Judgment affirmed.

CAMPBELL, J., dissents; HILL, J., not participating.

On Petition for Rehearing.

thus: Fire while necessary for many uses | continually striving to break through any of civilized man, is a dangerous, volatile, and artificial barrier by which it may be restraindestructive element, which often escapes in ed. They know that the breaking of the barthe form of sparks, capable of being wafted rier may result in great damage to many afar through the air, and of destroying any innocent persons; that death and destruccombustible property on which they fall; tion may follow the escape of the stored and which, when it has once gained head- water, and the Legislature has said to these way, can hardly be arrested or controlled. owners: "If you collect so dangerous an Railroad corporations, in order the better to agency on your own land, you must keep it carry out the public object of their creation, confined; if it escapes, it is at your peril." the sure and prompt transportation of pas- For the reasons given, the judgment is afsengers and goods, have been authorized by firmed. statute to use locomotive engines propelled by steam generated by fires lighted upon those engines. It is within the authority of the Legislature to make adequate provision for protecting the property of others against loss or injury by sparks from such engines. The right of the citizen not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the Legislature may properly consider it to be just that the duty of insuring private property against loss or injury, caused by the use of dangerous instruments, should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the own er of the property, who has no control over or interest in those instruments."

PER CURIAM. We have held that the

statute imposes an absolute liability, but we have not held that a reservoir owner may, or may not, under the law of the land and notwithstanding the statute, be excused from

liability upon showing that the injury was caused by the act of God or the public en

emy.

Petition for rehearing denied.

CAMPBELL and HILL, JJ., not partici

pating.

(41 Mont. 402)

STATE v. MOXLEY. (Supreme Court of Montana. June 15, 1910.) 1. RECEIVING STOLEN GOODS (§ 1**)-ELEMENTS OF OFFENSE.

[Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. 88 1-6; Dec. Dig. § 1.*]

2. RECEIVING STOLEN GOODS (§ 8*)—EVI

Finally it is urged that the statute imposes In a prosecution under Rev. Codes, § 8662, no liability, except for the breaking of the making it an offense to buy or receive for one's own gain, or to prevent the owner from reposbank or dam of the reservoir. It is stated in sessing his property, personal property known the answer that neither the bank nor the to have been stolen, it must be shown that the dam broke, but that the injury was occasion- property was stolen, and that accused bought or received it, knowing it to have been stolen, ed by the washing out of the mesa or hill-for his own gain or to prevent the owner from side. The contention is that the words "em- regaining possession. bankment" and "dam" cannot be construed to cover or include natural barriers. We cannot agree with this contention. In our opinion, whenever the builder of a reservoir uses a natural bank or dam for impounding water, he adopts it as part of his reservoir, and must be held to the same liability as if it were built by him. The Legislature did not intend that one who appropriates a nat-3. ural bank as part of his reservoir should be A charge of larceny must identify the ofexempt from fiability in the event of its fense by describing the things stolen, and their washing out, but did intend the word "em-ownership and the name of the owner must be bankment" should include not only an artifi- stated, if known. cial barrier, but a natural one as well, if used

DENCE-SUFFICIENCY.

Evidence held sufficient to show the offense of receiving stolen property. [Ed. Note. For other cases, see Receiving Stolen Goods, Dec. Dig. § 8.*]

LARCENY (§ 28*)-ACCUSATION REQUI

SITES.

[Ed. Note. For other cases, see Larceny,

Cent. Dig. §§ 58-92; Dec. Dig. § 28.*]

RECEIVING STOLEN GOODS (§ 7*)—ACCUSA

TION-REQUISITES.

as a part of the reservoir, to prevent the
escape of water. This construction is sup-4.
ported by the case of Barber v. Nottingham
Canal Co., 15 C. B. N. S., at page 747.
The storage of water is a source of prof-
itable investment of capital. The owners
know, however, that water, from its nature.
is pressing outward in all directions and § 7.*]

A charge of receiving stolen property must identify the offense by describing the things stolen, and their ownership and the name of the owner must be stated, if known.

[Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig.

