text:
odda-maðr, m. overman (who gives the casting vote); umpire.
odd-hagr, a. skilled in wood-carving; -hending, f. the first rhyming syllable, when at the beginning of a line; -hvass, a. sharp-pointed.
oddi, m. (1) triangle, point of land; (2) odd number; fig., standast (skerast) í odda, to be at odds, at variance.
oddr (-s, -ar), m. (1) point of a weapon; með oddi ok eggju, with point and edge, at the sword’s point, by force (heimta, eyða e-t með oddi ok eggju); brjóta odd af oflæti sínu, to break the point of one’s pride, to humble oneself; (2) spear (fölvir oddar); (3) spur (þótt vér jói óra oddum keyrum); (4) leader (hann var o. ok œsir fyrir þessum úráðum); (5) the front (hann hafði yxnum skipat í odd á liði sínu).
odd-viti, m. leader, chief (-viti liðs-ins, fyrir liðinu).
of, prep. (1) with dat. and acc., over = yfir (fara of fjöll; sitja of borði); of time, = um; of haust or of haustum, in the autumn; of aptaninn, in the evening; of hríð, for a while; of allt, always; (2) with acc. of, about (bera vitni of e-t); (3) in a casual sense, poet.; of sanna sök, for a just cause, justly.
of, an enclitic particle, chiefly placed before verbs; ek drykk of gat ens dýra mjaðar, I got a draught of the precious mead.
of, n. (1) great quantity, number; of fjár, immensity of wealth; of liðs, a vast host of men; (2) excess; við of, to excess; þótti hirðmönnum hans við of, they thought it was beyond measure; (3) pride, conceit (kirkjan verðr eigi svá mikil, at þar muni of þitt allt í liggja).
of, adv. (1) with adjectives and adverbs; too; of gamall, ungr, langr, stuttr, too old, young, long, short; of mjök, too much; of lengi, too long; (2) with the neuter of a past part. over-much, too much; hafa of drukkit, to have drunk too much; hafa of gört, to have transgressed; hafa of mælt, to have said too much; hafa of tekið við e-n, to have gone too far.
ofan, adv. (1) from above, down, downwards; falla o., to fall down; taka o. húsin, to pull down the house; (2) on the uppermost part, at the top (klettrinn var víðr o.); (3) above the surface of, with gen. (o. jarðar); (4) with preps., o. af, down from (o. af landi); o. á or o., down upon (leggr Refr á hann o. aptr klæðin, ok þar leggst Álfdís o. á klæðin); besides (á þetta o. allt gerði hann suðr at oss þrettán skútur); þola hverja skömm á aðra o., to bear one disgrace after another; o. á or á o., to boot, into the bargain, = þar á o.; o. eptir, down along (reið hann þá o. eptir dal); o. frá, below (var verkr í enni hœgri kinn o. frá auganu); o. fyrir, down over (hann féll dauðr o. fyrir klettinn); fyrir ofan, above (arfasáta, er hér stendr fyrir o. húsin); steinveggr var fyrir o., above, higher up.
ofan-fall, n. (1) downfall; (2) downpour of rain (var veðrátta ill ok -föll); -för, -ganga, f. descending, descent; -högg, n. cutting down; -reið, f. riding downwards.
ofan-verðr, a. (1) the upper, uppermost, opp. to ‘neðanverðr’; hann hjó í -verðan skjöldinn, in the uppermost part of the shield; á -verðu fjallinu, on the top of the mountain; breiðr at -verðu, broad at the top; (2) of time, in the later part of a period, opp. to ‘öndverðr’; -verða nótt, towards the end of the night, late in the night; á -verðum dögum Haralds, in the later part of the reign of King Harold.
ofar-la, -liga, adv. (1) high up, in the upper part (-liga í dalnum); þeim mun í brún bregða ok -liga klæja, they will make a wry face and their pates will tingle; fig., bíta e-m -la, to bite one sharply; (2) of time, towards the end of a certain period; -liga á dögum Ólafs konungs, in the later part of the reign of King Olaf (= á ofanverðum dögum).
ofarr, adv. compar. (1) higher up (annat augat mun o. en annat); fig., lát eigi o. koma þessa fólsku, let not this nonsense go farther; (2) later, move advanced in time; (3) o. meirr = ofarr; ofarst, adv. superl. highest, uppermost.
of-át, n. over-eating, gluttony; -beldi, n. violence, overbearing; -bræði, f. passion, rashness; -dirfð, f. foolhardiness, impudence.
ofdirfðar-fullr, -samr, a. foolhardy, impudent.
of-drykkja, f. indulgence in drink.
of-dul, f. too great conceit; -dulinn, a. self-conceited; -dyri, n. ‘over-door’, lintel; -fari, a. having gone too far; verða offari við e-n, to transgress against one; -fors, n. presumption.
offr, n. offering (fórnir eða offr; offr hins heilaga Ólafs).
offra (að), v. (1) to make an offering, sacrifice (o. e-m e-t); (2) to make a gift, to present; o. e-m e-u (hann offraði miklu fé til grafar drottins).
of-framsœkni, f. over-temptation; -fylli, f. surfeit, gluttony; -gangr, m. excess; ganga ofgangi (-göngum) yfir e-n, to tyrannize; -gangsi, a. over-prevailing; -gœðakostr, m. great advantage; -harmr, m. excessive grief; -hiti, m. excessive heat; -hlátr, m. immoderate laughter; -jarl, m. ‘over-earl’, over-match (verða mér sumir ofjarlar hér í heraðinu); -kapp, n. stubbornness; -kátr, a. overbearing, wanton; -kerski, f. excessive petulance; -kvæni, n. domineering of a wife; -kæti, f. wantonness; -láti, m. a vain, showy person; -látligr, a. showy; -léttliga, adv. promptly; -léttr, a. prompt, easy, ready; -leyfingi, m. a person made too much of; -lið, n. = ofrlið; -ljótr, a. hideous; -læti, n. arrogance; -maðr, m. over-match; vera e-m ofmaðr, to be more than a match for; -magn, n. = oflið; bera e-n ofmagni, to overpower.
ofmetnaðar-fullr, a. full of pride; -maðr, m. overproud man; -samligr, a. arrogant (-samlig orð).
of-metnaðr, m. pride, arrogance; -metnast (að), v. to pride oneself; -munúð, f. sensuality; -mælgi, f. excessive loquacity; -mæli, n. exaggeration (er þat ok ekki ofmæli, at).
ofn (-s, -ar), m. oven, furnace.
ofn-grjót, n. oven-stones; -reykr, m. smoke from an oven.
ofra (að), v. (1) to brandish, wave in the air, with dat. (o. vápnum sínum); (2) to raise, lift (o. líkam hins helga Ólafs); þegar er sólu var ofrat, as soon as the sun had risen; o. sér, to raise the head, appear (líðr þá eigi langt áðr gömul úhlýðni ofrar sér); (3) refl., ofrast, to become known (Guðmundr vildi eigi þat o. láta); to pride oneself (af e-u).
ofraðar-maðr, m. a notable man; -rangr, a. exceedingly perverse; -synd, f. pride, presumption; -vel, exceedingly well; -þrekmaðr, m. an exceeding strong (courageous) man.
ofraðr (gen. -ar), m. notification, disclosure; bera e-t á ofrað, to make known, divulge.
ofr-afl, n. = ofrefli, ofríki.
of-raun, f. too great a trial, too severe a test; -rausn, f. presumption; -ráð, n. (1) too great a task (þótti honum þetta ofráð vera); (2) too high a match (Þorsteinn kvað sér þat ofráð).
ofr-dýrr, a. over-dear; -efli, n. (1) overwhelming force (þessi maðr brýzt í móti miklu ofrefli); (2) Oddr kvað sér þat eigi ofrefli, O. said it was not beyond his strength; (3) excess, immensity (ofrefli frosts ok kulda).
of-refsan, f. too great severity in punishing; -rembingr, m. arrogant person; -reyna (-da, -dr), v. to put to too severe a test; ofreyna sik, to overstrain oneself.
