H. M. Orahood and N. B. Bachtell, for appellant. William Young, George F. Dunklee, and O. E. Jackson, for appellee.

MAXWELL, J. This was an action by Mary E. Davis against the city of Denver to recover damages resulting from the destruction of her property by fire alleged to have been caused by the negligence and carelessness of the officers and agents of the city. Plaintiff was the owner of personal property in a building adjacent to the city dumping ground, which had been established by the health commissioner of the city pursuant to the requirements of a municipal ordinance. The supervision and control of the dumping ground was in the health commissioner, who discharged this duty by officers appointed by him and paid by the city. The combustible material deposited on the dump had been burning several weeks, when, on May 2, 1901, the fire, driven by a heavy wind, communicated to the building in which plaintiff's property was stored, and the same was destroyed. A trial to a jury resulted in a verdict and judgment for plaintiff.

The assignment of errors raises but one question. The city requested the court to instruct the jury, in substance, that the disposition of the garbage of the city was not a corporate duty performed by the city for its local or pecuniary benefit, but was a public or governmental duty placed upon the city by the Legislature of the state, to be performed under the supervision of the health commissioner, who is a public official, and not in any sense a corporate official; therefore, if the jury found from the evidence that the damage to the plaintiff was caused by the location of the dump and improperly and carelessly maintained by the health commissioner of the city at such place, then the plaintiff cannot recover against the city, because the negligence or nonperformance of duty of a public officer, such as the health commissioner, cannot be charged against the city of Denver, as the city is but the agent of the state in such matters, and can be held to no greater liability than could the state itself. The requested instruction was refused, and error is assigned thereon. The instruction is subject to the objection that it was predicated upon the ground that the disposition of garbage of the city is a political and governmental duty; whereas, the evidence failed to show that garbage, using that term in its strict sense, was deposited upon the dumping ground. However, we prefer to dispose of the case upon the principles involved, rather than upon a technical objection to the instruction.

In the discharge of its functions a municipality is called upon to perform duties of two classes, the one political and governmental in its character, and the other private and corporate. The distinction between the two is thus stated by Judge Thomson, in Veraguth v. City of Denver, 19 Colo. App.

473, 477, 76 Pac. 539, 540: "One class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants; the other relates only to special or private corporate purposes, for the accomplishment of which it acts, not through its public officers as such, but through agents or servants employed by it. In the former case its funetions are political and governmental, and no liability attaches to it either for nonuser or misuser of a power; while in the latter, it stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence. Dillon on Munic. Corporations, § 974; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Rep. 434; Insurance Co. v. Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Wagner v. Portland, 40 Or. 389, 60 Pac. 985, 67 Pac. 300." The same doctrine is recognized in McAuliffe v. City of Victor, 15 Colo. App. 337, 62 Pac. 231. In Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468, Judge Folger thus states the doctrine: "There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign The former power is private, and is used for private purposes; the latter is public and is used for public purposes. The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser, by the public agents."

The rule which determines the liability or nonliability of a municipality in cases of this nature is the character of the duty performed, rather than the department, officer, or agent of the corporation by whom the duty is performed. The authorities all hold that a municipality is not liable for the acts of officers or agents of the departments of health, police, or fire, while in the performance of public governmental functions and duties connected with and appertaining to such departments, not upon the theory that

