........... .................... 19
1524 ................................ 19
1740 ................................ 19
1741 ................................. 19
1742 ................. #0 .... *A ....... 19
Book IV, Title 23 ........ .... a ......... 25
Article 1852 ................................ 88
1857 ........................... 25t 38
1939 ................................ 25
Book IV, Title 28 ....................... 31
Article 2142 ............ .................... 31
2143 ................. 31
2149 .................. 00* ............ 31
2150 ............ .................... 31
ix




TABLE OF LAWS.
(D) JUDICIAL CODE oF PANAMA

Article 328 ................................33
329 ................................33
334 .......................33
335..................... 33

Article 345 ................................33
681 ................................25
898-913....................35

(H) FISCAL CODE OF PANAMA

Article 5 ................................ 71
882 ................................ 73
918..............73, 75
932 ............................... 73
933.................... 71

Article 946 ................................73
947 .......................... 73
948 ................................ 73
2192 ................................ 66

(F) ISCELLANEOUS.

l..w 61 of 1874
Art. 1 ............................... 71
LAw 48 of 1882
Art. 2 .............................. 71
3................ 71
5 ................................. 75

LAW 153 of 1887
Art. 91.................... 23
92 ............................ 23
93 ............................ 23
95 .....................19
LAw 79 of 1904
Art. 9 .............................. 19




CASES ADJUDGED

IN THE
SUPREME COURT OF THE CANAL ZONE
JULY TERM, 1905, TO OCTOBER TERM, 1908.
CANAL ZONE versus CHRISTIAN.
No. 9. Argued August 7, 1905.-Decided September 1, 1905.
GAMBLING. ACT No. 4 OF LAWS OF THE CANAL ZONE VALID. The United States, under the treaty with Panam6, was given full power to enact laws for the Canal Zone (Art. 3). The rights and privileges granted by the treaty were free from all prior concessions, etc. (Art. 21). Hence, an act prohibiting gambling within the Canal Zone is valid and in accordance with the treaty, although gambling within the Zone was covered by a concession from-the Republic of Panama, and the concessionaire violated a valid law when he operated a roulette table within the Zone.
Exceptions by defendant from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. Osceola Kyle, Judge.
THE facts appear in the opinion.
Gilbert F. Little, for appellant. J. M. Keedy for respondent.
H. A. GUDGER, J. Information was filed ihf the Circuit Court for the Second Judicial Circuit charging the defendant, Charles Christian, with gambling. Trial was had before the Honorable Osceola Kyle, Judge of said Circuit, who found the defendant guilty in manner and form as charged in the bill of information. A motion for a new trial, was made and overruled; judgment was entered on the finding, and
(1)




SUPREME COURT OF THE CANAL ZONE. July Term,

defendant sentenced to pay a fine of one hundred dollars and to be imprisoned for a period of thirty days. From the judgment and sentence of the court, the defendant brings his appeal to this court.
"The Government by its witnesses offered evidence tending to show that the defendant, within twelve months before the filing of the information against him, did engage in the business of gambling for a livelihood, viz., managed and controlled for a profit a game called roulette within the Canal Zone, Isthmus of Panamat, contrary to the statute as made and provided."
"The defendant by his evidence admitted that he did manage and control for a profit a game called roulette as charged in the information; but denied that there was any valid statute or law prohibiting him from engaging in said business."
"It was admitted by counsel for both partiesto this cause that defendant was running roulette tables under and by virtue of a concession which had been made and granted by the Republic (Department) of Panamal to Seymour & Pratt, a partnership; and that this defendant as the agent and servant of the said partnership was carrying on the game of roulette."
Several grounds of reversal are urged, but the second assignment of error is all that is necessary for a consideration of the case. It is as follows:
That Act No. 4 of the Canal Commission, under which this defendant has been arrested, is uinatithorized by the treaty or the act of Congress under and by virtue of which tie Canal Commnission came into existence.
The people living in the territory which had been the Department or State of Panama, belonging to the Republic of Colombia, declared themselves independent from the mother country November 3, 1903, and held themselves forever absolved from any allegiance to the Republic of Colombia and to be a free and independent nation. The Republic of Panama was recognized by the United States and other great powers. A treaty was signed between the United States of America and the Republic of Pahama November 18, 1903, and subsequently ratified by the Repub-




CANAL ZONE v. CHRISTIAN.

lie of Panami, December 2, 1903, and by the United States Senate February 23, 1904. This treaty, though having for its primary object the construction, maintenance and operation of an interoceanic canal connecting the Atlantic and Pacific oceans, granted to the United States other rights, powers and privileges incident thereto.
Article 2 of said treaty cedes to the United States in perpetuity the use, occupation and control of a zone of land and land under water for .he construction, maintenance, operation, sanitation and protection of said canal of a width of ten miles, extending to a distance of five miles on each side of the central line of the route of the canal to be constructed. The words granting "in perpetuity the use, occupation and control of a zone of land" to a sovereign power carry with them by implication the right, power and authority to establish and maintain all needful and necessary forms of government.
If there be a doubt as to this view, Article 3 of said treaty is more explicit, and is as follows:
The Republic of Panam' grants to the United States all the rights, power and authority within the zone mentioned and described in Article 2 of this agreement, and within the limits of all auxiliary lands and waters mentioned and described in Article 2, which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located, to the entire exclusion of the exercise by the Republic of Panamn of any such rights, power or authority.
This article of the treaty gives to the United States full power and authority to legislate for the Government of the Canal Zone.
The 21st Article of the treaty further provides:
The rights and privileges granted by the Republic of Panama to the United States in the preceding articles are understood to be free from all anterior debts, liens, trusts or liabilities, or concessions or privileges to other Governments, corporations, syndicates or individuals, and consequently, if there Should arise any claims on account of the present concessions and privileges or otherwise, the claimants shall resort to the Government of the Republic of Panama and not to the United States for any indemnity or compromise which may be required.
It was clearly the intention of the high contracting parties,

19015.




SUPREME COURT OF THE CANAL ZONE. July Term,

expressed in unequivocal language, that the United States should have absolute, unqualified and unquestioned control over the zone mentioned, free from any debts, liabilities, concessions or privileges whatsoever.
The concession or the privilege in question was based on the personal covenants of the Republic of Panam-t and Seymour & Pratt.
The Court could not construe it so as to prevent or inhibit the free alienation of land, such contracts never taking the nature of contracts that run with the land. Therefore, at common law and entirely independent of the treaty, had the Republic of Panama been an individual, and a deed been given to some third person of a tract of land embraced within the zone, nothing being expressed about the concession, Seymour & Pratt would have had no right to enter upon said land for any purpose or to carry on gambling thereon. Should a sovereign power take less by conveyance than an individual? None would so contend. Yet in the case at bar there is a special warranty on the part of the Republic of Panama' that the United States should enjoy possession untrammeled and free from concessions, and should exercise the rights, power and authority of a sovereign of the territory.
It is needless to enter into an argument to show that the Republic of Panama, a sovereign nation, had the right and the power to discontinue at any moment it became necessary any domestic contract made by it or by any other authority which it recognized. The moral right to exercise such a prerogative can hardly be questioned when it is remembered that the Government in the treaty referred to agrees to indemnify any one, suffering damage, against any loss. Besides, it is a well established principle that all governments have the right to expropriate private property for public highways, the construction of railroads, street-car lines, sites for public buildings such as school-houses, court houses, jails, etc., and for other purposes of public utility; and that in so doing they have discharged in full their obligation to the private citizen when they have indemnified him against all loss. The rights of any one deprived of a concession to seek redress from the Republic of Panama" being recognized in the treaty, to it Seymour & Pratt must apply if aggrieved.

4




.CANAL.ZONE v. CHRISTIAN.

The prohibition of gambling within the limits of the Canal Zone was without doubt within the legislative power of the Isthmian Canal Commission, and Act No. 4 is in our opinion legal and valid.
This Act contains several sections, under any of which this defendant might have been tried and, if found guilty, punished. Under Section 6, imprisonment was obligatory, and under Section 2, the punishment was left discretionary with the judge.
It seems that the defendant labored under a mistaken idea that he had certain rights by virtue of the concession named, and that he acted apparently in good faith and for the purpose of testing his legal rights. The question of the legal rights of the defendant could only be determined in case the law was violated. The record leads us to believe that the act complained of was more to refer the question to legal determination than wilfully to violate the law. Therefore, considering all the facts and circumstances as revealed, we are of the opinion that the case comes properly under Section 2 of Act No. 4.
The judgment of the Circuit Court for the Second Judicial Circuit is modified by striking out that part imposing thirty days' imprisonment, and affirming said judgment in every other particular. Let a mandate issue to the court below in conformity with this opinion.
All concur.
Affirmed in part and reversed in part.
CANAL ZONE versus MORADO.
No. 11.-Decided January 15, 1906.
APPEAL. NO EXCEPTIONS OR ASSIGNMENTS OF ERROR. An appeal will be dismissed when there are no exceptions or assignments of error and no questions of law are raised.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit; Hon. H. A. Gudger, Judge.

1905.




SUPREME COURT OF THE CANAL ZONE.

THE facts appear in the opinion.
J. M. Keedy, Prosecuting Attorney. No appearance for appellant.
LORIN C. COLLINS, J. This was an appeal by the defendant from the findings and judgment of the Circuit Court of the Second Judicial Circuit, the Hon. H. A. Gudger, judge presiding.
An information was filed by the Government against the defendant, charging him in the first count with having committed an assault; and in the second count with an assault with intent to commit rape.
The defendant was duly tried, found guilty on the first count and sentenced to imprisonment in the common jail of the Canal Zone for and during the term of six months. The defendant having prayed an appeal brings his case to this court for review.
On the hearing, the Government by the Hon. J. M. Keedy, Prosecuting Attorney, moved to dismiss the appeal for the reasons that the record shows no exceptions were taken to the rulings of the Court on the admission or rejection of evidence; shows no assignment of errors; and raises no question of law.
The Court has examined the record and finds there is evidence to sustain the conviction, and as every point urged by the Government for dismissal is also sustained by the record, the motion to dismiss is sustained.
It is therefore ordered that said appeal be and is hereby (ismissed and that a procedendo do issue to the court below.
CHIEF JUSTICE MUTIS concurs.
Affirmed.
ACHURRA versus OLIVARES.
No. 10. Argued January 10. 1906.-Decided February 8, 1906.
CANCELLATION OF CONTRACT. RETURN OF SPECIFIC PROPERTY. Where the plaintiff prayed for the return of the specific property sold, in a suit for rescission of the contract of sale, a judgment for the value of the

j an. TermI,

6




ACHURRA v. OLIVARES.

property was held to be error, although the property had been sold by
defendant.
Exceptions by defendant from the Circuit Court of the Second Judicial Circuit; Hon. Lorin C. Collins, Judge.
THE facts appear in the opinion.
Francisco Filds, for appellant. H. Patiho, for respondent.
H. A. GUDGER, J. This was a civil action tried before His Honor, Lorin C. Collins, sitting as acting judge of the Second Judicial Circuit Court of the Canal Zone. The plaintiff brought suit for the cancellation of a contract of sale of four cows valued in the complaint at $90.00 silver each, and alleged that the said contract had not been fulfilled; and asked for the canc-ellation of the contract and the return of the specific property sold. Plaintiff admitted that defendant had paid $100.00 silver on said amount, but alleged she was to pay the balance monthly and had failed to do so.
Defendant admitted the contract and price of the cattle, the payment of $100.00 silver, but denied that she was to pay the balance in monthly instalments; but averred, on the contrary, that she was to pay the same in pasturage, etc., of other cattle belonging to the plaintiff and that she had performed her part of the contract.
The question as to defendant's payment as .alleged by her was the issue tried by the court, and found in favor of the plaintiff. Judgment was entered by the lower court in favor of the plaintiff, and against the defendant, for the sum of $260.00 silver. Neither the complaint nor any paper in the cause demanded the value of the cattle; and the only demand which was made was for the return of the specific thing, viz., the cattle.
We think, therefore, that the lower court erred in entering judgment for the value of the cattle, the same not having been asked in either the complaint or rejoinder. It appears in the record that the cattle had been sold, either before or after the commencement of the action. It is evident that the plaintiff has rights in the premises; and, as the defendant admits that the cattle have been disposed of, we think it but proper that the Circuit Judge should permit the plaintiff, if

1906.




SUPREME COURT OF THE CANAL ZONE. Jan. Term,

he see proper, to amend the complaint so as to demand judgment for the value of the cattle.
The judgment of the lower court, therefore, is reversed and a new trial granted, with the above suggestions to the Circuit Judge.
CHIEF JUSTICE MUTIS con0urs.
Reversed and remanded.
CALDERON versus COQUARD.
No. 13. Argued January 15, 1906.-Decided February 8, 1906.
JURISDICTION. TRANSFER FROM COURTS OF PANAMA. WHEN
NOT NECESSARY.
In 1897, S. borrowed $400 from H. and gave him a mortgage on her
house to secure the debt. S. afterward sold the mortgaged house to defendant. H. died leaving heirs (plaintiffs) who brought suit in a PanamA court to foreclose the mortgage. During the pendency of the suit, the Canal Zone was removed from the jurisdiction of Panam,, but the PanamA court carried the case to final judgment in favor of plaintiff.
The Panamd court having no jurisdiction within the Zone, the plaintiff was unable to secure the house adjudged to belong to him, and thereupon brought suit in the courts of the Canal Zone. reciting the above facts and asking that the mortgage be foreclosed. Defendant pleaded to the jurisdiction on the ground that this case is the same as the one pending in the Panama court and as no transfer had been made as provided in Section 41 of Act No. 1 of the Laws of the Canal Zone, the Zone court has no jurisdiction. HELD, that statement of proceedings in PanamA4 court is only a recital and not a request for the enforcement of the decree of that court and hence no transfer is necessary. This is a new suit for the foreclosure of a mortgage and contains all necessary allegations for such a suit. There may be only one remedy but suit may be brought in different jurisdictions until remedy-is obtained. No relief was secured in
PanamA and plaintiff had a right to bring another suit.
Appeal by plaintiff from the Circuit Court of the Second Judicial Circuit; Hon. H. A. Gudger, Judge.
THE facts appear in the opinion.
M. Calder6n, for appellant. G. M. Shontz, for respondent.
LORIN C. COLLINS, J. A memorial was filed and sum-




106.CALDERON v. COQUARD.

mons issued out of the Circuit Court of the Second judicial Circuit, on the 10th day of July, 1905, against the defendant, summoning him to answer the memorial on or before the first Tuesday in August. The defendant was duly served with process and on his appearance filed a demurrer, which being overruled, he was ordered to answer the memorial. He later filed his plea to the jurisdiction of the court which, being set down for argument, was later sustained by the court, the Honorable H. A. Gudger, judge presiding, and the suit ordered dismissed at complainant's costs.
The plaintiff brings the case to this Court on appeal and asks the reversal of the judgment below, assigning errors.
The complaint filed in the case recites that the plaintiff is a resident of the city of Panama" and comes into court in the character of legYal representative of his wife, Magdalena Herrera, and her absent brother, Toma"s Herrera, and that by executive order against the defendant, the possessor of a certain house mortgaged for a certain sum in favor of one Don Tom6ds Herrera, from whom the complainants derived their rights, the said house was sold at public auction and the case adjudicated in plaintiff's favor;
That the said case was commenced before the provisional delineation and acquirement by the United States of the territory. of the Canal Zone; that the said case was heard in the Court of the first judge of the Panama Circuit, who decided that he should and must continue the case for the reason that his jurisdiction was absolute at the time of the commencement of the suit, and furthermore because the parties thereto voluntarily assented; that no Panam al law has suspended or regulated the jurisdiction of the judges in the strip of land ceded to the United States;, that there have been no arrangements adopted by the two Governments for the transfer ofjurisdiction from one authority to the other;
That it is true that the new American judges do not regard the Panamanian judges as having any jurisdiction within the Canal Zone, and the complainant has not been able to take possession of the aforesaid house that was adjudged to belong to him by virtue of the decree of sale, the original of which is attached to the complaint; That to avoid greater loss to his principals, he prays that

1906.