ofr-fé, n. immensity of goods; -fjöldi, m. immense host; -gangr, m. = ofgangr; -garpr, m. overdaring man; -gjold, n. pl. dire retribution; -harmr, m. overwhelming sorrow; -hefnd, f. fearful vengeance; -hiti, m. excessive heat; -hugi, m. (1) a fearless, daring man; (2) = -hugr; -hugr, m. dauntless courage.
ofr-kapp, n. excessive zeal, stubbornness (verja mál með -kappi).
ofrkapps-fullr, a. overbearing; -maðr, m. overbearing man.
ofr-kuldi, m. excessive cold; -lengi, adv. very long; -lið, n. overwhelming force; bera e-n ofrliði, to overpower; -liga, adv. exceedingly (ofrliga fagr); -ligr, a. excessive; -menni, n. mighty champion; -mikill, a. very great; -mælgi, f. great babbling or vaunting; -mæli, n. = yrði; -skjótt, adv. very soon; -verkr, m. violent ache or pain; -yrða (-ða, -ðr), v. to address in big words; -yrði, n. high words; -þraut, f. hard trial; -þungi, m. crushing weight; -ölvi, a. having over-drunk, the worse for drink.
ofsa (að), v. to puff oneself up, be arrogant (o. sér til vansa); refl., ofsast, to grow unruly (Jupiter þótti fólkit ofsast).
ofsa-harðr, a. extremely hard, severe (-hörð veðr); -maðr, m. overbearing man; -mikill, a. excessively great.
of-sjónir, f. pl., sjá ofsjónum yfir e-u, to look down upon, despise (sér þú nú ofsjónum yfir flestum bústöðum).
of-skemtan, f. excessive pleasure; -skvaldr, n. excess of talking; -skynja, a. indecl. looking down upon (vera e-m ofskynja); -sókn, f. persecution.
of-stopi, m. overbearing arrogance; -stýri, n. unmanageable thing; -stœki, n. ferocity, vehemence; -stœri, n. haughtiness, pride; -sœkja (see sœkja), v. to persecute; -sœkjandi, m. persecutor; -sögn, f. exaggeration; -sögur, f. pl. exaggeration; eigi má ofsögum segja frá vitsmunum þínum, your intelligence cannot be too highly praised; -tekja, f. taking too much to oneself; -tign, f. too great honour; -vald, n. = -ríki; -veðr, n. = -viðri; -verkr, m. excessive pain; -viðri, n. violent gale; -vilnan, f. conceit, presumption; -virðing, f. too great honour; -vægiligr, -vægr, a. immense, overwhelming; -væni, n. anxious expectation; -þrá, f. immoderate lust; -þögli, f. stubborn silence.
ok, conj. (1) and; bæði … ok, both … and (b. er hann vitr ok framgjarn); (2) in comparison, as, and; sami maðr ok áðr, the same man as before; nú fór Svíum allt á eina leið ok Dönum, it went with the Swedes in the same way as with the Danes; þat er mjök sundrleitt (úlíkt) ok kristnir menn gøra, it differs much from what Christians do; (3) of an adversative character, and yet, but (hann var særðr mörgum sárum ok engum stórum); (4) introducing the apodosis, then = þá; esp. in the old laws; ef sá maðr (etc.) …, ok verðr hann útlagr, then he shall pay; (5) used for the relative particle ‘er’; at höllu hann kom ok átti Íms faðir, which belonged to Im’s father; Geirröðr konungr átti þá son, ok hét Agnarr, who was called A.; (6) also (hann heyrir ok þat, er gras vex á jörðu).
oka (að), v. to bring under the yoke, to subjugate.
okaðr, pp. joined by a cross-piece.
oki, m. cross-piece (cf. ‘hurðar-oki’).
okkarr, poss. pron. our, in dual; hvárrgi o., neither of us two.
okr, n. usury; -karl, m. usurer.
olea (að), v. to anoint, administer extreme unction to.
olifa, f., olifu-tré, n. olive-tree.
oman, n. boss on a sword.
opa (að), v. to retreat, go back (also, opa undan, á hæl). Cf. ‘hopa’.
opin-bera (að), v. to manifest, reveal; -berliga, adv. openly, in public; -berligr, -berr, a. manifest, public; -eygðr, -eygr, a. open-eyed; -mynntr, a. open-mouthed.
opinn, a. (1) open (o. nummr, opin hurð, opit lopt); koma e-m í opna skjöldu, to take one in the rear; (2) resupine, on the back, opp. to ‘á grúfu’ (hann lét binda hann o. á slá eina); (3) open, undecided (E. segir eigi sið, at mál stœði opin).
opin-spjallr, a. outspoken, free-spoken (var S. óðlátr ok -spjallr).
opna (að), v. to open (hann lét o. hauginn); refl., opnast, to be opened.
opt, adv. often, frequently; compar., optarr, oftener; superl., optast, oftenest, most frequently.
opt-leiki, m. frequency; -liga, adv. often, frequently; -ligr, a. frequent; -samligr, a. frequent; -sinnis, adv. many times; -sinnis, -sinnum, adv. oftentimes.
orð, n. (1) word; ef maðr mælir nökkuru orði í mót, if a man speaks a word against it; segja í sínu orði hvárt, to say one thing in one breath and another in the next; taka til orða, to begin to speak; kveða at orði, to say, utter; hafa við o., to hint at; vel orði farinn, well-spoken, eloquent; fornkveðit o., an old saw; (2) word, repute, report (gott, illt o.); fyrir orðs sakir, because of what people might say; leggja e-t til orðs, to talk about; þótt okkr sé þat til orðs lagit, although we are blamed for it; (3) message (senda, gøra e-m o.).
orða (að), v. to talk of (var þetta brátt orðat, at O. fífldi Sigrídi).
orða-ákast, n. altercation; -dráttr, m. (1) talk (illr -dráttr); (2) drawling; -framburðr, m. utterance; -framkast, n. chance proposal; -fullting, n. speaking well for one; -glœsur, f. pl. showy words; -grein, f. phrase; -hagr, a. skilled, expert in words; -hald, n. keeping one’s word; -heimtingar, -hendingar, f. pl. bandying words; -hjaldr, m. verbiage; -hnippingar, f. pl. altercations; -lag, n. manner of speaking, expression; -lauss, a. wordless; láta -laust, to be silent; -leiðing, f. pronunciation; -lengd, f. length of a verse; -maðr, m. eloquent man; -samr, a. wordy, long-winded; -semi, f. verbiage, loquacity; -skak, n. scolding; -skil, n. pl. distinction of words (ekki nam -skil); -skipan, f. the order of words; -skipti, n. pl. exchange of words (eiga -skipti við e-n); -skrap, -skrum, n. bragging; -snild, f. eloquence; -staðr, m., gørðu Svíar þá kurr mikinn ok mælti hverr í -stað annars, all spoke at once (or in one way?); -sveimr, m. rumour; -tiltekja, f. utterance, language; -tœki, n., -tœkja, f., -tök, n. pl. mode of expression.
orð-bæginn, a. taunting; -djarfr, a. outspoken; -fall, n., e-m verðr -fall, one is struck dumb; -farinn, a., vel-farinn, eloquent; -fár, a. using few words; -ferli, n. expression, utterance; -fimi, f. skill in words; -fimr, a. of easy, flowing speech; -fjöldi, m. supply of words (heyja sér -fjölda); -flaug, f. floating rumour; -fleyting, f. rumour; -fleyttr, pp. rumoured; -fœri, n. or f. (1) style (of a composition); (2) flow of words, eloquence; -fœrliga, adv. glibly; -fœerr, a. well-spoken, eloquent; -gífr, n. termagant; -gnótt, f. flow of words; -góðr, a. speaking well of everybody; -gætinn, a. wary in one’s words, reserved; -hagr, a. skilled in the use of words; -hákr, m. abusive person; -hegi, f. skill in words; -heill, f. (1) good omen; (2) report (eigi hafa þau góða -heill); -hittinn, a. facetious; -hvass, a. sharp-tongued; -igr, a. wordy, copious; -illr, a. speaking evil of others; -kringi, f. glibness of tongue; -krókar, m. pl. sophistry; -lag, n. (1) way of speaking, talk, language; (2) report (afla sér góðs -lags); -lauss, a. wordless; láta -laust, to be silent about; -lof, n. praise (vinsæld ok -lof); -margr, a. long-winded; -nœfr, a. witty; -rammr, a. powerful in words; -rómr, m. report, public opinion (sá -rómr lagðist á); -rœða, f. talk, discussion; bar saman -rœðu þeirra jarls ok Finnboga, the earl and F. had an interview; -rœða (-dda, -ddr), v. to talk of; -sending, f. message; -sjúkr, a. ‘word-sick’, touchy; -skár, a. = -havss; -skrípi, skræpi, -skrök, n. objectionable language.