the officer is a member of such department, but because the duty performed by him is a public governmental duty imposed upon the municipality by the state. It is therefore the character of the duty rather than the officer by whom it is performed which determines the liability or nonliability of the municipality. Therefore it may be conceded that the health commissioner of Denver was a public officer, made such by the statutes of the state, charged with the performance of certain governmental duties as contended by appellant. Nevertheless, it does not follow that the municipality is relieved from liability for the negligence or carelessness of such officer, in the performance of duties imposed upon him by the municipality which are not of a public governmental character. Suppose the city had imposed upon the chief of police the duty of superintending the street cleaning department, it could not be successfully maintained, under the authorities, that the acts of such officer, while in the discharge of his duties as superintendent of the street cleaning department, might not entail liability upon the city for his carelessness or negligence in the discharge of such duties. It is therefore necessary to determine to which class of duties. as above defined, the duties imposed upon the health commissioner, herein involved, belong. The evidence disclosed that there were deposited upon the dumping ground, established by the health commissioner, ashes, paper, straw, manure, rags, boxes, scrap metal, and like materials collected by the city and private teams, from the streets, alleys, and other public and private places and premises in the city. There was no evidence to show that garbage of the city, using that term in its restricted sense, was deposited at this place. As before stated, the supervision and control of the dumping ground was delegated to the health commissioner, who. through his officers and employés, had control of the deposit of waste materials brought there, and was also charged with the prevention of combustion and spreading of fire. The greater portion of the material deposited upon the dumping ground was so deposited by the city teams connected with the street cleaning department. We think that the evidence in this case clearly establishes the fact that the establishment and maintenance of this dumping ground was for the convenience and benefit of the inhabitants of the city, and as an adjunct to the street cleaning department of the city, and was not in the discharge of any public duty imposed upon the city by the state; that it was local and special in its character; that the collection and deposit of such material as the evidence shows was deposited upon the dump was the exercise of a municipal function by the city in its private and corporate capacity. The overwhelming weight of authority is to the effect that the superintendence and care

of the streets and alleys of a city, and all that directly pertains thereto, are peculiarly in the class of municipal duties, for the neglect of which the city, in its corporate character, is liable. In Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705, this court held that an implied duty rested upon the city to keep in repair the public thoroughfares within its limits, for the neglect of which an action would lie against the city. In Denver v. Peterson, 5 Colo. App. 44, 36 Pac. 1111, the city was held liable for carelessness in the operation of a steam roller in charge of the board of public works. In Denver v. Rhodes, 9 Colo. 554. 13 Pac. 729, the city was held liable for negligence in the construction of a public sewer, and it is manifest that the disposition of the sewage of a city has a more direct influence upon the health of the inhabitants of a city than the disposal of the waste found upon its streets and alleys. In McAuliffe v. City of Victor, supra, it is said: "Courts have gone a long way in holding cities liable for the negligent acts of their agents, and they are always holden wherever the acts which are done or permitted to be done are acts for the benefit * * * of the individuals who are inhabitants of the municipality. It is on this general principle that a city is held liable for the care of its streets and sidewalks, for negligence or carelessness in the construction of its sewers and drains."

Appellee in this case was a tenant of one Porter at the time of the fire. Porter's building was destroyed by the same fire which destroyed appellee's property. In the Circuit Court of the United States for Colorado, Porter sued the city to recover damages sustained. Judgment went against the city. The case went to the Circuit Court of Appeals on error, where the judgment was affirmed. An examination of the printed transcript of the record and briefs filed in the latter case discloses that the issues, evidence, and legal propositions involved were substantially the same as in the case before us. The opinion of the court, written by Judge Hook, is an instructive and exhaustive examination and discussion of the principles and authorities there and here involved. The case is reported in City of Denver v. Porter, 126 Fed. 288, 61 C. C. A. 168. At page 294 of 126 Fed., page 174 of 61 C. C. A., it is said: "We are of the opinion that in the case before us the removal of the waste and refuse from the alleys of the city in the city carts, the deposit thereof upon the dumping grounds near Porter's premises, and the supervision of such work and of the dump itself were of local or municipal concern, and that the officers and employés of the health department of the city, in the discharge of their duties in connection with such work and supervision, were acting as the representatives of the city for whose negligent acts or omissions it would be liable. The

fact that part of the refuse wasted upon the dump under the direction of the officers stationed there was hauled in private vehicles from private premises leads to no different conclusion. The dump was under the exclusive control of those officers, and they represented the local or corporate interests of the city rather than the state in its sovereign capacity." And again, at page 293 of 126 Fed., page 173 of 61 C. C. A.: "But in almost all affairs of purely local concern some indirect relation may be traced to a matter of health, safety, or other subject of governmental cognizance. The test is not that of casual or incidental connection. If the duty in question is substantially one of a local or corporate nature, the city cannot escape responsibility for its careful performance because it may in some general way also relate to a function of government." The record before us warrants the conclusion that in this case the city was acting in its private and corporate capacity through its health commissioner, for the convenience and benefit of its inhabitants, and not as an agent of the state in the discharge of any governmental duty imposed upon it. The rule here announced is not opposed to the rule announced by our Court of Appeals in McAuliffe v. Victor and Veraguth v. Denver, supra. In the former case, the court held that the city was not liable for the negligence of a police officer in the discharge of a purely governmental duty, and in the latter case that the city was not liable for failure to enforce a municipal ordinance. It follows that, the health commissioner and his officers being negligent and careless in the performance of a local and municipal duty, the city is liable for damage occasioned by such negligence and carelessness.

