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charged, an indictment or information can conclusion or otherwise, that there was an only be assailed or quashed by a motion to intent to steal the property. quash, and never by a motion in arrest, or In Rosen v. United States, 161 U. S. 29, by an assignment here, for the first time, 16 Sup. Ct. 431, 40 L. Ed. 606, it is said, in that the facts stated in the pleading are not the opinion delivered by Mr. Justice Harlan, sufficient to constitute a public offense.” And that the words "unlawfully, wrongfully, and the court again comes to the same conclusion knowingly," as applied to an act or thing as to the effect of the words "unlawfully, fe done, imported knowledge of the act or thing loniously, purposely, and with premeditated so done, as well as an evil intent or bad purmalice,” descriptive of the manner in which pose in doing such thing. It was therefore an alleged assault and battery was perpetrat held that the defect in the inforination there ed, and the court says: “If it was done un being considered was not one of the total lawfully, and also feloniously, purposely, omission of an essential averment, but, at and with premeditated malice, it was done most, an inaccurate or imperfect statement of in an angry manner, and more." Chandler the fact; "and such statement, after verdict, v. State, 141 Ind. 106, 39 N. E. 414. In Ham may be taken in the broadest sense authoriz. ilton v. State, 142 Ind. 276, 41 N. E. 588, the ed by the words used, even if it be adverse word "feloniously" was held to be used in to the accused." the statute defining the offense of larceny to As in Arkansas, so in Washington, notsupply that element of the ordinary defini withstanding that it had been held that the tion of larceny implying criminal intent, and omission of an allegation of ownership renthat its use in the information was, for the dered an indictment insufficient, it has been same purpose, entirely sufficient, and there. held that to charge the asportation or taking fore that the indictment was not insufficient in the language of the statute defining robfor a failure to charge that the money had bery is sufficient, and an information chargbeen taken with the intent to deprive the ing that the defendant "did forcibly and feowner of it. And so I say here that the loniously take from the person” of the proseword "feloniously," as used in our statute cuting witness certain property sufficiently defining robbery, was intended, as at com alleged the asportation, without the use of mon law, to supply the element of criminal the words "carried away." And the court intent, and to exclude the idea that the de cites the Arkansas case, among others, and fendant took his own property, and that the also refers to a previous case in Washington same word in the information ought to be and one in California (State v. Johnson, 19 given the same effect as against a demurrer Wash. 410, 53 Pac. 667; People v. Walbridge, or a motion in arrest.

123 Cal. 273, 55 Pac. 902), where an inforIn State v. Halpin, 16 S. D. 170, 91 N. W. mation was held sufficient which did not al005, it is held that the word "feloniously," lege the asportation otherwise than in the when applied to an act, means that it was language of the statute. State r. Smith, 10 done with intent to commit the crime named Wash, 615, 82 Pac. 918. in the information. In State v. Fordham, If the charge that a defendant did forcibly 13 N. D. 494, 101 N. W. 889, a robbery case, and feloniously take certain property from it was held that an allegation that the prop the person of a named prosecuting witness erty was wrongfully and feloniously taken sufficiently charges the asportation and the covered the intent to steal, and that it was stealing thereof, and I think the courts have not necessary to further allege that the prop rightly held, such to be the case, then I must erty was taken with intent to steal it. In (onfess that I find it difficult to regard otherKeeton v. State, 70 Ark. 103, 66 S. W. 01.), an wise than as extremely technical and without indictment for robbery which alleged that any substantial reason the holding that in the accused did feloniously and violently addition to those words the ownership of the take certain property from the person of the property must be alleged, as against a moprosecuting witness, by putting him in fear tion in arrest on the ground that a public and against his will, is sufficient, without offense is not charged. If, as the authorities alleging that he "did steal, take, and carry all state, the object of alleging ownership is away" such property. The ground of the de to negative defendant's right to the property cision was that the words "feloniously did and the fact that he might have taken the take from the person," as used in the indict. property with a good intent, then clearly an ment, imported a stealing and an asportation allegation charging that he stole it or that with intent to deprive the person of the law he feloniously took it, thus implying that he ful possession of the property in the goods. stole it, clearly, in my opinion, negatives his It is true that in that same state it had pre ownership or the fact of a proper intent on viously been held that an indictment for his part. And in such case the defect in robbery was insufficient which failed to spe specifically alleging ownership cannot be oth cifically allege the ownership of the property. er than one of uncertainty or indefiniteness; Boles v. State, 58 Ark. 35, 2:2 S. W. 887. But for the essential fact that defendant stole in that case the indictment did not have the the property is included in the allegation, word "steal" or "feloniously take," and there and that fact would be rendered more (erfore it may be said that it did not have tain or more specific by a precise allegation words charging in substance, or by legal of ownership. Such allegation would not in