5. RECEIVING STOLEN GOODS (§ 7*)-OwneR-, the following: "That at the county of SilSHIP-CONFORMITY OF PROOF TO ACCUSA- ver Bow, state of Montana, on or about the

Appeal from District Court, Silver Bow the morning of July 3d the defendant went County; Michael Donlan, Judge.

to Neyman's place and, finding Neyman's son in charge, told him that he had some tools to sell. Young Neyman told him that he would be down to his house on the next morning to examine them. The store was to be closed the next day because it was Sunday. Neyman went to the place according to agreement, and after some conversaBRANTLY, C. J. The defendant, charg- tion bought the lot of tools for $7.50 and ed by information with the crime of receiv- took them to the store. Since July 4th, a ing for his own gain stolen property, know- legal holiday, fell on Sunday, the store was ing the same to have been stolen, was found kept closed on Monday, July 5th, also. Earguilty and sentenced for a term of six ly in the morning of the next day the demonths in the county jail. He has appeal- fendant came to the store and there received from the judgment. ed payment from Neyman, after signing a The charging part of the information is bill of sale. Dealers in second-hand goods *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

are required by an ordinance of the city to take bills of sale for goods purchased by them, and to furnish copies of them, at the close of the day's business, to the city authorities. The defendant signed the name "John Johnson," designating his residence as "20 West Silver street," whereas he resided at 314 East Mercury street. When Neyman went to defendant's house to purchase the tools, they were all together in a box or chest, which, from the description given by him, was the same one in which they had been left in the school building on July 2d. Neyman did not notice a name upon any of the tools. He did not include the box or chest in his purchase. The evidence as to the value of the tools, though not entirely satisfactory, is sufficiently substantial to justify the conclusion that they were all together worth at least $35. None of the witnesses for the state had any knowledge as to how or by whom the tools were taken from the school building, or how they came into the possession of the defendant.

there with a lot of thieves, any more than any of these gentlemen do; that is why I put it there."

It appeared from the testimony of other witnesses that Thornton did reside in the neighborhood of defendant's residence up until the day the defendant purchased the tools from him, and that he was engaged in doing odd jobs at carpenter repairing and similar work. Though Kipp was examined as a witness to establish the previous good character of the defendant, he was not asked to pro-. duce the receipt referred to by the defendant, nor was he questioned about it. At the time the defendant signed the bill of sale, Neyman was busy and did not notice how it was signed, until he came to make out his report to the city authorities of the purchases made during the day. Neyman had known defendant for some time and knew where he resided.

Section 8662, Rev. Codes, under which the information was drawn, declares: "Every person who for his own gain or to prevent the owner from again possessing his own property buys or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years or in a county jail not exceeding six months." To make out the substantive offense herein defined and denounced, the evidence must establish (1) that the property in question was stolen; (2) that the defendant bought it or received it knowing it to have been stolen; and (3) that he did so for his own gain or to prevent the owner from regaining possession of it. While the evidence summarized above is entirely circumstantial, we think it made out a case upon which the jury could properly find the presence of every essential element of the offense. State v. Sparks, 40 Mont. 82, 105 Pac. 87; Boyd v. State, 150 Ala. 101, 43 South. 204; People v. Schooley, 149 N. Y. 99, 43 N. E. 536; Licette v. State, 75 Ga. 253; Gunther v. People, 139 Ill. 526, 28 N. E. 1101; People v. Pitcher, 15 Mich. 397; State v. Goldman, 65 N. J. Law, 394, 47 Atl. 641; Commonwealth v. Billings, 167 Mass. 283, 45

The defendant was examined as a witness in his own behalf. He stated that he had received the tools on June 28th from a man by the name of Thornton, who lived next door to him on Mercury street; that Thornton was employed doing odd jobs in the neighborhood, and on that particular day was engaged at some carpenter repair work for a man by the name of Kipp, across the street; that Thornton had tools of his own; that after Thornton had finished work he came to him and asked for and obtained from him a loan of five dollars, leaving the tools as security; that the tools were then in the chest or box, but, knowing that Thornton had tools worth from ten to fifteen dollars, he did not examine them; that he had previously lent Thornton money on the same tools; that he was sure he received the tools on June 28th, because, when Thornton had finished the work for Kipp, Kipp had paid him, taking his receipt which bore that date; Kipp having shown him the receipt; that on the next day he again saw Thornton, who desired an additional N. E. 910; State v. Gordon, 105 Minn. 217, loan of two dollars, which he refused; that 117 N. W. 483; s. c., 15 Am. & Eng. Ann. Thornton thereupon told him he might keep Cas. 897. the tools, inasmuch as he was going away It wholly fails, however, to establish the to work in an adjoining county; that the ownership as alleged in the information. In sale was made to Neyman on July 3d; that larceny it is necessary that the charge idenhe signed the bill of sale on July 6th as tify the offense by a description of the things Neyman directed, both as to name and res- stolen, and their ownership. The name of idence; that Neyman knew that he would the owner must be stated, if known. 2 Bishnot sign his own name, and hence the di- op's New Crim. Pro. § 718. So in charging rection to do as he did. He stated further the offense of receiving stolen property. Id. that as soon as he had signed the name to $$ 982, 983; Miller v. People, 13 Colo. 166, the bill of sale, Neyman complained that 21 Pac. 1025; State v. McAloon, 40 Me. 134; he was having trouble about tools, but did Commonwealth v. Finn, 108 Mass. 466; 34 not say whether he referred to the tools Cyc. 521. The reason of the rule is that the in question or not. Being asked to explain | transaction may be so identified that the deto the jury why he had written the name fendant may, by proper plea, protect himself "Johnson" when his own name was Mox- against another prosecution for the same of

be proved as charged. Commonwealth v. the purpose for which this was offered; but Billings, supra; Miller v. People, supra; that this was incompetent, because it had Brooks v. State, 5 Baxt. (Tenn.) 607; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035; 34 Cyc. 523.