orðs-kviðr, m. (1) proverb, saw; (2) report (huggast við góðan -kvið).
orð-slunginn, -slœgr, a. cunning in words; -snild, -snilli, f. eloquence; -snjallr, a. eloquent; -spakr, a. wise-spoken; -speki, f. wisdom in words; -stef, n. notice, mention; hafa e-n í -stefi, to speak of one; -stiltr, a. moderate in one’s words.
orðs-tírr, m. fame, renown, good report (falla við góðan orðstír).
orð-stórr, a. using big words; -svif, n. rumour; -svinnr, a. = -spakr; -sæll, a. enjoying a good reputation; -tak, n. (1) phrase, expression (þat er -tak, at sá er týhraustr); (2) watchword (þá skulu vér hafa allir eitt -tak: fram, fram Kristmenn); (3) speech, words, way of speaking; þá fellust öllum Ásum -tök, words failed them, they were struck dumb; þat var eitt -tak allra, all said the same; Gunnarr heyrði öll -tökin, G. heard every word they said; hafa -tak við e-n, to have a talk with one; -tœki, n. = -tak; -vandr, a. sensitive (particular) as to other’s words (þarft þú eigi svá -vönd at vera).
orð-varr, a. watchful of one’s tongue, discreet; -víss, a. witty, clever.
organs-list, f. art of organ-playing; -meistari, m. organist; organ-builder.
orka (að), v. (1) to be able to do; önnur vann allt þat, er hón orkaði, the other worked all that she could; with da., þó hyggst hann einn munu öllu o., yet he thinks he can do everything himself; allt þat lið, er vápnum mátti o., all those who could wield weapons; (2) with gen. of the thing, o. e-m e-s, to cause, effect; mér orkar þat margra vandræða, it causes me much trouble; þetta mun o. tíðenda, this will give something to speak about; allt orkar tvímælis þá er gört er, there are two sides to everything that is done; impers., jafnan orkar tvímælis, þó at hefnt sé; (3) with preps., o. at e-u, to act, proceed with, do; þeir rœða nú um með sér, hversu at skal o., what is to be done; o. á e-t, to work on, have effect on (var þat þó lengi, at eigi orkaði eldr á Þórólf); hann mátti engu á o., he could do nothing; o. orða á e-n, to make one speak; o. til e-s, to prepare (o. til veizlu); o. á, to begin; orkum ekki á fyrri, let us not be the first to attack; (4) refl., orkast at e-u, to exert oneself in a thing; to set about doing something (hversu hann skyldi at o. at segja föður sínum þessi tíðendi); o. hugar á at gøra e-t, to make up one’s mind to do a thing; honum þótti seint á o., he thougth it went slowly.
orka, f. (1) strength, power for work (orkan þvarr, því at ellin sótti á hendr honum); (2) work.
orkn, n. a kind of seal; cf. ‘örkn’.
Orkn-eyjar, f. pl., the Orkneys.
orku-fátt, a. n. failing in strength (honum varð orkufátt); -maðr, m. labourer; -vana, a. indecl. bereft or destitute of strength.
or-lof, n. permission, leave (ek vil beiðast, herra! at þér gefir mér orlof at fara til Íslands); orlof til brottferðar, leave to depart.
orlofa (að), v. to allow.
orlofs-bréf, n. writ of permission; -laust, a. n. without leave.
orma-bœli, n. abode of snakes; -garðr, m. snake-pen; -látr, n. = orma-bæli.
orm-beðr, m. poet. snake’s lair; -beðseldr, gold; -garðr, m. = ormagarðr (G. lét hann kasta í ormgarð); -ligr, a. fig. sly, cunning.
ormr (-s, -ar), m. snake, serpent.
orms-bit, n. snake-bite; -tunga, f. snake’s tongue, a nickname.
orna (að), v. (1) to warm; o. sér, to warm oneself (lát hann o. sér ok fari síðan til sels); impers., ornar e-m, one gets warm; (2) to get warm (svá tekr brunnrinn at o.).
orrostu-laust, adv. without battle; -lok, n. pl. issue, end of a battle; -maðr, m. warrior; -slög, n. pl. battles; -staðr, m. battle-place.
oss-, poss. pron. our, = várr (at vilja ossum, í hendr ossar, etc.).
ost-hleifr, m. a cheese; -hlutr, m. slice of cheese; -kista, f. cheese-press.
ostr (-s, -ar), m. cheese.
ota (að), v. to push, with dat.; o. sér fram, to thrust oneself forward (Þórir otar sér fram milli manna).
otr (gen. otrs, pl. otrar), m. otter.
otr-belgr, m. otter-skin; -gjöld, n. pl., poet. gold; -hundr, m. otter-hound.
oxa-höfuð, n. head of an ox.
oxi (pl. øxn), m. ox = uxi.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


1. That B had no rights in the premises as against innocent bona fide encumbrancers and purchasers without notice of her claim.
2. That the joint occupation of the premises by A and B, under the circumstances, was no constructive notice of B's claim of right.
3. The territorial act under which a deed of the property was made to A by the mayor directed that "deeds of conveyance of the same shall be executed by the mayor of the city or town under seal of the corporation." A general act of the territory at the time the deed was made required deeds to be witnessed. The deed to A bore the corporate seal, as required by the special act, but was not witnessed. Held that the special act controlled the general act, and that the deed was good.
upon the public lands," 14 Stat. 541, it was provided that whenever any portion of the public lands of the United States had been or should thereafter be settled upon and occupied as a town site, it should be lawful for the corporate authorities of the town to enter at the proper land office at the minimum price the land so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their several interests, and that the execution of said trust, as to the disposal of the lots of said town, etc., should be conducted under such rules and regulations as might be prescribed by the legislature of the state or territory in which the same might be situated.
judgment to be entered of record, and certify the fact to the mayor of the town, who should make to the party claimant a deed for the tract or parcel of land so adjudged to him.
Roberts claimed some interest in the premises, adverse to appellant, as purchasers, encumbrancers, or otherwise, but that their rights were only such as they had questionably derived from Townsend, with notice of appellant's possession and occupancy of said premises, and her consequent rights, and subject thereto. The bill prayed that the purchase of said premises by Townsend might be declared as to one-half thereof as a purchase in trust by him for appellant, and that Townsend, Hooper, and Jennings might be required to convey the same to her.
The defendant Townsend filed no answer. Roberts answered disclaiming any interest in the premises. Defendants Hooper and Jennings filed a joint answer in which they denied all the averments of the petition except that the premises in controversy were situate within the town site of Salt Lake City and were subject to entry by the mayor under the act of Congress, and that Townsend had obtained a deed from the mayor for the whole of said premises. They averred that they were purchasers of said premises for a valuable consideration, without notice of the claim of appellant, and that they had no notice thereof until the bringing of this suit, and that appellant and Townsend had conspired to bring and maintain this suit for the purpose of defrauding them, well knowing that the claim of appellant was false.
to the public by every advertising agency as the sole proprietor. During all this time, he and the appellant lived together on the premises as husband and polygamous wife, the appellant taking an active part in conducting the business of the hotel. The lawful wife of Townsend also lived with him as such on the same premises until her death in 1870. In the fall of the year 1867, Townsend and appellant entered into a verbal agreement with each other whereby Townsend stipulated that if appellant would continue to live at the Townsend House, and assist in carrying on the business of the hotel as she had theretofore done, he would convey to her a one-half interest in the real and personal property of the hotel. During the fall of the same year, Townsend took another polygamous wife, but ostensibly continued his cohabitation with the appellant as his polygamous wife, the motive of both being to conceal from the public any change in their relations to each other.
as an occupant or otherwise to a conveyance of any interest therein under the town site laws.