troduce a new element into the information, but which did allege a felonious taking from but would merely render more specific an ele the person, it was said: “It is doubtless true ment already there. And, under our statute, that a complete description of the crime of I think it entirely clear that the defect is robbery includes an allegation of ownership waived, if not objected to by motion to of the property taken, or words which will quash.

at once indicate that such property is not From a careful examination of the author the property of the robber; but in our opinities upon this subject I am more than ever ion,

where the complaint and inclearly convinced that statements in cases formation charge that the defendant 'did from other states to the effect that the ab willfully, unlawfully, and feloniously steal, sence of an allegation of ownership renders take, and carry away from the person and the indictment fatally defective are not even immediate presence of the person robbed to be accepted as persuasive authority in certain personal property, describing it,” etc., this state, unless the decisions were rendered "substantially describes the crime of robbery under statutes like our own. It is evident in the language of the Code defining it, and, that a statement that a failure to make such no objection being made by either demurrer allegation constitutes a "fatal defect" may be or motion in arrest of judgment, the defendused by a court, and I think has generally ant cannot, after sentence and on a writ of been used in the more recent cases, to indi. habeas corpus, be heard to say that no ofcate that it is a "fatal defect" as against an fense is charged." And it was held, in conobjection thereto properly raised under the cluding the opinion, that the allegations of statute of the particular state. To illustrate: the information, upon defendant's plea of It may no doubt be reasonably held a fatal guilty, established a case of robbery as comdefect in our state as against a motion to pletely as if there had been a specific allegaquash, but, as against a motion in arrest or tion of ownership. Under the California a demurrer, that it would be waived without Code a motion in arrest may be founded on a motion to quash. To say that the allega any defect in the indictment or information tion is one of substance does not meet the for which a demurrer may be filed, unless question, because it is evident that under our waived by a failure to demur; and a destatute there may be a defect in alleging a murrer may be filed on several grounds, one matter of substance, which would be waived ground being that the information does not if not objected to by a motion to quash. The substantially conform to the requirements of cause for such a motion, “the manner in the statute as to the contents of an indictwhich the offense is charged," applies to ment or information. And the statute presomething more than a matter of mere form scribing what an indictment or inforniation in the information. In Wilbur v. Territory, shall contain says, among other things, that 3 Wyo. 268, 21 Pac. 698, the defect was one it must be direct and certain as regards (1) of substance; that is to say, it was a defect the party charged, (2) the offense charged, in the manner of alleging the offense. And and (3) the particular circumstances of the it was held to have been waived because the offense charged, when they are necessary to substantive element was alleged in the indict constitute a complete offense. Pen. Code ment, although by a legal conclusion only. Cal. 88 952, 1004, 1185. The Code of Iowa, Likewise, in Tway v. State, 7 Wyo. 74, 50 from which state a case has been referred to, Pac. 188, it was held, Mr. Justice Corn de provides that a motion in arrest of judg. livering the opinion, that the omission of the ment may be made for any ground which word "ravish" in an information for rape would have been a ground for demurrer, and was waived, even if required in such an in a demurrer may be filed on the ground, among formation by a failure to move to quash; others, that the indictment does not substanand the word "ravish" at common law was tially conform to the requirements of the an indispensable word in charging the crime Code; and the Code requires that the indict. of rape.

