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conclusion or otherwise, that there was an intent to steal the property.

In Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 40 L. Ed. 606, it is said, in the opinion delivered by Mr. Justice Harlan, that the words "unlawfully, wrongfully, and knowingly," as applied to an act or thing done, imported knowledge of the act or thing so done, as well as an evil intent or bad purpose in doing such thing. It was therefore held that the defect in the information there being considered was not one of the total omission of an essential averment, but, at most, an inaccurate or imperfect statement of the fact; "and such statement, after verdict, may be taken in the broadest sense authoriz ed by the words used, even if it be adverse. to the accused."

charged, an indictment or information can only be assailed or quashed by a motion to quash, and never by a motion in arrest, or by an assignment here, for the first time, that the facts stated in the pleading are not sufficient to constitute a public offense." And the court again comes to the same conclusion as to the effect of the words "unlawfully, feloniously, purposely, and with premeditated malice," descriptive of the manner in which an alleged assault and battery was perpetrated, and the court says: "If it was done unlawfully, and also feloniously, purposely, and with premeditated malice, it was done in an angry manner, and more." Chandler v. State, 141 Ind. 106, 39 N. E. 444. In Hamilton v. State, 142 Ind. 276, 41 N. E. 588, the word "feloniously" was held to be used in the statute defining the offense of larceny to supply that element of the ordinary definition of larceny implying criminal intent, and that its use in the information was, for the same purpose, entirely sufficient, and therefore that the indictment was not insufficient for a failure to charge that the money had been taken with the intent to deprive the owner of it. And so I say here that theloniously take from the person" of the proseword "feloniously," as used in our statute defining robbery, was intended, as at common law, to supply the element of criminal intent, and to exclude the idea that the defendant took his own property, and that the same word in the information ought to be given the same effect as against a demurrer or a motion in arrest.

In State v. Halpin, 16 S. D. 170, 91 N. W. 605, it is held that the word "feloniously," when applied to an act, means that it was done with intent to commit the crime named in the information. In State v. Fordham, 13 N. D. 494, 101 N. W. 888, a robbery case, it was held that an allegation that the property was wrongfully and feloniously taken covered the intent to steal, and that it was not necessary to further allege that the property was taken with intent to steal it. In Keeton v. State, 70 Ark. 163, 66 S. W. 645, an indictment for robbery which alleged that the accused did feloniously and violently take certain property from the person of the prosecuting witness, by putting him in fear and against his will, is sufficient, without alleging that he "did steal, take, and carry away" such property. The ground of the decision was that the words "feloniously did take from the person." as used in the indictment, imported a stealing and an asportation with intent to deprive the person of the lawful possession of the property in the goods. It is true that in that same state it had previously been held that an indictment for robbery was insufficient which failed to specifically allege the ownership of the property. Boles v. State, 58 Ark. 35, 22 S. W. SST. But in that case the indictment did not have the word "steal" or "feloniously take," and therefore it may be said that it did not have words charging in substance, or by legal

As in Arkansas, so in Washington, notwithstanding that it had been held that the omission of an allegation of ownership rendered an indictment insufficient, it has been held that to charge the asportation or taking in the language of, the statute defining robbery is sufficient, and an information charging that the defendant "did forcibly and fe

cuting witness certain property sufficiently alleged the asportation, without the use of the words "carried away." And the court cites the Arkansas case, among others, and also refers to a previous case in Washington and one in California (State v. Johnson, 19 Wash. 410, 53 Pac. 667; People v. Walbridge, 123 Cal. 273, 55 Pac. 902), where an information was held sufficient which did not allege the asportation otherwise than in the language of the statute. State v. Smith, 40 Wash. 615, 82 Pac. 918.

