fully satisfied that the defendant has had a fair and impartial trial, in strict conformity with all the forms prescribed by law, and that the judgment of conviction should stand affirmed.

GALBRAITH and BACH, JJ., concurring.

NOTE.

MALICE. Malice is defined to be that state of mind or act where one willfully does that which he knows will injure another person or property. Territory v. Egan, (Dak.) 13 N. W. Rep. 568. Malice is always to be implied when the circumstances show an abandoned and malignant heart. People v. McDonald, (Idaho,) 1 Pac. Rep. 345. When one assaults another with a deadly weapon, likely to produce death, the law presumes malice, in the absence of proof, either direct or by circumstances, to the contrary. State v. Townsend, (Iowa,) 24 N. W. Rep. 535; State v. Hockett, (Iowa,) 30 N. W. Rep. 742; State v. Rainsbarger, (Iowa,) 1 N. W. Rep. 865. When a killing is shown to be without extenuating circumstances, malice is presumed. People v. Hamblin, (Cal.) 8 Pac. Rep. 687; People v. Bush, (Cal.) 12 Pac. Rep. 781; People v. Tidwell, (Utah,) Id. 61. The premeditation necessary to show malice does not require any fixed period. Territory v. Egan, (Dak.) 13 N. W. Rep. 568. The killing of a human being in the commission of an unlawful act which, in its natural consequences, tends to endanger or destroy life, has the requisite malice to constitute murder. People v. Mooney, (Idaho,) 2 Pac. Rep. 876; State v. Linde, (Iowa,) 6 N. W. Rep. 168.

(7 Mont. 449)

UPTON et al. v. LARKIN et al.

(Supreme Court of Montana. January 27, 1888.) 1. MINES AND MINING-DISCOVERY-ADVERSE CLAIMS.

Whether plaintiff's discovery had been made within the patented lines of an adjoining mining claim being in issue, it was proper for plaintiff, in order to fix the place of discovery, to testify that it was 100 feet south of the old lines of such claim, and the defendant could then show, on cross-examination or in defense, that the patented lines of the claim were south of the old lines, and took in the discovery. 2. SAME DISCOVERY ON ADJOINING CLAIM.

A discovery will sustain a valid location, although a portion of the discovery shaft is upon an adjoining located claim.

3. SAME-LOCATION OF CLAIM-SUFFICIENCY OF NOTICE.

A notice of location of a mining claim, distinctly marked upon the ground, describing the west-end corners as marked by pine trees, while it appears that they were in reality marked by stakes, the notice, however, referring to a permanent monument, to-wit, "the Gambetta lode claim on the east, " is a sufficient compliance with Rev. St. U. S. § 2324, providing for a description of a claim in the records of mining claims, to be admissible in evidence.

4. SAME EVIDENCE OF LOCATION-VALUE of Vein.

Evidence of the value of a vein, disclosed after the location, is immaterial to the question of the locator's title, as no discovery after location would make that location valid.

5. SAME-VALIDITY OF LOCATION-REQUISITES.

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An instruction that "to make a valid location of a lode mining claim, there must be a discovery, within the limits of the claim, of a vein containing gold, silver, or other valuable mineral deposits, *" is proper, when taken in connection with other instructions defining and limiting what is meant by a "discovery."

Appeal from district court, Silver Bow county; GALBRAITH, Judge. Knowles & Forbis and Thos. L. Napton, for appellants. W. W. Dixon and Robinson & Stapleton, for respondents.

BACH, J. This suit was begun under Rev. St. U. S. § 2326, to determine the right of adverse claimants to certain mining property situated in Silver Bow county, Mont. The defendants had filed an application for patent to mining ground, including the ground in controversy, as the owners of the "Smelter Lode Claim;" the plaintiffs "adversed" the application, and thereafter commenced suit as required by the United States statute for adverse claimants, alleging title to the premises under a claim known as the "Comanche Lode Claim." The defendants deny plaintiffs' title, and claim title to the

ground in controversy as part of the "Smelter Lode Claim." Trial was had in the district court, verdict was for the plaintiffs, and judgment was entered accordingly. A motion was made for a new trial, which was denied. The appeal is taken from the judgment, and from the order denying a new trial. We will consider in their order the alleged errors relied upon by the appellants, at least so far as the record will permit.