ment must be direct and certain in the same California cases have been referred to as respects exactly as stated in the California bolding necessary an allegation of ownership Code. It would seem, however, in Iowa, that in charging robbery. However, by a recent a failure to demur does not necessarily waive case decided in that state by one of the ap the right to move in arrest. Code Iowa 1897, pellate courts, which was concurred in by the 88 5282, 5328, 5426. judge who wrote the opinion in the Ammer The proposition is further illustrated by man Case, it is evident that the defect was the California case of People v. Mead, 145 held to be fatal in the other cases under Cal. 500, 78 Pac. 1047, which was a prosecustatutes altogether dissimilar from our own, tion under the statute charging the defend. and that it was not intended to hold that ant with the crime of conniving at, consentwithout the allegation the essential elements ing to, and permitting his wife to be placed would not be substantially charged. In the in a house of prostitution. On a motion in case of In re Myrtle, 2 Cal. App. 383, 84 arrest it was contended that the statute was Pac. 335, a habeas corpus case, which had been not to be construed literally as forbidding a instituted by one sentenced upon a plea of husband to permit his wife to be placed in a guilty of robbery upon an information which house of prostitution for an innocent purpose, did not contain an allegation of ownership, such as a cook or seamstress, and that the

crime would not be complete without allega-, have said that, though a case may be found tion and proof that the wife was left in such holding a certain "defect" to be “fatal," a house with the intent on the part of the that does not necessarily mean that it renhusband that she should herself act as a pros ders the information insuíficient to state an oftitute. The court conceded for the purposes fense; but it may, and I think in most cases of the case that, if the objection had been does, mean only that it is a fatal defect as raised by demurrer for uncertainty, the in against the particular objection raised, such formation would be fatally defective. But as a motion to quash or a demurrer, alas there was no demurrer, and therefore though in most cases the defect may be one a motion in arrest was waived for a mere in merely of uncertainty, lack of precision, or sufficiency in the indictment which did not go failure to make the charge specific as to some to the idea that no offense was at all charged, particular element, it was held that the words "willfully, unlaw I am thoroughly convinced that our statute fully, and feloniously," which described the was intended to make a demurrer and moact of defendant in placing his wife in a tion in arrest proper in only two cases: (1) house of prostitution, were to be given some Where the offense charged, though sufficienteffect in construing the language of the in ly charged, is not an offense under our laws, formation, and that they excluded an act either because the act creating it is unconwhich was by law innocent; and it was re stitutional and void, or because there is no marked that the most that can be said in statute or other law making the act a crime; criticism of the information is that it may and (2) where some necessary element of the not be direct and certain as to the particular offense is not contained in the information in circumstances of the offense, and that such any way, either by specific allegation, legalan objection is waived by failure to demur. conclusion, or by necessary implication of In California it is also held that a person the words used. Where the allegations of imprisoned under an indictment which does the information, taken in their ordinary technot charge a public offense may obtain his nical significance, necessarily include every discharge on a writ of habeas corpus. Ex element of the offense, and the only objection parte Goldman (Cal. App.) 88 Pac. 819. In is that some particular element is not made connection with the Myrtle Case, this goes sufficiently specific, then, in my opinion, the to show that the defect in failing to allege defect must be reached by a motion to quash, ownership did not render the information in and, if not objected to in that manner, it must sufficient as failing to state a public offense, be held waived by a demurrer or a plea of because, if it did, then there must have been not guilty. The evil of any other rule or any a discharge of the prisoner in the Myrtle other construction of our statute is well exCase; but the only defect, it is plain, was emplified by the case at bar. I cannot imagine one of uncertainty in stating the particular for one moment that the defendant was unacircumstances of the offense.