SUPREME COURT OF THE CANAL ZONE. Jan. Term,

the house mortgaged in favor of Don Tom6.s Herrera, by means of public document No. 42, dated March 6, 1897, be sold at public auction and that the amount of the loan contracted by Sefiora Suensson be paid to him from the proceeds of the sale, or, if there be no suitable bids, that the mortgaged house be adjudged to the complainant in payment of the amount of the loan, which amount he computes as $1,588.00 Panamanian currency;
That the principal of the debt and interest thereon have not been paid; that to secure the payment of the principal of the debt and the interest, one Sefiora Suensson granted to Don Tomis Herrera, a first mortgage on a wooden house, described in the complaint, which belonged exclusively to her, and which was situated within the municipal district of Empire, and described in the complaint; that Magdalena and Tom6.s Herrera are the only and universal heirs of their late father, Don Tomats Herrera, and have a perfect right, according to the Civil Code, to request the sale at public auction of the mortgaged house, and claim an immediate payment of the amount indebted; that the said defendant became the possessor of said house by conveyance subsequent to the mortgage above referred to.
The plea to the jurisdiction alleges:
That on the 22nd day of April, 1904, the present plaintiff coinmenced an action against this defendant in the First Circuit Court of the Republic of Panama'; that in the complaint filed in said action the said plaintiff alleged and set forth the same material allegations contained in the complaint in this action; that said action was pending in said Court of Panama at the time the "Laws of the Canal Zone, Isthmus of Panana, enacted by the Isthmian Canal Commission," were enacted; that by Section 1 of Act No. I of said Laws this Court was established; that Section 41 of said Act No. 1 of the Laws of the Canal Zone provides that "The Supreme, Circuit and Municipal Courts (of said Canal Zone), within their respective jurisdiction, shall have the power to hear and determine all cases heretofore arising in the territory of the Canal Zone and now pending in the courts which possessed jurisdiction in and over such territory at the time said suit was instituted and prior to the 26th day of February, 1904; provided jurisdiction over said cases is surrendered and the cases transferred to the courts of the Canal Zone by the courts in which the cases are now pending;" that said Act No. 1 of said Laws of the Canal Zone

10




1906. CALDERON v. COQUARD. 1

was enacted August 16, 1904, which date was subsequent to the time of the commencement of the aforesaid action commenced by the said present plaintiff against the defendant in the aforesaid First Circuit Court of Panama; that the records in said First Circuit Court of Panama disclose the fact that judgment was rendered in said Ciourt against this defendant and in favor- of the plaintiff herein, on the 13th. day of January, A. D. 1905; that said case was never transferred from said Panama court to any court of the Canal Zone having jurisdiction thereof, and that jurisdiction over the said mentioned case in the Panama court was never surrendered to any court of the Canal Zone; that the aforesaid case, having been pending in the First Circuit Court of PanamA at the time of the enactment of the aforesaid Act No. I of the Laws of the Canal Zone, and jurisdiction over said case never having been surrendered by the Panama oourt and said case never having been transferred from said Circuit Court of Panama to this Court, or any court of the Canal Zone having jurisdiction thereof, thi83 Court, by said Section 41 of Act No. 1 of said Laws of the Canal Zone is without jurisdiction to hear and determine this case; that the plaintiff in said action in said Panama court, who is the present plaintiff herein, appeared as his own attorney in said Panama' court, ev en to the rendition of final judgment therein; that hie also appears in this Court in the same capacity. All of which matters and things this defendant avers and pleads for the purpose of showing and alleging that this Court is without jurisdiction to hear, try or determine the action herein.
The plea is filed on the theory that the complainant asks for the enforcement of a decree of the First Circuit Court of the Republic of Panamal and that as the cause had not been transferred to the courts of the Canal Zone, the Circuit Court of the Second judicial Circuit was without jurisdiction in the premises.
Is this a fact, or is the memorial a bill merely for the foreclosure of a mortgage? An examination of the complaint shows that the statement made in regard to the proceedings in the Panamd court is simply a narration of certain events which took place before the beginning of the suit and which might have been entirely omitted from the memorial; that no request is made for the enforcement by the Courts of the Canal Zone of any order entered by the said Panamanian court. The memorial, after narrating the facts in regard to the proceedings had in the Court of the Republic of Panam6, prays that the house mortgaged, be sold at public auction;

11

1906.




SUPREME COURT OF THE CANAL ZONE. Jan. Term,

that the amount of the loan be paid with interest; that the principal of the loan, and interest thereon, is due and unpaid; it describes the mortgage with proper words of reference, and attaches a copy to the complaint; it describes the property by metes and bounds; it asserts that, according to the Civil Code of the Canal /.one, the complainants have the right to request the sale of the property at public auction, and to claim the immediate payment of the amount due. There is also attached to the complaint a certificate of the decree finding Macgdalena and Toms Herrera heirs of Don Toma"s Herrera; also the marriage certificate of Manuel Calder6n and Magdalena Herrera.
The Court finds that every necessary allegation of a bill for the foreclosure of a mortgage on property within the Canal Zone, by a Court of the Canal Zone, is properly pleaded. There is no rule of law that prohibits the bringing of actions in different jurisdictions where the defendant may be found, involving the same subject matter.
The principle governing such cases is, that if full relief can be had in the one suit, nL(, others shall be allowed, and a demurrer lies ; but if the prior action is for relief which could not be granted in the action demurred to, this principle does not apply. And a demurrer is not sustained where the other action is pending in a court of the United States, or of a sister State.
1 Boone Code Pleading, page 78.
There can of course be but one satisfaction, but it appears from the memorial in this case, that no benefit whatsoever had been had by the complainants by reason of the institution and termination of the litigation in the Republic of Panama, and as the Panamanian court ceased to have jurisdiction over the subject matter, the complainant had the right to bring his suit in the Circuit Court of the Canal Zone, in the circuit where the property was situated, and where the Court had ample jurisdiction to do justice between the parties. The judgment of the Circuit Court of the Second Judicial Circuit, in sustaining the said plea and ordering the dismissal of the case at complainant's costs, is reversed and the case remanded for proceedings in conformity with this opinion. The costs of the appeal shall be taxed against the defendant.
CHIEF JUSTICE MUTIS concurred.
Reversed and remanded.

12




ANDRADE v. SEYMOUR et al.

ANDRADE versus SEYMOUR et aL
No. 12. Argued January 8, 1906.-Decided March 1, 1906.
PLEADING. SWEARING TO ANSWER. On objection being made that answer was not sworn to by principal defendant, it was held that an answer need not be sworn to.
SAME. STAMPED PAPER.
Stamped paper is not required in the Canal Zone because the law requiring its use is not in force in the Canal Zone.
EVIDENCE. RELEVANCY.
Certain notes were alleged by plaintiff to have been given by him for gambling debts and proof was offered of his gambling habits, and also to show that he had borrowed money of defendant over the gambling table. HELD, that proof was inadmissible as not tending to prove that notes were given for gambling debts.
SAME. OBJECTION TO ADMISSION. When plaintiff has annexed a contract as an exhibit to his petition, the defendant only can afterward object to its admission as proof on the ground of irregularities in form.
SAME. CONTRACTING PARTY CANNOT ALLEGE NULLITY OF CONTRACT.
Plaintiff offered evidence to prove illegality of the contract. HELD, that a guilty party cannot allege the nullity of an illegal contract into which he has entered voluntarily.
Exceptions by plaintiff from the Circuit Court of the Second Judicial Circuit; Hon. H. A. Gudger, Judge.
THE facts appear in the opinion of Justice Collins.
Oscar Tertin, for appellant. J. M. Keedy, for respondents.
LORIN C. COLLINS, J. The plaintiff, Antonio Andrade, filed his complaint in the Circuit Court of the Second Judicial Circuit, against John Seymour, James M. Hyatt and J. M. Popham. Afterwards the said plaintiff filed an amended complaint in said Court against the said parties, asking for the cancellation of a certain pretended contract, or memorandum of agreement, entered into by said defendant, John

1906.

13




14

SUPREME COURT OF THE CANAL ZONE. Jan. Term,

Seymour, and said plaintiff, Antonio Andrade, on the twentyfirst day of July, 1905.
The said complaint alleges that the defendants, being copartners, conspired together, by tricks and artifices, to defraud and cheat the plaintiff out of a vast amount of propertv., to the value of $50,000.00, as appears from said pretended contract between the defendant Seymour and the plaintiff, a copy of which is filed with said complaint and made a part thereof; that the execution of said agreement was procured by false representations, prior to its execution, and by fraudulent representation as to what the terms of the contract, and the wording thereof, were; that the plaintiff relied upon the statements of the defendants, and believing the Same, and being carried away by the hurry and bustle of the defendant Popham, was induced to sign the contract m-ide a part of the bill of complaint. Plaintiff further alleges that he was not indebted to the defendant Seymour, or to any of the defendants, in any sum. The complaint further alleges that the defendant Seymour was engaged in running a roulette wheel and that the bills mentioned in said complaint are for gambling debts, and not collectible, nor enforceable, in the courts of the Zone; that the plaintiff could not read nor write the Greek, his native tongue, nor read, write or understand English, except by broken, desultory and disconnected words; that he was persuaded to sign his name to a paper which the defendants pretended contained the provisions which he desired, but which in fact did not, and attempted to extort from the plaintiff a vast amount of rum, the product of the plantation of the plaintiff and of which he was the owner; that by reason of divers false and fraudulent representations, plaintiff was induced to sign the pretended contract, and the plaintiff was denied the right of having the contract read to him by some one in whom he had faith; that ad-vantage was taken of a time when plaintiff's attorney was out of town, with intent to cheat and defraud the plaintiff; that the plaintiff does not owe the defendants or either of them anything- that the papers held in escrow are simply evidence of a scrambling obligation won by defendant Seymour from the plaintiff by means of a crooked and unfair wheel, called roulette wheel, and are without consideration, and in violation of law; that the plaintiff




1906 ANDRADE v. SEYMOUR et al. 1

'before learning the contents of the illegal contract had shipped to the said defendant Seymour, rum to the value of $1,400.00, and prays lor the cancellation of the said contrcand for a judgment against the defendants, and each of them, for the amount of the rum delivered, together with costs and charges.
The contract attached to said complaint, and miade by tLhe plaintiff a part thereof, substantially provided that the plaintiff should furnish the defendant Seymour not less than thirty barrels of new rum per month and ten barrels of old rum per month, when the said defendant Seymour might require. And the said plaintiff further offered to furnish to the said defendant Seymour whatever other amount of rum might be required by the defendant Seymour up to the full amount that the plaintiff might have or obtain, or be able to make. The new rum so delivered to be of commonly called "Proof 21" and the old rum of not less than "21 proof." The contract to remain in force until twenty-five thousand gallons (25,000) of new rum, and ten thousand (10,000) gallons of old rum had been delivered. All of the rum to be delivered within fifteen months from the 21 st day of July, 1905. The defendant Seymour was to pay the said plaintiff $1.00 Panamal silver per gallon for the new rum, and $2.00 Panama" silver per gallon for the old rum. And the said defendant further agreed that he would not sell or dispose of any rum of any kind to any merchant in Colon, or to any one representing them. Payments for the said rum to be made within ninety days after each delivery of the rum, and that sixty barrels of new rum should be delivered at once, which should contain 3,000 gallons, more or less, for which the defendant Seymour agreed to pay cash. The said plaintiff further agreed that he was indebted to the said defendant Seymour upon notes and personal obligations which were to be held in escrow and that the amount of old rum delivered should be applied to the payments of said obligations and upon the completion of said payments, the remainder of the money due upon said old rum should be paid to the plaintiff, the same as the payment for the new rum, 4,000 gallons of the old rum to pay the notes held in escrow.
The defendants filed their joint answer to said complaint

15

1906




SUPREME COURT OF THE CANAL ZONE. fan. Term-,

admitting that the defendant Seymour entered into a contract with the plaintiff for the purchase and delivery of rum as stated in said contract, and admit that the prices and payments as set out in said contract were true; that the plaintiff undertook to carry out the terms of the contract and delivered about one-half of the first shipment, and then would deliver no more, and informed the defendants that he would set the contract aside on the grround of fraud, although the defendants urged him to continue under the contract and agrreed to pay him in advance; that the agreement was entered into in good faith on their part with the knowledge and assent of the plaintiff, he knowing full well the terms and conditions. They deny all allegations of fraud and misrepresentation, deny that the contract was not read to the said plaintiff, but aver that the contract while being prepared was carefully read to the said pla-intiff and he was asked if it was what he wanted, to which he answered -yes." They further allege that the said plaintiff showed the contract to others after it was prepared, who read it, and that the plaintiff said that the contract was all right and would enable him to pay his debts. They deny that the said plaintiff did not know the terms and conditions and allege that he knew the contents and acquiesced therein. They deny that the notes mentioned in the contract were gambling debts, contracted at a gaming table, and aver that the notes were for money loaned by the defendant Seymour, or by his partner (Pratt), and had no reference. to, or connection with, gambling, but were cash loans, which the plaintiff agreed in said contract to pay by giving 4,000 gallons of old rum. They further deny all allegations in the complaint of fraud, deceit or misrepresentation, and all allegations in the bill of complaint referring to the debt of the said Andrade contained in the said notes, as being gambling debts.
This cause came on for trial before the Honorable H. A. Gudger, judge of the Circuit Court of the Second judicial Circuit, both parties being represented and witnesses were sworn and evidence heard by the court. The Court found the questions of conspiracy, deception and fraud, as well as the question of the debts secured being gambling debts, were

16




1906. ANDRADE v~. SEYMOUR et a], 1

not sustained by the evidence, and that the plaintiff signed the contract, attached to the complaint, of his own. free will and accord, and that he had failed to show that the debts secured in said instrument were gambling debts. A motion for a new trial was made and overruled by the Court and judgment entered upon the finding. From said judgment the plaintiff appealed to this Court.
The first exception taken by the plaintiff was to the Court overrulingr a motion to strike out the answer of the defendants, as the same was not sworn to by the principal defendant, but was sworn to by the defendant Popham. I am of the opinion that the Circuit Court ruled correctly in this motion, as there is no rule, either requiring the principal defendant to swear to the answer, or for an answer to be sworn to under the code of procedure.
The plaintiff also excepted to the following rulings:
'III. The plaintiff asked the witness, Juan Au de Barrios, the following question: 'What are his (Andrade's) habits for gamblingP' The defendant objected to the question, the Court sustained the objection, and said: 'The Court will permiit questions as to gambling, if they can be connected with the notes in question.' The question before the Court was as to whether or not certain notes, referred to in the contract, were gambling debts, and the question asked the witness had no reference to any of these notes, nor to any fact connected with them. The plaintiff excepted to the ruling of the Court."
11I11. The plaintiff introduced one Cosmos Zambetti, who was asked the following question: 'Did you ever see Mr. Seymour loan Mr. Andrade money over the gambling table ?' The defendaint's attorney objected to the question, and the Court ruled as follows: 'I hold now that at the present the burden of proof is on these gentlemen (referring to the defendants) to show that these were not gambling debts. If you have witnesses to show the exact transaction I will admit them, but not otherwise. If you have any witnesses of the time these notes were given, that is all right, 'they must show the time and this identical date. I rule out the question.' To this ruling the plaintiff noted an exception."
The ruling of the Court in excluding the question as to the gambling habits of the plaintiff was in conformity with all the rules of evidence, as the gambling habits of the plaintiff

17

1906.




SUPREME COURT OF THE CANAL ZONE. Jan. Term,

were not under consideration and no light could be thrown by the answer of said question as asked, on the real question at issue whether the notes mentioned in the contract were given for gambling debts. Neither would an answer to the question, whether the witness had ever seen the defendant Seymour loaning plaintiff money over the gambling table throw any light upon the point of issue. Therefore each of these rulings of the lower Court are sustained.
The last exception urged in this Court is as follows:
"IV. The defendant's attorney offered as evidence in the case the contract which is sought to be set aside by the plaintiff, which is referred to in plaintiff's complaint, and a copy of which was filed as a part of said complaint, and about which the plaintiff had in the examination of witnesses asked questions, and about which the subscribing witnesses thereto hat without objection given their evidence. The plaintiff excepted to the admission of the contract, assigning as his reasons:
"(1) That the contract is not in form;
"(2) That it is not registered;
"(3) That it is not stamped as required by law.
"In overruling these objections the Court stated:" 'The object of this suit is to cancel this contract. How can that be done unless the contract is introduced? Without it there could be no trial of this cause. The Court overrules the objection and the contract is admitted.' The plaintiff excepted to this ruling of the Court."
This exception is not well.taken as it appears from the bill of complaint itself, that the contract is made a part of the complaint, and as the plaintiff was asking that the contract should be cancelled, it must of necessity be received in evidence, unless excluded on objection made by the defendants, which was not done; and as the rule of procedure further provided that all documents relied upon shall accompany the petition and of course be considered in evidence, unless objected to by the defendants.
There being no other assignments of error, for the reasons given above, the decision of the Circuit Court of the Second Judicial Circuit, should be affirmed.
F. MUTIS DURAN, C. J. I concur with Justice Collins in his final decision, but base my opinion to some extent upon different grounds.

18




1906. ANDRADE v. SEYMOUR et a]. 1

Exceptions II and 111. Under the code of civil procedure in force in Panam a* and in the Canal Zone, indirect evidence is admitted without restriction when it is impossible to obtain direct evidence. During the trial in the lower court, no direct proof was given that the notes in question were gambling notes, and it was therefore proper for the plaintiff to offer indirect testimony as to this point. However, if the plaintiff had been allowed to prove his point, he would have shown that he had signed a contract based upon an illicit consideration, and hence null and void. Article 1742 of the Civil Code provides that he who executed such a contract shall not declare the nullity. The plaintiff would therefore not be allowed to introduce testimony tending to show that he had entered into a null contract, and hence the lower court ruled correctly in excluding this proof. See also Articles 1523, 1524, 1740 and 1741 of the Civil Code and Article 95 of Law 153 of 1887.
Exception IV. The ruling of the lower court on this exception is sustained, not only for the reasons given, but also because the validity of private contracts is not affected by the fact that they are not registered. Nor is stamped paper necessary, because Article 9 of Law 79 of 1904, which makes this requirement regarding stamped paper, is not in force in the Canal Zone, as it applies only to officers of the Government of Panama".
Affirmed.
SEYMOUR et al. versus ANDRADE.
No. 18. Petition filed June 22, 1906.-Decided June 25, 1906.
MANDAMUS. ESSENTIALS OF PETITION. Must be very explicit, must show well defined right in petitioner and must be made on affidavit.
SAME, WRIT OF. WHEN GRANTED. Only when usual and ordinary methods of procedure have been exhausted and there is no other remedy; when rights of petitioner are prejudiced; and when there would be a failure of justice if writ were denied.
Petition by defendant for writ of mandamus to Circuit

1906.