The ownership laid in the information in this case is jointly in E. G. Johnson, Charles Johnson, and C. M. Rude. The evidence discloses that all the tools stolen belonged to E. G. Johnson, except two saws identified as the property of Charles Johnson, and a square belonging to Rude. The judgment, if allowed to stand, would not support a plea of former conviction under a charge of having received the tools owned exclusively by either of the Johnsons or Rude. While, under the statute (Rev. Codes, § 9153), a mistake in the name of the person injured is not to be deemed material, if the injury is so described in other respects as to identify it (People v. Leong Quong, 60 Cal. 107; State v. Green, 15 Mont. 424, 39 Pac. 322), yet if it is not so identified by the evidence as that it can be said to be the same, there is such a variance as amounts to a failure of proof, and the conviction cannot be sustained. State v. McDonald, 10 Mont. 21, 24 Pac. 628, 24 Am. St. Rep. 25; State v. Lee, 33 Mont. 205.1 If the information had charged the different articles to be the separate property of the respective owners, the information would have come within the rule of State v. Mjelde, 29 Mont. 490, 75 Pac. 87, and the convic-| tion would have been proper. As it stands, it does not identify the transaction, except by the allegation of joint ownership (the description of the property being entirely omitted because unknown to the county attorney), and hence must be held not to identify with sufficient certainty the transaction which the evidence tends to establish.

The contention is also made that the evidence is insufficient in that it fails to establish the value of the property as alleged. There is no merit in this contention. The statute does not require the value to be alleged, and it is sufficient to charge the offense as it is therein defined. The penalty does not depend upon the value; hence it need not be alleged. People v. Rice, 73 Cal. 220, 14 Pac. 851; 2 Bishop's New Crim. Pro. 985; 34 Cyc. 521. Not only so, but it is not necessary that the evidence go further than to demonstrate that the property has some value. 34 Cyc. 529. The allegation in the information on this subject may be regarded as surplusage.

reference to transactions subsequent to that date. If such were the fact, the objection ought to have been sustained; for his dealings with thieves after that date would not reflect upon the question whether the defendant had knowledge that he was then dealing with a thief. But it appears that all the transactions referred to occurred during the month of June. The evidence was open to the objection, however, that it was wholly immaterial in that it did not tend to show that any of the articles in question had been stolen. On another trial the evidence should be excluded, unless it is made to appear that the articles were in fact stolen.

The judgment is reversed, and the district court is directed to grant the defendant a new trial.

Reversed and remanded.

HOLLOWAY, J., concurs.

SMITH, J., did not hear the argument. and takes no part in the foregoing decision.

(41 Mont. 532)

STATE ex rel. ROWLING et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. FOR SILVER BOW COUNTY et al (Supreme Court of Montana. July 7, 1910.) 1. MANDAMUS (§ 172*)-PROCEEDINGS-QUES TIONS CONSIDERED.

In mandamus to compel the mayor of a charged, the court could not determine the pow city to reinstate policemen whom he had dis er of the mayor to relieve policemen from active duty placing them on the eligible list.

[Ed. Note. For other cases, see Mandamus. Cent. Dig. §§ 381, 383; Dec. Dig. § 172.*] 2. MANDAMUS (§ 186*) DISOBEDIENCE OF WRIT CONTEMPT PROCEEDINGS.

In contempt proceedings against the mayor of a city for violating an order in mandamus to reinstate policemen whom he had discharged. the question whether he had authority to temcould not arise; the only question being whethporarily relieve the policemen of active duty er he had actually and in good faith obeyed the order in mandamus by restoring the relators to their positions.

Cent. Dig. 88 424, 425; Dec. Dig. § 186.*]
[Ed. Note.-For other cases, see Mandamus,
3. MANDAMUS (§ 186*)-DISOBEDIENCE OF OB-
DER-CONTEMPT PROCEEDINGS.

In contempt proceedings for violation of an order in mandamus requiring the mayor of a city to reinstate policemen whom he had discharged, where there was no question raised as to his good faith in relieving them of active duty and placing them on the eligible list, the order to show cause in contempt proceedings was properly discharged.