The court committed no error in refusing to give the requested instruction, and the judgment must be affirmed.

2. CRIMINAL LAW ADMISSIBILITY OF EVIDENCE-DECLARATIONS OF THIRD PERSONS.

On a prosecution for murder, it was proper to sustain an objection to a question to the father of decedent as to whether he had received from a spiritualistic medium any communication as to who had probably murdered his son, the father not having attempted to identify defendant as the perpetrator of the crime, and it not being shown or suggested that the father had ever communicated anything stated to him by the medium to the witness who identified defendant, or to anyone else.

3. SAME-TRIAL-CONDUCT OF JUDGE-INTERFERENCE WITH CROSS-EXAMINATION-SHOWING ILL WILL TOWARD DEFENDANT.

On a prosecution for murder, a witness who was present at the commission of the crime, and who identified defendant as the criminal, was asked on cross-examination if she had not told a police officer that the criminal had a cap drawn down over his face and ears. to which she replied that she did not know, and she was then asked, "If you say that, will you explain how you saw the frown upon his brow?" Witness stated that she saw the frown by the rays of an electric light; was then asked if she saw through the cap, and on objection by counsel for the people, the court interposed. and asked witness if she saw the frown with her own eyes, to which she responded in the affirmative, and the court said, "Then say so.' Held, that the remark of the court was not erroneous as rescuing the witness from a dilemma and evidencing ill will toward defendant. 4. WITNESSES-CROSS-EXAMINATION - ADMITTED FACTS.

Where, on a prosecution for murder, it was an admitted fact in the case that a certain newspaper had paid the expense of arresting defendant, there was no error in stopping the cross-examination of a witness by defendant's counsel after counsel had stated that the purpose of the examination was merely to show the instrumentality of the newspaper.

5. SAME-SCOPE OF EXAMINATION.

On a prosecution for murder, it appeared that one present at the time of the crime bit two fingers of the criminal's right hand, and a physician testified that two fingers of the right hand of defendant were in a contused condition the morning after the murder, and that they might have been bitten. Held proper, on cross-examination, to ask the physician as to whether he had inquired of the patient as to the cause of the injured condition of his hand. 6. SAME-REDIRECT EXAMINATION-EXPLANATION OF TESTIMONY ON CROSS-EXAMINATION. It was proper for the state, on redirect examination, to interrogate the physician as to his reasons for not making such an inquiry. 7. CRIMINAL LAW-TRIAL-CONDUCT OF COURT -INDICATIONS OF ILL WILL.

On a prosecution for murder, a physician who testified for the state was asked by defendant's counsel whether he had not talked with counsel in the jail on a certain afternoon, and witness responded in the negative. Held, that the sustaining of an objection to a repetition of the same question was not erroneous as indicating ill will toward defendant. 8. WITNESSES-CONTRADICTION

MATTER.

IMMATERIAL

On a prosecution for murder, a physician testified that on the day following the crime. he dressed certain wounds similar to those shown to have been received by defendant at the time of the crime, and that thereafter, on a certain day, he saw defendant at the jail and recognized him as the man whom he had attended. On cross-examination, the physician denied having had any conversation with defendant's counsel at the jail at the time in question. Defendant's counsel then sought to testify that the physician called at the time in question at the jail and asked counsel for the privilege of seing defendant for the purpose of identification. Held, that it was proper to exclude such testimony as it would merely have contradicted the physician on an immaterial matter.

9. SAME-FOUNDATION FOR CONTRADICTION.

It was proper to sustain an objection to the question to counsel which would have elicited such testimony as a proper foundation was not laid on cross-examination for the specific question.

