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(44 Wash. 551)

the determination of its appeal, and also in STATE ex rel. PORT TOWNSEND SOUTH- refusing to vacate or modify the judgment ERN RY. CO. y. SUPERIOR COURT so entered. The respondents have demurred OF PIERCE COUNTY.

to the relator's affidavit, and the hearing in (Supreme Court of Washington. Dec. 5, 1906.) this court has been upon their demurrer. CERTIORARI-REMEDY AT LAW.

The relator's attorneys candidly acknowlWhere, in condemnation proceedings by a edge themsevles to be in serious doubt as to railroad, the court entered an ordinary money

whether the relator is entitled to a writ of judgment for the damages found by the jury, instead of decreeing the same to be paid by the

review, or whether the orders of which it corporation prior to its taking possession of the complains may not be reviewed upon the property, and on a motion to vacate the judg

appeal already perfected. They admit that ment or modify the same the court ordered the

they have presented this application out of corporation to elect whether it would take the property or refuse to take it, and the corpora

the abundance of caution for the complete tion declined to make such an election, whereup- protection of the rights of their client, but on the motion to vacate or modify the judgment

upon the hearing have insisted that this court was denied, such rulings might be reviewed on an appeal from the final judgment, and hence

has jurisdiction to review in this proceeding they would not be reviewed on certiorari.

the orders above mentioned. Although in [Ed. Note. For cases in point, see Cent. Dig. Western American Co. v. St. Ann Co., 22 vol. 9, Certiorari, $ 5.)

Wash. 158, 60 Pac. 158, we held an appeal Certiorari by the state, on the relation of

would not lie in a condemnation proceeding the Port Townsend Southern Railway Com

from an order adjudging a public use, and pany, to review the action of the superior

assigned as our reason that under the concourt of Pierce county in entering judgment

demnation statute (section 5645, Ballinger's for damages, and in refusing to vacate or

Ann. Codes & St.) no question could be conmodify such judgment, in proceedings by

sidered on appeal other than the propriety relator for the condemnation of real estate

and justness of the amount of damages, we

have since had occasion to further consider belonging to Stefano Barbare and another. Ipplication denied.

the same section in State ex rel. McCormick

v. Superior Court, 86 Pac. 205, where we held Chas. Bedford and J. F. Fitch, for relator.

that an appeal from the final judgment Walter M. Harvey, for respondent.

awarding damages would permit this court to

enter upon a much broader scope of inquiry CROW, J. This is an original application than the mere examination of evidentiary for a writ of certiorari. The relator, a rail matters directly affecting the amount of damroad corporation, alleges that on July 16, ages. A writ of certiorari was sought to re1906, it filed in the superior court of Pierce view alleged errors of the superior court in county its petition for the condemnation of the procedure adopted by it in summoning Certain real estate belonging to Stefano Bar and impaneling the jury which assessed the bare and Lecretia Barbare, his wife; that damages in a condemnation proceeding. In in the regular course of procedure an order passing upon the relator's application, we was made adjudging a public use; that a said: “It is, however, urged that the writ jury, duly impaneled, returned a verdict for should issue to review the action of the court $16,000 damages to be paid by the relator; in ordering the open venire for the summonthat on October 3, 1906, the judge of the ing of jurors, and in causing the jurors who superior court, without notice, entered an assessed the damages to be selected from perordinary money judgment for such damages, sons other than those regularly drawn by instead of decreeing the same to be paid by the jury commissioners. It is contended that the relator prior to its taking possession of the above matter cannot be reviewed on apthe property; that immediately thereafter the peal from the judgment awarding damages. relator served and filed a motion to vacate The argument is based upon the following or modify such judgment; that upon the hear- portion of section 5645, Ballinger's Ann. Codes ing of its motion the superior judge ordered & St., to wit: 'And such appeal shall bring the relator to forthwith elect whether it before the Supreme Court the propriety and would take the property under the condemna justness of the amount of damages in respect tion proceeding or refuse to take the same; to the parties to the appeal.' It is insisted that the relator declined to make any such that, inasmuch as this court held that the election at that time, but stood mute, where above does not include the right of appeal upon the court refused to vacate or modify from the adjudication as to the public use the money judgment for $16,000 already en and necessity, but is confined to the propriety tered; that the relator has appealed to this and justness of the amount of damages, it court from such judgment; that its appeal follows that no questions can be reviewed on has been perfected; and that, without waiv appeal except evidentiary matters, or those ing any of its rights under such appeal, it which directly affect the amount of damages. now petitions for a writ of certiorari to We think, however, that questions involved in review the action of the superior court in the immediate procedure or trial by which entering such original money judgment for the damages are ascertained may be reviewed damages, in ordering the relator to elect on appeal." whether it would take the property prior to

