case

on the ground that plaintiffs his admiration of the decorations and never completed their contract.

changes being made, and made no obWhere a lease contemplated the jection to what was being done, and erection of a building, provided for its soon after the work was finished rereversion to the lessor at the expira- took possession for a default of the tion of the term, required the lessee lessee, it was held that he had con. to keep it insured and to rebuild in sented to the work so as to give plaincase of destruction, and provided for tiff a lien. National Wall Paper Co. re-entry in case of default by the les- v. Sire (1900) 163 N. Y. 122, 57 N. E. see, and, in addition, the lessor lived 293, 7 N. Y. Anno. Cas. 406. near the premises and saw the build- Where a lease was made to the ing from time to time, while it was knowledge of the owner for the purbeing erected under a contract with pose of manufacturing ice, and conthe lessee, it was erected with her tained an option to purchase, and the "permission" within the meaning of a owner knew that the work of making local statute, and the contractor was an ice plant and building was going entitled to a lien. Burkitt v. Harper on, and did not dissent, it was held (1879) 79 N. Y. 273.

in the concurring opinion in Mason Where a lessee of a building to be Ice Mach. Co. v. Upham (1898) 26 used as a roller skating rink took up App. Div. 420, 50 N. Y. Supp. 197, part of the floor, which had become that the evidence showed the lessor's unsuitable for the purpose of a skat- consent to the erection of a plant and ing rink, and had a new floor laid, building such as might generally be and there was evidence tending to supposed to be useful or necessary warrant the inference that there was to the operation of an ice-manufacan understanding between the lessor's turing plant. The majority opinion president and the lessee in relation does not discuss the question beyond to such repairs, and, in addition, the saying that the evidence warranted, president had knowledge of the under- but did not require, a finding of contaking before the old boards had all

sent. been taken up, and before any of the

Where a building was erected by a new floor was laid, or any of the mate

lessee, who had contracted to purchase rials furnished for which the lien was

the property from the lessor, and the claimed, but did not give the written

lessor admitted that the lessee showed notice of dissent authorized by the

him the plans and specifications, and Maine statute, the finding that the

that he knew an old building had been lessor consented was warranted. York

moved to another part of the lot, and v. Mathis (1907) 103 Me. 67, 68 Atl.

the lessee claimed that he showed the 746.

lessor the building contract and was And where a lessee who had the

expressly told by him that he might leased building overhauled, painted,

go ahead with the work, it was held and decorated had one or two rooms

that there was evidence to support a decorated as a specimen of the work, finding that the lessor consented to and called the lessor's attention to the

the building contract. Butler v. Flynn work, and told him that he was about (1900) 51 App. Div. 225, 64 N. Y. to enter into a contract with the plain- Supp. 877, 7 N. Y. Anno. Cas. 403. tiff for the decoration of the whole Where a vendor knew of a contract house, and, after making a contract, for the construction of a building, again told the lessor, and said that he made by his vendee, at or about its (the lessor) ought to pay part of the date, and made no objection, the conexpense, to which the lessor replied tract being made before any written that he would see how well it was contract of sale had been made, and he done, and, while the work was being knew that the improvement was going done, the lessor was in attendance on, and provided in his contract that, constantly, examining the work as it in case of default by the vendee, he progressed, and was familiar with should be entitled to retain all payevery detail, and frequently expressed ments made and all improvements, a finding that he consented, so as to sub- tract with the factory proprietor after ject his interest to a mechanics' lien, the completion of the contract for the would not be disturbed. Kealey v.' construction of the building. After Murray (1891) 40 N. Y. S. R. 23, 15 saying that there could be no lien as N. Y. Supp. 403. The court said that against defendant unless the elevator it was very clearly his expectation and was acquired and installed with his desire when he made the contract, and consent or authority, the court held in contemplation of both parties, that that as he saw it when delivered and a house would be built; that it im- being installed, and made no objecproved the security, and might inure tion, and knew that it was the intento his benefit; and that this he was tion to put in an elevator, and that, willing to receive.

in the construction of the building, an Where the vendor understood that elevator was contemplated and rethe vendee was to erect a building quired for its use and enjoyment, he on the land, and repeatedly told per- consented to the procurement of the sons furnishing materials and labor elevator, and plaintiff was entitled to that they would be paid, and urged

a lien. them to go on with the work, it was In Davis v. Humphrey (1873) 112 held that there was such a consent Mass. 309, it was, the intent of the on his part as entitled them to liens, parties when a bond for a deed was under a statute requiring the work to given that the purchaser should build be done with the privity and consent a house on the lot; they had frequent of the owner. Blight v. Ray (1893) conversations about the building be23 Ont. Rep. 415.