ware of the nature and cause of the accusaThe Criminal Code of Ohio is like our own tion against him, or that by the information he as to a motion to quash. And there are sey was rendered unable to properly prepare bis eral cases in that state to the effect that any defense. It is very clear to my mind that he defect short of one which renders the infor went into the trial with astute counsel fully mation entirely insufficient to charge a pubilc equipped to present his defense as completely offense must be raised by motion to quash. as the facts would warrant, without any Carper v. State, 27 Ohio St. 572. It was deprivation of right in that respect by reason said in State v. Messenger, 63 Ohio St. 398, of the alleged imperfection of the informa400, 59 N. E. 105: "A motion to quash is, tion. Had he felt that his rights would have under our Code of Criminal Procedure, the been better protected by an allegation of ownproper method of raising an objection to the ership of the property taken, he could hare indefiniteness of the averments of an indict made a motion to quash on the ground that ment, and is waived by demurring to it." such allegation was oinitted from the specific The court further says, as giving a reason allegations, and in my opinion he ought to for the statute: “Where a motion to quash is have raised the objection in that manner. sustained, the party may be held to plead to The court could then have quashed it, a new a new indictment, in which the error in the information could have been filed, perhaps former one has been corrected. But, on the immediately, and, unless the defendant desustaining the demurrer, the defendant is sired himself to delay a trial, a trial could entitled to his discharge; for a court cannot probably been had the same term of (“ourt uj)assume that he is guilty of an offense not on a new information. It may be that now, charged." And in Indiana, where a motion caused by lapse of time, it will be impossible to quash may be made for many defects, it to obtain the necessary witnesses, and the is settled that for mere defects or uncertain defendant, by reason of the technical objecties a motion in arrest will not be sustained, tion made for the first time after the swearalthough such defects or uncertainties might ing of the jury, may be allowed to go free be fatal on a motion to quash. Campton v. without a proper punishment for a crime of State, 140 Ind. 412, 39 N. E. 916; Wood which the jury found him to be guilty. I am worth v. State. 14.) Ind. 276, 13 X. E. 933. most seriously impressed with the necessity of These cases serve also to illustrate what I taking a broad view of these statutes, and of

giving effect to the intention of the Legislature, which I believe has been reasonably and clearly expressed, and which unquestionably depart very far from the common-law method of criminal procedure, rendering the decisions under the old method, and under statutes dissimilar to our own, either misleading when applied to our own procedure or of very little, if any, authority.

In my opinion the judgment should be affirmed.

(47 Wash. .227)


Where an assignment of error is indefinite, no reference being made to any particular ruling and no argument is made upon it, it will not be considered.

[Ed. Note.For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2937.) 2. SAME-INAPTLICABLE INSTRUCTIONS.

Inapplicable instructions are properly refused.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, 8 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, 8 2011.) 1. 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, $ 506.] 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.

[Ed. Note.For cases in point, see Cent. Dig. vol. 15, Criminal Law, 88 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.

occurrence is about as follows: He says: That he had gone to bed early, suffering from neuralgia. That on four occasions he had been aroused from bis 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 beiieving 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 ide: 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 ballway 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 al 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 door, pushing him with one hand and striking 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.

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. Yo statement of the decedent was used upo:1 the trial. The defendant's account of the


The appellant assigns seven errors. The mony, the question of his good faith in using first, second, third, and seventh have to do the knife, the character of the assault upon with the sufficiency of the evidence.