Cent. Dig. §§ 424, 425; Dec. Dig. § 186.*]
[Ed. Note.-For other cases, see Mandamus,

Contention is made that the court erred in - admitting certain evidence as tending to show that the defendant had at other times received other articles which had been sto len, as reflecting upon the question of his guilty knowledge of their character when he Application by the State, on the relation purchased the tools in question. It is conced- of J. H. Rowling and others, for a writ of ed that evidence of similar transactions prior supervisory control to the District Court of to July 3d would have been admissible for the Second Judicial District in and for SilFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 183 Pac. 223.

ver Bow County and Hon. John B. McCler- | respondent as an invasion of the provisions nan, a judge thereof. Dismissed.

W. E. Carroll and Kirk, Bourquin & Kirk, for relators. Edwin M. Lamb, for respond

ents.

ors

and of avoiding a needlessly large police force" they were retired from active service. The district court adjudged that the mayor was not in contempt, and discharged the order to show cause why he should not be punished.

of the metropolitan police law and a concumvention of the mandate of the court." temptuous and willful disregard and cirIn response to a citation duly issued, the mayor answered that he had fully complied with the original mandate of the court; SMITH, J. Prior to May, 1909, the relat- that he had set aside his former order rewere duly appointed and acting per- moving the relators from the police force, manent police officers of the city of Butte. and had restored them to their places as On December 18, 1909, Hon. Charles P. Nev-members thereof, in obedience to the order in, mayor of that city, served them with no- of the court; that he recognized them as tice that they were discharged from the po- members of the force, but that "for the purlice force. Thereupon, upon proper proceed-pose of curtailing the expenses of the city ings being instituted, the district court of Silver Bow county, on April 27, 1910, held that he had no such authority, and ordered him to reinstate them in office as policemen and members of the police department. On the morning of April 28, 1910, the mayor obeyed the order of the court by restoring relators to active duty upon the force, and on the afternoon of that day, after they had each served eight hours, he assumed to relegate them to the eligible list without pay, giving as a reason therefor that the police department was greater numerically than the needs of the city required. His notice to them was as follows: "Dear Sir: Owing to the condition of the finances of the city of Butte, which require retrenchment and economy, and for the further reason that the police department is greater numerically than the needs of the city require, I have this day reduced the number of the police department to the extent of fifteen, and in order to accomplish this purpose and this end I have put you (together with fourteen others) out of active service as a member of said department, and your name is placed upon the eligible list of said department, being the list of persons eligible to appointment under the act of the Legislative Assembly of the state of Montana known as chapter 136, Sess. Laws 1907 (Rev. Codes, §§ 3304-3317), and you are therefore upon said list, with the right to be returned to duty and position in said department when the financial condition of the city will permit and the exigencies of the service require it."

The matter comes to this court on application for a writ of supervisory control to compel the district court and Hon. John B. McClernan, a judge thereof, to show cause why the writ of mandate above referred to should not be enforced and the mayor compelled to obey the same. It is further alleged in the petition filed in this court as follows: "And your petitioners respectfully show that by the evidence aforesaid it appeared that said mayor had during his incumbency, and prior to his discharge of petitioners, appointed to and upon said force in excess of thirteen members mostly of no police experience, who at the time last aforesaid, at all times hitherto, and now continue in active service thereon, discharging the duties an enjoying the salaries thereof, two of which at the time so appointed by him had not been residents of said city for a period of two years prior to their appointment as aforesaid, and also that for the fiscal year ending on the first Monday in May, both of 1910 and 1911, the council of said municipality appropriated more money to pay the expense and salaries of the police force aforesaid than was necessary for and than would be required to pay such expense and salaries for said police force, including those appointed by the said mayor as Upon demand being made of the mayor aforesaid and also petitioners." The re"that he obey and comply with the mandate of spondents have made return to an order to the district court and restore petitioners to show cause heretofore issued, in which they, their offices and the duties and salaries there- in effect, admit all of the material allegaof," he refused. On May 3, 1910, they in- tions of the petition, and in addition therestituted contempt proceedings in the district to we find the following: "Admit that by the court to compel the mayor "to obey and com- testimony in the mandamus proceedings it ply with" the writ of mandate theretofore appeared that prior to the 15th day of Deissued. The facts set forth in the applica-cember, 1909, vacancies occurring by deaths, tion for the order were the same as those resignations, and removal in police departjust recited, with the addition that it is al- ment had been filled, and in this connection leged in such application that "no change allege that the testimony taken at said time has occurred nor have any new conditions also showed the appropriation of the poarisen which would alter the right of these lice department for the fiscal year ending relators to the relief afforded them by said judgment and order since its rendition, and the attempted placing of these relators upon

the first Monday in May, 1910, to be $110,000, and the appropriation for the fiscal year ending the first Monday in May, 1911, to be