fore and after the bond was given; Where a contract for the sale of and the vendor knew the purchaser's lots, made by the owner's husband, arrangements for securing money for required the vendee to build houses that purpose, and knew when the celon the lots, and provided that the ven- lar was built. When the petitioner, dor would advance money to the who contracted to do the woodwork vendee for that purpose, and, on com- and furnish the necessary materials, pletion of the buildings, take a mort- began work, the vendor met him at the gage on the lots and the buildings for house and talked with his foreman the purchase price and advances, and about the lot, and was subsequently the vendor took an assignment of such given oral notice by the petitioner that contract from her husband, advanced he intended to claim a lien, and it was money thereon, and knew that the in dispute whether he then declared buildings were being erected, and that that he would not be responsible. It labor was employed and materials was held that the question whether furnished for that purpose, the labor the work was done by petitioner with was performed and materials fur- his consent was for the jury. The nished with her consent. Schmalz v. court said that the consent might be Mead (1891) 125 N. Y. 188, 26 N. E. implied from the knowledge of the 251.

party, taken in connection with his In Kimball Bros. Co. V. Fehleisen

acts, purposes, and conduct as they (1918) Iowa, 169 N. W. 445, appeared in the evidence. defendant assisted in financing the In Brown v. Haddock (1908) 199 construction of a factory, and took Mass. 480, 85 N. E. 573, both parties, title to the land on which it was con- prior to the conveyance of lots purstructed, and agreed to convey it to suant to a contract of sale, contemthe proprietor of the factory on cer- plated the erection of buildings theretain terms, and is treated in the opin- on by the purchaser. The vendor had ion as a vendor. He and the factory knowledge of the kind of houses to be proprietor contracted for the con- erected, had seen the plans of the struction of the factory, and provi- houses and approved of them, and had sion was made in the plans for a knowledge that the money was to be freight elevator. The freight elevator procured by the purchaser from a savwas installed by plaintiff under a con- ings bank which was to hold first

,

He gave

mortgages on the property.

Thus, where a lessor had actual nothe lines for one of the buildings to an tice of the making of improvements by employee of one of the lienors, and her lessee, and saw them in progress, saw the work being done prior to the and made no objection, it was held conveyance, and knew that labor and that she knowingly permitted them materials were being furnished under to be made, though under the lease no contract with the purchaser for the improvements were to be made witherection of such buildings. The pur- out written notice to her, which had chaser could not get any money from not been given. Loeff v. Meyer (1918) the bank until the buildings were up 284 Ill. 114, 119 N. E. 908. And where to a certain point, and the vendor the owner knew of a verbal sale of knew that, and knew that he could her land by her husband and of the not get any of the purchase money erection of buildings thereon by the until the purchaser got the money vendee, pursuant to such sale, it was from the bank. It was held that these held that a mechanics' lien for matefacts warranted, if they did not re- rials in making the improvement could quire, a finding that the labor and ma- be enforced as against her. West v. terials were furnished with the ven- Pullen (1900) 88 Ill. App. 620. dor's consent.

And in Friebele v. Schwartz (1911) And see also Garland v. Van Rensse- 164 Ill. App. 504, involving improvelaer (1893) 71 Hun, 2, 24 N. Y. Supp. ments by a lessee, the court said that 781, affirmed in (1893) 140 N. Y. 638, an owner, knowing an improvement is 35 N. E. 892, where one building a being made, must object to the imhouse under a contract with a vendee, provement, and otherwise he knowing“with the knowledge and consent” of ly permits the improvement, and therethe vendor, was held to have a lien

by consents to the parties being entiunder a statute giving a lien for im- tled to a lien. There, however, seems provements made with the consent of

to have been considerable evidence in the owner; also Shaw v. Young (1895)

this case to show a consent, and not 87 Me. 271, 32 Atl. 897, cited supra, under II. c.

mere knowledge of the improvement.

And in a case involving the question IV. When does owner "knowingly per- whether a remainderman had knowingmit" improvements.

ly permitted improvements by a life Under the Illinois statute giving a tenant, the court said that he knowlien to any person doing work under a ingly permits a thing to be done who, contract with the owner or with one knowing that it is being done, and whom the owner has authorized or

being present when he could object, knowingly permitted to improve the

and having an interest to object, does same, it is held that an owner know

not object; and that still more does ingly permits the tenant to improve

he knowingly permit it to be done if the property if, knowing that it is be

he takes part in doing it. Wertz v. ing done, he fails to object. Loeff v.

