criminal cases such as the one at bar, we feel that a decision of that court, although made in a civil and not a criminal case, expressly holding that the act in question is constitutional and a valid delegation of power, is binding upon us in this case; and if it be true that the sole question involved in this case is the constitutionality of the act, and an appeal will not lie in this case from our decision to the Circuit Court of Appeals -a question which it is not proper for us to determine-we still feel that the determination of the Circuit Court of Appeals is binding upon us. An appeal does not lie from our decision in this case to the Supreme Court of the United States, and yet, if such court had determined the question of the constitutionality of the act, such determination would be binding upon us. Inasmuch as the Circuit Court of Appeals is a court exercising appellate jurisdiction over us in criminal cases of this character, we are in like manner bound by its determination upon this question, although, the record may prevent an appeal being taken to such court in the particular case before us. Indeed, if it be true that no appeal lies to any court from our decision in capital cases, or in criminal cases where the constitutionality of a federal statute is the sole question involved, but the right of review of our decisions in criminal cases is confined to the appellate jurisdiction of the Circuit Court of Appeals in minor criminal cases, and when less important questions are involved, this somewhat anomalous condition of the law should not prevent our recognizing the binding force of a determination of such Circuit Court of Appeals upon such constitutional question, since, if the record in this case presented other questions for review, thereby giving it jurisdiction, such court undoubtedly would have the right to, and would, review in connection therewith our determination upon the constitutional question involved. Therefore, if it be that the correctness of our determi'nation upon the constitutional question cannot be passed upon by such court in this particular case, it is perhaps for that reason all the more incumbent upon us to follow in the path marked out for us by that court. Farnsworth v. Montana, 129 U. S. 104, 9 Sup. Ct. 253, 32 L. Ed. 616; Cross v. United States, 145 U. S. 571, 12 Sup. Ct. 842, 36 L. Ed. 821; Chapman v. United States, 164 U. S. 436, 17 Sup. Ct. 76, 41 L. Ed. 504; In re Heath, 144 U. S. 92, 12 Sup. Ct. 615, 36 L. Ed. 358; Carter v. Roberts, 177 U. S. 496, 20 Sup. Ct. 713, 44 L. Ed. 861; Holt v. Indiana Co., 80 Fed. 1, 25 C. C. A. 301; Texas & P. R. Co. v. Bloom, 60 Fed. 979, 9 C. C. A. 300; Hubinger Co. v. Ry. Co., 98 Fed. 897, 39 O. C. A. 336; Davis v. Burke, 97 Fed. 501, 38 C. C. A. 299. As we feel that we are in any event controlled by the decision in the Dastervignes Case, we do not think it necessary to state to what extent we have changed our views from our original holding

PRIVATE ROADS-WHAT CONSTITUTES.

1. Rev. St. 1901, par. 3956, declares that all roads located as public highways by the supervisors, or roads in public use which have been recorded as public highways, shall be public highways, and all roads not coming within the foregoing provisions are vacated. Section 3972 authorizes the board of supervisors to lay out public or private roads in the manner therein prescribed. Held, that public highways are such only as come within the statutory provisions, and private roads are such as are duly laid out by the public authorities, and roads merely established without authority for the convenience of individuals are neither public nor private roads.

2. Pen. Code, § 524, making it punishable to maliciously injure any public highway or "private way laid out by authority of law," does not make it a criminal offense to commit an injury to a private way not laid out by authority of law.

3. An indictment under Pen. Code, § 524, for maliciously injuring a private way, which alleges that defendant injured a private way "laid out by authority of law," is fatally defective, for failing to aver the facts showing that the way was laid out by authority of law; the allegation quoted being descriptive, merely.

Appeal from District Court, Santa Cruz County; before Justice Davis.

R. R. Richardson and another were indicted for maliciously injuring a private way. From a judgment sustaining a demurrer to the indictment, the territory appeals. Affirmed.

Wells, Atty. Gen., and Smith & Ives, for the Territory. Hereford & Hazard, for appellees.