Counsel for appellants, in their argument, admit that the record contains much useless matter; and after inspection of the record we are free to say that we agree with them. David N. Upton was the first witness called, and he was asked the following questions, to which he made answer: "Question. Did you know where the corners and boundary lines of the Shannon lode claim were at that time? [referring to the time of the discovery and location of the Comanche lode claim.] Answer. Yes, sir. Q. Show where they would be on this map, [referring to a map already in evidence.] 4. The Shannon is a new location of the old Colusa, located by 200-feet claims. Here, on the line of the Shannon, [now referring to the map] at that time the lines of the Shannon were right up here, [referring to the map.] Objected to by attorney for defendants, on the ground that the Shannon is a patented claim now, and it is not open to any dispute or controversy as to where the boundaries were at that time. Plaintiffs' attorneys say that it does not yet appear that the Shannon is a patented claim. Whereupon defendants' counsel desired to ask the witness if he did not know that the Shannon claim was patented, and offered to introduce then and there the patent to the Shannon claim. The court overruled the defendants' objection; to which ruling the defendants then and there duly excepted. The witness then proceeded to point on the map and testify as to the position of the Shannon corners and boundaries at the time he made the location of the Comanche lode claim, and stated that the position of the Shannon corners at that time would bring the south line of the Shannon about one hundred feet north of the discovery shaft of the Comanche. To the admission of said testimony the defendants then and there objected, but it was allowed to go to the jury, and to which ruling of the court the defendants then and there excepted." The foregoing is contained in bill of exceptions No. 1. and it is the first error noted in the brief of counsel for appellants. It is strange that the map referred to should be entirely omitted from the record, which is so voluminous, and which contains so much that is irrelevant and redundant. It certainly would be in line with the authorities if we refused to consider this error, for we are deprived of much that may have guided the court below. As far as the record shows, we find no error in the ruling of the court below. It was certainly competent for the plaintiffs to prove the discovery upon which they based their claim. They could do this by fixing its distance from any object. Upton swore that the old south lines of the Shannon lode were 100 feet distant north from his discovery. It was not in accordance with the orderly examination of the witness to allow the defendants to interrupt their testimony, and to interject cross-examination in the way proposed. The proper and usual practice was for the defendants to show, by cross-examination or by testimony in defense, that the patented lines of the Shannon lode were south of the old lines, and took in the discovery. That was part of defendants' case.

The second alleged error refers to the admission of the notice of location in evidence. The ground of objection is as follows: The evidence of the plaintiffs having shown that Upton and his co-locator, Turner, discovered a vein, and made a location by putting up stakes at the west-end corners, the defendants objected to the admission of the notice of location, because it was therein declared that the west-end corners were marked by pine trees. The objection was properly overruled. The statutes of the United States do not require the recording of any notice of location. All that is said upon that subject will be found in section 2324, which provides as follows: "The location must be dis