19




20 ~SUPREME COURT OP THE CANAL ZONE. Jn em

Court of the Second judicial Circuit; Hon. H. A. Gudger, judge.
Defendant in lower court moved to dismiss the plaintiffs' attorneys on -the ground that they were the Prosecuting Attorney for the Canal Zone and his assistant. The motion was overruled and the defendant excepted. The Court then 'ruled that an appeal must be taken immediately and that the cast! would not proceed until a decision on the exception was rendered by the Supreme Court. Defendant perfected his appeal within the time required. At a later session, the trAal judge ruled that the case must proceed in the lower court until final judgment and that the bill of exceptions would not be signed. The petition in this case prays that the trial judge be ordered to sign the bill of exceptions.
Oscar Terin and T. C. [linckley, for defendant and petitioner. No appearance for plaintiff.
LORIN C. COLLIS, J. An action of mandamus is an original suit of a civil nature brought in the name of the state on the relation of one who can show a well-defined right thereto. The petition must be very explicit, giving all the facts and circumstances and must be made on affidavit, as it prays an extraordinary remedy. The writ of mandamus will be granted by a superior court only when the substantial rights of the appellant are prejudiced in the lower court, and only when the appellant is unable to obtain redress in any other way.
In the case at bar there seems to be no substantial injury done the appellant, as the matter of permitting attorneys to practice is at the discretion of the court. Should an attorney object to another's participating in the trial of a case and his objection be overruled by the Court, he may except to the ruling~ of the court and bring his exception to this court only after final judgment, as is provided by the rules of procedure prescribed by this court. *Hence the appellant had not exhausted the usual and ordinary methods of procedure before applying for the writ of mandamus.
The petition in thi s cause is not verified, does not show that there would be a failure of justice if the writ were

20

Jan. Term,




SEYMOUR et a] v. ANDRADE.

denied, and does not show that all other methods of redress have been pursued without benefit.
Therefore it is considered by the Court that a rule to show cause should be denied, the writ of mandamus be refused and the petition dismissed at petitioner's cost.
The CHIEF JUSTICE concurred.
Writ denied.
BOILLEAU versus BARRIL.
No. 20. Argued July 20, 1906.-DeCided August 8, 1906.
CONTRACT.
Governed by law of state where made and if good there is good anywhere.
EVIDENCE. PLAINTIFF USING DEFENDANT AS WITNESS. Party calling other party as witness is bound by the testimony given.
NOVATION.
In a suit on a note which defendant alleges has been cancelled by other
notes and he can not produce these notes, other evidence is admissible to
prove the cancellation of the first note.
Appeal by defendant from the Circuit Court of the First Judicial Circuit; Hon. F. Mutis Duran, Judge.
The facts appear in the opinion.
J. IMl. Keedy and G. A. Shontz, for appellant. A. Jesurdn, Jr., for respondent.
H. A. GUDGER, J. This is a civil action that was tried in the First Judicial Circuit of the Canal Zone. Judgment was given for the plaintiff in the sum of $650.00 United States currency. Motion for a new trial was made and overruled and the defendant appeals and brings the case to this court for review.
At the trial the plaintiff offered in evidence a written agreement to pay $730.00 United States currency in nine monthly consecutive payments, of $80.00 each, of the first

1906.

21




SUPREME COURT OF THE CANAL ZONE.

eight payments, and $90.00, the last, commencing said payments on February 1, 1905.
The plaintiff also called the defendant as a witness in his behalf, and he testified that he signed the note in question; that he (lid not owe the same; that, in the month of April after its execution, he, the defendant, and the plaintiff, at their homes in Easton, Pennsylvania, by mutual consent, agreed to a cancellation and payment of the note in question by the execution, on the part of the defendant, of three separate notes, namely, two for $200.00 each and one for $297.00; that these notes were delivered to, and accepted by, the plaintiff in full payment and cancellation of the note sued on in this action; that, upon said notes as delivered to the plaintiff and accepted by him, the defendant had paid several amounts to the plaintiff, as per agreement, and exhibited two receipts for $25.00 each, signed by the plaintiff, which had been credited upon the larger note; that this agreement, the execution of the notes and acceptance of same, by the plaintiff, occurred in Easton, Pennsylvania; that the notes were in the possession of the plaintiff in the United States and that he had no power to produce the same, and that be had notified the attorney for the plaintiff of this agreement a year ago. The attorney for the plaintiff, at the trial, used the following language: "I admit the honesty and veracity of these receipts of Mr. Boilleau, and although I am not able to compare the signature on these notes with the other signatures, I am willing to admit these payments and change my complaint accordingly." Both of the subscribing witnesses to the note were present in the court below and it was not necessary for the plaintiff to have called the defendant, or used his evidence; but, having done so, he must be bound by the evidence he adduced. Does the evidence of the plaintiff show a payment and discharge of the obligation sued on? It seems clear that the parties to this obligation had a perfect right to enter into any agreement with reference to the same, that might seem to them to be just and proper, without consulting attorneys in the matter.
It is further insisted that the agreement made in Pennsylvania is not a valid contract, or, if valid, cannot be availed

22

July Termy,




BOILLEAU v. BARRIL.

of in this action, unless it can be proved by the production of the paper writing itself, for the reason that, under the laws of Panam6, as set forth in the Colombian Code and enforceable in the Canal Zone, no contract for more than $500.00 -can be enforced unless the same is reduced to writing. It is insisted that the obligation sued upon is the only proof in this case that should be considered and that any defense thereto must be proved by a paper writing. Is the defense set up such a contract as comes within the provisions of the statute referred to? Most certainly not. And the court can find no hard and fast law such as that urged in support of this paid obligation. Law 153 of 1887, Articles 91 to 93, inclusive, sufficiently disposes of this contention. The last paragraph of Article 93 provides that"such cases are also excepted in which it shall have been impossible to obtain written proof, as well as the cases expressly excepted by law." It would be unconscionable and revolting to all sense of justice if payment of an obligation could not be proved by the obligor, or against the obligee. There is, however, a universal rule of law supported and sustained in all civilized, countries which disposes, in our opinion, most effectually of this case. This contract having been made in Pennsylvania, must be construed and governed by the laws of Pennsylvania and not by the laws ot Panama and the Canal Zone. It is apparent, from the examination of the record, that it was the understanding of the parties that performance of the contract should take place also in Pennsylvania, from the fact that there is evidence that all of the payments so far made upon the three notes, given in payment of the old obligation, were made at Easton, Pennsylvania, showing that the arrangement of the parties was that payment should there be made. Therefore the universal rule, recognized by the comity of nations that a contract that is good in the place where it is made is good everywhere, unless it is injurious to public rights and morals, or against public policy, must control. Promissory notes, by the laws of Pennsylvania, are negotiable instruments, and if assigned, before maturity, for a valuable consideration to a third person, are not open to any defense on the part of the maker. Therefore, if judgment should be affirmed in this

1906.

23




SUPREME COURT OF THE CANAL ZONE.

case and the plaintiff had assigned the three notes before maturity to some one in Pennsylvania, though the defendant should pay the judgment here, he would still be liable upon the notes in the States.
The Court cannot, therefore, sustain a judgment that might prove to be the agency by which a great act of injustice and wrong might be perpetrated. All the credit that has been given to the defendant on his payments was $80.00, and yet it is conclusively proven that $50.00 more had been paid. If, therefore, the defendant cannot receive credit for the $50.00 proved and admitted to have been paid, why might he not lose the whole sum remaining?
We are of the opinion that the testimony introduced in this cause shows that the parties, by mutual consent, made and entered into a new contract and that this contract was about the same subject matter and operated as a payment and cancellation of the obligation sued upon.
The judgment of the court below is reversed and judgment is entered against the appellee for the costs in this action.
JUSTICE COLLINS concurred.
Reversed.
PERRENOUD et al. versus SALAS.
No. 14. Argued July 10, 1906.-Decided August 8, 1906.
PUBLIC DEED WITH AGREEMENT OF REDEMPTION. Cannot be rescinded by a subsequent deed that extends.term for redemption and changes the consideration. DISSENT. The two deeds are to be considered together and if the second deed is executed before the expiration of the original term of redemption, the second controls.
SAME. TENDER OF PURCHASE MONEY BY SELLER. If not made, the deed becomes absolute at expiration of the term of redemption.
Exceptions by plaintiff from the Circuit Court of the Third Judicial Circuit of the Canal Zone; Hon. Lorin C. Collins, Judge.

24

July Term,




PERRENOUD et al. v. SALAS. 2

THE facts appear in the two opinions.
W. HI. Carrington, for appellant. No appearance for respondent.
F. MUTIS DURAN, C. J. By public deed of October 21, 1903, Catalina Montes de Perrenoud, duly authorized by her husband, sold to Jacob L. Salas, with an agreement of redemption, two houses belonging to her and situated in what is now Cristobal; the price being $2,800.00 Colombian silver, and the term of redemption ten months after the execution of the deed. Afterward, by public deed dated June 15, 1904;, it appeared that the same parties entered into a new contract by which they extended for six months the term of redemption, and raised the price to the sum of $5,000.00, Colombian silver, charging interest at the rate of 3 per cent per month on said amount. According to Title 23, Book 4 of the Civil Code, which refers to contracts of sale, the sale of real estate of October 21, 1903, is a contract that is considered absolute, that is to say, one that can be rescinded but not altered by subsequent contracts, since the parties had agreed upon the thing sold and the price thereof, and the deed had been duly executed before a notary (Art. 1857 of the Civil Code and Art. 681, judicial Code). The agreement of redemption, according to the Civil Code, is supplementary or collateral to the contract of sale, the seller reserving to himself the right of redeeming the thing, paying the price agreed upon for the redemption, or the price originally given (Art. 1939). The seller in the contract of October 21, 1903, agreed to redeem within ten months, but afterward extended the time six months more. But in the new contract made between the parties, they changed the terms of the principal contract, raising the price of the thing sold and agreeing to pay interest on the total amount, thus making a new contract of loan entirely different from the first one but without rescinding it. So that there were two contradictory contracts about the same thing; this could not be done, according to law. The first contract remained in force.
Although the plaintiff and defendant had agreed that they would voluntarily make the change in the term for redemp-

25




SUPREME COURT OF THE CANAL ZONE. July Term,

tion, the defendant said that the plaintiff did not have the money to make the redemption on the day appointed for that purpose, and the plaintiff did not prove at the hearing that she had tendered the money. Therefore, the plaintiff lost the right to redeem and the two houses became the absolute property of the defendant. The decision of the lower court is affirmed.
H. A. GUDGI3R, J. This cause was tried before his Honor Lorin C. Collins, judge of the Third judicial Circuit. judgment was entered in favor of the defendant. Motion for a new trial and motion overruled.
The plaintiff alleges that he conveyed to the defendant on the 20th day of October, 1903, two houses, the consideration being $2,S00-00, Colombian silv-er, and that said document of conveyance contained a clause of reselling in the following words, namely: "With the express condition that they be resold to me at the expiration of ten months from this date." The proof shows that of this amount, $2,000.00 was actually paid the plaintiff, and $800.00 was added as interest on the amount of $2,000.00 for the ten months embraced in the reselling clause above set forth. Before the expiration of the ten months, the parties entered into a new agrreement to the effect that the time of reselling be extended for an additional six months, and the consideration made $5,000.00. This fact is shown in document No. 100 made in the presence of witnesses, a notary public, on stamped paper, and duly acknowledged and registered with all the formalities of law. The proof also shows that the advance from $2,800.00 to $5,000.00 was as follows: Original sum, $2,800.00; paid plaintiff in cash $100.00; and for estimated improvements on the property, $2,100.00; total $5,000.00.
At the expiration of the first period no amount was paid or tendered to the defendant, but instead thereof the new agreement, entered into between the parties as shown in document No. 100, was relied upon by both parties. The condition of this document No. 100, the last executed, is as follows: "That by mutual consent and with our free and deliberate will we have agreed to renew the contract or (leed of sale under the legal conditions of reselling to the

26




PERRENOUD et al. v. SALAS.

original vendor as appears in public instrument No. 125, drawn up in that same Notary with all the legal formalities on the 21st day of October, 1903, subject to the following conditions: First, the term in which the reselling of the l)remises may be accomplished is hereby extended to another six months besides the time set forth in the above mentioned document so that the said term shall expire on the 21st day of the month of February in the coming year 1904." Then follow in the regular order the other conditions, such as consideration, acknowledgment before a notary, and other formalities required to complete, as a perfect document, this instrument. At the trial both document No. 125 and document No. 100 were introduced by each party as their cause of action and defense, and neither party objected to the consideration of both these documents.
It is seriously contended that the first document (No. 125) was absolute at the expiration of the ten months therein named, and that document No. 100 is null and void for the reason that no payment was made on August 23, 1903, and hence the plaintiff, notwithstanding the extension of the time as set forth in document No. 100 to six months after August 23, 1903, lost all right of redemption or having the property reconveyed to him. In other words, the contention is that document No. 125 is the act of the parties and that the parties had no legal right to make document No. 100 and, therefore, it is null and void. Is this true as a principle of law? Shall we be governed by the first document and treat the second as a nullity? Both these documents seem to be of equal solemnity and the parties, so far as appear, were at each timc fully capable of binding themselves. Naturally the enquiry is made, why should not the two documents be construed as one whole and effect be given to them as such. If, indeed, such construction should not be given to them as a whole then why should not the last document, the final act of the parties, be considered as the controlling one as between themselves. It cannot be contended that the last document (No. 100) is not within itself perfect; that it did not at the time reflect the will of the parties; and that it was not made in strict obedience to all the formalities of law. The change, and the only change, between the two was giv-

27

1906.




28 SUPREME COURT OF THE CANAL ZONE. futi' Ternm,

ing to the plaintiff an additional six months in which to redeem, and increasing the consideration to $5,000.00 in order that needed improvements might be placed on the property itself.
A contract is the mutual agreement voluntarily entered into between contracting parties- and may be made in any case where the parties are capable of binding themselves, have control of the subject matter, and such contract is not forbidden by law.
In the case at bar all the requisites for making both document No. 125 and document No. 100 were present. So far as the second document, No. 100, is concerned, it is in exact terms and formalities and on an equal footing in every respect with the first. The question then is, whether or not these parties making the second agreement in due form, can change, enlarge, modify or even abolish one previously made by themselves. As both these documents were offered in evidence by the defendant as well as by the plaintiff, and no objection was made, and no statement in the record is shown to the contrary, it is reasonable to assume that the judge passed upon them as a whole. In this it is my opinion that he was correct.
The attorney for the plaintiff contends that, taking these documents either separately or together, they constitute a mortgage at least for and during the term of the ten months set forth in the first, and six months set forth in the latter, and that "once a mortgage always a mortgage." He recites many cases and decisions made by the courts of the United States to sustain this view, and calls to his aid the application of the rules of equity. Equity is defined by the law writers to be "the correction of that wherein the law by reason of its universality is deficient." In other words, it signifies, used in a broad sense, "natural justice." It is the power conferred on the courts to do equal and exact justice between contending parties when the facts either admitted or proved show that justice cannot be administered under the stern rules of law. Following the English law and the practice in the United States, there could be but little doubt as to the right of the court in certain matters to give equitable relief. It must be understood, however, that the law as

28




1'ERRLNOUD et at. v. SALAS. 2

administered by this court does not admit of equity practice as a separate and distinct branch of jurisprudence. Common law does not exist in the Republic of Panama, nor are judicial decisions within the Republic of anly binding force. (See Article 17, Colombian Code). This article and the rule laid down by the same must be understood to apply only to the decisions of the courts of the Republic of Panama" and not to decisions made by the Supreme Court of the Canal Zone.
Again, the statute regulates such transactions as set forth in the pleadings in this cause, and the statute is mandatory and must be followed. It appears, without contradiction, that neither at the expiration of the ten months, nor at the expiration of the six months, nor, indeed, at any time before the commencement of this suit, did the plaintiff pay or tender to the defendant either the $2,800.00 or the $5,000.00. Failing to do that at the times set forth, he loses ipso facto his right, and the defendant has the right de facto to take charge of the property for the reason that the statute makes the document, whether you consider No. 125 or No. 100, absolute and irrevocable.
I concur, with His Honor, the Chief justice, that the judgment of the lower court must be sustained, yet I cannot concur with him that document No. 125 is enforceable and that document No. 100 is null and void. The judgment of the court below is affirmed.
Affirmed.

29




SUPREME COURT OF THE CANAL ZONE. July Term,

LAVERGNEAU versus JANEL.
No. 15. Argued July 14, 1906. Decided August 16, 1906.
POWER OF ATTORNEY.
A power to represent principal during his absence may be considered as continued or renewed after his return if he acquiesces in acts of the attorney.
SAME. COMPENSATION OF ATTORNEY. May be fixed by court under advice of experts if the work done is nonjudicial.
Appeal by defendant from Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger,Judge.
THE facts appear in the opinion.
Ram6n M. VaMs, for appellant. Oscar Ter4n, for respondent.
F. MUTIS DURAN, C. J. It appears from the evidence that the appellant, Emile Janel, being in poor health, desired to make a trip to Jamaica, and gave a general power of attorney to the respondent to attend to his business during his absence, and put respondent in possession and management of his business. On his return from Jamaica, appellant was still not well and left respondent still in charge of his business, and subsequently went to Costa Rica for his health and remained there for about three months. The parties not being able to agree upon the compensation to be fixed, suit was brought and the court found that the appellant was indebted to the respondent in the sum of $1,365.00 United States currency, together with the costs of the action. From this judgment appeal was prosecuted.
There are only two points necessary to be considered: as to the amount of the compensation to be allowed; and as to whether the return temporarily of the appellant revoked the power of attorney and deprived respondent of compensation thereafter.