If the charge that a defendant did forcibly and feloniously take certain property from the person of a named prosecuting witness sufficiently charges the asportation and the stealing thereof, and I think the courts have rightly held. such to be the case, then I must confess that I find it difficult to regard otherwise than as extremely technical and without any substantial reason the holding that in addition to those words the ownership of the property must be alleged, as against a motion in arrest on the ground that a public offense is not charged. If, as the authorities all state, the object of alleging ownership is to negative defendant's right to the property and the fact that he might have taken the property with a good intent, then clearly an allegation charging that he stole it or that he feloniously took it, thus implying that he stole it, clearly, in my opinion, negatives his ownership or the fact of a proper intent on his part. And in such case the defect in specifically alleging ownership cannot be other than one of uncertainty or indefiniteness; for the essential fact that defendant stole the property is included in the allegation, and that fact would be rendered more certain or more specific by a precise allegation of ownership. Such allegation would not in

troduce a new element into the information, but would merely render more specific an element already there. And, under our statute, I think it entirely clear that the defect is waived, if not objected to by motion to quash.

From a careful examination of the authorities upon this subject I am more than ever clearly convinced that statements in cases from other states to the effect that the absence of an allegation of ownership renders the indictment fatally defective are not even to be accepted as persuasive authority in this state, unless the decisions were rendered under statutes like our own. It is evident that a statement that a failure to make such allegation constitutes a "fatal defect" may be used by a court, and I think has generally been used in the more recent cases, to indicate that it is a "fatal defect" as against an objection thereto properly raised under the statute of the particular state. To illustrate: It may no doubt be reasonably held a fatal defect in our state as against a motion to quash, but, as against a motion in arrest or a demurrer, that it would be waived without a motion to quash. To say that the allegation is one of substance does not meet the question, because it is evident that under our statute there may be a defect in alleging a matter of substance, which would be waived if not objected to by a motion to quash. The cause for such a motion, "the manner in which the offense is charged," applies to something more than a matter of mere form in the information. In Wilbur v. Territory, 3 Wyo. 268, 21 Pac. 698, the defect was one of substance; that is to say, it was a defect in the manner of alleging the offense. And it was held to have been waived because the substantive element was alleged in the indictment, although by a legal conclusion only. Likewise, in Tway v. State, 7 Wyo. 74, 50 Pac. 188, it was held, Mr. Justice Corn delivering the opinion, that the omission of the word "ravish" in an information for rape was waived, even if required in such an information by a failure to move to quash; and the word "ravish" at common law was an indispensable word in charging the crime of rape.

California cases have been referred to as holding necessary an allegation of ownership in charging robbery. However, by a recent case decided in that state by one of the appellate courts, which was concurred in by the judge who wrote the opinion in the Ammerman Case, it is evident that the defect was held to be fatal in the other cases under statutes altogether dissimilar from our own, and that it was not intended to hold that without the allegation the essential elements would not be substantially charged. In the case of In re Myrtle, 2 Cal. App. 383, 84 Pac. 335, a habeas corpus case, which had been instituted by one sentenced upon a plea of guilty of robbery upon an information which did not contain an allegation of ownership,

but which did allege a felonious taking from the person, it was said: "It is doubtless true that a complete description of the crime of robbery includes an allegation of ownership of the property taken, or words which will at once indicate that such property is not the property of the robber; but in our opinion, where the complaint and information charge that the defendant 'did willfully, unlawfully, and feloniously steal, take, and carry away' from the person and immediate presence of the person robbed certain personal property, describing it," etc., "substantially describes the crime of robbery in the language of the Code defining it, and, no objection being made by either demurrer or motion in arrest of judgment, the defendant cannot, after sentence and on a writ of habeas corpus, be heard to say that no offense is charged." And it was held, in concluding the opinion, that the allegations of the information, upon defendant's plea of guilty, established a case of robbery as completely as if there had been a specific allegation of ownership. Under the California Code a motion in arrest may be founded on any defect in the indictment or information for which a demurrer may be filed, unless waived by a failure to demur; and a demurrer may be filed on several grounds, one ground being that the information does not substantially conform to the requirements of the statute as to the contents of an indictment or information. And the statute prescribing what an indictment or information shall contain says, among other things, that it must be direct and certain as regards (1) the party charged, (2) the offense charged, and (3) the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. Pen. Code Cal. § 952, 1004, 1185. The Code of Iowa, from which state a case has been referred to, provides that a motion in arrest of judgment may be made for any ground which would have been a ground for demurrer, and a demurrer may be filed on the ground, among others, that the indictment does not substantially conform to the requirements of the Code; and the Code requires that the indictment must be direct and certain in the same respects exactly as stated in the California Code. It would seem, however, in Iowa, that a failure to demur does not necessarily waive the right to move in arrest. Code Iowa 1897, 88 5282, 5328, 5426.