* * *

tinctly marked on the ground, so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locator or locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim." The Montana statute makes no further requirement in this respect. The statutes of the United States require only "such a description by reference to some natural object or permanent monument," that is, either one or the other; but, whichever is chosen, it must be sufficient to' identify the claim." The notice objected to did refer to a permanent monument, to-wit, "the Gambetta lode claim on the east." Such a reference has been held to be sufficient by this court. See Russell v. Chumasero, 4 Mont. 309, 1 Pac. Rep. 713. Whether or not this was such a description as would identify the claim is a question for the jury. See Russell v. Chumasero, supra; Anderson v. Black, 70 Cal. 226, 11 Pac. Rep. 700. The notice, then, contained a description by reference to a permanent monument. It contained more, also; but the claim itself was distinctly marked on the ground, so distinctly that “its boundaries can be readily traced," as required by the statute. The location notice contains a declaration that a copy thereof is posted at the discovery shaft, (and the evidence is to the same effect.) It also declares that the claim adjoining it is the Gambetta lode claim on the east; and then it contains the following description of the boundaries of the claim located, as follows: "Beginning at a stake situated 900 feet in a south-easterly direction from discovery shaft, and marked South-East Corner of the Comanche Lode Claim'; running thence westerly 1,500 feet, to a pine tree, marked South-West Corner of the Comanche Lode Claim;' thence north 600 ft., to a pine tree, marked 'North-West Corner of the Comanche Lode Claim ;' thence easterly 1,500 feet, to a stake, marked 'North-East Corner of the Comanche Lode Claim;' thence south 600 feet, to the place of beginning." As we have already stated, there is no statute requiring a description of the claim to be contained in the notice of location. All that is required by the United States statute is that the claim shall be distinctly marked upon the ground, so that its boundaries can be readily traced. The court charged the jury that such was the law, and the jury, by their verdict, have declared that the law was complied with, to-wit, that the claim was marked as by law required. The mining laws are beneficial laws. They should not be, and are not by the United States supreme court, construed technically. The history of the laws shows that they were intended to afford to the miner the most simple method possible of obtaining title to mineral ground. When metal was first discovered in this country, the miners made their own laws, known as "custom of miners," and which may properly be called the common law of mining. These laws received the sanction of the state legislatures and of the courts. Finally, congress, recognizing the vast importance of the mineral wealth of this Western country, as well to the nation as to the individual, and being desirous of encouraging the industry to its fullest extent, wisely took cognizance of the subject, and enacted the mineral land laws, which are as simple as the custom of miners; indeed, the fundamental principles of the one are identical with those of the other, to-wit, discovery, appropriation, and development. In fact, there is little difference between the custom of miners and the mineral laws, as far as the former could go; that is to say, up to that point where the miner seeks to obtain his patent. The law as passed by congress contains no extra condition to the possessory right, (see Jennison v. Kirk, 98 U.S. 453;) but it gave to the miner what he had not hadbefore, the right to acquire the absolute title to the land through a United States patent to the same. Congress was enlightened upon this subject by those well versed in the necessity arising from the nature of the mining industry. It recognized that the rules of miners were the result of experience, and the device of fair-minded men. It wisely followed rules which were best suited to those engaged in this indus

try, which recognized that the vast majority of the miners were not educated, and which were to govern men remote from business circles, where alone legal advice could be had. What are the two chief requirements of the statutes as far as the possessory right is concerned? First, discovery; second, the marking of the claim upon the ground so that the boundaries can be readily traced. The first requirement is made for the benefit of the United States, so that land cannot be acquired under this law until its character is first ascertained to be mineral; the second is made in order that those going upon the ground may know that others have acquired and claim title thereto. Certainly, these steps are very simple; the intricacies are those found by the courts of the states and territories wherein mineral lands are situated. The supreme court of the United States has, time and again, cleared away a vast amount of technicality sought to be thrown around these laws, as a careful perusal of the decisions of that court will show. Counsel for appellant have cited cases from the state of Colorado upon this point; but those cases depend upon a statute of that state which requires that "such surface boundaries shall be marked by six substantial posts, hewed or marked on the side or sides which are towards the claim, and sunk in the ground, to-wit, one at each corner, and one at the center of each side line." We have no statute such as that, or requiring any stake whatever.

The next error specified is that one of the defendants, Larkin, was not allowed to testify as to the width and richness of the vein as shown by work subsequent to the location of the Smeiter lode. We think that the objection was properly sustained. Whether or not the defendants were entitled to recover depended upon discovery before location. No discovery made after location would make that location valid. Such would seem to be the rule stated in the opnion delivered upon a former appeal in this case, (see Upton v. Larkin, 5 Mont. 600, 6 Pac. Rep. 66;) the present appellants then insisting that such was the rule of law, and, in fact, the appellants requested the court below to charge the jury that such was the law, (see instruction 5 given at defendants' request, as follows: "The discovery upon a quartz claim must be made at the time of the location, and before the record of the claim is made.") The court, upon the former appeal, cited an instruction given by Mr. Justice SAWYER in the case of Mining Co. v. Mining Co., 11 Fed. Rep. 666, and the court adds: "This instruction, if it is the law, would be applicable to a case where a person enters upon the public mineral lands, and discovers what he supposes to be a vein or lode, and makes a location by virtue of such discovery before he has discovered the true vein or lode; and subsequently, and before any other person has acquired any rights, makes such discovery." But in the case at bar the location of the Smelter lode was made on the 23d day of May, 1881; a patent was applied for prior to the 7th day of March, 1882; this action was commenced on the 7th day of March, 1882; and this evidence was offered at the present trial of this cause, in September, 1886. Certainly, the appellants could not obtain a patent upon a discovery made after application. That they cannot show work done after bringing of suit has been held in Moxon v. Wilkinson, 2 Mont. 421. The offer made by appellants was not confined as to date, and may as well have been after suit was brought as before. When this offer was made there had been no attempt to deny that appellants had discovered a vein before their location; and the appellants did not seek to introduce it in order to make valid a void location, as referred to in the opinion of the learned judge commenting on the instruction of Mr. Justice STORY, supra. The purpose of the offer is evident; it was to enlist the sympathy of the jury, That the defendants did not suffer any wrong by the exclusion of this testimony is further shown by the finding of the jury that the defendants did discover "at the time of his location, within the limits of the Smelter lode, a vein with at least one well-defined wall."

