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It is next contended that the information charges that the dam or structure was erected to conduct water for irrigation purposes, whereas the statute uses the term "agricultural purposes." Regardless of technical definitions, the phrase "irrigation purposes" or "purposes of irrigation" is a common expression in the legislation of this state, and has acquired a well-defined meaning, which is synonymous with "agricultural purposes," or, at least, the former is included within the latter.

Lastly, it is contended that the dam or structure described in the information is not one of the structures mentioned in the statute. If a dam erected to conduct water for irrigation purposes is not one of the structures mentioned in the statute, it is at least a structure of a like kind under the rule of ejusdem generis, and comes within the purview of the statute.

The information is sufficient in law, and the judgment of the court below is therefore reversed, and the cause remanded for further proceedings.

MOUNT, C. J., and HADLEY, FULLERTON, and CROW, JJ., concur. DUNBAR and ROOT, JJ., not sitting.

(44 Wash. 605)

STATE v. BELKNAP.

(Supreme Court of Washington. Dec. 8, 1906.) 1. WITNESSES - CROSS-EXAMINATION AND EXTENT.

SCOPE

In a prosecution for seduction, evidence sought to be elicited by questions on the crossexamination of witnesses who had testified to having had sexual intercourse with the prosecuting witness, as to the making and breaking of engagements to marry, illicit relations with other women, and as to the guilt of one of them of bastardy, was wholly foreign to the issues of the case and permitting the asking of such questions was an abuse of discretion not affected by the fact that such court gave the witness the privilege of not answering.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 955, 956.] 2. CRIMINAL LAW TRIAL INSTRUCTIONS -ASSUMPTIONS AS TO FACTS-FLIGHT OF ACCUSED.

Where defendant, in a prosecution for seduction, testified that he saw an officer coming to arrest him, that he knew what he was coming for, and fled, an instruction that the jury. were authorized to consider his flight, after the issuance of the warrant for his arrest, or after he learned that a prosecution was to be instituted against him, and that it was for them to say how much weight should be given to that fact as evidence of guilt was not improper for assuming that defendant's flight was proven.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 754, 755.]

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

William Belknap was convicted of seduction, and appeals. Reversed, and new trial ordered.

Welsh & Welsh, for appellant. H. W. B. Hewen and William G. Crosby, for the State.

RUDKIN, J. This was a prosecution for the crime of seduction, and from a judgment of conviction the present appeal is prosecuted. Errors are assigned in the admission of testimony, in the giving of instructions, and in the overruling of a motion for a new trial. Columbus Stevens, Frank Brooks, and William Chapman were called as witnesses on the part of the appellant, and each testified on his direct examination that he had sexual intercourse with the prosecuting witness prior to the date of the seduction alleged in the information. The following proceedings occurred on the cross-examination of these wit

nesses:

Q.

First, the witness Stevens: "Q. Do you know a girl by the name of Carrie Graderson? Engaged to be married to her on the 11th? Objected to as being immaterial. Objection overruled by the court, to which ruling the defendant excepts. A. No, sir; I was not. Q. Engaged to her? A. I was, yes. Q. Date fixed? A. Not exactly. Q. Wasn't the date fixed for the 11th of July? Mr. Welsh. We object to this class of testimony as being entirely immaterial. Objection overruled by the court, to which defendant excepts. You say the date was not fixed for the marriage? Defendant objects on the grounds that it is immaterial. Objection overruled. Defendant excepts. A. Not exactly. No. Q. What do you mean by 'not exactly?' Defendant objects to the testimony as being immaterial, irrelevant, and not proper cross-examination. Objection overruled by the court, to which defendant excepts. Q. What do you mean by saying that the date was 'not exactly' fixed? Same objection. Same ruling, to which defendant excepts. A. We were engaged to be married, but there hadn't been no exact time. Q. How long had you been at Gile's ranch before Carrie Graderson came over there? A. Something like a month. Q. Came over there to see why you wasn't going to marry her? Defendant objects on grounds that it is immaterial. Objection overruled, and defendant excepts. A. She was wanting to go to California. She wanted to get married before she went down. I wasn't ready yet, and told the girl that I wasn't going to get married yet, and she could go to California. Q. She insisted it had been fixed for the 11th of July? Defendant objects on the grounds that it is immaterial. Objection overruled. Defendant excepts. A. No. Q. She wanted you to marry her? Same objection by defendant. Same ruling. Defendant excepts. A. No. Q. You didn't, and never married her? Same objection by defendant. Same ruling. Defendant excepts. A. No, never have. Q. You went off and left her at Oregon City without saying where you were going? Defendant objects on grounds that it is immaterial. Objection overruled. Defendant excepts. A. Yes, sir; I did."