KENT, C. J. Section 524 of the Penal Code of Arizona reads as follows: "Every person who maliciously digs up, removes, displaces, breaks or otherwise injures or destroys any public highway or bridge, or any private way laid out by authority of law, or bridge upon such highway or private way, is punishable by imprisonment in the territorial prison not exceeding five years, or in the county jail not exceeding six months." Under this section an indictment was found against the defendants in the following terms: "R. R. Richardson and James Johnson are accused by the grand jury of the county of Santa Cruz, territory of Arizona, by this indictment, found on the 22d day of December, A. D. 1903, of the crime of digging up a private way laid out by authority of

law, committed as follows, to wit: The said R. R. Richardson and James Johnson on or about the 17th day of September, A. D. 1903, and before the finding of this indictment, at the county of Santa Cruz, territory of Arizona, did unlawfully, willfully, fe loniously, and maliciously dig up a private way laid out by authority of law, to wit, the private way in said Santa Cruz county, territory of Arizona, leading from the county road between Harshaw and Washington Camp to the Trench Mine, by digging a shaft across the center of said private way, said shaft being about six feet long, four feet wide, and five feet deep, at a point about one hundred and fifty feet from the said county road leading from Harshaw to Washington Camp, contrary," etc. A demurrer was interposed to this indictment on the ground that the indictment did not charge a public offense or any offense against the defendants; that the indictment failed to charge that the way was a private way, or what private way was intended, or to whom the same belonged, or whether the digging was without the consent of the owner of the way, or whether the way was laid out by authority of the law of Arizona or elsewhere; and that the indictment was not direct and certain as to the offense, or as to the circumstances of the offense. The demurrer was sustained by the court, and the territory has brought this appeal.

We find in the Revised Statutes the following provisions pertinent to the question raised on this appeal:

"Par. 3956. All roads and highways in the territory of Arizona which have been located as public highways by order of the board of supervisors, and all roads in public use which have been recorded as public highways, or which may be recorded by authority of the board of supervisors, from and after the passage of this title, are hereby declared public highways; and all roads in the territory of Arizona now in public use, which do not come within the foregoing provisions of this section, are hereby declared vacated.

*

"Par. 3972. The board of supervisors, on presentation of a petition, signed by ten or more persons, residents of the county, and paying road taxes therein, praying for a public road to be laid out or changed within the county, or a petition signed by one or more persons, praying for a private road or lane to be laid out from the ranch or dwelling of any person to the public road, and designating the location of the road to be established as prayed for, shall cause notice provided, that all damages and expenses accruing from the location of any private road or lane shall be paid by the party or parties petitioning for said road; and the board of supervisors may, before acting upon any petition for such private road or lane, require such a bond from the party or parties so petitioning, as shall in

"Par. 3990. In all of the towns in the territory not incorporated, and containing a population of more than five hundred souls, the streets shall be considered as public highways, and under the control of the board of supervisors of the county in which such towns may be situated.

"Par. 3998. Any person or persons desiring to construct and maintain a toll road within one or more counties of this territory, shall make, sign and acknowledge, before some officer entitled to take acknowledgment of deeds, a certificate specifying, first, the name by which the road shall be known, and, second, the names of the places which shall constitute the termini of said road. Such certificate shall be accompanied," etc.

We find no reference to private ways or private roads in the statute, other than as contained in the sections hereinbefore referred to. In the common acceptation of the term, roads or ways are considered to be either public or private; but, in the legal acceptation, a way may be a road that is neither a public highway nor a private road or way, under our statutes. Public highways are such only as come within the express provisions of the statutes declaring them to be such. The statutes do not define a private road or way. At common law a private way is the right of passage over or under another person's ground, which belongs to and is for the use of individuals-one or more as distinct from a way that is used by the public in general, and such a way is an easement. 1 Am. & Eng. Enc. of Law (2d Ed.) p. 3. Such a private way may be acquired by grant, reservation, prescription, or under a statute authorizing its establishment. In contemplation of law, therefore, though perhaps commonly known and spoken of indiscriminately as public and as private roads, many, if not a majority, of the roads and ways running throughout all parts of the territory, and frequently in general public use, are neither public highways nor private ways, but are simply roads established without authority for the convenience of individuals, and without a legal status either as public highways or private ways. Such roads, where they may have heretofore existed as public highways, and where no right has vested, have by the Legislature been declared vacated. This action of the Legislature, however, does not create them private ways. The Legislature has made it clear that it was not its intention to make it a criminal offense to commit an injury to any such class of roads, even if they might be considered as private ways. Our Penal Code,

in the section under discussion has expressly limited such injury to injury to public highways, and to private ways laid out by authority of law. Even if such roads might be considered, therefore, to be private ways, nevertheless they are not included in this statute, for they are not ways laid out by authority of law, such as would be, for example, ways laid out as provided in paragraph 3972 of the statutes. They are, on the contrary, in most instances, ways laid out and maintained without authority of law.