30




1906. LAVERGNEAU v. JANBL. 3

The power of attorney was conferred to represent the appellant in legal matters if it should be necessary, but it does not appear that respondent had represented appellant in that capacity. He acted simply as an agent for the appellant, and therefore the provisions of the Judicial Code which fix the compensation to be allowed agents who act in judicial matters do not apply to this case. The provisions that do apply are those of Title 28, Book 4 of the Civil Code, relating to contracts of mandate (Arts. 2142, 2143, 2149 and 2150).
With respect to the amount of the compensation, the court below fixed it according to Article 2143, following the advice of some of the witnesses who were familiar with the business of the plaintiff. The court finds that the compensation allowed was reasonable.
Referring to the second point mentioned above, it appears from the record that, not only after the return of the defendant from Jamaica, but also after his return from Costa Rica, the plaintiff continued with the acquiescence of the defendant to administer his affairs for about nineteen and a half months in all. According to Article 2149 of the Civil Code, this is considered an implied power of attorney, or a renewal or continuance of the original power. Plaintiff was therefore entitled to compensation for the entire period.
The decision of the court below is affirmed. JUSTICE COLLINS concurred.
Affirmed.

1906.

31




SUPREME COURT OF THE CANAL ZONE. July Term,

CALDERON versus COQUARD.
No. 16. Argued July 14, 1906.-Decided August 16, 1906.
ATTORNEY. POWER OF.
Powers are granted and may also be substituted by public instrument or by memorial addressed to the court.
APPEAL.
An appeal may be taken by the party, by the attorney, or by any person who gives security that his action will be approved by appellant.
APPEAL. NOTICE OF.
To be given within required term after date of judgment and not date when copy of judgment is served on appellant. If notice is not given in time, the trial judge cannot grant the appeal. CERTIORARI. WRIT OF.
Petitioner perfected his appeal after lapse of term for appealing. Appeal being refused by the trial judge, this petition is brought to compel the granting of the appeal. HELD, that this writ cannot be used as a substitute for an appeal. It is used to complete an imperfect transcript or to complete proceedings when the lower court refuses to do so upon erroneous grounds. Error or injury must be alleged and the petition must show a proper case upon its face. JUDGMENT.
Notice of rendition of judgment need not be served upon parties.
Petition by plaintiff for a writ of certiorari to the Circuit Court of the Second Judicial Circuit; Hon. H. A. Gudger, Judge.
Judgment against the plaintiff was rendered in the lower court on May 15, 1906; and a copy of the judgment was sent to him in Chorrera, the copy being received on May 20. The plaintiff appointed an attorney who perfected the appeal on May 30, 1906. On objection by attorney for defendant, the lower court refused to grant the appeal.
Oscar Terain, for petitioner. G. M. Shontz, for defendant.
LORIN C. COLLINS, J. and F. MUTIS DURAN, C. J. This cause comes before the Court on an application for a

32




writ of certiorari to remove from the Circuit Court of the Second judicial Circuit the above entitled cause. Objection is urged to the petition for a writ of certiorari for the reason that the present attorney for the plaintiff and petitioner is not authorized either to cive notice of an appeal in the court below, or 'to file a petition for a wvrit of certiorari in this Court.
Under the judicial Code of Panama, powers of attorney are con-ferred by public instrument, or by memorial addressed to the court in which the suit is brought (Arts. 328 and 329, pp. 16 and 17) and may be substituted in the same manner, that is to say, by public instrument or by memorial, although the aC-ttorney-in-fact is not specially authorized to make the substitution (Arts. 334 and 335, pp. 18-t9). According to the Rules and Regulations of the Courts of the Canal Zone, the authority to appear as an attorney may be given verbally in open court. Although these rules say nothing about the substitution of an attorney, it is clear that the substitution may be made in the same manner, that is, verbally, or by writing, provided it be addressed to the Court. Appeals, according to the laws of Panama", may be made by the parties themselves, or by their attorneys-in-fact, and, in urgent or special cases, by any person appearing for the appellant, if that person gives security that the person for whom he acts will approve his action (Art. 345, Judicial Code, which is in conformity with Art. 1506 of the Civil Code). The objection is not sustained.
However, the petition is insufficient in any view of the law, for the following reasons: It is not alleged that any injury has been d one by denying the appeal, nor does it appear that in the decision, or in the proceedings in the court below there was any error or injury done. It does not appear from the petition that,, although the plaintiff, at that time Manuel Calderon, agent, was absent from the Canal Zone and the City of Panama" on the day of the rendition of the final judgment, he was not informed of the rendition of said judgment in ample time to have taken an appeal in accordance with the rules of the courts of the Canal Zone; the averment being merely that a copy of the judgment was forwarded to the plaintiff in the town of Chorrera, Republic of Panamd,

CALDER6N v. COQUARD.

1906.

33




SUPREME COURT OF THE CANAL ZONE. July Term,

and did not reach the hands of the plaintiff until the 20th of May, 1906. He might, notwithstanding, have known that judgment had been rendered although he had not seen the formal copy of the judgment.
It also appears from the petition that after some talk with the trial judge between the 21st and 29th days of May last, a notice of appeal was filed with the clerk of the court of the Second Judicial Circuit on May 29th. On May 30th the plaintiff in person appeared before the trial judge of the Second Judicial Circuit and signed an appeal bond, which was approved. Two days thereafter, a motion was filed in court by the defendant asking that said order granting an appeal be set aside. At the hearing of said motion on the 5th day of June, said motion was sustained and the order allowing an appeal vacated. There is nothing in the rules or practice of the courts of the Canal Zone that requires personal service on a party, or on his attorney, of the rendition of judgment, the rules providing that the appellant shall give notice of appeal on the day final judgment is entered, or within five days thereafter. This rule, although its operation is in this case severe, deprives the trial judge of any right to grant an appeal after the five days have expired.
Let us now consider the case in the view contended for by the attorney for the appellant, which is that judgment is not final, for the purpose of appeal, until the party against which it operates, is notified thereof. The appellant knew on the 20th day of May, 1906, that final judgment had been rendered against him. There is no suggestion in the petition that there was any extension of time asked for or granted by the trial judge, and yet, it was not until the 29th day of May that the notice of appeal was filed with the clerk of the lower court. The contention made by the appellant in argument was that the time in which the appeal should be prayed must date from the notification to the party affected by the rendition of final judgment. Even assumiing such a contention to be the law, notice of appeal was not given in time.
"The writ of certiorari does not lie to enable the court to revise a decision upon matters of fact; nor matters resting in the discretion of the judge of an inferior court, unless by

34,




1906 CALDER6N v. COQUARD. 3

special statutes, or where palpable injustice has been done. It does not lie where the errors are formal merely, and not substantial, nor where substantial justice has been done though the proceedings were informal; nor where the proceedings are not void on their face and show no arbitrary action on the part of the trial judge." "Certiorari Wll not lie as a substitute for an appeal from an interlocutory order of a superior court." "The evidence can-not be reviewed upon certiorari, nor the rulings on the admission of evidence." "It is granted or refused in the discretion of the superior court." "The application must disclose a proper case upon its-face." "The judgment is either that the proceedings below be quashed or that they be affirmed, either wholly or 'in part." Bouvier's Law Dictionary, Rawle's Revision.
It will be seen from the above citations that a writ of certiorari could not be issued in this case, its province being ''in most of the States of the United States to remove from the lower court proceedings which are created and regulated by statute merely for the purpose of revision and to complete the proceedings when the lower court refuses to do so upon erroneous grounds." "It is used also as an auxiliary process to obtain a full return to other process, as when, for example, the record of an inferior court is brought before a superior court by appeal, writ of error, or other lawful mode and there is manifest defect or suggestion of diminution, to obtain a perfect transcript and all papers." "It is true that in many States, by reason of statutes, and in the Federal courts under acts of Congress, a writ of certiorari is authorized to issue to bring up the records of that court for its revision and determination." Bouvier's Law Dictionary.
The above principles are those relating to the writ of certiorari under the American law and must be applied, as the writ referred to in Sections 9 and 24 of Act No. 1 of the Laws of the Canal Zone is a common law writ.
Under the laws of Panama', the writ of certiorari (recurso de hecho) is governed by the provisions of Chapter 2, Title 7, Book 2 of the judicial Code, and may be applied for when an appeal has been denied in a judicial proceeding. The aggrieved party applies to the superior court which grants the appeal and decides it, if it is legal. The provisions of that

1906

35




36 ~SUPREME COURT OF THE CANAL ZONE. Jl em

chapter must, however, be complied with, and in the present case this has not been done. The petition for a writ of certiorari is denied and the petition dismissed at the cost of the petitioner.
Petition denied.
CRUISE versus ALLEN.
No. 19. Submitted July 12, 1906.-Decided August 16, 1906.
REAL PROPERTY. TITLE TO.
Cannot be transferred except by a duly registered deed.
SAME. TITLE BY ADVERSE POSSESSION. Cannot be acquired as long as tenants or agents of the original owner are in possession of the property.
Appeal by defendant from the Circuit Court of the Second judicial Circuit; Hon. H. A. Gudger, judge.
THE facts appear in the opinion.
W. H. Carrington, for appellant., T. C. Hinckley, for respondent.
LORIN C. COLLINS, J. This is an appeal from the decision of the Circuit Court of the Second judicial Circuit. It appears from the evidence that one Thomas Cruise, being the owner of one house and shop at Las Caseadas, left the same in charge of one John Brown on his departure to Jamaica in 1889, in which place he remained until 1905. On his return, he found one Louisa Allen in possession of said property and demanded possession, which was refused, and hence this action. The Court below awarded the possession of this property to the plaintiff.
William Lewis testified that Cruise left John Brown in the possession of said houses. When John Brown left, he gave them in 'Charge of one Robert Green. When Robert Green left. he gave them in charge of one Sarah Cushing. Witness Markland testified to the possession of Brown and Green

36

July Term,




and that Green was in possession until 1904, at which time Louisa Allen took possession. Also that Mrs. Allen was not in the house at the same time as Robert Green. Witness Davidson -testified that he was a tenant at the time that Cruise went to Jamaica and that Brown was in charge of the property, and that he never paid any rent to a Chinaman, or recognized him as landlord. Witness Cushing testified that when she took possession of the houses, Robert Green was in charge; that he left her in possession and that when she left, she left the houses in charge of John Level; that she knew nothing of Mrs. Allen taking possession of the houses. Green told her that he was going to Port Limon and would leave the houses in her charge and John Level's and that if Thomas Cruise ever returned, the houses were his. Mrs. Cushing testified that she ncver saw Mrs. Allen
-in possession of the houses.
The defense called John Level who testified that when Cruise left he delivered the possession to a Chinaman named Alfonso, for a debt. He left john Brown in charge of the dwelling house. John Brown lived in the house as a servant to Alfonso- after he took the shop. He did not know what time the Chinaman took over the house. Mrs. Allen was in possession in 1901; Robert Green and Mrs. Cushing had it for a Chinaman; after they left he (Level) was the master; Mrs. Allen took charge about four years ago, getting possession from Alfonso; Robert Green was living there. He believed that Alfonso was in possession. Robert Green was in the small house, the large one being let. Brown was there five years as the Chinamnan's butler. Sarah Cushing was the last one living there and gave Level possession. Joseph Wright testified that Mrs. Allen took the house over last year. The defendant testified in her own behalf that she has had the houses since 1902. She never asked for any money for their rent and knew that Sarah Cushing was there. The Chinaman told her that he left Green in charge; that Mrs. Cushing lived there before she took charge; that she went to Robert Green and said she had a claim on the houses and wanted them and he moved out and left them for her-. She further testified that she saw Level and that she asked him for the houses which Alfonso owned and he

1906

CRUISE v. ALLFN.

37




SUPREME COURT OF THE CANAL ZONE. July Term,

said he was there to give them over; that she had paid taxes every year and presented receipts for a period from January 1 to December 31, 1905. It appears from a consideration of this evidence that while Mrs. Allen may have had an understanding with Alfonso to the effect that she was the owner of the houses, she never had any open, adverse or notorious possession of the same until the departure of Sarah Cushing, and the evidence, uncontradicted, of witnesses Lewis, Markland and Sarah Cushing, and the defendant herself, shows that Sarah Cushing was left in possession for Cruise and that Mrs. Allen never took possession of the property in any physical sense, or through tenants, until the departure of the witness Cushing in September, 1904. Hence, there have been no rights acquired by Mrs. Allen by prescription.
Nor did Mrs. Allen show any contract or title in settlement of a debt and by which the houses were given her by a proper conveyance. Houses, according to Art. 656 of the Civil Code, are buildings, and buildings are real estate, according to the same article. The ownership of real estate is not transferred except by a public deed duly registered in accordance with Arts. 1857 and 756 of the same code. The defendant and appellant not having shown any title of that kind failed to prove that she was the legal owner of the houses and that she had the legal possession. The judgment of the court below is affirmed.
The CHIEF JUSTICE concurred. Afimd

38




CANAL ZONE v. WRIGHT et a].

CANAL ZONE versus WRIGHT et al.
No. 17. Argued July 9, 1906.-Decided August 31, 1906.
JUDGMENT. TIME OF RENDERING. When judgment was rendered immediately after verdict, instead of waiting two days, it was held that defendant should have objected at the time, since Section 224 of Act No. 15 is not mandatory unless invoked by the defendant.
LARCENY. INTENT.
Defendants took a hand-car without permission and rode on it until arrested. HELD, that this constituted larceny as a larcenous intent was to be presumed. The appropriation completed the crime regardless of their intent as to the ultimate disposition of the car.
Appeal by defendants from judgment of the Circuit Court of the First Judicial Circuit; Hon. F. Mutis Durin, Judge.
THE facts appear in the opinion.
T. C. Hinckley, for appellant. G. M. Shontz, for the Canal Zone.
LORIN C. COLLINS, J. This cause came into this Court by appeal from the First Circuit on an information charging the defendants with the larceny of one pump hand-car of the value of two hundred dollars United States currency. On the trial of said cause the following evidence was heard:
"Agreed statement of facts, between Mr. G. M. Shontz, Assistant Prosecuting Attorney for the Canal Zone, and Mr. T. C. Hinckley, representing the defendants in the ease of the Canal Zone v. Fred Wright et al.
"The Government of the Canal Zone through its Assistant Prosecuting Attorney, G. M. Shontz, filed an information against Fred Wright and Joseph Sergent, on the 9,1 day of June, 1906, charging these defendants with the crime of larceny. To be more specific the information reads as follows, to-wit: -That Fred Wright and Joseph Sergent on or about the first day of June, 1906. at or near Corozal, and within the jurisdiction of this Court, did then and there one pump hand-car of the value of two hundred dollars. United States currency, of the goods and chattels of the

1906.

39




SUPREME COURT OF THE CANAL ZONE. July Term,

Panamlt Railroad Company, then and there being found, feloniously take, steal and run away, contrary to the law in such eases made and provided, and against the peace, government and dignity of the Canal Zone.'
"The defendants being arraigned entered a plea of not guilty and not being able to retain counsel, the Court appointed Mr. T. C. Hinckley to defend them. The Government introduced six witnesses at the trial, while the defendants introduced none nor did they take the stand in their own behalf.
"The witnesses for the Government testified as follows: That the haind-ear in question was originally at Corozal, having been left there by them, the witnesses, a short time prior to the time hereinafter mentioned; that it belonged there and that it was the property of the Panama Railroad Company; that it was removed or taken away from Corozal by some one on the first day of June, 11906, in the evening; that it was seen and recognized by four of the Government's witnesses on the same evening, in charge of the two defendants, about three-quarters to seven-eighths of a mile from Corozal, at bridge 62, and was being run and propelled by defendants in the direction of Miraflores; that when the witnesses asked the defendants where they had gotten the hand-car, the defendants replied that it had been loaned to them by the subforeman at Pedro Miguel; that the defendants were at this time attempting to remove the hand-car from the tracks, and had actually succeeded in taking two wheels of the same off the track. (There is no evidence as to whether the hand-car was on the main track of the Panam6 Railroad Company or not.) The defendants asked the four witnesses then to give them a 'lift' meaning thereby to let them, the defendants, ride with witnesses.
"The evidence does not show that the car was actually removed from the tracks, further than the two wheels above mentioned. After leaving the hand-car, the defendants and four witnesses for the Government all rode in the direction of Miraflores on the hand-car upon which the said Government's witnesses had been riding when they first saw the defendants, as above set forth. They soon met one Jas. K. Brown, another witness for the Government, who is the foreman in charge of the double track for the Panam' Railroad Company, and who had the defendants arrested."
On this evidence, the defendants were found guilty and judgment rendered against them whereby they were sentenced to hard labor in the penitentiary of the Canal Zone for the period of one year each.
The first point raised by the bill of exceptions is that the

40




90.CANAL ZONE v. WRIGHT et al.

verdict of the court was contrary to the law and the evidence. On examination of the agreed statement of facts, the Court finds that the verdict was supported by the evidence.
The second point raised is "that the Court did not wait the usual two days between the rendering of the verdict and the passing of judgment upon the defendants." The record shows that they were found guilty and sentenced upon the same day. Section 224 of Act No. 15, provides that after verdict of guilty, if the judgment be not arrested or a new trial granted, the Court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the Court intend to remain in. session so long; but if not, then at as remote a time as can reasonably be allowed. This objection cannot be considered by the Court, as no exception was taken to the action of the Court at the time judgment was rendered, which should have been done if the defendants desired to avail themselves, for any cause, of the provisions of the statute. We do not regard the statute as mandatory upon the trial judge unless the same is invoked by the defendants.
Had the laws of the Canal Zone permitted the information to be filed in this cause for malicious mischief, making the offense proven a misdemeanor, the punishment might have been made lighter, but as the information was drawn as it is and the law is as it is, if the defendants were found guilty, the smallest sentence they could receive would be one year each in the penitentiary. Intent is an ingredient in every crime, but intent may be presumed from the acts of the accused. Had a man taken a horse of another and driven it three or four miles, without his knowledge or consent, and been apprehended with the horse in his possession, it would hardly be contended that he had not a larcenous intent. Whatever the intent of the defendants might be as to ultimate disposition of the car, their appropriation and deportation of the same was an act so reprehensible and dangerous as to merit the punishment imposed when all the possibilities of their act were considered. The Court takes judicial cognizance of the construction and curvature of the tracks of the Panamd Railroad Company. Trains run

41

1906.