The substantial effect of the above language

is to hold that, upon the hearing of an appeal 3. SAME-INSTRUCTIONS. taken from a final judgment awarding dam In a prosecution for rape, an instruction

that the relation of the prosecutrix to the crime ages in a condemnation proceeding, this court

is analogous to that of an accomplice, and that may inquire into all matters of procedure, the jury ought not to convict on her testimony practice, and evidence which incidentally alone, unless, after a careful examination, they arise during the trial of the question of the

are satisfied of its truth beyond a reasonable

doubt, is properly refused. amount of damages to be assessed, and it would naturally follow that any order made Appeal from Superior Court, Yakima Counafterwards, arising out of or based upon the

ty; H. B. Rigg, Judge. verdict for damages, may also be reviewed

Max A. Mobley was convicted of rape, and upon such appeal. To hold otherwise would

appeals. Reversed and remanded. necessitate a procedure which might frequent E. B. Preble and Ira P. Englehart, for aply result in this court being compelled to pellant. hear, at one and the same time, an application for a writ of certiorari and also an

CROW, J. The defendant Max A. Mobley appeal, both arising out of one and the same

has appealed to this court from the judgment judgment. We must assume that the Legis

and sentence of the superior court of Yakima lature had good and sufficient reasons for

county, entered upon his conviction of the failing to permit an appeal from the pre

crime of rape, committed upon the person liminary order by which a public use is ad

of one Lydia G. Palmer, a female child under judged. As the practice now stands, any

the age of 18 years. party who may be dissatisfied with the pre

The particular act upon which the state liminary order of the superior court may ap

elected to rely for conviction was alleged to ply for a writ of certiorari to have the ju

have been committed on January 15, 1905, dicial question of the public use finally deter

at which time the prosecuting witness was mined by this court before damages can be

something over 15 years of age. She testiassessed. This procedure avoids the possibil

fied, that three several acts of sexual interity of any assessment of damages being made,

course took place between the appellant and and this court thereafter holding that no pub

herself. That the first occurred shortly after lic use existed. Otherwise a petitioner might

Christmas in 1904. That the last act, being be compelled, in a condemnation proceeding,

the one upon which the state elected to rely to return the property after it had actually

for conviction, occurred about January 15, paid for and taken the same, and after this

1905. That she lived at the house of appelcourt on final hearing determined no public

lant from the fall of 1904, to February, 1905. necessity existed. Taking a comprehensive

That appellant's wife, by soliciting the proseview of the entire statute, we arrive at the

cutrix to have intercourse with appellant, conclusion that, upon an appeal from the

aided and abetted him in the commission of final judgment awarding damages, all ques

the crime with which he is charged, and tions which incidentally arise during the

was present with appellant and herself in trial before the jury for the determination of

a room at their home on each of the three such damages, or after the return of the ver

occasions above mentioned. That by reason dict of the jury, can be reviewed by this

of her relations with the appellant she was court.

pregnant at the date of the trial, which As the relator will be entitled to have all

occurred on October 9, 1905, and that she had the questions which it now presents finally

never sustained sexual relations with any determined upon its appeal, already perfect

man other than the appellant, and never

with him except on the three occasions named. ed, its application for a writ of review is