and threatened danger to defendant, the fourth and fifth refer to the matter of in reasonableness under all the circumstances structions. The sixth alleges error in the of defendant's apprehension of serious bodily admission of evidence. We will consider injury, and from all of these things, and all these in the inverse order. The sixth assigu other matters shown by the evidence and the ment is indefinite and uncertain. No refer conditions and circumstances surrounding the ence is made to any particular ruling of the parties, they were to decide whether or not court, and no argument is made upon this the defendant was justified in using a knife assignment. Neither is there any argument upon decedent in the manner shown. We made as to the fourth and fifth assignments, think the evidence of the defendant clearly and we do not think they are well taken. presented this question of fact for the deThe instructions given by the trial court ap termination of the jury. This question hav- • pear to have been fully as favorable as de ing been by the trial court, upon sufficient fendant was entitled to. The instructions competent evidence, submitted to the jury numbered 5 and 12, requested by the defend under instructions well calculated to fully ant and refused by the court, are in them protect all of his rights, and that court harselves faulty, inapplicable, or have to do with ing denied a motion for a new trial, we think subject-matters which are fully and properly the verdict must be held conclusive. covered by the instructions given by the The judgment is affirmed. court.

We come, now, to the main question in the HADLEY, C. J., and DUXBAR, RUDKIN, case, which is as to the sufficiency of the CROW, FULLERTOX, and MOUNT, JJ., evidence to sustain the verdict and judgment. concur. It was admitted on the part of defendant in the opening statement of his counsel in the

(47 Wash. 231) trial, and again in his brief here, that the defendant used a knife upon the person of

DAVIE V. DAVIE. the decedent at the time alleged, and that (Supreme Court of Washington. Sept. 28, 1907.) from the effects of the wounds thus inflicted

1. GIFTS-CAT'SA MORTIS-INTENTIOX-SUFFIthe decedent died, and that this admission

CIENCY. was sufficient to establish a prima facie case

Evidence held to show decedent intended to on the part of the state. This being true, it

make a gift causa mortis to his widow of the

proceeds of land. was then for the jury to say, under proper

[Ed. Note-For cases in point, see Cent. Dig. instructions, whether or not the evidence vol. 24, Gifts, $$ 154, 155.] showed a legal justification or excuse for the 2. SAME-SUFFICIENCY OF DELIVERY. stabbing. The jury were told that the rea

Where decedent and his wife had contractsonableness of the apprehension of danger

ed to sell land and executed a deed to be held

in escrow until full payment, and decedent a must be judged from the defendant's stand

few days before his death stated that the papers point at the time of the alleged cutting; that were to be given to his wife, that she would they must take into consideration all the cir place them in escrow in her name, and that, "if cumstances surrounding and existing there at

anything should happen,” it would leave her in

"pretty good shape," etc., and she placed them that time. They were also told that it was

in escrow, there was sufficient delivery to estabnot necessary that the assault made by the lish a gift causa mortis. deceased upon defendant should have been

[Ed. Note.-For cases in point, see Cent. Dig. made with a deadly weapon; that "an as

vol. 24, Gifts, § 124.] sault with a fist alone, if there was an ap.


There was a valid gift causa mortis where parent purpose to inflict death or serious

decedent delivered to his wife a contract to sell bodily injury by the deceased upon the de land and a deed to be placed in escrow, evincing fendant, is sufficient to justify the killing

an intent that she receive the proceeds; the in self-defense, if the defendant at the time

transaction being not ineffective as an attempted

oral gift of land. bad reason to believe, and did believe, that he was in imminent danger of death or great

Appeal from Superior Court, Spokane bodily harm at the hands of the deceased,

County; Henry L. Kennan, Judge. supposing that the defendant acted reason

Petition by John T. Davie, guàrdian, to reably as a reasonable man under the circum

quire Rhodia E. Davie, administratrix, to stances." The jury had a right to take into

show cause why land should not be included consideration the size of the men, respective

in an inventory. From a decree for the adly, the fact and manner of defendant first

ministratrix, the guardian appeals. Affirmed. accosting decedent, the fact that the de Munter & Lovejoy, for appellant. W. D. cedent was unarmed, the opportunity of de Scott, for respondent. fendant to close and lock his door, his apparent ability to have resisted the assault. ROOT, J. One William Davie died intes. of decedent without the use of a knife, the tate in the city of Spokane, leaving a widow, character of the conversation between the respondent, Rhodia E. Davie, whom he had two men, the credibility of defendant's testi married about a year previously, and a minor

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