SUPREME COURT OF THE CANAL ZONE.

almost constantly over said line, some on regular time schedule and others under the control of the train dispatcher. It is quite possible that a train might be wrecked and many persons injured or killed by such an act as the defendants committed. Society must be safeguarded and if in so doing the punishment that falls upon those who imperil others is heavy, they should not, on the other hand, be allowed to go free, and encourage others in the commission of the same offense. Therefore, as the lightest sentence that could be under the evidence, has been imposed upon the defendants, the Court will not disturb the verdict or judgment in the case. Judgment affirmed.
JUSTICE GUDGER concurred.
Aflirmed.
BOSQUEZ versus SOLIS et al.
No. 21. Submitted January 21, 1907.-Decided February 25, 1907.
EJECTMENT. PAYMENT FOR IMPROVEMENTS. When the defendant constructs and occupies a house in good faith with the consent of the owner of the land, he cannot be dispossessed by such owner unless he is reimbursed for the improvements made by him.
Appeal by plaintiffs and by one of the defendants from judgment of the Circuit Court of the Second Judicial Circuit; Hon. H. A. Gudger, Judge.
THE facts appear in the opinion.
N. Barsallo, for plaintiff. H. Patio, for defendant.
F. MUTIS DURAN, C. J. In this case from the Second Judicial Circuit, it appears that Narciso Barsallo, as attorney for Maria Jaramillo de Bosquez, Carmen Bosquez de Paredes, and Manuela de J. Bosquez, prayed for the ejectment ofJos4 Dolores Solis and Vicenta Fernandez de Calandre from certain lands in the village of Matachin, where the defendants had a house and enclosure. Plaintiff also asked judgment for $1,852.20, silver, as rent for the land on which

42

Jan. Term,




BOSQUEZ v SOLtS et al.

the house was situated. The defendants in their answer denied the right of the plaintiff for the reason that the case had already been decided by the courts of Panama, in the case of the Bosquez family against Solis, in favor of Solis, and contended that, as Solis had sold the house and enclosure to Fernandez by a public deed duly registered, the case was res adjudicata as to both defendants. However, the defendants agreed to pay rent for the land in case the plaintiff should prove ownership to the land. The lower court decided that the case was res adjudicata so far as Solis was concerned, and ordered the defendant Fernandez to pay the sum of $358.05, silver, as rent for the land. Both parties appealed from this sentence; the defendant Fernandez, for the reason that, as she derived her title thrqugh Solis, the case should be declared res adjudicata as to her in the same manner as to Solis; the plaintiff appealed because the final judgment of the court below did not decree the ejectment, as prayed for in the original petition.
From the documentary evidence introduced in the lower court it appears (1) that Felix Jose de Icaza, with the knowledge and consent of Buenaventura Correoso, constructed a house in the village of Matachin; (2) that after the death of Felix Jose de Icaza, his heirs remained in the peaceful possession of the said house, and that afterwards Jose Dolores Solis occupied it without any title in the land and was maintained in his possession by the courts of Panama, as is shown in the judgment of May 4, 1905; (3) that the lands in Matachin were sold at public auction to Buenaventura Correoso in 1883, and that he in turn conveyed the same to the legitimate children of Maria Jaramillo de Bosquez and of Carmen Bosquez de Paredes, as is shown by public deeds Nos. 10 and 128; with the exception of a certain part of the said land which had been sold by Correoso to the old French Canal Company by public deed of May 23, 1883, (as indicated on the map signed by the Director-General of the Canal Company, by Correoso and by the Bosquez family); (4) that according to this map and the ocular inspection made by order of the court of Panama', the house and enclosure were not within the land sold to the Canal Company, but were within the adjoining lands belonging to Correoso or to the

43

1907.




SUPREME COURT OF THE CANAL ZONE. Jan. Term,

Bosquez family, bounded as follows, according to the deeds and the map: Starting from the west bank of the Chagres River and extending along the stream known as the "Cuarto Calles" to the bridge called "Puente Ciego" or "Puente de Algandona" of the same railroad. The line extends in a straight direction from that point up to the old Panamal road or highway, thence continuing towards the ravine known as "Maria Rosa," and from said ravine on an imaginary line in a southerly direction to the "Mandinguita" ravine, thence tow-vards the river "Obispo" at a point where the bridge called "San Pablito" crosses, and from said point following the river Obispo to where it flows into the river Cruces or Chagres, and returning thence to the starting point known as "Cuatro Calles;" (5) that by public deed No. 165 of October 10, 1904, Jose Dolores Solis sold the house to Vicenta Fernandez.
From the above facts it appears that Felix Jose de Icaza and his successors constructed and possessed the house in good faith, with the knowledge and consent of the owner, in accordance with the doctrine of the second part of Art. 739 of the Civil Code. But as the defendant Vicenta Fernandez admitted in her answer that she would pay the rent if the plaintiff could prove ownership to the land, and as it appears that the plaintiff has proved such ownership, the Court confirms the judgment of the lower court.
Regarding the matter of the disoccupation of the land, on which point the plaintiff appealed, the Court is of the opinion that the defendant cannot be dispossessed until the plaintiff has paid for the improvements, as provided for in the above mentioned article.
JUSTICE COLLINS concurred.
Affirmed.

44




CANAL ZONE v. CLARK.

CANAL ZONE versus CLARK.
No. 23. Submitted January 21, 1907.-Decided April 2, 1907.
VARIANCE. INFORMATION AND VERDICT. Defendant was tried on an information charging larceny only and was
found guilty of receiving stolen property. HELD to be error as the two offenses are separate and distinct, though sufficently similar to justify
two counts in the same information.
LARCENY. RECEIVING STOLEN PROPERTY. Charge of larceny does not include that of receiving unless there is a count to that effect. That the greater crime includes the lesser is true only when the higher involves the commission of the lower, which is not true in the cases of larceny and receiving.
Appeal by plaintiff from the Circuit Court of the Third Judicial Circuit; Hon. Lorin C. Collins, Judge.
THE facts appear in the opinion.
W. H. Carrington, for appellant. G. M. Shontz, for the Canal Zone.
H. A. GUDGER, J. The prisoner was tried in the Third Judicial Circuit on an information charging that he did "twenty-eight hundred dollars, lawful money of the United States of America, of the goods and chattels of one Luca Analitz, then and there being found, feloniously steal, take and carry away, etc." There was no count in the bill for "receiving." The court rendered the following verdict:
"The Court finds the said defendant guilty of the crime of receiving and having stolen property in his possession' knowing the same to have been stolen." Motion for a new trial on the ground of variance between the charge in the bill of information and verdict was made and refused, to which the defendants excepted and appealed to this Court.
By statute and common law, larceny is a felony. "Receiving" at common law was a misdemeanor; but by statute, in most States, is made a felony. In the laws of the Canal Zone, "receiving" is a felony but not a larceny. The two

1907.

45




SUPREME COURT OF THE CANAL ZONE. Jan. Ter-n,,

offenses are separate and distinct, yet sufficiently similar to justify a count in the same information, the one for larceny or taking" and the other for "receiving," knowing at the time the property to have been stolen. The charge of the commission of larceny does not embrace that of "receiving" unless there is a count in the bill of indictment to that effect. This is common law doctrine, and has the sanction of several States of the Union. In Desty's Criminal Law, under the bead of "receiving stolen property,"' there appears the following:
"147-a. Receiving stolen property, knowing it to have been stolen, is an offense at common law. A party who was not present at the theft but subsequently, with guilty knowledge, received and aided in the disposal of the goods is not an accessory to the theft but is liable as receiver, it being a substantive crime, and he may be prosecuted as principal; and he is punishable at common law by fine and imprisonment unless likewise the thief was received and harbored. If he received the goods simply to aid the thief in carrying them off he is guilty as receiver. Persons receiving stolen goods do not thereby become guilty of larceny; but the common law offense is enlarged by making the receiver guilty as the thief."
In the American and English Encyclopedia of Law, Vol. 24, p. 44, under the head of "receiving stolen goods," and likewise under statute in most jurisdictions of the United States, the offense is a distinct and substantive crime in itself and is not merely accessorial to the principal offense of larceny.
In Bishop's Criminal Law, Vol. 2, sec. 1140, under the head of" Principal of Second Degree" is the following: "An aider at the fact of the original larceny-in other words, a principal of the second degree, cannot be holden as receiver. More broadly, one cannot receive goods which he has himself stolen, or commit larceny by receiving those already stolen by another." On p. 424, sec. 699, Vol. 1 of the same Criminal Law, after discussing "Receiving stolen goods," this section closes with the following: "The modern English legislation permits the receiver of stolen goods to be proceeded against for felony, as a substantive offense, without any reference to the principal offender ;" and a foot-note at the bottom, referring to this clause, states: "The crime

46




CANAL ZONE v. CLARK.

of the receiver, however, is not, like that of the principal, larceny."
In Texas, it has been expressly held that a conviction for receiving stolen goods cannot be had in an indictment for theft;
Choneller v. State, 15 Texas App., 587;
Brown v. State, 15 Texas App., 58 1;
Goether v. State, 21 Texas App., 527;
Gray v. State, 24 Texas App, 611.
It has also been held that larceny or receiving cannot be charged in the same count, though there may be in the same bill of indictment a count for larceny and a separate count for receiving;
State v. Moultree, 33 Am. Rep., 1146 (La.);
Trivdale v. State, 18 Texas App., 632.
In North Carolina, the court has decided that the crime of larceny and of receiving are separate and distinct, and that one cannot be convicted of receiving on an indictment charging the stealing, taking and carrying away of the goods of another, though in this State it is also decided that the two crimes may be charged in the same bill of indictment under separate counts;
State v. Speight, 59 N. C., 72;
State r. Adams, 133 N. C., 667.
In Lousiana and in Texas it has been held that larcenvand receiving cannot be charged in the same count. In some of the States of the Union, among which may be named Virginia and Ohio, receiving has been made larceny by statute, and it has been held that in such cases it is necessary only to charge that which would constitute the crime of larceny.
By reference to the U. S. Revised Code it will be noted that the distinction between larceny and receiving is kept in view, both being substantive offenses with different punishments.
Reference has been made to Sec. 207, p. 190 of the Code of Criminal Procedure of the Canal Zone, which indicates that a defendant may be convicted of the commission of an offense "which is necessarily included in that with which

1907.




SUPREME COURT OF THlE CANAL, ZONE. Ja n. Term,

he ischarged." This raises the question of the higher offense embracing the lower, and what crimes come under the rules as laid down for their government. We find in the Encyclopedia of Pleading and Practice, vol. 10, p. 542, the following: "The charge of an offense of a lower grade may be embraced in the charge of a higher offense when the higher involves the commission of the lower and when the indictment contains all the substantial allegations necessary to let in the evidence of the lower grade, but in order to include in the charge of the crime an offense of a lower grade between that charged, the greater must include all the ingredients of the lesser."
To illustrate the doctrine above, reference can be had to the crime of murder. A party charged might be convicted either in the first degree, or the second degree, or for manslaughter, the greater in this case including the less and all dependent on the one: substantive fact, the slaying. The same may be said of other offenses of a similar character, but it will be observed that the doctrine of the higher including the lesser can only be embraced in those cases where each relate to the salient fact, as, in the instance of murder, to the slaying. In other words, in the language of the Code, the one must necessarily include the other. In the case before us, this is not true. The charge of larceny or "taking" does not necessarily include the ''receiving'' for the reason that the two may occur and, indeed, must occur at different periods of time. A charge may be made against A of theft committed one year ago, and B may be charged with receiving the property stolen by A the week, the month, six months, or a year after the alleged theft. So that the conclusion seems inevitable that "larceny" and "receiving" are each a crime within themselves; and a party may be tried for the one or the other, or on a bill of information which contains a count for the one and a separate count for the other, in which case the prisoner might be convicted on either count as the evidence might justify.
It may not be amiss to refer to the -rules and regulations laid down in the Code of Criminal Procedure of the Canal Zone regarding informations to be filed against persons charged with crime. It will be seen that the information is

48




required to contain the names of the parties, the jurisdiction, and such other information as is necessary to place the party on notice of the exact crime with which he is charged. Among other things, the second rule contains the following: "A statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended." Take the case before us, and it is very easily understood that the information intends to charge the prisoner with being present at apd engaging in the commission of the crime of larceny; and, on the other hand, it would be very difficult to understand from this information that it was intended to assert, or to put him on notice, that he was charged with having received these stolen goods after they had been stolen. It seems therefore, clear that the rules laid down simply and only mean to assert that the information shall contain a sufficient statement of the crime alleged, with dates, names, etc., as to indicate clearly to the defendant the charge made against him so that he may properly answer the same. Should an information contain this, under the rules it would seem sufficient. Should it fail to do this, it seems that it would be defective. The crime of larceny and that of receiving being each substantive offenses, no conviction can be had for the one on a charge of the other; yet, as before stated, it is perfectly admissible in the information to have a count for larceny and a separate one for receiving stolen goods. The contention of the parties that there was a variance between the charge and the verdict of the court is, in our opinion, well taken.
It is therefore ordered by the Court that the judgment rendered in the Third Judicial Circuit in the above entitled cause be reversed and a new trial granted, and this opinion will be certified to the court below in order that proceedings may be. had in accordance therewith.
The CHIEF JUSTICE concurred.
Reversed and remanded.

CANAL ZONE 1". CLARK.

49

1907.




SUPREME COURT OF THE CANAL ZONE.

CANAL ZONE versus COULSON.
No 28. Argued April 9. 1907.-Decided May 6, 1907.
CANAL ZONE. STATUS OF.
The United States is not owner in fee of the Canal Zone; it has only the use and occupation as long as it complies with the terms of the treaty. Hence, the Constitution of the United States does not apply to the Canal Zone of its own force.
DUE PROCESS OF LAW.
It is the general law of the land which renders judgment only after trial.
JURY. TRIAL BY.
Is not guaranteed to the Canal Zone by the Constitution of the United States.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit; H on. H. A. Gudger, Judge.
THE facts appear in the opinion.
P. P. Hillerman and W. H. Carrington, for appellant. G. M. Shontz, for the Canal Zone.
LORIN C. COLLINS, J. On the 29th day of January, 1907, the information upon which the defendant was tried in ihe court below, was filed in the Circuit Court of the Second Judicial Circuit. Said defendant was duly arraigned thereon and pleaded not guilty. A demurrer was filed to the information; the demurrer was overruled, to which exception was duly taken by the defendant. The case came duly on for trial on the 1st day of March, 1907. On the trial there were associated with the Circuit Judge, H. L. Ross, Municipal Judge of Gorgona, and R. B. Myers, Municipal Judge of Empire, who both participated in the trial of said cause pursuant to statute and were duly sworn and qualified as such associate judges.
The evidence shows that the defendant came to the Isthmus about twenty-one months prior to the date of the alleged offense and lived at Gorgona; that some five or six

50

A pr. Term




CANAL ZONE v. COULSON.

months prior to the death of his wife he lived with one Louise Mendez, and they cohabited together for some little time before the said Louise Mendez ascertained the fact that the defendant was a married man and that his wife was not then upon the Isthmus. She, however, after having acquired this information continued her relations with him as before. On the 5th day of December, 1906, Coulson's wife unexpectedly appeared in Gorgona, and it was shown by the evidence that the defendant and Louise Mendez were greatly surprised when she appeared at Gorgona. Coulson obtained a room for himself and wife and ostensibly lived with his wife up to the time of her death, but frequently and continually made visits to, and spent much of his time with, Louise Mendez. The deceased, Marian Coulson, from the time of her arrival at Gorgona, up to the time of her death, repeatedly upbraided the defendant for continuing to live with Louise Mendez, or with having anything to do with her. Angry words passed between husband and wife; nevertheless, the defendant continued to ignore the wishes of his wife and frequently visited Louise Mendez. Just after the arrival of Mrs. Coulson at Gorgona, she procured the aid and assistance of a policeman to get her husband to leave the company and presence of Louise Mendez. This state of affairs continued until January 10, 1907, when Marian Coulson died, under circumstances which convinced the attending physician that her death was caused by poison. The physician refused to grant a death certificate, or to allow the body to be buried or to be removed from the place, at which it was at the time of the death, to the morgue at the hospital at Gorgona, until a post mortem examination was held. The evidence further shows that on the 9th and 10th of January and up to the time that the death occurred, the wife was in great agony and' suffered excruciating pains. Her neighbors called upon her on the 9th of January and early in the morning of the 10th, and to many she stated, in the presence of the defendant, that her condition was caused by two powders given to her by the said defendant, one on the 8th of January and one early in the morning of the 9th of January. She told these neighbors and the attending physician, in the presence of the defendant, that she was

1907.