After his purchase of the possessory right to said premises, and before the fall of 1868, Townsend expended in the erection of buildings thereon the sum of $16,000. On October 1, 1868, he borrowed of defendant Hooper the sum of $5,000, and on December 8, 1868, a further sum of $5,000. For these sums he executed his several notes, and deeds of trust on the premises to secure the same.
On September 24, 1873, the indebtedness of Townsend to Hooper on these notes amounted to $12,500, and on that day he renewed the same by giving Hooper his three notes, two for $5,000 each and one for $2,500, due in one year, and at the same time executed a deed of trust to trustees to secure the same.
On October 10, 1876, Townsend gave his note to defendant Roberts for $5,000, payable in one year, and secured it by a deed of trust upon the same premises. This note afterwards by assignment became the property of defendants Hooper and Jennings.
Afterwards Townsend contracted other debts, which, either by deed of trust or judgment, became liens on said premises, and by various assignments the defendants Hooper and Jennings became the owners and holders of all the debts secured by lien on said premises. On April 10, 1878, the sum of $16,425 was due on the notes executed by Townsend to Hooper on September 24, 1873, and the trustees named in the deed of trust to secure the same, in pursuance of the power thereby conferred, sold said premises to defendant Jennings for $22,500, which sum he paid and it was applied to the discharge of the several liens on the property in the order of their priority. Jennings afterwards conveyed an undivided half of the premises to his codefendant Hooper.
without any actual or constructive notice of any claim of the appellant, and neither the trustees in said trust deed, nor the defendants Hooper, Jennings, and Roberts, nor any of them, had any notice of the claim of the appellant to any interest in or right to said premises until after the bringing of this suit.
Upon this finding of facts, the district court dismissed the bill of complaint. Its decree was carried to the supreme court of the territory by appeal, where it was affirmed. The decree of the latter court affirming the decree of the district court is brought under review by the present appeal.
The facts found by the Court leave no ground for the appellant's case to rest on. Whatever rights, if any, she might have as against Townsend had he continued the owner of the premises in controversy, she certainly has none against innocent bona fide encumbrancers and purchasers, without notice of her claim. The arrangement between Townsend and the appellant was a secret agreement known only to themselves, and, as found by the court, they, after the agreement, continued to live together, as they had previously done, in order that the public might not know that any change had taken place in their relations to each other. A secret agreement, as between herself and Townsend, which they purposely kept concealed, cannot be set up against bona fide purchasers without notice. The finding of the court that neither Hooper, Jennings, nor Roberts had notice, either actual or constructive, of appellant's alleged rights, cuts up by the roots all claim on her part as against them to the premises in controversy.
subservience thereto. When Townsend, in 1866, entered into possession of the premises which he had previously bought with his own money, he took with him his lawful wife and the appellant, his polygamous wife. At that time, it is not disputed that he was the sole occupant under the act of Congress. The appellant was no more a joint possessor at that time than any servant or guest of the hotel. A secret agreement subsequently entered into between Townsend and the appellant, and purposely kept concealed from the public by them, cannot be held to change the nature of Townsend's occupancy so as to affect with constructive notice persons who had no actual notice.
Constructive notice is defined to be in its nature no more than evidence of notice the presumption of which is so violent that the court will not even allow of its being controverted. Plumb v. Fluitt, 2 Anstr. 438; Kennedy v. Green, 3 My. & K. 719. Where possession is relied on as giving constructive notice, it must be open and unambiguous, and not liable to be misunderstood or misconstrued. Ely v. Wilcox, 20 Wis. 523; Patten v. Moore, 32 N.H. 384; Billington v. Welsh, 5 Bin. 132. It must be sufficiently distinct and unequivocal so as to put the purchaser on his guard. Butler v. Stevens, 26 Me. 484; Wright v. Wood, 23 Penn.St. 120; Boyce v. Williams, 48 Ill. 371. As said by Strong, J., in Meehan v. Williams, 12 Wright, 238, what makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell. See also Holmes v. Stout, 3 Green Ch. 492; McMechan v. Griffing, 3 Pick. 149; Harwick v. Thompson, 9 Ala. 409.
Tested by these rules, it is plain that the physical occupancy of the premises in question by appellant, as found by the district court, was not such possession as to put a purchaser on inquiry and charge him with constructive notice. On the contrary, viewed in connection with the other facts found, it was such as to mislead him.
obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well known maxim that when equities are equal the law shall prevail. Williams v. Jackson, 107 U. S. 478; Willoughby v. Willoughby, 1 T.R. 763; Carlton v. Low, 3 P.Wms. 328; Ex Parte Knott, 11 Ves.Jr. 609; Tildesley v. Lodge, 3 Sm. & Giff. 543; Shine v. Gough, 1 Ball & B. 436; Bowen v. Evans, 1 Jones & La.T. 178; Vattier v. Hinde, 7 Pet. 252. This is the case of defendants Hooper and Jennings.
The appellant contends, however, that as the deed executed by the Mayor of Salt Lake City to Townsend was without witnesses, as required by the general law of the territory, it did not convey the legal title. But the act of the territorial legislature providing for the conveyance to occupants, by the mayor, of lands included in the town site, did not require witnesses to his deed. It merely directed that "deeds of conveyance for the same shall be executed by the mayor of the city or town under the seal of the corporation." According to the well settled rule that general and specific provisions in apparent contradiction, whether in the same or different statutes and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general, this provision for the execution of a particular class of deeds is not controlled by the law of the territory requiring deeds generally to be executed with two witnesses. Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 342; State ex Rel. Fosdick v. Perrysburg, 14 Ohio St. 472; London &c. Ry. v. Wandsworth Board of Works, L.R. 8 C.P. 185; Bishop on the Written Laws, § 112a. The deed of the mayor to Townsend, having been executed in conformity with the special act, was therefore valid and effectual to convey the legal title.
The result of these views is that the appellant has failed to show herself entitled to the relief prayed in her bill.
The decree of the supreme court of the Territory of Utah affirming the decree of the district court, by which her bill was dismissed, must be affirmed.


February 11, 2004. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
On June 11, 2003, the Plaintiff filed a Complaint against the Orleans Parish School Board alleging that OPSB wrongfully terminated him in violation of his due process and equal protection rights under the Fourteenth Amendment of the United States Constitution. On August 27, 2003, OPSB filed its Original Answers to plaintiff's Complaint. Included in that answer was the OPSB's first defense, which stated, "plaintiff's Complaint fails to state a claim upon which relief may be granted." On November 19, 2003, in an effort to cure the defects of the allegations contained in his Complaint, Plaintiff, Roger Reese, ("Reese"), filed a First Supplemental and Amending Complaint alleging a cause of action under 42 U.S.C. § 1983.
On January 14, 2004, this Court ruled that the plaintiff's original Complaint and First Supplemental and Amending Complaint provided the factual basis that would entitle the Plaintiff to relief under 42 U.S.C. § 1983 and accordingly, the Defendant's Motion to Dismiss was denied.
On January 25, 2004, the Defendants filed the instant Motion to Alter or Amending Judgment Denying the Motion to Dismiss, pursuant to Rule 59(3) of the Federal Rules of Civil Procedure. In support of their motion, Defendants reassert their arguments in opposition to the Motion to Dismiss.
The Federal Rules of Civil Procedure provide that any party may file a motion to alter or amend a judgment within ten business days after its entry. See FED. R. Civ. P. 59. Under Rule 59, a district court enjoys considerable discretion in granting or denying such a motion. Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990);First Commonweatlh Corp. v. Hibernia Nat. Bank of New Orleans. 891 F. Supp. 290(E.D.La. 1995), amended 896 F. Supp. 634, affirmed 85 F.3d 622. There are certain grounds upon which a Court may grant a Rule 59 motion for reconsideration or to alter or amend the judgment. These grounds include the following: (1) an intervening change in the controlling law has occurred, (2) evidence not previously available becomes available, or (3) it is necessary to correct clear error of law or to prevent manifest injustice. Database America, Inc. v. Bellsouth Advertising Pub. Corp., 825 F. Supp. 1216 (D.N.J. 1993). It is important to note that reconsideration is an "extraordinary remedy which should be used sparingly and should not be used to relitigate old matters, raise new arguments, or present evidence that could have been raised prior to the entry of judgment." Lafargue v. Jefferson Parish, No. 98-3185, 2000 WL 174899, *1 (E.D.L.A. Feb. 11, 2000).