The proposition is further illustrated by the California case of People v. Mead, 145 Cal. 500, 78 Pac. 1047, which was a prosecution under the statute charging the defendant with the crime of conniving at, consenting to, and permitting his wife to be placed in a house of prostitution. On a motion in arrest it was contended that the statute was not to be construed literally as forbidding a husband to permit his wife to be placed in a house of prostitution for an innocent purpose, such as a cook or seamstress, and that the

crime would not be complete without allega- | tion and proof that the wife was left in such a house with the intent on the part of the husband that she should herself act as a prostitute. The court conceded for the purposes of the case that, if the objection had been raised by demurrer for uncertainty, the information would be fatally defective. But as there was no demurrer, and therefore a motion in arrest was waived for a mere insufficiency in the indictment which did not go to the idea that no offense was at all charged, it was held that the words "willfully, unlawfully, and feloniously," which described the act of defendant in placing his wife in a house of prostitution, were to be given some effect in construing the language of the information, and that they excluded an act which was by law innocent; and it was remarked that the most that can be said in criticism of the information is that it may not be direct and certain as to the particular circumstances of the offense, and that such an objection is waived by failure to demur. In California it is also held that a person imprisoned under an indictment which does not charge a public offense may obtain his discharge on a writ of habeas corpus. Ex parte Goldman (Cal. App.) 88 Pac. 819. In connection with the Myrtle Case, this goes to show that the defect in failing to allege ownership did not render the information insufficient as failing to state a public offense, because, if it did, then there must have been a discharge of the prisoner in the Myrtle Case; but the only defect, it is plain, was one of uncertainty in stating the particular circumstances of the offense.

The Criminal Code of Ohio is like our own as to a motion to quash. And there are several cases in that state to the effect that any defect short of one which renders the information entirely insufficient to charge a pubile offense must be raised by motion to quash. Carper v. State, 27 Ohio St. 572. It was said in State v. Messenger, 63 Ohio St. 398, 400, 59 N. E. 105: "A motion to quash is, under our Code of Criminal Procedure, the proper method of raising an objection to the indefiniteness of the averments of an indictment, and is waived by demurring to it." The court further says, as giving a reason for the statute: "Where a motion to quash is sustained, the party may be held to plead to a new indictment, in which the error in the former one has been corrected. But, on the sustaining the demurrer, the defendant is entitled to his discharge; for a court cannot assume that he is guilty of an offense not charged." And in Indiana, where a motion to quash may be made for many defects, it is settled that for mere defects or uncertainties a motion in arrest will not be sustained, although such defects or uncertainties might be fatal on a motion to quash. Campton v. State, 140 Ind. 442, 39 N. E. 916; Woodworth v. State, 145 Ind. 276, 43 N. E. 933. These cases serve also to illustrate what I

have said that, though a case may be found holding a certain "defect" to be "fatal," that does not necessarily mean that it renders the information insufficient to state an offense; but it may, and I think in most cases does, mean only that it is a fatal defect as against the particular objection raised, such as a motion to quash or a demurrer, although in most cases the defect may be one merely of uncertainty, lack of precision, or failure to make the charge specific as to some particular element.

I am thoroughly convinced that our statute was intended to make a demurrer and motion in arrest proper in only two cases: (1) Where the offense charged, though sufficiently charged, is not an offense under our laws, either because the act creating it is unconstitutional and void, or because there is no statute or other law making the act a crime; and (2) where some necessary element of the offense is not contained in the information in any way, either by specific allegation, legalconclusion, or by necessary implication of the words used. Where the allegations of the information, taken in their ordinary technical significance, necessarily include every element of the offense, and the only objection is that some particular element is not made sufficiently specific, then, in my opinion, the defect must be reached by a motion to quash, and, if not objected to in that manner, it must be held waived by a demurrer or a plea of not guilty. The evil of any other rule or any other construction of our statute is well exemplified by the case at bar. I cannot imagine for one moment that the defendant was unaware of the nature and cause of the accusation against him, or that by the information he was rendered unable to properly prepare his defense. It is very clear to my mind that he went into the trial with astute counsel fully equipped to present his defense as completely as the facts would warrant, without any deprivation of right in that respect by reason of the alleged imperfection of the information. Had he felt that his rights would have been better protected by an allegation of ownership of the property taken, he could have made a motion to quash on the ground that such allegation was omitted from the specific allegations, and in my opinion he ought to have raised the objection in that manner. The court could then have quashed it, a new information could have been filed, perhaps immediately, and, unless the defendant desired himself to delay a trial, a trial could probably been had the same term of court upon a new information. It may be that now, caused by lapse of time, it will be impossible to obtain the necessary witnesses, and the defendant, by reason of the technical objection made for the first time after the swearing of the jury, may be allowed to go free without a proper punishment for a crime of which the jury found him to be guilty. I am most seriously impressed with the necessity of taking a broad view of these statutes, and of