Mulloy (1908) 144 Ill. App. 329. Meyer (1918) 284 Ill. 114, 119 N. E. 908; West v. Pullen (1900) 88 Ill. App.

But in McRae v. Murdoch Campbell

Co. (Ill.) supra, involving improve620; Wertz v. Mulloy (1908) 144 III. App. 329; Friebele v. Schwartz (1911)

ments by a lessee for trade purposes, 164 Ill. App. 504. But where the im

the court said that to knowingly perprovements were made for trade pur- , mit improvements on property in the poses, and not under any agreement : sense of a statute was something more with the owners providing for the than to have knowledge that the work making of improvements, the contrary was being done and refrain from forwas held in McRae v. Murdoch Camp-. bidding or protesting against its being bell Co. (1900) 94 Ill. App. 105.

done.

A. McT.

(- N. J.

106 Atl. 416.)

STATE OF NEW JERSEY

V.
PHILIP MOWSER, Piff. in Err.

New Jersey Court of Errors and Appeals – March 8, 1919.

(- N.J. -106 Atl. 416.)

Criminal law - former conviction - robbery and murder.

1. A conviction of robbery is a bar to a subsequent prosecution for murder resulting from the criminal act done in the perpetration of the robbery, where the statute makes an undesigned killing in the perpetration of robbery murder.

[See note on this question beginning on page 702.] Appeal erroneous admission of evi. dence – effect of plea of autrefois the theory that he thereby admits that convict.

the facts in the former indictment 2. Erroneous admission of a confes- were the same as those in the present sion by accused is not rendered harmless by his plea of autrefois convict on [See 2 R. C. L. 250.]

(Walker, Ch. J., and Williams, J., dissent.)

one.

ERROR to the Supreme Court to review a judgment affirming a judgment of the Court of Oyer and Terminer for Morris County (Parker, J.) convicting him of murder. Reversed.

The facts are stated in the opinion of the court.

Mr. Charles A. Rathbun, for plain- 114 Minn. 457, 131 N. W. 496, Ann. tiff in error:

Cas. 1912C, 667; 12 Cyc. 280. The plea of autrefois convict, which Inasmuch as the evidence on the was overruled by the supreme court, trial of murder indictment would have and thereafter by the oyer and ter- been sufficient to convict under the miner, was in proper form.

first indictment for robbery, the murBishop, Directions & Forms, 2d ed. der prosecution is barred by the con§ 1042; 1 Bishop, Crim. Proc. $$ 745, viction of the robbery. 808; State V. Ackerman, 64 N. J. L. Whart. Crim. Pl. & Pr. 9th ed. 456, 99, 45 Atl. 27; State v. Rosa, 72 N. J. 471; 8 R. C. L. 143, § 128; 1 Whart. L. 464, 62 Atl. 695.

Crim. Law, 11th ed. SS 508, 528. Murder ensuing from the perpetra- The state could have so drawn the tion of a robbery, and the robbery, indictment that on the trial iť could are one and the same offense.

have convicted either of robbery or State v. Cooper, 13 N. J. L. 361, 25 murder. Having elected otherwise, Am. Rep. 490; Johnson v. State, 26 and prosecuted the robbery charge to N. J. L. 313; United States v. Mac

conviction first, it is barred from prosAndrews & F. Co. 149 Fed. 836; Wil

ecuting for the murder.

Whart. Crim. Pl. & Pr. 9th ed. § 467; cox v. State, 6 Lea, 571, 40 Am. Rep. 53; 1 Bishop, Crim. Law, 8th ed. 105–

Jackson v. State, 14 Ind. 327; Drake v.

State, 60 Ala. 42; State v. Johnson, 30 107, 1060; Ex parte Lange, 18 Wall.

N. J. L. 185. 163, 21 L. ed. 872; Moundsville v.

The robbery was an essential inFountain, 27 W. Va. 182.

gredient of the murder. Without the Conviction of a lesser offense is a

violence by which the robbery was bar to prosecution for the greater.

committed, there would have been no Re Nielsen, 131 U. S. 176, 33 L. ed. murder. 118, 9 Sup. Ct. Rep. 672; Moore v. Whart. Crim. Law, 11th ed. 509, note State, 71 Ala. 307; People v. Defoor, 17; State v. Cross, 101 N. C. 770, 9 100 Cal. 150, 34 Pac. 642; Wilson v. Am. St. Rep. 53, 7 S. E. 715; State State, 24 Conn. 57; State v. Wondra, v. Smith, 43 Vt. 324.