In the instant case, assuming all factual allegations of the plaintiff's original Complaint and plaintiff's First Supplemental and Amending Complaint to be true, Plaintiff has demonstrated that Defendant, OPSB, may be liable until Plaintiff under 42 U.S.C. § 1983 for a deprivation and violation of Plaintiff's rights protected by the Constitution, federal laws, state laws, and the "official policy" of Defendant, OPSB. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc).
The Orleans Parish School Board has not successfully pleaded any of the requirements necessary under F.R.C.P. Rule 59(e) and has used this Motion as an attempt to relitigate issues previously decided by this Court. For the reasons stated above, this Court finds that none of the OPSB's arguments fall within any of the circumstances set forth above that justify reconsideration. They have failed to show any changes in the factual circumstances or controlling law to support the notion that this Court's Order of January' 14, 2004 was erroneous. Furthermore, OPSB has failed to prove that this Court's prior Order contained a clear error of law warranting reconsideration. Finally, the plaintiff's failed to show that a failure to reconsider the Order of January 14, 2004 would be an injustice to either parties.
IT IS ORDERED that the Motion to Alter or Amend this Court's January 14, 2004 Order filed on behalf of the Defendants, Orleans Parish School Board (Doc. 27) be, and the same is hereby, DENIED.


text:
COMMONWEALTH vs. RICHARD A. WHITE.
INDICTMENT found and returned in the Superior Court on May 11, 1966.
A motion by the defendant for a further particular and motions to suppress were heard by Good, J., and the case was tried before him.
John A. McNiff for the defendant.
for the murder of Clifford A. Crawford. The indictment charged murder in the first degree. The jury returned a verdict of guilty and recommended that the death sentence be not imposed. G. L. c. 265, Section 2. The case, having been tried subject to G. L. c. 278, Sections 33A-33G, comes here on White's appeal.
We summarize the pertinent evidence as follows: On Sunday, December 5, 1965, about 6:30 A.M. Clifford Crawford was found dead outside Vi-Cliff's Restaurant in Danvers. The cause of death was a bullet wound in the chest. Crawford operated the restaurant and was last seen there about 12:30 A.M., December 5, shortly after closing time. He was next seen lying on the ground on his back with a cocked Beretta .380 semiautomatic pistol near his right hand. The police found no fingerprints on the gun and never succeeded in determining its origin or ownership. Near Crawford was a set of car keys.
Two expended cartridge casings were found at the scene. One, a Remington .380 casing, was found seven feet five inches in front of Crawford's car at a point seven feet from the restaurant. This casing was ejected from the Beretta gun found near Crawford's hand. The other casing, a Western .380, was found three feet eleven inches from the bottom of the side stairs of the building and six feet four inches behind Crawford's car. There was evidence tending to show that this casing had been ejected from a gun stolen from the home of John J. Reardon, Jr., of Salem. A spent bullet, on which there was blood, was found inside Crawford's car and the markings on it were consistent with those made by a Browning pistol, which was the type stolen from Reardon along with some Western .380 ammunition.
were found on the stolen car; there were also found in the car three letters and a postcard which were identified as being in the handwriting of the defendant. On one letter in the defendant's hand, the following words appeared: "rubber gloves, wire and clips, screw driver, pliers, sweat shirt, knife, handkerchief, Vi-Cliff's, Agawam, China Sails, and Anthony's Hawthorne."
At the time of the killing the defendant was an escapee from the Massachusetts Correctional Institution at Concord, and had been such since October 20, 1965. He was arrested in Chicago on April 11, 1966, on a Federal fugitive warrant based upon the escape. On April 14 the Federal charge was dismissed, and the defendant waived hearing on the rendition proceedings and agreed to return to this Commonwealth voluntarily. On the same day he was interviewed by three Massachusetts police officers, as a result of which he gave a detailed account of the shooting of Crawford. Upon his return to Massachusetts the defendant was incarcerated temporarily in the House of Correction in Billerica. He was visited there by Officers McNulty and Noonan on April 17 at which time he furnished them with additional information concerning the shooting. At that visit an arrangement was made whereby the defendant's friends Thomas Beaulieu and his son Thomas (hereinafter sometimes called Beaulieu, Sr., and Beaulieu, Jr.) would visit him in Concord. Accordingly, the Beaulieus visited the defendant on April 23 at the Concord Reformatory to which he had been transferred. During this visit the defendant told them that he had "nailed" Crawford at Vi-Cliff's and gave an account of the shooting.
commission of which the murder of Clifford A. Crawford is alleged to have been committed." To the refusal of the court to order this specification, the defendant excepted. (Assignment of error No. 1.) There was no error. "The purpose of a bill of particulars is `to describe in more detail that which is included in the allegations of an indictment in order that the defendant may be fully informed of the nature of the charge and be enabled to prepare an adequate defence.'" Commonwealth v. McLaughlin, 352 Mass. 218, 222. The indictment along with the particulars furnished by the Commonwealth gave the defendant "reasonable knowledge of the nature and grounds of the crime charged"; it cannot therefore be said that the charge was not "fully, plainly, substantially and formally set out." G. L. c. 277, Section 40. In such circumstances the ordering of further specifications rested in the discretion of the judge. Commonwealth v. Binkiewicz, 342 Mass. 740, 747.
In view of what we shall say later in part 7 of this opinion we think that the judge rightly submitted the issue of first degree murder to the jury. And clearly there was enough evidence to warrant a verdict of murder in the second degree or a verdict of any of the lesser included offences. There was evidence that the defendant went to the scene of the crime late at night carrying a loaded pistol. It could have been inferred that he was embarked on a criminal enterprise involving at the very least breaking and entering, or larceny, or both. In the defendant's own words (according to Beaulieu, Sr.) he went to Vi-Cliff's to "rob the place."
Thus it could have been found that the defendant shot and killed Crawford in the commission or attempted commission of a felony. A homicide committed in the commission or attempted commission of a felony is murder at common law. Commonwealth v. Chance, 174 Mass. 245, 252. Commonwealth v. Madeiros, 255 Mass. 304, 310, 315. Commonwealth v. Green, 302 Mass. 547, 556. The defendant does not argue that the evidence would not support a verdict of manslaughter. See Commonwealth v. Bouvier, 316 Mass. 489. On the contrary the defendant urges that it would.
3. Three confessions are involved in this case. The first was made in Chicago to Officers McNulty, Joyce and Noonan on April 14, 1966. The second occurred on April 17 while the defendant was at the House of Correction at Billerica and was made to officers McNulty and Noonan. The third was made to the defendant's friends, the Beaulieus, at Concord on April 23, 1966.
April 14, 1966, were sufficient to satisfy the then existing standards. The judge suppressed the confession because the requirements laid down in the Miranda case were not satisfied. [Note 1] The warning was found to be defective because the police failed to inform the defendant "that if he were indigent, a court appointed lawyer would be appointed forthwith and prior to any interrogation." Although no findings were made in connection with the suppression of the second (Billerica) confession, we have no doubt that it was done for the same reason.
The defendant attacks the third (Concord) confession on the ground that it was in substance a continuation of the Chicago and Billerica confessions and was really conducted by the police through the agency of the Beaulieus. Thus, it is argued, the infirmity of the earlier confessions attaches to the Concord confession and renders it inadmissible. Accordingly, it is urged, the judge should have allowed the motion to suppress. Closely related to this argument is the contention that it was error to admit the police testimony as to a conversation with the defendant at Billerica as to matters preceding the Beaulieus' visit. And finally the defendant argues that the judge erred in admitting the defendant's confession to the Beaulieus. These questions are the subject of assignments of error Nos. 2, 8, 10 and 11.
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U. S. 436, 444.
The judge fully considered the degree of police involvement on both the pre-trial motion to suppress and the voir dire hearing preceding the admission of the confession at the trial. With respect to the motion the judge made detailed findings. The two Beaulieus were examined at great length and both denied that there was any plan to induce the defendant to make a third confession. The evidence warranted the findings of the judge that the Beaulieus made no bargain with the police to help make a case against the defendant; that they went to visit the defendant out of their feeling of concern for him; and that the police did no more than facilitate a visit which was initiated by the defendant himself. On the basis of these findings the judge rightly ruled that the standards of custodial interrogation which vitiated the Chicago and Billerica confessions did not apply to the Concord confession.
