Territory of Montana v. Mackey , 8 Mont. 168 ( 1888 )

McConnell, C. J.

In this case the attorney-general for the Territory “ moves the court to dismiss the appeal, .... for the reason that the transcript was not filed within thirty days after the taking of said appeal.” The transcript was filed July 6, 1888, the notice of appeal was served upon the county attorney and the District Court clerk of Deer Lodge County, the place of trial, on the fourteenth day of May, 1888, and the necessary undertaking on appeal was executed May 17, 1888; hence the appeal was consummated on that day. (Comp. Stats. § 398, p. 477.) It will thus be seen that fifty days elapsed between the time of taking the appeal and the filing of the transcript. Section 397, page 476 of the Compiled Statutes provides that “the appeal must be taken within six months after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.” In the case of Territory v. Flowers, 2 Mont. 392, this court held that the foregoing statute, in so far as it requires the transcript to be filed within thirty days after the appeal has been taken, is merely directory, and not mandatory. We do not feel called upon to disturb it. The motion is therefore disallowed. But we cannot pass from this subject without remarking that the practice of attorneys in filing transcripts in this court just upon the eve of its meeting, or after the term has commenced, is reprehensible, and ought not to be followed except when it is absolutely unavoidable. It gives the attorney-general no opportunity to examine them, and prepare for hearing at that term. Conviction of a misdemeanor, motion for a new trial overruled, and an appeal to this court. The following grounds of error are relied upon for a reversal of this case, to wit: (1) Error for refusing to sustain defendant’s motion for a nonsuit, and to discharge the defendant. (2) Error in the refusal to admit certain testimony offered by the defendant. (3) Error in certain instructions given by the court.

The motion for a nonsuit was predicated upon the following grounds, to wit: “That the prosecution failed to prove that there was any such mine ever located as the Oregon Lode Claim; that the same had never been staked off, so that its boundaries could be traced on the ground; that there was no proof of the mineral character of the said Oregon Lode Claim; that there was no proof of any defacing, obliterating, or destruction of the said notice; and that there was no proof that the said notice was inside of the lines of the said Oregon Lode Claim.” The defendant was indicted under section 1482, page 1055 of the Compiled Statutes of Montana. It provides “ that any person who shall remove any stake or monument on any mining claim, or who shall obliterate, deface, or destroy any notice placed thereon, shall be deemed guilty of a misdemeanor.” The indictment charges that the defendant did “ wilfully and unlawfully obliterate, deface, and destroy a notice of location placed upon the Oregon Quartz Lode Mining Claim.” Under this indictment it was essential to prove that there was such a mining claim as the “Oregon Quartz Lode”; that a notice of location was placed upon it; and that the defendant did wilfully and unlawfully obliterate, deface, or destroy it. The Supreme Court of the United States, in the case of Smelting Co. v. Kemp, 104 U. S. 639, thus defines a mining claim, to wit: “A mining claim is a parcel of land containing precious metal in its soil or rock. A location is the act of appropriating such parcel according to certain rules.” The witness, Steven Severson, testified that he was the locator of the so-called “ Oregon Lode Mining Claim”; that he started to run a cross-cut, and found “quartz and vein matter.” Thereupon he put up the location notice. This is the whole of the testimony upon this point. Tested by the foregoing definition of a mining claim, it will be seen that there is no such mining claim as that described in the indictment. There is not a scintilla of evidence that there was a particle of precious metal either in the “quartz” or “vein matter.” The existence of quartz or vein matter does not of itself constitute a mine, nor warrant the discoverer in locating a mining claim. Such matter must bear one or more of the metals named in the statute before a mine that has been discovered can be located under the law. The motion, then, to enter a nonsuit, and discharge the defendant, should have been sustained, or, what we think is the proper practice in such cases, the jury should have been instructed to return a verdict of not guilty. The evidence satisfies us that there is no merit in this prosecution. The prosecuting witness confesses that his so-called “Oregon Lode” is within the “Young America” Claim, which was located long before his (and that belongs in part to the wife of the defendant), and that he instituted this prosecution for the purpose of compelling defendant to buy either his claim or to give him stock in the “Young America.” Deeming the prosecution frivolous and malicious, we direct that an entry be made here discharging the defendant. From this view of the case it is unnecessary for us to notice the other grounds of error.

Judgment reversed

Bach, J., and Liddell, J., concur.