51




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

dying, and described to them her condition and her feeling. It became apparent to the physician that she was suffering from poison administered into, her stomach. When the doctor gave the deceased a powder for the purpose of alleviating her pains and to check vomitingr, the deceased stated that the powder administered by the doctor was bitter, while the two powders administered by her husband were tasteless. From these statements and from the symptoms manifested by the deceased during the day of the 9th and the morning of the 10th of January, the physician refused to grant the defendant a death certificate after the death of the said Mrs. Coulson and refused to allow the body to be buried.
The evidence further shows that at the post mortem examination there was a careful examination which showed all the indications of an irritant poison. The stomach of the deceased, a portion of the liquid contents of the stomach, and portions of the liver, kidney, spleen and part of the pancreas were carefully removed. These were sealed in a glass jar and carefully kept in the possession of Dr. Smith who took them personally to the laboratory at Ancon, where a complete chemical analysis wag made of the contents of the organs above mentioned. As a result of this chemical analysis of the contents of the stomach, there were found twelve and one-half grains of arsenic. The doctors who were called to testify were thoroughly agreed that the indications and symptoms manifested by. the deceased during her last sickness, coupled with the fact that twelve and one-half grains of arsenic were found in her stomach after her death, showed that she came to her death' by reason of arsenical poisoning. The evidence further showed that three grains of arsenic is sufficient, absorbed in the -human body, to prod uce death; that after death, there was enough arsenic found in the stomach of the said Marian Coulson unabsorbed to have killed four people, and the -evidence further showed that there was no way of telling the number of grains which had been absorbed before her death. Sergeant Dooley testified that the defendant voluntarily confessed to him that he had, at various times between January 8th and 9th, endeavored to administer poison to his wife for the purpose of producing death; that on January 8th and 9th he, the defendant,

52




CANAL ZONE v. COULSON.

administered the poison as has been above stated; and that he, the defendant, did not know the name of the particular poison he was administering.
The defendant offered no evidence on his own behalf and the court and associatejudges returned the following verdict: "We, the undersigned Circuit Judge and Associate Judges in the above entitled case, after .arefully considering all the evidence in the case, for a verdict find that the defendant, the said Adolphus Coulson, is guilty of murder in the first degree, as charged in the information." A motion for a new trial was made and overruled, and the 12th day of March, 1907, set for the day of pronouncing judgment. On said day the defendant was sentenced by the court to be confined in the penitentiary in safe and secure custody until Friday the 13th of September, 1907, and upon said day, between the hours of twelve noon and two in the afternoon, within the walls of the said penitentiary, in the presence of the witnesses required by law and in the manner and form prescribed by law, to be hanged by the neck until he, the said Adolphus Coulson, bedead. From this judgment order, the case comes to this court upon appeal.
There seems to be no question raised in this Court as to the findings of fact. Therefore we have only to consider the questions of law raised.
The defendant's counsel, in the brief filed in this court, waived all of the exceptions taken at the trial except the second exception which was: "That the court erred in overruling the application of the defendant for a trial by jury." This ground of error is the sole ground necessary for consideration on this appeal.
The treaty between the United States of America and the Republic of Panama provides in Article II: "The Republic of Panam6- grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the canal to be constructed." Article III of said treaty "grants to the United States all the rights, power and authority within the zone mentioned and

1907.

53




S4 S iPR[ ME (OURT OF THE CANAL ZONE. Apr. Term

described in Article II * which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." In Article V of said treaty. "The Republic of Panama grants to the United States in perpetuity a monopoly for the construction, maintenance and operation of any system of communication by means of canal or railroad across its territory between the Caribbean Sea and the Pacific Ocean." Article XIV provides that as the compensation for the rights, power and privileges granted by the Republic of Panam-a to the United States, the United States should pay to the Republic of Panama' the sum of ten million dollars in gold coin of the United States on the ratification of this treaty, and make an annual payment during the life of the treaty of $250,000 in gold coin of the United States beginning nine years after the date of the treaty.
This treaty was duly ratified by the Republic of Panama on December 2, 1903, and by the United States on the 23rd of February, 1904.
The President of the United States, on May 9, 1904, issued an Executive Order to the Secretary of War authorizing the establishment of a government in the Canal Zone, creating a Commission to whom were delegated legislative powers and defining the nature of the powers and rights of the inhabitants of the said Zone. This Executive Order is the organic law of the Canal Zone and the provisions therein which have a bearing upon the error assigned are: "That no person shall be deprived of life, liberty or property without due process of law; * that in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
The fifth amendment to the Constitution provides that "no person shall be compelled in a criminal case to be a witness against himself, nor to be deprived of life, liberty or property without due process of law." The sixth amend-

5




CANAL ZONE v COULSON.

ment to the Constitution provides that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
The contention is made that "the Canal Zone belongs to the United States of America; (Wilson v. Shaw, 204 U. S.) and as the territory is part of the United States, the Government and the citizens both enter under the authority of the Constitution with theirrespective rights defined and marked out, and the Federal Government can exercise no power over the personal liberty or property of an individual beyond what the Constitution confers, nor cannot deny any rights which the Constitution has reserved." We have not the decision of the Supreme Court of the United States before us, in the case of Wilson v. Shaw, but are of the opinion that the Supreme Court did not hold more in that case than that the United States had the use, occupation and control in perpetuity of the Canal Zone.
It is apparent from an examination of the treaty, that the United States is not the owner in fee of the Canal Zone, but has the use, occupation and control of the same in perpetuity so long as they comply with the terms of the treaty and pay $250,000 in gold coin of the United States of America, per annum, to the Republic of Panamat. There is nothing in the treaty aforesaid that should bring this case within the decision made in the case of the treaty with Russia in Rassmussen v. United States, 197 U. S, 516. Rather does it come within the reasoning of Dorr v. the United States, 195 U. S., 138, and Downes v. Bidwell, 182 U. S., 244. We are therefore of the opinion that the Canal Zone is territory in the use and occupation of the United States of America, under its control, but is not such territory that the Constitution would be legislative, and of its own force carry its rights, privileges and limitation into it.
It appears from the Executive Order that the only pro-

1907.

55




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

vision of the Constitution of the United States that would be applicable to the case at bar and that would be binding upon this court, is contained in the phrase "nor to be deprived of life, liberty or property without due process of law." The words "due process of law," said Judge Bronson, "cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title of property." Potter's Dwarris on Statutes. The definition most generally adopted is that given by Mr. Webster who said "by the law of the land, is most clearly intended the general law, which hears before it condemns, and proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society. Everything which may pass under the form of legislative enactment, is not therefore the law of the land."
The Supreme Court of the United States, 110 U. S., 156, say: "Any legal proceeding enforced by public authority whether sanctioned by age or custom or newly devised in the discretion of the legislative power in furtherance to the general public good which regards and preserves these principles of liberty and justice," is due process of law.
The defendant, therefore, as he has been tried with the due course of legal proceedings according to these rules and forms, which have been established in the Canal Zone for the protection of private rights, has been tried in manner to meet the constitutional requirements of not being deprived of life without due process of law.
The seventh amendment to the Constitution, which gives every party the right to trial by jury whether the amount in controversy exceeds $20.00, does not apply to trials in state courts:
Edwards v. Elliott, 88 U. S., 532; Pearson v. Yewdall, 95 U. S., 294.
The sixth amendment, providing that the accused shall enjoy the right of a jury trial, applies to Federal and not to State courts:

Williams v. Hert, 110 Federal Reporter, 166.

56




CANAL ZONE v. COULSON.

It is said (Downes v. Bidwell, 182 U. S., 246) that the civil government of the United States cannot extend immediately and of its own force, over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander-in-chief. * Indeed the practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest only when and so far as Congress shall so direct. * We are also of the opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in, what Chief Justice Marshall termed in the words, "American Empire."
The question before us for consideration has been so fully disposed of by the Supreme Court of the United States in the many decisions rendered as to the effect of the fifth, sixth and seventh amendments to the Constitution of the United States, that it is unnecessary to enlarge further.
There being no reversible error in the records presented in this case, the decision of the Circuit Court of the Second Judicial Circuit is affirmed.
The CHIEF JUSTICE concurred.
Alffrmed.

1907.

of-




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

CANAL ZONE versus COLINAS.
No. 26. Argued April 8, 1907.-Decided May 6, 1907.
FORGERY.
A pay certificate calling for $38 60 in writing and in figures in the body
of the instrument and for $1.8.60 in figures in the margin, had these latter figures changed to $78.60 No proof was offered as to the meaning of the marginal figures. HELD that a change in the margin of an instrument, when the body of the instrument is unchanged, is not a forgery. The marginal figures formed part of an independent transaction as to which no proof was offered.
EVIDENCE. VARIANCE.
Tnere is a variatice when the information alleges that the United States was defrauded and the proof shows that it was the Isthmian Canal Commission that was defrauded.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger, Judge.
THE facts appear in the opinion of Justice Collins.
Sam B. Dannis, for appellant. G. M. Shontz, for the Canal Zone.
LORIN C. COLLINS, J. An information was filed against the defendant before the Circuit Court of the Second Judicial Circuit on February 12, 1907, said information containing three counts, one charging the defendant with forging a due bill, order or request for payment of money by the United States of America; second, with uttering and forging a due bill, order or request for payment of money by the United States of America; and third, with passing as true and genuine a due bill, order or request for payment of money by the United States of America. And the said defendant was arraigned upon said information and pleaded not guilty, and a trial was duly had.
A timekeeper of the Isthmian Canal Commission, being called as a witness, testified that he gave the defendant the check; that it was not now the same as it was when he first gave it to him. He gave him the check at Empire, and when

58




CANAL ZONE v. COLINAS.

he gave it to him it was for $18.60. The next witness called was from the paymaster's office and he testified that he paid the check on the pay car; that on that day he paid from Empire to Corozal, including Corozal; that he does not remember at what place it was that he paid the defendant whether it was at Empire or at the other end of the line; "all I remember is paying the man, but I cannot remember whereabout we were at the time I paid him." Whereupon the Government rested its case. The attorney for the defendant moved the court to discharge the defendant on the ground that the Government failed to prove where the crime was committed, which motion the court overruled and the defendant duly noted his exception, and the court found the defendant guilty under the first count and sentenced him to one year in the penitentiary. A motion for a new trial was filed on the ground that, the verdict was contrary to the law and the evidence, which motion for a new trial was duly overruled.
The court certified to the Supreme Court that the defendant was charged with altering a pay certificate issued by the agents of the Isthmian Canal Commission; that the alteration consisted in the change in the upper right hand corner of the certificate from $18.60 to $78.60; that the pay check was issued and delivered to the defendant in the District of Empire and the work for which the same was issued was done in the said district and that the defendant lived there; that the pay car stopped at Empire, Culebra and various other points in the District of Empire, and at two points, Pedro Miguel and Corozal, outside of said District; that the check was paid by the agents of the Isthinian Canal Commission to the defendant, in the sum to which it had been raised. The defendant was found guilty and sentenced on the first count of the information, which charged that the defendant did, unlawfully and knowingly, falsely make and forge a due bill, order or request for the payment of money by the United States of America, with the intent then and there the Government of the United States to injure and defraud, contrary to the law in such cases made and provided, and against the peace, government and dignity of the said Canal Zone.

1907.

59




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

Forgery is defined by Bouvier to consist of the false making and materially altering with intent to defraud any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. An examination of the pay certificate offered in this case reveals no change or alteration in the body of the certificate. In the margin, entirely outside of the shaded lines which surround the pay certificate, are found the numerals $78.60. So far as appears from an examination of the pay certificate, they bear no relation whatsoever to the certificate itself, and there is not a scintilla of evidence in the record that said figures are of any importance whatsoever. Below the figures $78.60, within one inch thereof, appear the numerals $38.60 which correspond to the receipt upon the face of the certificate where the figures are written out. Any person reading said certificate must be advised that $38.60 is the most that can be paid thereon.
It has been held in all jurisdictions that the alteration made upon a writing must be material. There is nothing in the record in this case to show that any materiality whatsoever could be attached to the figures outside of the margin of said pay certificate in the upper right hand corner. It also appears from an inspection of the said pay certificate, that it is issued by the Isthmian Canal Commission and directs their disbursing officer to pay the amount therein stated. The court is of the opinion that there is a variance between the pay certificate offered in evidence and the first count in the declaration, in that the said pay certificate is not a due bill, order or request for payment of money by the United States of America.
It would appear that the act, if any, committed by the defendant, if proved against him, was a crime under Section 382 of the Penal Code of the Canal Zone, which reads as follows: "Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defraud.s any other person of money or property * is punishable in the same manner and to the same extent as for larceny of the money or property so obtained." Or under Section 81 of the said Code, which reads as follows: "Every person who, with intent to defraud, presents for allowance or for

60




'CANAL ZONE v. COLINAS.

payment to any disbursing officer, or other officer, or to any person or officer authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony." Were there a count in this information charging the defendant with the crime defined in either of said sections, there is no proof in the case on which a conviction could be based.
For the reasons assigned, this case is reversed and reinanded for further proceedings in conformity herewith.
F. MUT[S DURAN, C. J. I concur in the foregoing opinion for thereason furthermore, that it does not appear from the wording of the document said to have been altered, neither from the evidence submitted in the trial, that the amount expressed in ciphers in the margin of the document, which amount was different from that which appeared in writing and in ciphers in the body of the document, was intended to represent the actual value of such document, after there having been deducted from it the amount previously received on account by the holder. Neither did there appear any agreement or understanding between the parties that such amount placed in the margin should represent the legal value of the document. The marginal ciphers outside the border line of the instrument appear to be isolated, and from the evidence submitted do notappear to bear any relation to the body of the document. Therefore, it cannot be said that an alteration of the marginal ciphers in this particular case is an alteration of the legal value of the document, nor that there has been committed the crime of forgery.
The marginal ciphers or numbers form part of a transaction between the parties independent of the one expressed in the body of the document, which transaction does not figure in the body of the document, neither in the proof submitted at the trial. There is nothing to show what this transaction might have beent, consequently there is no explanation of the meaning of the ciphers placed in the margin. The personal knowledge that the judge may have of such transactions is not available as evidence. Cyclopedia of Law and Procedure, Vol. 19, p. 1375, under heading "Immaterial

61

1t907,




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

alterations" reads as follows: "In order that an alteration constitute forgery, it is essential that itbe material * the addition of a figure in the margin, the body remaining unchanged, * the legal effect of the instrument not being varied, is immaterial." Under Note 45 of the same page there appears a case in which the alteration of a cipher in the margin of a check was considered as a case of forgery, the cipher altered expressing in numbers the same amount as that written in the body of the check. But the foregoing case is different from the one under consideration, because the cipher changed corresponded to the amount written in the body of the check, and itself formed part of the body; but in this case, the marginal cipher does not correspond with the body of the check, and does not bear any apparent relation to the body of the document.
If the holder of the document, by changing figures that do not vary the legal value of the instrument, or by some other fraudulent contrivance, succeeded in deceiving the paymaster and in obtaining a larger amount of money than that called for in the body of the document, he has committed the crime defined in one or the other of the before-mentioned sections cited in the opinion of Justice Collins.
Reversed and remanded.

62




CANAL ZONE v. PENNISTON.

CANAL ZONE versus PENNISTON.
No. 29. Argued April 9, 1907.-Decided May 6, 1907.
FORGERY. TIMEBOOKS.
The defendant made false entries of overtime in his timebooks for a laborer who did no overtime work. HELD to be forgery under Section 322 of Act No. 14 of the Laws of the Canal Zone.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger, Judge.
The defendant, a foreman, gave overtime to one of his laborers in the daily timebooks from which the pay rolls and certificates are afterward made. The evidence showed that the laborer had not performed all of the additional work.
P. P. Hillerman and W. H. Carrington, for appellant. G. M. Shontz, for the Canal Zone.
LORIN C. COLLINS, J. The defendant was arraigned on an information containing two counts, charging the defendant, in the first count, with feloniously and falsely making and forging a timebook with intent to defraud the United States of America, and the evidence being heard and considered by the court, the court found the defendant guilty of forgery as charged in the first count of the information. The defense demurred to the information on the ground that the facts stated in the information do not constitute a pub. lic offense; that the timebook is not a subject of forgery; and that the information does not set forth the instrument that was altered or kept by the said defendant.
On examination of the count upon which the defendant was found guilty, the Court finds that it states the offense with sufficient certainty. If the defendant desired the timebooks to be set forth in full, he could have obtained the same through a bill of particulars.
As to the first point raised by demurrer, that the facts stated in the information do not constitute a public offense,

1907.

63




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

Section 322 of the Penal Code reads: "Every person who, with intent to defraud another, makes, forges or alters any entry in any book of record, is guilty of forgery."
The evidence showed that these timebooks were original books of record and are the books from which the pay rolls of the men employed on shovel 216 were made. Any timebook or other book of record can be the subject of forgery. The proof seems clear that false entries were made in the timebook and that the same were made with intent to defraud. From a careful examination of the first count in the information, we are of the opinion that it fairly states an offense under Section 322. We think the court did not err in overruling the demurrer to the information, or in admitting evidence under the information. There were no errors of law occurring at the trial that we think necessary to consi(ler. The court below saw the witnesses, heard their evidence, their manner of testifying, their opportunities
of knowing the things in regard to which they testified, and, having found the defendant guilty, we find no reason for disturbing said finding.
Let the ju(lgment of the Circuit Court of the Second Judicial Circuit in this case be affirmed.
The CHIEF JUSTICE concurred.
Affirmed.
UNITED STATES OF AMERICA versus ANDRADE.
No. 25. Argued April 15, 1907.-Decided May 6, 1907.
PUBLIC LANDS. TITLE BY CULTIVATION. The defendant had been cultivating continuously for twenty years the land which was claimed by plaintiff as public laid. Defendant claimed title by occupation and cultivation, but presented no recorded instrument of title. At the time of the original occupation, the laws provided that title by cultivation could be acquired in the following manner; The cultivator proved to the governor or prefect that the lands were public and that he had been cultivating them; he also reported the amount and the exact location of the land. The governor then gave him a provisi)nal title wtvch wt.-i later made final ty title national Government, which gave the legal possession. The cultivator was furnished a copy of the final adjudication, which had to be registered in order to give him legal title of ownership. This final adjudication was not made to defendant.