The robbery and murder are merged for a short distance, and then Herbby our statute in cases where the ert felled Richards with one or death is the result of the robbery. two blows on the head with a piece State v. Cooper, 13 N. J. L. 361, 25

of gas pipe, and robbed him. RichAm. Dec. 490; Cook v. State, 24 N. J.

ards died from the effect of his inL. 846; State v. Webster, 39 N. H. 96; Graves v. State, 45 N. J. L. 347, 46

juries at noon of the same day. Am. Rep. 778; 4 Bl. Com. chap. 14,

Mowser was not present when the p. 201; State v. Meyer, 64 N. J. L. 382,

assault was committed, but was 45 Atl. 779.

somewhere in the immediate vicinThe defendant was only an acces- ity. On May 8, 1917, the grand sory before the fact, and therefore

jury of Morris county presented an was entitled to his discharge at the indictment against Mowser, in the close of the state's case.

statutory form, charging him of State v. Wyckoff, 31 N. J. L. 65;

having on May 5, 1917, wilfully, State v. Wilson, 79 N. J. L. 241, 75 Atl. 776; Jackson v. State, 49 N. J. L. 252,

feloniously, and of his malice afore9 Atl. 740, 7 Am. Crim. Rep. 80; 4 thought killed and murdered FredBi. Com, chap. 14, p. 201; State v.

erick Richards, at Dover, Morris Meyer, 64 N. J. L. 382, 45 Atl. 779; county, etc. On the 8th day of May, Graves v. State, 45 N. J. L. 347, 46 1917, Mowser was arraigned in the Am. Rep. 778.

court of oyer and terminer, and The confession should not have been

pleaded not guilty to the indictadmitted, because it was not of an

ment. Two weeks later the same ultimate fact. People v. Strong, 30 Cal. 157; Cov

grand jury presented a joint inington v. State, 79 Ga. 687, 7 S. E.

dictment, consisting of two counts, 153; 1 Wigmore, Ev. p. 930.

against Mowser, Herbert, and McMr. John M. Mills, for the State:

Cracken, the first count of which A plea of former jeopardy will not charges that they, "in and upon one be sustained where it appears that in F. R. an assault did feloniously one transaction two distinct crimes make, and from the person of him, are committed.

the said F. R., by violence and put8 R. C. L. p. 134, § 139; Larson v. State, 93 Neb. 242, 44 L.R.A.(N.S.)

ting him in fear, did forcibly take 617, 140 N. W. 176; State v. Rosa, 72

a sum of money,” etc. The second N. J. L. 462, 62 Atl. 695; State v. Wat

count charges the defendants with son, 20 R. I. 354, 78 Am. St. Rep. 871,

an assault with intent to rob. To 39 Atl. 195, 11 Am. Crim. Rep. 24; this indictment, the defendants, Warren v. State, 79 Neb. 526, 113 N. upon being arraigned in the court W. 143; Morey v. Com. 108 Mass. 433; of quarter sessions, pleaded guilty. State v. Cooper, 13 N. J. L. 361, 25 On a later date Mowser filed a plea Am. Rep. 490.

of autrefois convict to the indictKalisch, J., delivered the opinion ment for murder, setting forth the of the court:

substance of the indictment for robThe facts which give rise to the bery to which he had pleaded guilty , fundamental question raised in this and averring that the indictment case are these: Mowser, the plain- for murder is based upon the same tiff in error, with two companions, facts and grew out of the same Herbert and McCracken, conspired transaction. together to rob one Richards. The prosecutor of the pleas deMowser knew Richards; his con- murred to this plea, which raised federates did not. On the night of

On the night of the question whether a plea of a the robbery, Herbert and Mc- former conviction of robbery was a Cracken lay in wait for Richards bar to a prosecution on an indictnear the latter's home. Mowser ment for murder, where the homicame along and notified Herbert cide was the undesigned result of that Richards was coming up the the perpetration of the robbery. street, and then proceeded on his The trial judge certioraried the way. As Richards came by, Herb- record into the supreme court to obert and McCracken followed him tain its opinion on the question.