The indictment in the case before us is defective, in that it not only fails to contain any allegations respecting the facts surrounding the establishment and existence of the private way upon which the injury is alleged to have been committed, from which it can be inferred, even, that such way was laid out by authority of law; but the indictment fails to allege in direct terms that such way was a way laid out by authority of law. While the indictment does contain the allegation that the defendants did maliciously "dig up a private way laid out by authority of law, to wit," etc., such an allegation is descriptive, merely, and, as set forth, it is not a direct allegation that such way was a way laid out by authority of law. The act of maliciously digging up a private way is not necessarily a criminal offense under out statutes. It becomes one only when such way is a way laid out by authority of law. There fore an indictment which fails to allége facts showing that such way was so laid out, and which does not even contain the direct allegation that such way was a way so laid out, is defective and cannot be sustained.

Our conclusion in this respect makes it unnecessary to consider the other objections urged.

The judgment of the court below is affirmed.

SLOAN and DOAN, JJ., concur.

(8 Ariz. 341)

BUGGELN v. DOE, Dist. Atty. (Supreme Court of Arizona. March 26, 1904.) MANDAMUS-TO DISTRICT ATTORNEY-PETITION

-QUO WARRANTO.

1. A petition for mandamus to compel a district attorney to institute quo warranto proceedings for the usurpation of a franchise must show that, when he refused to institute the quo warranto proceedings, facts had been laid before him from which he could reasonably conelude that such franchise was being usurped. It is not enough to show that such franchise had been usurped, or that a verified complaint to be filed in the proposed quo warranto action was presented to him; it not containing allegations sufficient to show him that the franchise had been usurped.

Application by Martin Buggeln for mandamus to E. M. Doe, district attorney of the county of Coconino. Demurrer to petition sustained.

T. J. Norton, for petitioner. E. M. Doe, pro se.

PER CURIAM. We think the statute authorizing an action in the nature of quo warranto does not make it mandatory upon the district attorney to institute such action, unless he has reason to believe that an office or franchise is being usurped, intruded into, or unlawfully held or exercised. It is, however, his duty to bring such proceedings when facts are laid before him from which he can reasonably conclude that such franchise is being usurped. If, on such showing, he fails to institute such proceedings, his action can be reviewed upon an application for mandamus; and where, upon such application, it appears to the court that such a showing has been made to the district attorney, from which he could reasonably conIclude that such franchise had been usurped, a writ of mandamus will issue to compel the institution by such district attorney of a proper proceeding in the nature of quo warranto.

The demurrer to the petition for the writ of mandamus raises the question whether such petition shows that facts were laid before the district attorney from which he could have reason to believe that the franchise in question had been usurped. We do not think the petition sufficiently shows these facts. It is not a question whether such petition sufficiently shows that such franchise has been usurped, but whether such facts were laid before the district attorney at the time he refused to bring the action in quo warranto. The petition before us shows that all that was presented to the district attor ney was a verified complaint to be filed by the district attorney in the proposed quo warranto action. This complaint, while, perhaps, sufficient as a pleading in such action, which we do not pass upon, did not contain allegations sufficient to show the district attorney that the franchise was being usurped. cannot say that from such complaint the district attorney had reason to believe that the franchise was being usurped, and should therefore have instituted the action in quo warranto.

We

The demurrer to the petition will be sustained, with leave to the petitioner to amend the petition, or to bring such further pro ceedings as he may be advised.

(8 Ariz. 342)

EDWARDS ▼. TERRITORY. (Supreme Court of Arizona. March 26, 1904.) MURDER-CORPUS DELICTI-EVIDENCE

NEGLECT OF COUNSEL.

1. Evidence on a murder trial held sufficient to show that deceased was killed, and defendant killed him.

2. Any neglect of defendant's counsel to introduce available evidence favorable to him, or unskillful conduct of the case, is not ground for reversal.

Appeal from District Court, Cochise CouDty; before Justice Doan.