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[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1980.]

3. SAME MATTER COVERED BY INSTRUCTION GIVEN.

Instructions fully and properly covered by the court's instructions are properly refused. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2011.]

4. HOMICIDE-JUSTIFICATION - QUESTION FOR JURY.

Under the evidence, held a question for the jury whether there was justification for defendant stabbing decedent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 566.]

5. CRIMINAL LAW-APPEAL-CONCLUSIVENESS OF FINDING.

The question whether defendant was justified having been submitted upon competent evidence, and under proper instructions, and the court having denied a new trial, the conviction will not be disturbed.

He says:

occurrence is about as follows: That he had gone to bed early, suffering from neuralgia. That on four occasions he had been aroused from his sleep by the noise of people walking or talking in the hall of the hotel. That about 11:30, having been awakened by the voices of a man and woman laughing and talking in the hallway, and believing the woman to be a chambermaid named "Lizzie," he went to the door of his room with the intention of calling to her to stop the noise in the hallway, and also with the idea of requesting her to go to her mother's room and bring some liniment such as he had theretofore used. Upon reaching the door, he looked in the hallway, but could not see the chambermaid or any other woman, but saw the decedent standing some distance away near the stairway, and apparently looking toward some one on the stairs or in the hallway below. This was upon the fourth floor of the hotel. He said he asked the decedent, "Where is Lizzie?" and that decedent, with an oath, asked him what he wanted of Lizzie, to which he replied: "I want to see her to tell her not to make so much noise, or stoj the noise that was being made in the hall." To this the decedent answered, "If you have any kick coming, go jump on Lizzie, not on me," to which defendant says he replied: "My dear sir, you need not get hot about it." That thereupon the decedent said, with a vile oath, "I will fix you," and that he then came over where defendant was and struck him in the face, and followed it up by repeatedly striking and beating him. That defendant withdrew into the room to get a chair with which to defend himself. That he was then in his nightclothes. That he procured from the pocket of his pants, which were lying on the chair, a knife, which he opened and used against the decedent to drive him away. That he followed the decedent to the

[Ed. Note. For cases in point, see Cent. Dig. door, pushing him with one hand and striking vol. 15, Criminal Law, $$ 3074, 3084.]

Appeal from Superior Court, Spokane County; Mitchell Gilliam, Judge.

Thomas C. Johnson was convicted of manslaughter, and he appeals. Affirmed.

A. C. Shaw, for appellant. Richard M. Barnhart, Fred C. Pugh, and A. J. Laughon, for the State.

ROOT, J. On the night of June 7, 1906, in his room at the Rainier Hotel, in Spokane. the defendant stabbed one Tuttle with a knife, inflicting injuries from which the latter died a few days thereafter. Defendant was tried upon an information charging murder in the second degree, and convicted of manslaughter. From a judgment and sentence thereupon, he appeals to this court.

There appears to have been no witness to the altercation between defendant and decedent other than the parties themselves. No statement of the decedent was used upon the trial. The defendant's account of the

him with his knife in the other, and in this manner ejected him from the room. That he was angry, but did not intend to kill decedent. There was some evidence that decedent had been drinking, although no showing as to what extent, and it appeared that he was inclined to be cross and irritable when under the influence of liquor. The cross-examination and the statements theretofore made by defendant upon the preliminary examination tended to show that the defendant was irritated and angry either at being disturbed or at the attentions being paid by the decedent to the chambermaid, or by both. That defendant could have shut the door and kept the decedent from coming in. That the latter was a much smaller man physically than the defendant. and was entirely unarmed and in his stocking feet. That defendant had no fear for his life. That he did not make proper effort to avoid the difficulty. That the use of the knife was unnecessary.