She failed to state whether the appellant's denied.

acts were accomplished by force, or whether MOUNT, C. J., and DUNBAR, ROOT,

she actually consented to the same, although FULLERTON, HADLEY, and RUDKIN, JJ.,

legally incapable of giving consent. Her eviconcur.

dence, which was emphatically denied by the appellant and his wife, was without any

corroboration other than her condition of (44 Wash. 549)

pregnancy to which she testified, and which, STATE V. MOBLEY.

if it actually existed, must have been ap(Supreme Court of Washington. Dec. 5, 1906.) parent to the jury. 1. RAPE-EVIDENCE-OTHER OFFENSES.

The appellant has made numerous assignIn a prosecution for statutory rape, evi- ments of error, but we will only discuss those dence of acts of intercourse between prosecutrix which we regard as of controlling importance. and accused other than that relied on 'for a conviction, is admissible.

He contends that the trial court erred in ad[Ed. Note.-For cases in point, see Cent. Dig. mitting, over his objection, evidence of acts vol. 42, Rape, $$ 63, 64.]

of intercourse between the prosecuting wit2. SAME-EVIDENCE-ADMISSIBILITY.

ness and himself subsequent to the first act In a prosecution for rape, where the only to which she had previously testified, and corroboration of the testimony of prosecutrix

also in charging the jury that the state was her pregnant condition, evidence that she was in the habit of going and staying out late

had elected to rely upon the third act for at nights was admissible.

conviction. The substance of this objection

is that the state should not have been per counsel in the questions above mentioned exmitted to introduce evidence of any acts of actly coincided with those upon which she intercourse other than the single one upon had charged appellant. The testimony of which it relied for conviction. This con these witnesses, had the same been admitted, tention is without merit, as shown by pre might have developed evidence tending to acvious holdings of this court. State v. Wood, count for the condition of the prosecutrix, 33 Wash. 290, 74 Pac. 380; State v. Fetterly, consistently with the innocence of appellant. 33 Wash. 599, 74 Pac. 810; State v. Osborne, The courts have almost universally recog39 Wash. 518, 81 Pac. 1036.

nized the difficulty under which a defendThe undisputed evidence shows that during ant necessarily labors in seeking to exculall the time the prosecutrix lived at the home pate himself from a charge of this character of appellant, his family and household con when once made, and a considerable libersisted of himself, his wife, their two small ality should be exercised in permitting him children, the father and brother of his wife, to fully show the situation of the parties, and a young lady, a Miss McArdle. The and all the circumstances surrounding them appellant produced William Nichol and at or about the date of the act charged; and Charles Nichol, the father and brother of this is especially proper in this state where Mrs. Mobley, and also Miss McArdle, as a conviction may be had upon the unsupportwitnesses, and in substance asked each of ed testimony of the prosecuting witness. them to state to the jury whether or not the The appellant further contends that the prosecuting witness, Lydia G. Palmer, during court erred in refusing to give the jury the the time she and the witnesses were all following instruction requested by him: residing at appellant's house, was in the al "The prosecuting witness, Lydia G. Palmer's most constant habit of being out alone late relation to the alleged crime is analogous at nights and returning at any time from to that of an accomplice, and the jury should midnight to 4 o'clock in the morning. Upon act upon her testimony with great care and objections interposed by the state, the wit caution and subject it to careful examination nesses were not permitted to answer these in the light of all the other evidence in the questions. Thereupon the appellant by his case, and the jury ought not to convict upon attorney attempted to state what he offered her testimony alone unless, after a careful to prove by these witnesses. But the trial examination of such testimony, you are satiscourt interrupted him, with the statement fied of its truth beyond a reasonable doubt." that his offer would not be permitted. Upon

We think that no error was committed in these rulings the appellant has assigned er

this regard. The law is well settled in this ror. In refusing to permit answers to the state that a defendant may be convicted of above questions, the trial court committed the crime with which the appellant is charprejudicial error. The state was relying for

ged upon the uncorroborated evidence of the conviction upon evidence of the prosecutrix, prosecuting witness. State v. Fetterly, supra; which was without corroboration except in