Second, the witness Brooks: "Q. Was she the first woman you ever had sexual inter

Ob

course with? Mr. Welsh. Objected to as being immaterial. Objection overruled by the court. To which defendant excepts. A. No, sir; it was not. Q. With whom had you had sexual intercourse prior to your having sexual intercourse with Miss Hughes? Objected to as being immaterial and irrelevant. jection overruled by the court. Defendant excepts. A. Well, I don't know who it was. People of that class do not usually go under their right names. Q. Was there no woman with whom you had sexual intercourse prior to Miss Hughes, whose right name you do know? Mr. Welsh. Objected to as immaterial, irrelevant, and improper cross-examination. The court. He can answer if he has no objection himself, but he does not have to answer unless he wants to. Defendant excepts. No answer. Q. Ever live in Willapa Valley? A. Yes, I have. Q. Have sexual intercourse with a girl living up there? Mr. Welsh. Objected to as immaterial, irrelevant, and improper cross-examination. The court. The objection is overruled. He can use his pleasure about answering. Defendant objects. No answer. No answer. Q. Did you have sexual intercourse with a young girl living in Willapa Valley from whom the birth of an illegitimate child resulted at any time. prior to this? Mr. Welsh. Same objection. The court. Overruled. Leave it to the witness to answer as he wants to. Defendant excepts. A. No, sir; I never did. Q. Have you ever been charged or is it claimed by any girl living in this county, that she has an illegitimate child of which you are the father? Mr. Welsh. Objected to as immaterial, irrelevant, and improper cross-examination. The court. Overruled. Leave it to the witness to decide whether he wants to answer. fendant excepts. A. No, sir; there is no girl, not to my knowledge. It is a sad mistake if there is. Q. Is there any girl claiming that you are the father of an illegitimate child, that is not now living? Mr. Welsh. Same objection. Same ruling. Defendant excepts. A. Not to my knowledge. I don't think there is."

De

he wants to answer that question. A. I do not care to answer that question."

Courtrooms are bad enough when their proceedings are conducted under proper restrictions, and they should not be made schools for scandal. The extent to which cross-examinations will be permitted is no doubt in a large measure in the discretion of the trial court, and it is difficult to draw the line as to where the legal discretion as to the admission or exclusion of such testimony commences and where it ends, but we have no hesitation in saying that sound judicial discretion was abused in this case. Whether one of the witnesses was engaged to another woman, whether the engagement was broken off, and the circumstances surrounding such engagement, were questions wholly foreign to the issues in this case. The relations of the witnesses with other women, and whether one of them had been accused of or was guilty of bastardy falls within the same category. Wharton's Criminal Evidence states the rule thus: "Every man is entitled to such a measure of oblivion for the past as will protect him from having it ransacked by mere volunteers; and aside from this general sanction, if witnesses were to be compelled to answer fishing questions as to any scandals in their past lives the witness box would become itself a scandal which no civilized community would tolerate. Allow unqualified liberty in this respect, and no witness, no matter how respectable, could be sworn, without being required, if it should please the opposing party, to have even the most remote passages of his past life explored, and without being himself compelled to narrate any events in that life which were discreditable; no matter for how long a time such discredit had been atoned for by penitence, by reformation, and by correction of the wrong. Such inquisitions, however, the courts have refused to permit *." Wharton's Criminal Evidence (9th Ed.) § 472. In Gt. W. Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311, the court said: "The proposition that no witness has a right to complain of an opportunity to vindicate his integrity by his own oath, is plausible and specious, but illusory. It ignores the indignity of a degrading imputation, when there is nothing in the circumstances of the case to justify it. It ignores, too, the humiliation of public arraignment by an irresponsible accuser, misled by an angry client, and shielded by professional privilege. Few men of character, or women of honor, could suppress, even on the witness stand, the spirit of just resentment which such an examination, on points alien to the case, would naturally tend to arouse. The indignation with which sudden and unworthy im