64




UNITED STATES OF AMERICA v. ANDRADE.

Title could not be acquired to public lands that were to be used for public
purposes, highways, canals, etc, and those adjoining highways.
The mere cultivation did not give title '; without the adjudicat on, a cultivator acquired no legal title to the lands cultivated, nor could he convey
the ownership of these lands.
It appears that the defendant was not in legal possession at the time of the cession of the Canal Zone, and that he c )uld not have acquired legal adjudication of the land because this land was reserved for public use,
being adjacent to a canal.
SAME. TITLE BY OCCUPATION.
Can be obtained only of things that have no owner. As this land adjoined
a highway, it was owned by the national Government.
SAME. TITLE BY PRESCRIPTION. Title to public lands cannot be obtained by prescription, since prescription does not run against the national Government.
SAME. IMPROVEMENTS.
A possessor in good faith is entitled to the value of the improvements made by him; the value of them to be ascertained by the Joint Commission.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger, Judge. The opinion of the lower court is as follows: "This was a civil action commenced by the United States of America, claiming to be the owner and entitled to the possession of a certain tract of land set forth and particularly described in the petition and in which it is alleged that the defendant, Antonio Andrade, is in the unlawful possession thereof. The defendant admits that he is in possession of the property named but, as his first cause, denies the right of the plaintiff to the ownership and, in the second cause, sets up title to the land by virtue of prescription. He alleges that eighteen or twenty years ago he "took up" the land in question, and that he has cultivated and occupied the same since that date, and that he is not only entitled to remain in possession, but is, in fact and in truth, the owner of the property. This plea on the part of the defendant refers to public land, and is meant to state that the identical land in question was, prior to its occupation by the defendant, "tierras baldias." If there is, or could be, a doubt as to whether or not this was intended to be an admission of that fact, the references made to the Code of Civil Procedure to sustain the defendant's contention would relieve the matter of any doubt as

1907.

65




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

all of these refer specially and only to public lands. This being true, the admission, together with the proof, sustains the contention of the plaintiff that this land is and was "tierras baldias." The plaintiff offered proof on the main question, and the defendant as to the value of the estate. In the trial there have arisen many perplexing and intricate questions, and there has been introduced a mass of matter, some of which it may not l)e amiss to refer to specially, and much of which seems to have little or no connection with the question at issue. The plaintiff, in order to sustain the point that title to public lands ini the Canal Zone cannot be acquired in any manner, introduces a decree dated in 1867 in which all "tierras baldias" within a certain territory are withdrawn from entry and occupation, and within this limit is embraced all public lands in the Canal Zone. Theplaintiff urges strongly that this decree, which from its standpoint is not only a decree but in the nature of a law, is still in force, and that therefore the defendant can neither gain title by occupancy and cultivation nor by entry; or, as it is better known here, adjudication. There has also been introduced in this case, Decree No. 92 of 1883, which withdrew from entry and occupation all public lands in the Department of Panama"; as well as No. 505, which withdrew from occupation and entry all land in the entire Republic of Colombia. In addition to this, there has been introduced the Fiscal Code, enacted July, 1873, which was a codification and re-enactment of all the legislation in regard to public lands, including other subjects, and the methods by which they might be acquired. Article 2192 on page 407 is as follows: "From the time this Code goes into effect, in all its parts, the former laws in regard to fiscal matters of the Union shall be null and void, whether they be in conflict or not with the dispositions therein contained." This clause seems to be sweeping. There has also been introduced Decree No. 138 of 1882, which repealed No. 505, and it is urged that this necessarily repeals Decree No. 92, yet there seems to be no connection between Decrees Nos. 505, 138 and 92. The defendant further insists that even if Decree No. 92 is not repealed, the same is void for the reason that it is direct conflict with the Constitution of the Republic of Colombia,

66




UNITED STATES OF AMERICA v. ANDRADE.

which provides that Congress, and Congress alone, shall legislate upon the subject of public lands. It would be material to decide as to the effect of these decrees if it were not for the fact that this question has taken a peculiar turn, which renders a decision upon them unnecessary.
The Court is of the opinion that the evidence justifies a conclusion that the defendant entered on this land in 1888; that he has remained from that date up to the commencement of this suit in the possession thereof; that he has built a home on the land, erected machinery, cleared up the soil, planted sugar cane, trees, etc., and has in fact, been an occupant and cultivator of the hacienda forthese past twenty ears. But the Court is further of opinion that, notwitlstanding the length of time the defendant has occupied and cultivated the soil, he has not by that means gained a title to the land. The fact that the defendant remained in undisturbed possession of the land for such a length of time, and that he has improved the same, would certainly give him a moral right, if indeed he has not a legal one, for any and all improvements that he has placed on the land. The Court does not go into the question of these improvements, or the value of the same, for the reason that there-has been no evidence which has set forth in a tangible form and with reasonable certainty or clearness, the amount of the improvements, the kind and character of the same, and their value. It will be noted that in the evidence of Mr. Popham he refers to a house, distillery, the plantation of cane, trees, etc., and closes his statement with the fact that he offered the defendant for the "hacienda de Andrade" $100,000. The next witness followed exactly in his footsteps and estimated the whole property, without making any division as between the land and the improvements, at about the same figure. It will be seen at a glance that it is utterly impossible for the Court to form any just or correct conclusion of the value of the improvements, if indeed it felt that under the law it was its duty to go into this question. It is true, the defendant does not raise the question of improvements in his answer, yet, if it be true that Andrade, without such being specially pleaded, would, under certain conditions, be entitled to certain improvements, the burden is on him as to

1,107.

67




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

this question, and he has not fulfilled that obligation when he proves that the land claimed by the plaintiff is worth $100,000, making no distinction between the value of the soil and the value ofthe improvements and things on the land which do not of right pass with the land. The question is, if the land is worth at the present time, including
everything located thereon, $100,000, and there is no proof as to how much the value of the land is, as to how much the value of the real improvements is, and what is the value of the movables, how can it be decided as to the worth of either one of these separately and disconnect it from the whole? The defendant in this action was represented by learned counsel, and it is to be supposed that he managed the case to the best interests of his client, and the fact that the entire evidence was closed and the announcement made by him that he had nothing further to offer to the Court and no suggestions as to any other methods or mode of procedure, or manner of taking testimony, indicates clearly that he was satisfied with what appeared in the record as proof; and, under these circumstances, it would seem highly improper for the Court to undertake any initiative on other lines demanding further testimony. It will further be noted that the Court does not take into consideration any question of improvements on the property for the reasons stated, but leaves this question for such action as the defendant may deem proper to undertake in the future, if indeed he has any action at all. The Court finds the following facts:
First-That the lands in question are public lands, and that, as such, they are the property of the United States of America;
Second-That twenty years' occupation and cultivation of these lands by the defendant is not sufficient as against the United States to give him a title to the land;
Third-That the defendant has failed to offer proof by which any adequate amount of improvements could be awarded him in case the Court had felt authorized or warranted to go into the question of improvements, which point has not been passed upon for the reasons stated.
It is therefore ordered, adjudged and decreed by the Court that the plaintiff, the United States of America, do have and

68




UNITED STATES OF AMERICA v ANDRADE.

recover of the defendant, Antonio Andrade, the possession of the. lands described in the complaint, bounded and set forth as follows:
" 'Hacienda de Andrade," an approximate area of seventyfive acres, more or less. It reaches from east to west from Kilometer 41 to Kilometer 43, more or less; on the south its boundary consists of a wire fence running parallel to tho center line of the canal at a distance from the latter of about forty-four meters, more or less. As the center line of the canal is about one hundred ninety meters distant from the central location of the town of Gorgona (accepting as such the plaza where the Catholic church stands) the distance from the southern boundary of the Hacienda Andrade to the said central location of the town inmeasures, more or less, two hundred fifty meters. From south to north the property measures, more or less, six hundred meters in its greatest width, that is, from the gate of entrance to same, located in the aforementioned wire fence, i. e., on the southern boundary, in a straight line north."
It is further ordered, adjudged and decreed that the plaintiff do recover of the defendant, Antonio Andrade, the costs of this action, to be taxed by the clerk."
Oscar Terdin, for appellant. G. M. Shontz, for respondent.
F. MUTIS DURAN, C. J. On the 9th day of November, 1906, the United States of America filed a petition in the Circuit Court of the Second Judicial Circuit against Antonio Andrade, asking for the restitution to the Government of the United States of a certain piece or parcel of land lying on the outskirts of the town of Gorgona, which defendant occupies with a dwelling house and outbuildings, an aguardiente distillery, sugar cane and banana plantation and pastures. The description of the land is fully set out in the complaint.
It is alleged in the petition that these lands are tierras baldias or public lands and were set aside for public use by the Colombian law, and as such are absolutely owned by the Government of the United States of America as successor to the Republic of Panamat and its predecessor, the Republic of Colombia; that the tierras baldias or public lands situated in the boundaries of the Canal Zone, including the aforesaid

1907.

69




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

land held by the defendant, are not and have never been, since 1850, open to appropriation by any person or corporation except the Panam6. Railroad Company and the Compagnie Nouvelle du Canal de Panama, nor could these titles therein be acquired by cultivation, prescription or occupation; and that the defendant held the land in bad faith.
Summons being duly served upon the defendant, he filed his answer to said petition on the 19th day of November, 1906, and admitted that he was in possession of the land described in the complaint and claimed the ownership of the property set out in the petition. He denied the allegation that the land is, and always has been, tierras baldias or vacant lands; that the tierras baldias or vacant lands situated within the boundary of the Canal Zone, Isthmus oflPanama, were not assigned for public use by the Colombian laws and that said lands as such are absolutely owned by the United States of America as successor to the Republic of Panama and its predecessor, the Republic of Colombia; that tierras baldias or vacant lands situated within the boundaries of the Canal Zone, including the aforesaid land held by the defendant, are not, and have never been, since 1850, open to appropriation by any person, and that the titles therein could not be acquired by cultivation, prescription or otherwise; and that he held the property in bad faith.
On the issues thus joined a trial was had, consisting mostly of documentary evidence, the Colombian laws, the laws of the Republic of Panama and the Executive Decrees and Official Gazettes of both Governments. On the 22d day of January, 1907, judgment was rendered against the defendant in the said cause, and the United States of America adjudged to have and recover of the defendant the possession of the land described in the petition and that the complainant recover of the defendant the costs of the suit. A motion for a new trial was entered on the 24th day of January assigning several grounds for the motion and on the 29th was overruled. To the overruling of said motion, defendant duly excepted and the case comes to this court on appeal from said judgment and from said order overruling the motion for a new trial.
The pleadings and the evidence show that Antonio Andrade,

70




UNITED STATES OP AMERICA v. ANDRADE. 7

about twenty years ago, settled on the land in question. comprising over one hundred hectares, and has been continually cultivating the same since that time. There is nothing in the pleadinis or evidence to show any other title in the defendant than that of occupation and cultivation for the said period.
The Fiscal Code, in force in the Republic of Colombia at the time Andrade claims original occupation, defines public lands as being all lands not appropriated with legitimate titles. Art. 5. Legitimate titles, according to the Civil Code (Art. 673) are obtained by occupation, accession, tradition, succession "mortis causa" and prescription.
By occupancy, ownership is acquired of things that belong to nobody. Art. 685 of the Civil Code. A title by accession, succession, or tradition does not apply in this case, as it has not been alleged by defendant.
By prescription, public lands cannot be acquired. Art.
3 of Law 48 of 1882.
As the defendant has not alleged possession by virtue of one of the aforementioned titles, and as the only one he alleges is that of cultivation, it is clear from this that the land claimed was not appropriated with legitimate title, and that it is therefore public land. In order to acquire public land by cultivation, there were in force at the time Andrade claims original occupation (about twenty years ago) Laws Nos. 61 of 1874 and 48 of 1882, also Article 933 of the Fiscal Code of Colombia, with reference to such acquisition of land, which laws provided that whoever cultivated public land of the nation acquired the right of ownership to them by virtue of such cultivation, and would be con sidered as owner in good faith of such land, and could not be dispossessed of same except by due process of law. The laws read as follows:
Article 1, Law 61 of1874: "Every person who occupies public lands belonging to the nation, which lands have not been set aside for any special use by any provision of the law, and shall erect a dwelling on and cultivate such land, shall acquire the right of ownership to such land, whatever the amount of same might be."
Article 2, Law 48 of 1882: "Cultivators settled on pub-

1907.

71t




SUPREME COURT OF THE CANAL ZONE.

lic lands with dwelling and cultivating such lands, shall be considered as possessors in good faith of such lands, and shall not be deprived of the possession of such lands, except by due process of law."
Article 933 of Fiscal Code of Colombia: "Colombians that shall have settled on public lands, claiming same by virtue of cultivation, and who have actually cultivated such land, shall not be disturbed in the use and enjoyment of such land by any person claiming said land by virtue of title by adjudication; provided, however, that they prove with due title by adjudication that they are the owners of the land by virtue of being cultivators of same."
These lawswere enforced by the Government of Colombia through the power vested in the Chief Executive to enforce Fiscal and administrative laws. Executive Decree No. 832 and Circular No. 94 of the same year, both published in the "Gaceta Oficial" of Bogota, No. 6230. In accordance with the provisions of said Executive Decree and Circular beforementioned, in order to acquire the right of ownership to public lands by cultivation, it was necessary to prove that the lands is question were public lands, and that they were being cultivated by the party claiming them, he reporting to the Governor or Prefect of the territory the amount of land taken up and the exact location of same, as well as the fact of its being under cultivation; this for the purpose of having such land delineated. Art. 3 of Decree No. 832.
Furthermore, it was provided in the same decree and circular that the Governor or Prefect should provisionally adjudicate such land to the party claiming same, and that afterward, all the provisions of said decree and circular having been complied with, the national Government should approve such provisional adjudication, and then definitely adjudicate such land to such party, giving legal possession to the interested party, together with a copy of the final adjudication, in order that such adjudication might be registered. The copy so registered would constitute the legal title of ownership to such land so adjudicated. Paragraphs 16 to 18 of Circular No. 94.
Paragraph 18 of Circular No. 94: "Once that legal possession has been given to the cultivator, and proof of such

72

Alpr. Term.,




197. UNITED STATES OF A MERICA v. ANDRADE. 7

legal possession has been recorded, the authority that has given the legal possession shall also give to the cultivator or colonist a certified copy of the final adjudication; which copy, when registered, shall constitute a legal title of ownership of such land."
The legal possession of land thus adjudicated was to be given to the interested party in accordance With Art. 932 of the Fiscal Code, which reads as follows: "When the adjudication made to one or more persons is made by virtue of their being cultivators or colonists, possession to the land adjudicated shall not be given by judicial authority, but by administrative authority, for which purpose the Governor of the State, or the Prefect of the territory in which such lands are located, shall direct that legal possession to such lands shall be given to the interested parties, at the same time issuing them a certified copy of the resolution of the Secretary of Finance granting adjudication, which certified copy shall to all effects constitute a legal title of ownership to such land."
Public lands to be used for public purposes, such as roads, docks, wharfs, canals, harbors, etc., were not liable to adjudication to individuals, according to Arts. 882 and 918 of the Fiscal Code, which read as follows:
Art. No. 882 of Fiscal Code: "The public lands which in the judgment of the Executive Power are not considered necessary- for public use, can be granted to individuals, by sale for cash, or in exchange for Government bonds, in accordance with paragraph 1 of Arts. 868 and 869."
Art. No. 918 of Fiscal Code: "Provisional adjudication shall not be given if in the judgment of the Governor or Prefect of the territory the public lands in question, or any part of them, should be reserved for public use: such as, roads, town sites, forts, harbors, arsenals, docks, canals, etc."
Art. 947 of the Fiscal Code contains the same prohibition as Art. 946, with regard to public highways, and therefore, to canals; reserving to the nation the right of use of all public lands adjoining such highways. This for the purpose of adjudicating them to the companies undertaking the enterprise of constructing such highways. Art. 948.
From the foregoing it can readily be seen that although

73

1907.