State v. Patchen, 37 Wash. 24, 79 Pac. 479. so far as such corroboration was afforded by We have carefully examined the entire her condition of pregnancy, if such condi

charge given by the trial court, and find that tion in fact existed. She attributed such al

the jury were properly instructed as to the leged pregnancy to the acts of appellant. necessity for finding the defendant guilty The jury undoubtedly knew from her per

beyond a reasonable doubt, and that they sonal appearance upon the witness stand were also sufficiently cautioned as to their whether she was telling the truth as to her duty in the matter of weighing the evidence, pregnancy, the usual period of gestation bar

and passing upon the credibility of the witing then about expired. If her testimony in nesses. The appellant, as shown by the evithis regard was manifestly truthful, it nec dence, is a man about 32 years of age, and essarily appeared that some person was

it appears from the record that he was guilty of the offense for which the appellant

sentenced by the trial court to imprisonwas on trial. If he could do so, the appellant

ment in the state penitentiary for the period was therefore legally entitled to show by

of his natural life. As this case will be recompetent evidence what the habits and con manded for a new trial, we feel constrained duct of the prosecuting witness had been at

to say that to our minds the penalty imposed or about the time she claimed he had sus

by the trial judge seems to be excessively tained illicit relations with her. If, in fact,

severe, especially in view of the facts disthis young girl was habitually away from

closed by the record. home night after night, and made a practice

By reason of the error above mentioned, of returning at any time from midnight un

the judgment of the superior court is retil 4 o'clock in the morning, she was certain

versed, and the cause remanded with instrucly conducting herself in a highly improper

tions to grant the appellant a new trial. manner, and was guilty of conduct which, to say the least, would seriously reflect upon MOUNT, C. J., and HADLEY and RUDher character for chastity and affect her KIN, JJ., concur. DUNBAR and ROOT, JJ., credibility. The dates fixed by appellant's took no part.

(44 Wash. 546)

having replied, this cause was tried without CUSCIINER v. LONGBEHN et al.

a jury, and, from a final judgment entered in (Supreme Court of Washington. Der J, 1996.)

favor of the defendants, this appell is rose.

cuted. 1. APPEAL-RECORD-STATEMENT OF FACTSI'ROCEEDINGS FOR SETTLEMENT.

The respondents have more this art to Ballinger's Ann. Codes & St. $ 70.75, pro strike the statement of facts, for the reason vides that, after the service of a proposed state

that no notice has ever been given to thril ment of facts, the opposite party inay tile and serve amendments, after which either party

tle time when, or place where, it would be may serve a notice of an application to the court settled. The record shows that propose to settle and certify the statement. llell that,

ameniments were filed and served by the rewhere amendments have been proposed, and the

spondents within the statutory time. Thiere statement is certified without service of notice or the appearance of the party who proposed is no proof that any notice of the time and the amendments, the statement will be stricken, place for the settlement of the statement was on motion, on appeal.

er served upon the respondents, nor is there Ed. Note.-For cases in point, see Cent. Dig.

any showing that they appeared at the time vol. 3, Appeal and Error, $ 2324.]

of settlement. Section 3038, Ballinger's Ann. 2. JUDGMEXT-MATTERS COXCLUDED-ISSUES.