John Edwards appeals from a conviction. Affirmed.

KENT, C. J. About the 1st of December, in the year 1901, the dead body of a man was found about a mile southeast from Wilcox, in this territory, in a ravine or draw several hundred yards from the main road running southeast from Wilcox. The body was that of a Mexican from 45 to 50 years of age, and, when found, was dressed and wrapped in a blanket and canvas; one end of the canvas being pulled together at the corners and tied with a baling wire; the body being completely covered with the canvas and blanket, excepting the feet, which were exposed, one foot without shoe or stocking, and one completely destroyed, apparently by animals. The state of the body showed that death must have occurred at least several weeks before the discovery. A deep wound or cut was found upon the head; the skull from above one eye down towards the opposite cheek having been, as described by witnesses, "smashed in-cut in some two or three inches"-and, as testified to, the wound was such as might have been made with a blunt instrument, such as the head of an ax, and would have caused death. There was blood all about the head and body. We think the testimony as to the position of the body, the place where it was found, the manner in which it was wrapped, and its condition, was clearly sufficient to show that the deceased did not die a natural death, but that he met his death by violence at the hands of some person, and that the body, after death, had been tied up and placed in the position in which it was found.

The evidence introduced for the purpose of connecting the defendant with the killing was substantially as follows: The body was subsequently fully identified as that of one Eduardo De Sanchez. The wife of the deceased testified she last saw him alive on the 15th of October, 1901, when he left her at Metcalfe to go to Wilcox, taking with him seven burros and a bay mare belonging to him. Another witness testified that early in October, 1901, he saw the defendant, with a Mexican, on the Frisco river, going towards Wilcox, the two having a bunch of burros, a sorrel horse, and a bay mare; that some two weeks or more afterwards he again saw the defendant with the same burros and the same horse and mare, but this time the Mexican was not in his company; that the witness traded with the defendant, exchanging a wagon for the horse and the mare; that he then said to the defendant, "I don't want any Mexican coming in and claiming these hors

es," and the defendant replied, "No damn Mexican will ever claim them horses." Another witness testified that in the month of October, 1901, he saw the defendant and a Mexican answering the description of the deceased, with a bunch of burros-seven or eight or ten-with a horse and a mare, camped near a ranch about 22 miles north from Wilcox; that, in conversation with the defendant, the latter told him that he was going to Chiricahua Mountains to pack ore; that the burros belonged to the Mexican, but that he had the contract, and the Mexican was going to pack the ore; that the following morning the defendant and the Mexican went on south towards Wilcox; that some 36 hours afterwards the defendant returned, coming north, with the bunch of burros, the Mexican not being with him; and, when asked by the witness where he was going, the, defendant said he was going to Clifton to pack wood; that he didn't get the contract to pack ore; that he had bought the Mexican's outfit and was going to Clifton. The witness further testified that the road and the distance to Wilcox were such that a man with a bunch of burros could go to Wilcox and back to the place where the witness was within 36 hours. Another witness testified that somewhere towards the end of October, 1901-the date being uncertain-he saw the defendant and a Mexican camped some hundred yards or so from the ranch of one Fulghum, a quarter of a mile southeast from Wilcox. The body of the deceased was subsequently found about three-quarters of a mile southeast from this camp. There was no direct evidence from any witness that the body found was that of the Mexican seen by the witnesses in the defendant's company, and the most that can be said of the descriptions given of the Mexican seen with the defendant is that they correspond in general, as to age and appearance, with the descriptions given of the deceased in that respect. A clerk in a store in Wilcox testified that on the 25th of October, 1901, he saw the defendant passing his store in Wilcox, going north, with seven burros, and, in response to a question as to where he got the burros, the defendant replied that he had owned them for a long time; that he was going with them to Clifton. The witness testified that he asked the question of the defendant because, a short time before, the defendant had told the witness that he owned nothing in the world but two horses. A woman testified that about the 26th or 27th of October, 1901, the defendant came to her house, 15 miles from Clifton, for dinner. He then had six or seven burros; that, as he was leaving, he came back for an ax he had forgotten, and said that he had killed one Mexican with it, and might have to kill another, and offered to show the witness the blood stains on the ax. Other witnesses testified to the sale of seven burros by the defendant, and gave descriptions of them corresponding in general