The appellant assigns seven errors. The first, second, third, and seventh have to do with the sufficiency of the evidence. The fourth and fifth refer to the matter of instructions. The sixth alleges error in the admission of evidence. We will consider these in the inverse order. The sixth assignment is indefinite and uncertain. No reference is made to any particular ruling of the court, and no argument is made upon this assignment. Neither is there any argument made as to the fourth and fifth assignments, and we do not think they are well taken. The instructions given by the trial court appear to have been fully as favorable as defendant was entitled to. The instructions numbered 5 and 12, requested by the defendant and refused by the court, are in themselves faulty, inapplicable, or have to do with subject-matters which are fully and properly covered by the instructions given by the court.

We come, now, to the main question in the case, which is as to the sufficiency of the evidence to sustain the verdict and judgment. It was admitted on the part of defendant in the opening statement of his counsel in the trial, and again in his brief here, that the defendant used a knife upon the person of the decedent at the time alleged, and that from the effects of the wounds thus inflicted the decedent died, and that this admission was sufficient to establish a prima facie case on the part of the state. This being true, it was then for the jury to say, under proper instructions, whether or not the evidence showed a legal justification or excuse for the stabbing. The jury were told that the reasonableness of the apprehension of danger must be judged from the defendant's standpoint at the time of the alleged cutting; that they must take into consideration all the circumstances surrounding and existing there at that time. They were also told that it was not necessary that the assault made by the deceased upon defendant should have been made with a deadly weapon; that "an assault with a fist alone, if there was an ap parent purpose to inflict death or serious bodily injury by the deceased upon the defendant, is sufficient to justify the killing in self-defense, if the defendant at the time had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased, supposing that the defendant acted reasonably as a reasonable man under the circumstances." The jury had a right to take into consideration the size of the men, respectively, the fact and manner of defendant first accosting decedent, the fact that the decedent was unarmed, the opportunity of defendant to close and lock his door, his apparent ability to have resisted the assault of decedent without the use of a knife, the character of the conversation between the two men, the credibility of defendant's testi

mony, the question of his good faith in using the knife, the character of the assault upon and threatened danger to defendant, the reasonableness under all the circumstances of defendant's apprehension of serious bodily injury, and from all of these things, and all other matters shown by the evidence and the conditions and circumstances surrounding the parties, they were to decide whether or not the defendant was justified in using a knife upon decedent in the manner shown. We think the evidence of the defendant clearly presented this question of fact for the determination of the jury. This question hav- . ing been by the trial court, upon sufficient competent evidence, submitted to the jury under instructions well calculated to fully protect all of his rights, and that court having denied a motion for a new trial, we think the verdict must be held conclusive. The judgment is affirmed.

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Evidence held to show decedent intended to make a gift causa mortis to his widow of the proceeds of land.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gifts, §§ 154, 155.]

2. SAME-SUFFICIENCY OF DELIVERY.

Where decedent and his wife had contracted to sell land and executed a deed to be held in escrow until full payment, and decedent a few days before his death stated that the papers were to be given to his wife, that she would place them in escrow in her name, and that, "if anything should happen." it would leave her in "pretty good shape." etc., and she placed them in escrow, there was sufficient delivery to establish a gift causa mortis.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gifts, § 124.]

3. SAME-PROPERTY SUBJECT TO GIFT.

There was a valid gift causa mortis where decedent delivered to his wife a contract to sell land and a deed to be placed in escrow, evincing an intent that she receive the proceeds; the transaction being not ineffective as an attempted oral gift of land.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Petition by John T. Davie, guardian, to require Rhodia E. Davie, administratrix, to show cause why land should not be included in an inventory. From a decree for the administratrix, the guardian appeals. Affirmed.

Munter & Lovejoy, for appellant. W. D. Scott, for respondent.

ROOT, J. One William Davie died intestate in the city of Spokane, leaving a widow, respondent, Rhodia E. Davie, whom he had married about a year previously, and a minor

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