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

Laws 61 of 1874 and 48 of 1882 granted the right of ownership to the cultivators of public lands, the mere cultivation of such lands did not in itself constitute a legal title of ownership to the lands, under the Colombian Government before 1903, in which year the Department of Panama seceded from the Republic of Colombia, transferring to the United States the following year, 1904, all the rights of control andl sovereigynity that it possessed in the territory of the Canal Zone.
Without the adjudication, above referred to, made by the national Government, a cultivator of public lands did not acquire legal right to such lands so cultivated, but acquired only the right of having such lands adjudicated to him, 1. e., a mere expectancy or expectation (derecho presunto) of acquiring legal right to the lands; and such lands are public lands until thus adjudicated. Decrees (resoluciones) of October 10 and November 23, 1894, Official Gazette of Bogota, Nos. 9611-9646. Without the adjudication referred to, the cultivator could not transfer the right of ownership of such lands claimed through cultivation. Paragraph 8 of Art. 1 of Decree 832. Therefore he would not have the right of ownership of such land, according to Art. 669 of the Civil Code, which defines the right of ownership.
It appearing from the above that the appellant in this cause, defendant in the court below, was not in legal possession by adjudication of the land in question before February 23, 1904, on which date the Republic of Panama transferred to the United States all the rights of control and sovereignty over the territory of the Canal Zone; and it further appearing that the defendant could not have obtained legal adjudication of the land in question from the Colombian Government at the -time he claimed original possession, for the reason that such land being adjacent to a public highway (a canal) was reserved for public use, in accordance with the Colombian law in effect at the time, the Government of the United States having assumed all rights of control and sovereignty of the Republic of Panama over said territory, has the right to revendicate such public land as it may deem fit.
In regard to the rights of settlers upon public lands, Lawv

74




UNITED STATES OF AMERICA v. ANDRADE.

48 of 1882 contains, besides Art. 2 above quoted. Art. 5, which reads as follows:
Art. 5 of Law 48 of 1882: "In case a cultivator should be deprived of his property through due process of law, he shall not be dIspossessed of the land occupied by him without first being indemnified to the extent of the value of the improvements made on the land, as possessor in good faith of the land.
"Improvements shall consist of clearing of the land. embankments, cultivation and dwellings, the value of which shall be appraised by experts, as provided for in the Judicial Cod( of the nation or of the state in which the adjudicated land is located.
"Until the value of such improvements shall have been paid, there shall not exist against the possessor any action for ejectmenu from the land."
The defendant, besides being considered to all effects by law as a possessor in good faith of the land occupied by him, and having occupied it indisturbedly with the knowledge and consent of the Colombian authorities, is entitled to the right provided for by Art. 739 of the Civil Code, which article provides for the payment of the improvements made on the land.
The sixth article of the Treaty determines how the damages to the owners of private lands or private property shall be ascertained, should they be deprived thereof 1y reason of the grants contained in the Treaty.. It further provides that: "No part of the work on said canal or Panam-i railroad, or on any auxiliary works relating, thereto and authorized by the terms of this Treaty, shall be prevented, delayed or impeded by or pending such proceedings to ascertain such damages." The Court, taking into consideration the foregoing, affirms the judgment of the lower court in denying the motion for a new trial and in recognizing the right of the plaintiff to revendication of the land in dispute, the same not being open to appropriation (Art. 918 of the Fiscal Code); and said prohibition against appropriation having been publicly declared by Executive Decree, which decree was fully within the executive prerogative, the same being but declaratory of the existing laws and in aid thereof.
The decision of the lower court as to the improvements on the property is reversed, and it is ordered, adjudged and de-

75

1907.




SUPREME COURT OF THE CANAL ZONE. Apr. Term,

creed, as to the full, fair and adequate value of said improvements and the ascertainment thereof, that it is a matter of inquiry for the Joint Commission of the United States and the Republic of Panama, pursuant to the terms and provisions of Arts. VI and XV of the said Treaty. The costs of this appeal to be paid by the plaintiff. JUSTICE COLLINS concurred.
Affirmed in part and reversed in pa-rt.
ANDRADE versus PANAMA RAILROAD COMPANY et al.
No. 24. Argued April 15, 1907.-Decided May 6, 1907
PUBLIC LANDS. INJUNCTION AGAINST DAMAGE. An injunction will not be granted against employes of the Panama Railroad Company for damages caused by them to improvements made on public lands by the occupant of such lands. The damage caused shall be appraised by the Joint Commission but the work of the canal or of the railroad shall not be impeded pending such appraisal.
Appeal by plaintiff from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger, Judge.
Plaintiff has been occupying certain lands that were decided in a former case (United States v. Andrade) to be public lands, and has extensive improvements thereon. He asked for an injunction against the Panami railroad and the general manager for damages that were being done to the land and to the improvements by the construction of tracks and a dump. The proof showed that the work was being done for the Isthmian Canal Commission only.
T. C. Hinckley and Oscar Terln, for appellant. G. M. Shontz and Inocencio Galindo, for respondent.
F. MUTIS DURAN, C. J. This cause comes before the court on appeal from the Second Judicial Circuit, for an injunction against the Panama" Railroad Company. Motion for a new trial was made by plaintiff and was denied by the lower court.

76




1901'. ANDRADE v. PANAMA RAILROAD COMPANY etal. 7

It appears from the records in this case that the tract of land referred to by the appellant, plaintiff in the lower court, is the same as that claimed byv the Government of the United States in a previous suit brought against the plaintiff in this case. This former case has been decided by the Court in favor of the Government of the United States, declaring that this tract of land is public land, and therefore that the plaintiff in this case has not legal possession of the land.
It appears, furthermore, that this being an action for inJunction or temporary restraining order against the Panama" railroad, the case comes under the provisions of Art. 6 of the Treaty between the United States and the Republic of Panama' for the construction of the canal, which article provides that when the private rights of individuals shall conflict with the rights granted to the United States by said treaty, for the construction, maintenance and operation of the canal, the rights of the United States shall be superior; that all damagee caused to the owners of such private lands or property shall bie appraised and settled by a joint commission appointed by both governments; and that -no part of the work of said canal or Panam4-a railroad or any auxiliary works relating thereto, authorized by the terms of this treatyN, shall be prevented, delayed or impeded by or pending such proceedings to ascertain such damage.
This being the case, and the Court having decided that the land in question does not belong to the plaintiff in this case, an action for injunction does not apply, and therefore the Court affirms the decision of the lower court in denying the injunction.
JUSTICE COLLINS concurred.
Affirmed.

77




SUPREME COURT OF THE CANAL ZONE. Oct. Term,

CANAL ZONE versus RASEINDO.
No. 30. Argued October 14., 1907.-Decided November 18, 1907.
FORGERY. INFORMATION. PRECISION. The information must be sufficiently definite to put defendant on notice; it must charge a specific crime. In forgery, the forged instrument should be set out.
SAME. VARIANCE.
The forged instrument was a pay certificate of "The United States Isthmian Canral Commission" while the information charged the forgery of a "due-bill, order or request for the payment ot money by the United States of America HELD to be a variance between the information and the proof.
Appeal by defendant from the Circuit Court of the Second Judicial Circuit of the Canal Zone; Hon. H. A. Gudger. Judge.
THEiF facts appear in the opinion.
S. B. D)annis, for appellant. Thos. E. Brown, Jr., for the Canal Zone.
LORIN C. COLLINS, J. An information was tiled in the Circuit Court, charging the defendant with making and forging a due-bill, order or request for the payment of money by the United States of America, with intent then and there the Government of the United States of America to injure and defraud; secondly, with falsely uttering an(I publishing; and in the third count, with passing or attempting to pass the aforesaid instrument. There was a plea of not guilty, a finding of guilty on the trial and a sentence on the finding of one year in the penitentiary. The case is brought here on appeal and the point raised is that there was a variance between the information and the proof.
The instrument offered at the trial was in words and figures as follows:
''Certificate E No. 7162.-Employee's No. 7541.-Audit Pay No. I162.-Department Engineering and Construction, Division Municipal Engineering, Location Gorgona. -The United States




CANAL ZONE r. RASEINDO.

Isthmian Canal Commission Pay Certificate. -Audit Roll No. 3065.-Amount $40.80-I certify that there is due Joaquin Raseindo the amount of wages stated herein as evidenced by a duly approved pay roll, and same is payable to him upon presentation of this certificate to the Disbursing Officer, properly receipted and signature witnessed, when properly examined. Not negotiable; payable only to the person to whom drawn if presented within 60 days after close of pay period Examined.Edward J. Williams, Disbursing Officer.-I hereby acknowledge to have received from Edward J. Williams, Disbursing Officer, the sum of Four and 80/100 dollars in Panamanian silver in full payment for services rendered during the half month ended 15 Mar. 1907, 190 .... (Signed) F. 0. Heath, witness to signature. (Signed) Joaquin his X mark Raseindo, employee's signature."
In the case of the Government v. Colinas, the Court used this language in speaking of the averment as to forgery where the instrument was described as in the case at bar: "The Court is of the opinion that there is a variance between the pay certificate offered in evidence and the first count in the declaration, in that the said pay certificate is not a duebill, order or request for payment of money by the United States of America."
We assume that this information was filed prior to the rendition of the opinion in the above entitled case. However that may be, it was the deliberate decision of the Court and should be sustained unless it appears that the Court erred.
Bishop says in his New Criminal Procedure, Vol. 1, Section 98: "Under every sort of constitution known among us, an indictment which does not substantially set down, at least in general terms, all the elements of the offense-every act or omission wlich the law has made essential to the punishment it imposes-is void. And, besides this, under most of our constitutions the allegation must descend far enough into the particulars, and be sutffciently certain in its frame of words, to give the defendant reasonable notice of what will be produced against him."
And in the same volume, Sections 517, 518, 519 and 520: "The Rights of Defense,-to persons accused of crime, are among the most sacred in law. Largely they give form to the indictment, whiich in various circumstances, it is said, will be good if it does not prejudice them. ForThe Protection of the Innocent-is the highest duty of a govern-

1907.

79




SUPREME COURT OF THE CANAL ZONE.

ment. And an innocent man, as every defendant is presumed to be until convicted, can know nothing of what is to be brought against him beyond what is set down in the indictment. Ience Precise and Full Allegation,-which one conscious of crime would not need, is essential to him who would make a just defense against a false charge; and such, in the eye of the law, is every indicted person previous to conviction. And Guessing at Meaning.-The indictment against an innocent defendant, being what every indictment is presumed to be, must, to be adequate, be in distinct and full terms, so plain as to preclude the necessity of guessing at the meaning. Men differ as to their capacity of comprehension, so that justly the law never punishes one for inability to comprehend a meanitlng not set down in exact words. Th erefore-Every Fact,-as already shlown, which is essential in a prima lacie ease of guilt, must be stated; otherwise there will be at least one thing whicl the accused person is entitled to know, whereof he is not informed. And that he may be certain what a thing is, it must be charged expressly, and nothing left to intendment. All that is to be proved must be alleged. For example,-In Attempt-if it is by statute punishable to shoot at one with intent to kill him, an indictment is ill which simply charges the shooting with intent to kill, not saying whom; because, though probably the person shot Ut was the one meant, the defendant is entitled to know all without drawing on his reason or imagination. HencePrecision is, said Gibson, C. J., of the last importance to the innocent; for it is that which marks the limits of the accusation and fixes the proof of it.' "
All of the text writers hold that the information must charge a specific crime. This also is the law of the Canal Zone, as the perusal of pages 169 and 172 clearly reveals. Paragraph 6, Section 77 reads as follows: That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language., without repetition, and in such a manner as to enable a person of common understanding to know what is intended."
Had the Government on the trial offered a counterfeit legal tender note, would it not have fitted perfectly the description of the forged instrument? Or would not a United States bond have equally well fitted to the description ? Or a post-office order, or any of the various due-bills or obligations of the United States?
It must be clear tc-all minds that a pay certificate of the

80

Oct. Term,




CANAL ZONE v. RASEINDO.

Isthmian Canal Commission, for the purpose of criminal pleading, is not within the description employed in this information. The intention to defraud the United States might be sustained as laid here; but it would be such unnecessarily hazardous pleading that it should be condemned. The defendant is entitled to have the information so certain that he could plead former conviction or jeopardy as the case might be.
There cannot, we believe, be found in any form book or treatise on pleading a form of indictment for forgery which does not require the instrument itself to be set out in haec verba. This should be done in all cases.
There is not only a variance which is fatal to the judgment, but the information is so faulty that it cannot sustain a judgment. There are no facts necessary averred or alleged in the entire information which constitute a crime. The pleader has formally submitted to the Court the conclusions to which he has arrived that a crime has been committed and the defendant is put on trial for forgery of anything within the range of a due-bill, order or request for the payment of money by the United States of America.
Let the case be reversed and remanded for further proceedings in conformity with the views here expressed.
The CHIEF JUSTICE concurred.
Reversed and remanded.

81

1 90'7




SUPREME COURT OF THE CANAL ZONE.

CANAL ZONE versus HARDEMAN.
No. 36. Argued January 13, 1908.--Decided February 1, 1908.
JURISDICTION. EMBEZZLEMENT. Money entrusted to defendant that should have been kept in an office in the Canal Zone, was taken therefrom by defendant and carried into the Republic of Panam6, and there converted or lost. HELD, that the Canal Zone has jurisdiction, since the wrongful intent of the defendant to convert the money is presumed to have existed when he left the office with the money.
Appeal by defendant from the Circuit Court of the First Judicial Circuit; Hon. F. Mutis Duran, Judge.
THE facts appear in the opinion.
T. C. Hinckley, for appellant. G. M. Shontz, for the Canal Zone.
LORIN C. COLLINS, J. The defendant was indicted in the First Circuit for embezzlement of $853, lawful money of the United States of America. He was found guilty and sentenced to the penitentiary at hard labor for a term of two years. The following statement of facts was agreed upon by the attorneys in the cause:
"This was an action brought in the above named court by information filed on the 16th day of November, 1907, charging the above named H. J. Hardeman with the offense of embezzlement. The trial of said case was set for hearing on Saturday the 23d day of November, at which time said trial took place at the court house in the First Judicial Circuit. The facts of the case as developed from the testimony, disclosed that the defendant was and had been in the employ of the Isthmian Canal Commission in various capacities for some considerable time; that for a short time, up to and including the 25th day of October, 1907, the defendant was in charge of the quarantine station at La Boca, Canal Zone, as custodian thereof during the absence of one Mr. Swann, the regular custodian, who was on vacation leave; that on the

82

Jan. Term,




CANAL ZONE v. HARDEMAN.

25th day of October, 1907, one E. H. Baldwin, who was a passenger on board a steamer coming from Guayaquil, Ecuador, was taken to said quarantine station and there held in quarantine; that he came on said steamer as a steerage passenger; that shortly after reaching the quarantine station he asked the defendant, H. J. Hardeman, if he (Baidwin) could not obtain the same accommodations at said quarantine station as first-class passengers received, to which the defendant answered that he could by paying an additional fee, which said Baldwin agreed to do; that Baldwin inquired of some attendants around the quarantine station whether or not the defendant, Hardeman, was the officer in charge or custodian thereof, and was informed by such attendants that he was; that he (Baldwin) asked Hardeman whether or not he was the officer or custodian in charge of the station and was informed by defendant that he was in charge; that thereupon he asked the defendant if he would keep some money for him (Baldwin) during the time he was detained in said quarantine station, to which the defendant replied that he would, whereupon said Baldwin counted out to said defendant the sum of $853, American currency, of which approximately $600 was in American gold coin, the balance thereof being in paper money, American bills; that this money was given to Hardeman, the defendant, some time during the afternoon of October 25, 1907; that Hardeman gave to Baldwin a receipt therefor; that some time subsequent and during the same afternoon Baldwin asked the defendant if he would exchange the gold coin into United States paper money, to which the defendant agreed; that on the morning of October 26, 1907, Mr. Swann, the regular custodian of said quarantine station, returned from his vacation leave and assumed charge of said station; that the defendant, Hardeman, on the morning of October 26, left said station, taking with him the $853, so deposited with him by said Baldwin for safekeeping, and went to the International Banking Corporation in the city of Panam'a and had the gold coin exchanged for paper currency; that Hardeman went from the International Banking Corporation in the said city of Panama to the city of Colon by the ten o'clock train on the morning of October 26, 1907; that as soon as

1908.

83




SUPREME COURT OF THE CANAL ZONE.

he reached Colon he went to the Astor House in that city and had some drinks and lunch; that immediately thereafter he went to various places in Cristobal and Colon, particularly in Cristobal, seeking employment, as he was under the advice that his name would be taken from the rolls in the department in which he was employed up to that time, namely, in the quarantine station at La Boca, on the 15th day of November, and that he had the time between the 26th (lay of October and said 15th day of November in which to secure a transfer to some other department; that after seeking the transfer to some other department, he then went to various houses of ill repute, and during the night of October 26, he stayed at the house called the 'Navahoe' in the city of Colon and claims to have spent between $40 and $50 American currency, which was his own money; that on the morning of October 27, in the neighborhood of nine o'clock, he went to another house of ill fame in the said city of Colon known as 'The Mascot,' conducted by one Mrs. Pearl Corrigan; that he called for her and when shown into the house and to her presence asked her if she desired to sell her place. She answered that she would, provided the terms were satisfactory; that Hardeman then offered Mrs. Corrigan a certain sum of money for said place known as 'The Mascot' and agreed to pay down the sum of $500, saying that he had more money but could not pay any more than that sum down. This proposition was refused by Mrs. Corrigan. Then Hardeman asked her if she was any relation to the Corrigan brothers, he claiming to know them, and when she replied that she had married Jimmy Corrigan, he asked to see her husband. When he did so he asked the said Jimmy Corrigan to use his influence with Mrs. Corrigan, his wife, to assist him (Hardeman) in buying 'The Mascot' for the sum which he had offered Mrs. Corrigan, namely, the-sum of $1,600. At this time .there appeared one Mr. West and also his wife, who heard a part of the conversation between Mr. and Mrs. Corrigan and Hardeman; that there were a few drinks had at this time and that Hardeman went away; that he roamed about the streets of Colon during most of the day, going from one place to another, and that about four o'clock of the afternoon of said day he was taken to the

84

J cn1. TerM,