10. CRIMINAL LAW-APPEAL-HARMLESS ERBOR-EXCLUSION OF EVIDENCE.

Where, on a prosecution for murder, it appeared that there was some discrepancy between the description of the murderer given out by the chief of police shortly after the crime and the description subsequently given by a witness who identified defendant, and the chief of police testified that he obtained the description from the witness, there was no prejudicial error in overruling an objection to a question to him on cross-examination by the state as to whether the sister and mother of the identifying witness did not inform him as to what they learned as to the description of the criminal before he obtained any description from the identifying witness.

11. SAME--QUESTIONS FOR JURY-CREDIBILITY OF WITNESS.

Where one present at the time of the crime and who identified defendant testified that she had left her skates where the murder was committed, and that they were unstrapped at the time, the fact that when the skates were found they were strapped together was open to the consideration of the jury as going to the credibility of the witness.

Error to District Court, City and County of Denver; N. Walter Dixon, Judge.

GUNTER, J. The jury found the defendant guilty of murder in the first degree and fixed as the penalty life imprisonment at hard labor. Sentence was pronounced accordingly. The case is here for review.

1. It is said the verdict is not sustained by the evidence. The murder charged was that of Harold Fridborn, committed in this city, December 31, 1901. A criminal assault was made upon Florence Fridborn, the sister of Harold. Florence was then about 16 years of age, Harold about 15. Harold, who was then with his sister, begged the assailant to spare her. The answer was a death blow to Harold from an ax in the hands of the assailant. A theory of the defense is that the murder was committed by a paramour of the sister to conceal the illicit association. This contention is cruel and clearly unjust to the unfortunate girl, who has suffered so terribly through the assault upon herself and the murder of her brother. We will not go into details as to this phase of the case. The tender years of the assaulted girl, the torn and soiled condition of her apparel, her very serious physical injuries, her then violated virginity, and her great physical and mental suffering consequent upon the assault without even the other strong corrobative circumstances which were present exclude the possibility of the association having been other than the result of a fiendish criminal assault. In further support of his contention that he is not the party who committed the murder, de

fendant has interposed the special defense known as an alibi. The crime charged was committed as stated upon December 31, 1901, in the city of Denver. This defendant was found in New Westminster, British Columbia, in September, 1903, going under an assumed name, and was there arrested on this charge. Florence was taken there to determine whether the party so arrested was the party guilty of the assault upon her and the murder of her brother. Many persons had, before that time, been presented to her for identification as the murderer. In each instance she had pronounced the party presented as not the guilty party. Before going to the jail at Westminster where the defendant was confined, she was cautioned by her father and Officer Carberry from Denver to be careful and to make no mistake. She was warned of the serious consequences of such mistake to the party wrongly identified and to the state. She there promptly identified the defendant as the murderer. The identification was positive and has continued to be positive. The extreme agitation of the defendant when then presented to her was a circumstance in corroboration. The girl had ample opportunity at the time of the assault, both as to time and artificial light, to see and know the assailant. Further, he was of marked characteristics of person and dress. He had a heavy and peculiar frown, a mustache, a beard of some days' growth, a shuffling gait and a peculiar voice. As to his dress. he wore a cap pulled down over the ears, a long brown overcoat, and, Florence thought, a gold band ring on the middle finger. Florence gave substantially this description of her assailant, the murderer, immediately after the homicide. The trial jury had better opportunities than ours for determining whether the defendant answered this description and whether the identification by Florence was correct. Much evidence corroborates the testimony of Florence and goes in support of the correctness of her identification of the defendant as the murderer. The defendant was dressed at the time of the homicide as Florence says the murderer was. There was evidence that the defendant was wearing a ring of the character and upon the finger described by Florence. Defendant was seen in the vicinity of the place of the murder near the time it was committed. The assault on the girl was made upon ground where ashes had been dumped. Defendant was seen near the place of the murder soon after it was committed, in a nervous, excited condition with ashes on his shoes and on his pants below the knees. The murder was committed with an ax. There was evidence tending to trace this ax to the possession of defendant at the time of the killing. At the time of the assault the girl bit two fingers of the assailant. On the day following the murder the hand of the defendant was in a wounded condition which might have been caused by the bite. There was evidence that