The next error alleged is that the evidence shows that the Shannon lode

claim as patented includes the discovery of the Comanche lode claim; and counsel for appellant cite Gwillam v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110. In that case the discovery relied upon by the plaintiffs was entirely included within the boundaries of a claim that was patented after the plaintiffs' location; but in the case at bar testimony was introduced by plaintiffs tending to show that only a portion of plaintiffs' discovery shaft is included within the Shannon claim, and that the other portion is included within the line of the Comanche lode claim. The jury was instructed as to the law upon this point, at appellants' request. They were told that the discovery must have been made "upon the claim located; but, if the ground upon which the claim is located is appropriated ground,-that is to say, ground that has been previously located, and is at the time held as a quartz lode claim by others,then such a discovery will not sustain a location, and any location made by virtue thereof will be void. And if you find in this case that the discovery of the Comanche lode claim was made upon the Shannon lode claim, then you will find that the location of the Comanche lode was void, and the plaintiffs acquired no rights thereunder." And there were other instructions to the jury to the effect that, if the discovery shaft of plaintiff was within the Shannon lode claim as patented, then plaintiffs could not recover. The jury find specifically that a portion of the discovery is south of the south boundary line of the Shannon claim as patented, and within the lines of the Comanche as located. There is evidence to sustain the finding, and such a finding of fact is sufficient to show a valid discovery; therefore the verdict of the jury cannot be disturbed upon that ground.

The next error alleged is that the court erred in instructing the jury as contained in plaintiffs' requests numbered 1 and 2; and appellants claim that these are not the law under any circumstances, and that they are particularly against the law as applied to the facts of this case. Both the plaintiffs and the defendants presented numerous requests to charge, which were given by the court as instructions to the jury. They thus became the directions of the court, and must be construed together. The testimony shows that the Comanche lode claim was located in January, 1879; and, that in June, 1879, the Shannon lode claim, which lies north of the Comanche, was patented. The south line of the Shannon lode, as the testimony shows, runs directly through the discovery shaft of the Comanche, in such a manner that the shaft, with the exception of a strip about 19 inches wide, is included within the Shannon lode. Plaintiffs filed no adverse claim at the time that application was made for said patent. There is testimony showing that the vein upon which the discovery of the Comanche is based, dips from the north to the south. Such are the facts. Instruction No. 1 reads as follows: "To make a valid location of a lode mining claim, there must be (1) a discovery, within the limits of the claim located, of a vein or crevice of quartz or ore, with at least one welldefined wall on a lead, lode, or ledge of rock in place, containing gold, silver, or other valuable mineral deposits; (2) the location must be distinctly marked on the ground, so that its boundaries may be readily traced; (3) a declaratory statement in writing, under oath, describing such discovery and location, with such a description of the claim located," etc. The rest of the instruction is not complained of. No. 2 reads as follows: "If the jury find, from the evidence, that plaintiffs, Upton and Turner, did, on or about the 19th day of January, 1879, make a valid location of the Comanche lode claim, as described in the foregoing instruction, and that plaintiffs, prior to March 7, 1882, acquired the title of said Turner, and that on the 7th day of March, 1882, plaintiffs were in possession of said Comanche lode claim, you will find for plaintiffs." The position of the appellants is that the jury are led to suppose by instruction No. 1 that the original discovery would be sufficient, even though it was upon ground which was afterwards patented to others than the plaintiffs, or those under whom they claim. Turning to instruction No. 8 given