Codes & St. provides that, within 10 days afA judgment in favor of defendants in replevin to recover furniture sold by plaintiff to ter the service of a proposed statement of defendants, the action being brought on the

facts, any other party may file and serve 0.1 theory of a conditional sale contract, was a bar

the proposing party any amendments which to a subsequent action on the ground that the furniture had been secured from plaintiff he may propose thereto, and that either party through fraud.

may thereafter serve upon the other a writEd. Note.--For cases in point, see Cent. Diy.

ten notice that he will apply to the court at i vol. 30, Judgment, § 1089.]

time and place therein specified to settle and Appeal from Superior Court, Spokane Coun- certify the statement. Where amendments: ty; D. C. Carey, Judge.

have been proposed, the court is without juAction by I. N. Cuschner againsi Madeline risdiction to certify the statement, in the alL. Longbehn and others. From a judgment

From a judgment sence of such service of notice, or the appearin favor of defendants, plaintiff appeals. Af.

ance of the party who proposed the amendfirmed.

ments. No notice having been given and no Samuel R. Stern, for appellant. J. M. Simp- appearance of the respondents being show,

| son), for respondents.

the court was without authority to make the

certificate, and the statement of facts will CROW, J. This action was instituted by

therefore be stricken, I. N. Cuschner, plaintiff, against the defend

The only question remaining for the coll

sideration of this court is whether the findants Madeline L. Longbehn and John C. Longbehn, her husband, to recover possession of

ings of fact mataz by the trial rourt sustain certain furniture. The plaintiff alleged that

the final judgment. From the findings it apthe defendants had fraudulently induced him

pears that on March 23, 19. å former as to sell and deliver the furniture to them, by

tion of replevin (No. 19,021) was instituted in representing that they were the owners of

the superior (ourt of Spokane county, by the certain real estate which was free from in

appellant herein against the respondents cumbrance except a mortgage for $1,700):

herein, for the recovery of certain furniture that they then and there offered to give him alleged to have been sold to respondents by a second mortgage thereon for the value of

the appellant upon a conditional sale onthe furniture; that, relying on such repre

tract; that said action No. 19,024 was brought sentations, he was induced to, and did, sell

to trial before the judge of said court, wh), them the furniture in question, and took a

after making findings of fact and conclusions second mortgage on their real estate for the

of law, entered a judgment thereon in favor purchase price thereof; that their representa

of the respondents and against the appellant tions were false and fraudulent; that de

herein, for the return of the furniture lefendants had no right to incumber said real

scribed in the complaint, or for its value in: estate; and that plaintiff's so-calleil second

the event that the same could not be re. inortgage was worthless. The theory of the

turned; that no appeal was taken from sua complaint was that the plaintiff had elected final juilyment; that this cause was begun to rescind his contract of sale and to recover

by the appellant on April 4, 1990); that illipossession of the property sold. The defend- | Dellant alleged le returned

he the furniture ants alleged that, in a previous action be

mentioned in the original (ause No. 19,227. tween the same parties, the plaintiff herein

and also alleged that he had gain taken had sought to recover possession of the same the same furniture from the respondents in furniture upon the theory that it had been this action; that the first action, Vo. 19,024, delivered to the defendants by him on a con was brought upon the theory of a conditional ditional bill of sale; that the former action sale contract; that this action had been had been decided in favor of the defendants; brought upon the theory that possession of and that the furniture which had theretofore the same furniture had been secured by the been taken by plaintiff had been ordered by respondents through fraud; that the respondthe court returned to them. The plaintiff ents had answered the complaint in this ac

87 P.-52

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tion, denying its allegations, and pleading ber 10, 1906, and show cause why your saloon the affirmative defense of res adjudicata; license shall not revoked." This notice was that, upon the trial, the appellant had in served at about 4:30 o'clock of said day. The troduced testimony; and that the defendants said Jakobsson & Burk appeared at the meethad simply denied plaintiff's allegations of ing of the council, and by their attorney obfraud, and introduced the records of the jected to the proceedings, upon the ground former action.

that no charges in writing had been filed Upon these findings of fact, which show a with the city council; that they had no former adjudication between the same par- knowledge of the nature of the purported ties as to their right to the possession of charges; that the notice served upon them the identical furniture here involved, the was insufficient, and that the council had no trial court entered a final judgment in favor jurisdiction to revoke their license. The of respondents. As it is apparent that such council, without passing upon these objecjudgment necessarily resulted from the find- tions, proceeded to hear statements of certain ings made, the same is now affirmed.

persons not under oath, and gave no oppor

tunity to the said Jakobsson & Burk to crossMOUNT, C. J., and DUNBAR, ROOT,

examine such persons.