with the description given by the wife of the deceased of the burros owned by him. At the time of his arrest on January 8, 1902, a witness testified that the defendant stated that he had purchased the burros from a Mexican, and gave the Mexican's name as Sanchez; that he (the defendant) had owned the burros for two years, and that he had brought them down to Wilcox from St. Johns, or somewhere in that country; that he had not seen Sanchez for two years; that the Mexican he was with near Wilcox was named Morales. The defendant introduced two witnesses, mother and daughter-the former the wife of the defendant-who testified that they met the defendant on the 25th day of October, 1901, on the road some 15 miles from Clifton, Clifton being approximately 75 miles from Wilcox; and the mother testified that she had not seen the defendant for a month or so previous to that time; that she went with the defendant on to Clifton, and that, on the day following the day she met the defendant, they were married in Clifton by a Mr. Wright. A marriage license dated October 26, 1901, together with a certificate of marriage showing that the defendant and the witness were married on October 30, 1901, by one A. Wright, a justice of the peace, was also introduced. There was no other evidence introduced by the defendant.

In felonious homicide the corpus delicti consists of two elements: First, the fact of death, as the result; second, facts and circumstances showing the criminal agency of the person charged with the crime, as the means. Ruloff v. People, 18 N. Y. 192. In the case at bar the death and the identity of the deceased were fully established by direct proof, and the facts respecting the condition of the body justified the court in submitting the question to the jury as to whether death was the result of a criminal agency, and warranted the jury in so finding. The evidence connecting the defendant with the commission of the crime, apart from his own statements, is purely circumstantial. There being direct proof of the death, circumstantial evidence tending to show the defendant's criminal agency is competent. The question that arises is as to its sufficiency. The rule in that respect is that each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt. All these facts must be consistent with each other and with the main fact sought to be proved, and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and produce, in effect, a reasonable moral certainty that the accused, and no other person, committed the offense charged. The facts proved must not only point to the guilt of the person charged, but they must be inconsistent with his innocence. Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711; People v. Bennett, 49 N. Y. 137. We think the facts adduced upon the

trial, together with the statements testified to as being made by the defendant, bring the case within the requirements of the rule, and warranted the submission to the jury of the question whether the crime was committed by the defendant, as charged, and that the verdict reached by them is fairly supported by the evidence.

In his brief, counsel for the appellant suggests that certain testimony given by witnesses for the prosecution is contradictory of evidence given by them on a former trial. This evidence was not sought to be brought out in the court below, nor is the evidence upon the former trial before us, nor any error assigned in respect thereto. We can therefore give it no consideration. Nor is the fact, if it be a fact, that the former counsel for the defendant, who tried the case in the court below, neglected to introduce evidence at hand favorable to the defendant, or in other respects conducted the case for his client in an unskillful manner, ground for a reversal of the judgment in this court.

We perceive no error in the record, and the judgment of the district court is therefore affirmed.

TEREST-APPEAL-FINDINGS-REVIEW.

1. Rev. St. 1887, amended by Act No. 79 (Laws 1893, p. 97), and incorporated into Rev. St. 1901, par. 3525, providing that all persons settling on land with a view of acquiring title thereto under existing laws of the United States shall be protected in the possession of the tract to the extent of 160 acres, merely gives to settlers the right to hold land solely by possession, provided the land shall be unoccupied government land and the settler occupies the same with intent to acquire title under the government land laws, and does not apply to unoccupied lands owned by an individual.

2. Under Rev. St. 1887, par. 3199, § 1, making all streams of running water public and applicable to irrigation and mining purposes, and paragraph 3201, § 3, authorizing persons owning irrigable lands to construct aqueducts and obtain necessary water from any stream of running water, and Act No. 86 (Laws 1893, p. 135), authorizing any person to appropriate unappropriated waters for domestic or other beneficial purposes, authorizes a person to appropri ate the water of streams flowing in a well-defined channel, whether on the surface or beneath it, while percolating waters are the property of the owner of the soil.

3. A person claiming to have appropriated certain water, and alleging the existence of a subterranean stream of water flowing in a welldefined channel, has the burden of proving the fact by competent evidence.

4. The Supreme Court will not disturb a finding of the trial court unless clearly against the evidence.

5. The rate of interest on judgments rendered after the adoption of the Revised Statutes of 1901 is 6 per cent. per annum.