If the Beaulieus were not agents of the police and if the Concord confession was not the product of some scheme on the part of the police to obtain a further confession, it remains to consider whether the fact that Beaulieu, Sr. went to Concord with the knowledge that the defendant had already confessed to the police, that he was likely to do so again, and that he (Beaulieu) might have to give testimony concerning it, brings the case within the Miranda rules. We are not disposed to hold that because a person has made one or more confessions which fail to satisfy the Miranda standards nothing that he may thereafter say, even in circumstances where the Miranda principles do not apply, can ever be received in evidence. Whether the subsequent confession was likewise tainted would depend on the circumstances in which it was obtained.
and cannot be separated. In support of this contention the defendant cites Clewis v. Texas, 386 U.S. 707. There it was held on facts very different from those here that a series of confessions to the police could not be separated, and all were tainted. No such conclusion was required with respect to the three confessions here. Rather than any automatic presumption of illegality in the case of consecutive confessions where an earlier confession is invalid, the test is whether the later confession is voluntary. As was said in Lyons v. Oklahoma, 322 U.S. 596, 603, "The Fourteenth Amendment does not protect one who has admitted his guilt because of forbidden inducements against the use at trial of his subsequent confession under all possible circumstances. The admissibility of the later confession depends upon the same test -- is it voluntary. Of course the fact that the earlier statement was obtained from the prisoner by coercion is to be considered in appraising the character of the later confession. The effect of earlier abuse may be so clear as to forbid any other inference than that it dominated the mind of the accused to such an extent that the later confession is involuntary. If the relation between the earlier and later confession is not so close that one must say the facts of one control the character of the other, the inference is one for the triers of fact and their conclusion, in such an uncertain situation, that the confession should be admitted as voluntary, cannot be a denial of due process." See United States v. Bayer, 331 U.S. 532, 540-541.
Here there is no suggestion that the earlier confessions were elicited by threats or promises. The judge, as stated, excluded these confessions because as required by the Miranda case (which was decided subsequent to the confessions but prior to trial) the defendant was not told he had a right to a court appointed attorney during the interrogation. It cannot be said as matter of law that the third confession was the fruit of the others.
of the Concord confession without considering what he had said at Chicago and Billerica. Under the Massachusetts practice the question of voluntariness is first decided at a preliminary hearing before the judge in the absence of the jury. Once satisfied as to its voluntariness, the judge admits the confession. The jury then must also be satisfied that it was voluntary. Commonwealth v. Marshall, 338 Mass. 460, 461-462. See Jackson v. Denno, 378 U.S. 368, 378.
The judge instructed the jury at some length on this issue of voluntariness. Inasmuch as the Chicago and Billerica confessions were suppressed, it would have been improper for him to suggest to the jury that they consider whether the Concord confession was the product of the earlier confessions. The defendant was confronted with a dilemma rather than an impossibility; had he wished to amplify his contention of involuntariness he could have laid before the jury the earlier confessions and argued their influence. Concluding, apparently, that this might do him more harm than good, he decided to attack the third confession without mentioning the earlier confessions. The earlier confessions were suppressed at the defendant's instigation. Once they were out of the case they were out for all purposes. The defendant could not have it both ways.
The defendant also complains that the judge erred in informing the jury after the voir dire hearing of his preliminary determination that the confession was voluntary. It is plain from an examination of the transcript that the defendant's objection and exception were to the judge's ruling admitting the confession and not to the communication of his finding to the jury. But if we were to view the exception as raising the latter point it is without merit. "Where the law requires a judge to make a preliminary finding of facts it is proper for him to state his finding to the jury." Commonwealth v. Cantor, 253 Mass. 509, 512, and cases cited. The judge instructed the jury that his preliminary finding was not binding on them and that it was exclusively for them to decide whether the confession was voluntary.
The defendant urges that the testimony of Lieutenant McNulty as to how the visit of the Beaulieus to Concord came about was improperly admitted. The defendant has not shown how this testimony was prejudicial and we do not see how it was. McNulty did no more than explain briefly that he arranged the visit after having talked with the defendant at Billerica. This testimony was relevant to the jury's determination of whether the police or the defendant initiated the visit, and, thus, to the propriety of the confession. See Commonwealth v. Durkin, 257 Mass. 426, 428. As stated above the Concord confession could have been found to be sufficiently separated from the Chicago and Billerica confessions as not to be tainted by them. And likewise the conversation at Billerica concerning the Beaulieus' visits cannot be said to be the product of the earlier confessions.
go to the weight of the evidence rather than to its admissibility. Commonwealth v. Parrotta, 316 Mass. 307, 313. Commonwealth v. Vanetzian, 350 Mass. 491, 496.
When Reardon was asked to identify the shell he replied, "It's made by the same company and it's the same caliber." Inasmuch as the actual question asked was whether or not the shell appeared to be similar to that which he had turned over to Officer Patruska, this answer was not unresponsive, but was somewhat more detailed than a simple yes. The judge did not err in refusing to strike this answer.
5. The defendant's sixth assignment of error relates to testimony that the Corvette automobile found in Mount Sterling, Ohio, had been stolen from Mark Godfried of Peabody. The defendant argues that this evidence served only to suggest to the jury that he had been involved in prior criminal activity. This evidence was competent to prove the commission of the crime charged. The defendant's fingerprints on the car tended to show that he drove it, and the writing found in the car in the defendant's hand containing a list of places, including Vi-Cliff's, tended to connect him with the shooting. Evidence otherwise relevant to the offence charged is not rendered inadmissible because it also tends to prove the commission of some other crime. Commonwealth v. Choate, 105 Mass. 451, 457-458. Commonwealth v. Scott, 123 Mass. 222, 235. Commonwealth v. Feci, 235 Mass. 562, 567. Commonwealth v. Madeiros, 255 Mass. 304, 314.
that he was entitled to show a prior inconsistent statement under G. L. c. 233, Section 23. He also urges here a ground not pressed at the trial that the witness was not really his because he had been called earlier by the Commonwealth. It is not open to the defendant to urge grounds in this court that were never called to the attention of the trial judge. Brown v. Brown, 208 Mass. 290, 292. Rothwell v. First Natl. Bank, 286 Mass. 417, 422. The questions put to Beaulieu, Sr., as a witness for the Commonwealth by the prosecutor on matters which had already been explored were hardly leading but even if they were they would not be grounds for reversal. Guiffre v. Carapezza, 298 Mass. 458, 460.
course and shortly thereafter Crawford came out and began to shoot and the defendant shot back.
It is contended that the instructions relating to manslaughter were defective (assignment Nos. 19 and 21). Careful examination of the judge's charge on manslaughter reveals no error. The instructions in no way assume that it was established that the defendant had been engaged in robbery or breaking and entering at the time of the homicide. The defendant's argument that the judge instructed the jury that a verdict of manslaughter could be returned only if they found that the defendant had discontinued the robbery or breaking and entering is misleading, for the argument looks at only one portion of the charge. The charge as a whole was ample and dealt with mitigating circumstances and defences argued by the defendant in this court (requests Nos. 19, 20, 21, 22 and 23).
The defendant contends that it was error to deny requested instructions Nos. 24 and 28 (assignment No. 20). Request No. 24 relates to the voluntariness of the confession to the Beaulieus. The judge stated that if the Beaulieus' visit was part of "an operation . . . by the police to use devious means to get . . . [the defendant] to make a statement to his best friends who were working for the police," the confession could not stand. This was substantially in accordance with the defendant's request. There was no error.
to show that there was no harm: "[E]rror . . . in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal . . . . [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24. In the Chapman case Federal constitutional error was conceded. Here there was no error. [Note 3] We have considered above at some length the propriety of admitting the Concord confession to the Beaulieus. As there was no error in admitting the confession in evidence, the Federal standards required by the Chapman case for determining the harmlessness of trial error have no relevance.
if the jury found that the visit to Concord was initiated by the defendant, any friends of his would have an obligation to coperate with the police. See dissenting opinion of White, J., in Massiah v. United States, 377 U.S. 201, 211-212.