The council thereRUDKIN, and HADLEY, JJ., concur.

upon adjourned until the next day, when a

meeting was held at which said Jakobsson & (44 Wash. 526)

Burk were not present or permitted to attend, STATE ex rel. CITY OF ABERDEEN v. and at which meeting a resolution was passed SUPERIOR COURT OF CHEIIALIS

revoking the said license, and notice thereof COUNTY.

was immediately given. Thereupon the said (Supreme Court of Washington. Nov. 28, 1906.)

Jakobsson & Burk filed an affidavit in the
INTOXICATING LIQUORS-LICENSES--REVOCA superior court of Chehalis county, setting out
TION-REVIEW.
Under Ballinger's Ann. Codes & St. $

the facts substantially as above, and also 2934, giving the mayor and council or other

alleging that they had kept an orderly house, governing body of each incorporated city, town, and had in all things complied with the terms or village sole and exclusive authority to regu

of the license, and prayed for a writ of relate the sale of liquors, and section 2935), providing that the authorities granting the license

view. On this showing a temporary writ was shall have full authority and power to declare it issued. The city of Aberdeen appeared in forfeited for the violation of any of the terms answer to the writ and moved to quash the on which it is granted, the action of the mayor and council of a city in revoking a retail liquor

same, upon the ground that the superior license is not subject to review by the superior

court had no jurisdiction to review the action court.

of the mayor and city council in revoking [Ed. Xote. For cases in point, see Cent. Dig. the license. The superior court, on hearing vol. 29, Intoxicating Liquors, § 117.]

this motion, denied the same. Whereupon Application by the city of Aberdeen for a the city of Aberdeen applied to this court for writ of prohibition to the superior court of a writ of prohibition. Chehalis county. Granted.

The question presented here is, has the W. I. Agnew and G. C. Israel, for plaintiff.

superior court jurisdiction to review the W. H. Abel, for respondent.

action of the mayor and city council of the

city of Aberdeen in revoking a license to sell MOUNT, C. J. This is an application for a

intoxicating liquors? We think the superior writ of prohibition to prevent the superior

court has no jurisdiction. The statute procourt of Chehalis county from reviewing the vides, at section 2934, Ballinger's Ann. Codes & action of the mayor and city council of St., that “the mayor and council or other govAberdeen in revoking a retail liquor license. erning body of each incorporated city, incorIt appears that the city of Aberdeen, on porated town, or incorporated village in March 11, 1906, issued a retail liquor license

the state of Washington shall have the to Simon Hoffman and W. L. McDonald, for

sole and exclusive authority and power the term of one year. Thereafter, in April, to regulate, retrain,

retrain, license, or prohibit this license was, by the consent of the city, the sale or disposal of spirituous, fertransferred to Art Burk and A. W. Jakobs mented, malt, or other intoxicating liquors son, who thereafter conducted a saloon in within the corporate limits of their respective said city by virtue of said license, under the cities, towns or villages,” etc. Section 2935 name of Jakobsson & Burk. On September provides : “In granting the license author10, 1906, the city was notified by its police | ized by this chapter the proper authorities officers that the saloon conducted by Jakobs- shall exact from each applicant a bond in son & Burk was a disorderly place. On that

On that the sum of $1,000, conditioned that the applisame day a special meeting of the city council cant shall keep an orderly house, and will not was called, and notice was issued by the city sell liquor to minors. He shall in case of vioclerk and served upon the said Jakobsson & lating the terms of the license forfeit the Burk, notifying them to "appear before the same, and be subject to the other penalties city council of the city of Aberdeen, Washing- | provided by law for illegal selling of spiritton, at the council chamber of said city at the uous, fermented, malt, or other intoxicating hour of 7:30 o'clock, p. m., Monday, Septem- | liquors; the authorities granting the license

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