on the morning after the assault and murder the defendant threw away his lower underwear which it is reasonable to suppose, in view of the condition of the clothing of the girl, bore evidences of the assault upon her. We have thus stated sufficient of the evidence for the people to show the substantial character of the evidence upon which the verdict rested. To overcome the case so made, the defendant denied that he committed the assault or the murder, adduced evidence for the purpose of contradicting or explaining much of the criminating evidence against him. He introduced evidence for the purpose of showing that he was elsewhere in the city of Denver at the time the murder was committed. To sum up, the evidence was substantially conflicting. According to the testimony of Florence Fridborn, strongly corroborated by other evidence for the state, defendant was guilty of the murder charged. According to the testimony of the defendant, tending to support which there was evidence, the defendant was not the murderer. An issue of fact upon which the evidence was substantially conflicting was thus presented to the jury for determination. The jury saw and heard the two main witnesses, the assaulted girl and the defendant. It also saw and heard all other witnesses in the case. It is unnecessary for us to state the familiar reasons why the jury has opportunities superior to those possessed by us for passing upon the credibility of witnesses and reaching correct conclusions as to matters of fact. The rule is fixedly settled in this jurisdiction that the verdict of a jury based on evidence substantially conflicting is binding upon us. The domain of a jury as to matters of fact is as sacredly free from invasion by us as is our domain as to matters of law free from invasion by it. While this rule precludes our disturbing the verdict in this case, we have not rested our conclusion solely upon it but in aid of our investigation have gone, as we are not compelled to do, to the transcript of the evidence. After careful examination of the evidence we are satisfied that the defendant has no ground for complaint that the verdict is not sustained by the evidence. Counsel say that the jury must have entertained some doubt as to defendant's guilt, otherwise it would have affixed the death penalty. The lawyer of experience, whether on the bench or at the bar, is familiar with the great hesitancy of the ordinary jury to make a capital conviction upon any state of the evidence. This reluctance is much more likely to have been the cause of the failure of the jury to convict capitally in this case than a reasonable doubt of the de-. fendant's guilt. Certain it is there was abundant evidence to sustain the verdict.

2. Counsel for defendant inquired of the father of Harold Fridborn, when upon the witness stand, if he had received from a spiritualistic medium any communication as to who had probably murdered his son. An

objection to this question was sustained. Notwithstanding the objection, however, the witness answered, "No, sir." This ruling is assigned as error. The father did not attempt to identify the defendant as the party committing the murder. It was not shown or suggested that the witness had ever communicated anything stated to him by the medium to his daughter or to anyone else. There was an entire absence of any intimation that the communication by the medium, if made, was material to the case. Therefore the court rightly rejected it. Further, the answer of the witness which was not withdrawn showed that the ther had never received from the medium any intimation as to who the medium thought had committed the murder.

3. During the cross-examination of the assaulted girl, Miss Fridborn, the following took place: "Q. Did you not tell Captain Leyden on the 2d day of January that he had a cap drawn down over his ears and face? A. I don't know. Q. Well then, if you say that will you explain to the jury how you saw the frown upon his brow? (Objected to by counsel for the people. Objection sustained, to which ruling of the court said defendant by his counsel then and there duly excepted.) Q. Will you please explain to the jury how you discovered this frown upon his brow? A. Well, because I saw it. Q. Did you see it through the cap that was covering his face and ears? A. No, I saw it in the rays of the electric light. Q. Did you see it through the cap that covered his ears and face? (Objected to by counsel for the people. Objection sustained, to which ruling of the court defendant by his counsel then and there duly excepted.) Q. In what way then did you see the frown upon his brow? A. Idon't understand that question. Q. In what way did you see the frown on his brow? The court: Did you see it with your eyes? A. Yes. The court: Then say so. We save an objection to the remarks of the court."

It is contended by counsel that the remarks of the court rescued the witness from a dilemma and indicated decided prejudice and ill will against the defendant. Possibly the remark of the court indicates some irritation but not of such a character as suggests any ill will to the defendant or prejudice against his cause. Counsel had been examining this girl witness, age 16, upon a false hypothesis, that is, that she had said that the cap was pulled down over the face and ears of the defendant so that the frown could not be seen. The examination had proceeded for some time upon this false assumption. Coun sel was upon this assumption in effect arguing with the witness. Further, she had answered counsel fully and freely. The manifest purpose of the court was to check this character of examination and to prevent a waste of time. We do not think he erred. 4. Complaint is made that the court of its