The defendant's final argument goes to the felony murder aspect of the case. The instructions, as the defendant argues, omitted any definition of robbery and breaking and entering. One theory put forward by the Commonwealth was that the defendant shot Crawford while in the commission, or attempted commission, of an armed robbery. Evidence was presented to the jury consistent with the theories that the defendant went armed with a gun to Vi-Cliff's to rob Crawford or to wait until Crawford had left and then to force open the safe, or that the defendant killed Crawford with premeditation.
The choice between robbery and breaking and entering has important consequences for the defendant inasmuch as breaking and entering is not a crime punishable by death or life imprisonment, whereas armed robbery is so punishable. See G. L. c. 265, Section 17, and c. 266, Section 16. Had the jury found that the killing occurred during the commission of the crime of breaking and entering, a verdict of no more than murder in the second degree would have been warranted.
The defendant took no exception to the judge's failure to give the definitions in question. Irrespective of this omission, G. L. c. 278, Section 33E, requires that this court consider the whole case broadly to determine whether there was any miscarriage of justice. Commonwealth v. Bellino, 320 Mass. 635. Commonwealth v. Cox, 327 Mass. 609. Commonwealth v. Baker, 346 Mass. 107.
Beaulieu, Sr., that the defendant went to Vi-Cliff's to commit robbery, there would be sufficient evidence for the jury to return a verdict of murder in the first degree.
After the jury had retired, they returned to request "a clarification of second degree murder" and in substance the judge repeated his instructions. The jury were told that if the defendant was engaged in robbery, which is punishable by life imprisonment, the verdict should be murder in the first degree, whereas if he were engaged in the act of breaking and entering, which is not punishable by life imprisonment, it would be second degree murder. This is the only place in the instructions that the distinction between robbery and breaking and entering is made. The distinction, as enunciated, is defective in failing to define the respective elements of robbery and breaking and entering. Given the jury's apparent confusion as to what constitutes murder in the second degree, the judge's amplification, in what was otherwise an excellent charge, fell short of providing a comprehensible standard to guide them. The defendant's fate thus turned on a layman's definition of robbery and breaking and entering. These are technical matters with which laymen cannot be expected to be familiar. See e.g. Commonwealth v. Novicki, 324 Mass. 461.
The evidence submitted to the jury consisted primarily of (1) a piece of paper with "Vi-Cliff's" written upon it in the defendant's handwriting found in Godfried's car, (2) the description of the scene of the killing, (3) Beaulieu, Sr.'s testimony that the defendant went to Vi-Cliff's to "rob the place," and (4) Beaulieu, Jr.'s statement that the defendant went to "break and enter." Given the ambiguity of this evidence, it was particularly important that the jury be able to distinguish robbery from breaking and entering.
through the chest. Given the tenuous nature of this evidence, it is a very real possibility that the jury attached great weight to the felony murder instructions and that because of the absence of adequate definitions were misled in assessing the degree of the defendant's guilt.
The jury could have found either first or second degree murder. There is a strong possibility that in finding first degree murder the jury were relying on only their own notions of what constitutes robbery and breaking and entering. The evidence of intended robbery (which involves force or violence to the victim or putting him in fear) as distinguished from intended breaking and entering was ambiguous. In the circumstances, to prevent a possible miscarriage of justice, we direct the entry of a verdict of murder in the second degree, a power conferred on this court by St. 1962, c. 453, which amended G. L. c. 278, Section 33E. [Note 4] This amendment was first discussed and applied in Commonwealth v. Baker, 346 Mass. 107.
8. The case is remanded to the Superior Court for the entry of a verdict of guilty of murder in the second degree and for the imposition of sentence.
[Note 1] Johnson v. New Jersey, 384 U.S. 719, held that the Miranda rules were applicable only to cases where the trials commenced after June 13, 1966, the date of the Miranda decision. Here the trial took place after that date. Compare, however, Stovall v. Denno, 388 U.S. 293, holding that the doctrine of United States v. Wade, 388 U.S. 218 (requirement of counsel at lineup identification) did not apply to identifications made prior to the date of the Wade decision. In other words, the time of the identification rather than the time of the trial is the determining factor.
[Note 2] The testimony of Beaulieu, Jr., was to the same effect except that he stated that the defendant went to Vi-Cliff's for the purpose of breaking and entering.
[Note 3] If the defendant's contention is that the Commonwealth must prove at the trial that the confession was admissible beyond a reasonable doubt, that is not the law. Commonwealth v. Polian, 288 Mass. 494, 498-499. See Clewis v. Texas, 386 U.S. 707; United States v. Bayer, 331 U.S. 532; Lyons v. Oklahoma, 322 U.S. 596.
[Note 4] It might seem at first blush that there is no difference between a first degree conviction with a recommendation that the death penalty be not imposed and a second degree conviction, since in both situations a life sentence is mandatory. But there is a substantial difference, for in the case of one serving a life sentence for murder in the first degree he is not eligible for parole. G. L. c. 265, Section 2.

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As far as archeology is concerned, the nineteenth century was mostly the time of amateurs. Things began to change radically only in the twentieth century, and the most important discoveries were made by professional archeologists. But some amateurs did make worthy contributions as well. One of them was Vikentiy Khvoyka.
Vikentiy Khvoyka was born in what is now the Czech Republic in 1850. At that time it was a part of the Austrian-Hungarian Empire. The family tradition traces Khvoykas to aristocrats of older times but there is no documentary evidence to support this claim. In the seventeenth century, during the clashes of the Czech Protestants with Austrian Catholics, the Khvoykas’ estate was burned down and all the archives perished in the fire. Those who survived could not claim their property back and had to earn their living as humble burghers of the town of Semini.
Being rather hard pressed for money, the Khvoyka family could not provide good education for all the nine children. Vikentiy, whose name then was Czeslav, could attend school only up to the age of fourteen. Later, he continued his education all by himself, and came to be one of the most well-informed autodidacts of his time.
As a young man, Khvoyka visited many places in the Austrian-Hungarian empire (incidentally, most of his touring he did on foot). His hunger for knowledge took him to museums, where he saw a lot of artifacts which originated within the lands of Slavic cultures. His interest was stirred.
Khvoyka’s early life is poorly documented and thus is not known well — he must have been reluctant to make his affairs known to the public. There is some evidence that suggests that when he was about 26 years of age, his parents wanted him to marry a rich girl, but Khvoyka, who was probably of a somewhat rebellious nature, or not wishing to marry someone who he did not care for, categorically refused to comply with the parents’ wish. For this, or for some other reason, he left his native land never to come back.
He moved to Kyiv and changed his Christian name to Vikentiy, and Ukrainianized his last name too. He began to earn his living by teaching German, drawing and — somewhat unexpectedly — fencing. Later, he got interested in agriculture and achieved a considerable measure of success in growing hop and millet (at some agricultural exhibitions, he was even awarded prizes). In 1899, at an agricultural exhibition in Paris, he was awarded a silver medal and promoted to membership of a French academy.
Not much later, an almost tragic event changed the course of his life. The barn which housed his laboratory, burned down in an accidental fire. All his papers and lab equipment perished, including, incidentally, his medals awarded for his agricultural achievements. It was a heavy blow to his agricultural career, but he did not despair and decided to set up a new lab. As he was rummaging through the scorched ruins of his barn, trying to salvage whatever he could find, he dug deeper than he intended and unearthed several glass bracelets, evidently quite ancient. He cleaned them up and sold to an antiquarian for quite a decent sum of money. It was the second push in his life toward archeology (ancient artifacts seen in the museums were the first), and this time it produced more than just a passing interest.
Khvoyka decided to try his hand at archeological digging. In several years, he progressed from amateur to professional. Considerable changes in archeology were taking place at that time — archeology was becoming a separate branch of scientific endeavor, and its methods and techniques began to acquire principles on which scientific archeology is based now when every little thing matters — circumstances and conditions of discovery, the exact position of the discovered artifact, depth, soil, etc., and a shard, archeologically speaking, may be as valuable as a gold coin or a silver vessel.
Khvoyka also began collecting antiquities and artifacts, which he thought were of a historical value, visiting antique shops and bazaars. Much later, his collections would be passed on to the National Museum of History of Ukraine.
Khvoyka became one of the few early archeology enthusiasts among whom one finds D. Yavornytsky, V. Antonovych, M. Bilyashevsky and patrons of art (the Khomenkos, for example). Khvoyka began his archeological career by joining other archeologistss, more experienced, and watching them do the digging. Once he had gained enough experience, he moved on on his own, and began digging at barrows — ancient burial mounds — which were legion in the Ukrainian steppe. He must have had an uncanny intuition which took him invariably to the places pregnant with archeological riches.
Once, Khvoyka went to see whether he could spot something “archeologically” interesting in the holes in the ground which were dug near one of the churches during reconstruction work in Podil, “the Lower Town” of Kyiv. It did not take him long to discover pieces of very old ivory which turned out to be remnants of mammoths’ tusks. He turned for advice to V. Antonovych, a professor of St Volodymyr University who confirmed Khvoyka’s quite educated guess as to the origin of the ivory.
Next day, Khvoyka returned to the place of his discovery much better equipped for conducting excavations and his efforts were richly rewarded — he discovered a Paleolithic site with lots of various artifacts made of stone and bone. Among the finds was a mammoth’s tusk with an image of an unknown animal carved on it.
The excavation and the finds engendered a lot of rumors. Crowds of the locals came to have a look — and to pick a piece or two when nobody was looking. It was not only a desire to have a souvenir that made people steal things from the dig — one of the rumors had it that “those bones” were good for making “a potent cure-all”, and it caused a sort of “a bone rush” among the locals. The dig had to be protected by fences and guards, and all the discoveries had to be immediately removed from the site.
Khvoyka must be given credit for making drawings of the discoveries as they were found. Modern-day archeologists take photographs but Khvoyka apparently could not afford either a camera or hiring a photographer. In some of his drawings, he tried to recreate the way the site could have looked like thousands of years ago, and the appearance of the humans who lived there. Some of these imaginative drawings were later exhibited at a museum.
The site eventually came to be called Kyrylivkska stoyanka (at 59/61 Kyrylivska St). The site, which was excavated to a depth of about 20–22 meters (about 70 feet) contained a lot of mammoths’ bones and tusks, signs of campfires and many other artifacts, scraping knives and other flint tools among them. Two of the recovered tusks were adorned with linear drawings carved into them — enigmatic lines and evidently representations of animals. Radiocarbon dating, performed in more recent times, suggests that the site can be dated as being 19,000 years old. Among the bones of animals discovered at the site were those that belonged to mammoths, a lion, a wolf, a hyena and a wolverine and a bear.
But it was not the Kyrylivska stoyanka site that propelled Khvoyka to archeological fame. Among the artifacts dug up in the vicinity of Kyrylivkska stoyanka, were shards made of light-colored clay with painted ornament on them. Further excavations revealed that there used to be at least 48 dugouts in that area that were several thousand years old. Inside, these dugouts used to contain stoves. Pieces of statuettes and shards of large vessels and other finds pointed to a rather developed but unknown civilization that must have once existed in the area that was not far from Kyiv.
Khvoyka went to that village to investigate. He traveled across the area, enquiring and digging. His greatest discoveries were made at Trypillya, a big village located in what was then called Kyivska Hubernia (province).
Among Khvoyka’s archeological discoveries in the environs of Trypillya the most intriguing were “plots” of varying sizes which were made of one or several layers of clay, the upper layer being carefully smoothed and leveled off. Some of these “plots” were evidently once painted over in white or black; some contained imprints of branches and twigs. The plots were arranged in circles. There is still no consensus among historians and archeologists as to the purpose and possible use of these “plots”.
Among the many artifacts discovered were various vessels adorned with painted geometric ornaments — some were obviously vessels for keeping grain; others were much smaller and could have been used as cups. Little statuettes were stylized representations of women with holes in the upper part — evidently designed for cords or threads to be put through them and suspended. Among the tools discovered were things that must have been grain grinders and implements for weaving. The purpose of some of the artifacts remains unclear — the “binocular” shaped objects, for example, hollow inside and covered with signs the meaning of which have not been deciphered. Some of the theories put forward by later historians and Trypillya culture enthusiasts were rather bizarre.
Bones discovered by Khvoyka in vessels located at the mysterious “plots” led him to believe that the “plots” had been used for some sort of rituals and that the Trypillya people had lived in dugouts. However, later research suggests that the “plots’ were part of the Trypillya’s living space. In fact, Trypillya settlements and living quarters in them reached great sizes. Some historians even call them “proto-towns”.
The Trypillya culture is now usually referred to as Cucuteni-Trypillya (Cucuteni is a village in Romania, where the first objects associated with this culture were discovered in 1884). It is a Neolithic European archaeological culture that flourished between ca. 5500 BC and 2750 BC in the Dniester-Dnieper region of modern-day Ukraine, Romania and Moldova. The culture’s characteristic pottery was red or orange and was decorated with curvilinear designs painted or grooved on the surface. Its makers occupied villages of long, rectangular houses that were sometimes arranged in concentric circles. In the centre, cattle were fenced in an enclosure. The Trypillya people practiced shifting agriculture, frequently moving their settlements.
The Cucuteni-Trypillya culture has been called the first urban culture in Europe. The Trypillya settlements were usually located on a plateau, fortified with earthworks and ditches. The earliest villages consisted of ten to fifteen households. In their heyday, settlements expanded to include several hundred large adobe huts, sometimes with two stories. These houses were typically warmed by an oven and had round windows.
Several thousand Trypillya-culture settlements have been discovered so far, the largest occupying an area of up to 450 hectares (about 1200 acres) with populations of probably up to ten or more thousand people.
Among the most striking features of the Cucuteni-Trippillya culture are artifacts made of clay and richly decorated — the purpose and significance of many of them remain mysterious.
Khvoyka’s enthusiasm was fed by his discoveries at Trypillya to such an extent that he considerably widened his search for “evidence of early Slavic settlements” — and he did discover enough evidence of at least two more early Slavic cultures — they became known as Zarubynetska and Chernyakhivska cultures. He believed that the Zarubynetska and Chernyakhivska culture people were the earliest known Slavs in the territory of Ukraine who came into contact with the ancient Romans and experienced their influence. The present-day historians and archeologists accept Khvoyka’s perception of them as having been Slavic people but reject any Roman influences. A generally accepted view now regards the Chernyakhivska culture people who came to settle down in Ukraine some time in the first half of the first millennium CE, mixed with the indigenous population, and later were impacted by other ethnics such as Thracians, Sarmatians and Goths.
The Chernyakhivska culture is believed to have flourished during the third through the fifth centuries CE in a wide area which includes some of the present-day regions of Ukraine, Moldova, Russia and Romania.
His field work prompted Khvoyka to develop his own theory of the historical development of large areas of Ukraine and stages of this development which began as Trypillya culture, then progressed to the Scythian (8th-3rd centuries BCE) Zarubynetska (2nd century BCE – 2nd centuries CE), Chernyakhivska (3rd-5th centuries CE), and then the ancient Rus culture, starting from about 6th century CE. Basically, this general scheme of development is accepted today as theoretically viable, though paradoxically the more is discovered the less certain historians become about many things.
V. Khvoyka was one of the founders of the City Museum of Antiquities and Art, for which a building was designed and built by the architects V. Horodetsky and H. Boytsov at the end of the nineteenth century (at present it is the National Art Museum of Ukraine). Khvoyka donated his collections to the museum with other patrons of art following suit. Khvoyka was made curator of the museum, with the post of the director going to D. Shcherbakivsky, a scholar and ethnographer.
It was archeology that was his greatest passion, and his contribution to it has secured him a firm place in the history of major archeological discoveries.
in Kyrylivska Street in Kyiv.
Excavations at the Kyrylivska site. A drawing by V. Khvoyka.
which was unearthed at the Kyrylivska site.
Excavations at the Trypillya culture site. A drawing by V. Khvoyka.
Ceramics from the Trypillya culture site. A drawing by V. Khvoyka.
(the site of an ancient Slav settlement).
“Trypillya plots”. Drawings by V. Khvoyka.
Artifacts discovered in a Chernyakhivska culture burial.
for the materials it has provided.

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