*

Third, the witness Chapman: "Q. You say in the summer of 1904 you had intercourse with Miss Hughes. Had you had sexual intercourse with any other girl before that? Objected to as immaterial and improper crossexamination. Objection overruled by the court, to which defendant excepts. A. Yes, I did. Q. Who was it? Objected to as being immaterial, irrelevant, and improper cross-examination. The court. The objection is overruled, but the witness may answer or not as he likes. The defendant excepts. A. I do not care to answer that question. Q. Did you, at any time prior to these acts with Miss Hughes that you have testified to, have sexual intercourse with a girl named [name withheld]. Objected to as irrel-putations are repelled, often leads to injurievant. incompetent, immaterial, and improper cross-examination. The court. Overruled. Let the witness decide for himself whether

ous misconstruction. A question, which it is alike degrading to answer or decline to answer, should never be put, unless, in the

It

judgment of the court, it is likely to promote the ends of justice. A rule which would license indiscriminate assaults on private character, under the forms of law, would contribute little to the development of truth, and still less to the furtherance of justice. would tend neither to elevate the dignity of our tribunals, nor to inspire reverence for our system of jurisprudence." In Elliott v. Boyles, 31 Pa. 65, the court said: "It would be absolutely intolerable that a man, by being brought into court as a witness, should be bound to submit all the acts of his life to the exposure of malice, under the pretense of testing his credibility. If such were the test, courts would often present, in language and temper, scenes of unmitigated ruffianism, and the means of enforcing law and order in society, would be denounced as sources of corruption and disorder." In Buel v. State, 104 Wis. 132, 80 N. W. 78, the court said: "The administration of justice requires that trial courts shall not have their discretionary powers circumscribed by any very narrow boundaries, but does require that such limit shall be placed upon them as will prevent any mere prejudice to be built up in the course of a trial, especially in an important case like this, which will tend to influence a jury to determine the facts otherwise than from the legitimate evidence produced in court. It seems clear that such limit was passed in allowing the cross-examination in question, to the extent to which it was carried. *** A reading of the questions under consideration leads to the irresistible conclusion that no idea was entertained by the cross-examiner that proof would be elicited of the matters implied by them. We say 'implied' because the asking of the direct questions in the manner in which they were asked implied to some degree that the examiner was possessed of information upon which the questions were based, and although the answers were in the negative, the bad effect of the insinuations thrown out by the questions was not, and could not have been, entirely removed from the minds of the jur

It is useless to refer to authorities on this subject. Text-writers and adjudged cases are generally in accord that, so long as the cross-examination is carried on with reasonable fairness, to test the credibility of the witness, it is permissible, but the moment questions are asked concerning facts touching the witness' character, which are irrelevant to the facts in issue, for any other purpose than to affect his credibility, or which manifestly do not bear on the subject of credibility, the right of cross-examination is abused, and on objection should be restrained within legitimate limits."

Nor is it material that the witnesses were not required to answer the questions. said by the court in Buel v. State, supra, the questions themselves implied to some degree that the examiner was possessed of information upon which the questions were

based, and neither an answer nor a refusal to answer could remove the insinuation from the minds of the jurors. The privilege is not that of the witness alone. If the crossexamination is so conducted as to deprive the appellant of a fair and impartial trial, he has just grounds to complain, and we think that such is the case before us. After the appellant rested, the court reopened the case, and permitted the respondent to offer further testimony in chief. This ruling is assigned as error, but inasmuch as the questions will not arise on a retrial we will not consider it on this appeal. Error is assigned in the giving of the following instruction: "The jury are authorized to consider the flight of the defendant after a warrant was issued for his arrest, or after he learned that a prosecution was to be instituted against him, and it is for them to say just how much weight, if any, they shall give that fact as an evidence of guilt." If the question of flight was a controverted one on the trial, this was a clear comment on the facts, but such was not the case. The appellant himself testified that he saw the deputy sheriff coming, knew what he was coming for, and fled. While courts should be cautious in assuming facts as proven in a criminal case, yet where a defendant himself testifies to a fact he cannot complain if the court assumes his testimony to be true in its charge to the jury. People v. Phillips, 70 Cal. 68, 11 Pac. 493; State v. Archer, 73 Iowa, 320, 35 N. W. 241; State v. Day, 79 Me. 120, 8 Atl. 544; State v. Angel, 29 N. C. 27.

We find no error in the other rulings complained of, but for the error in admitting evidence on cross-examination the judgment is reversed, and a new trial ordered.

MOUNT, C. J., and ROOT, DUNBAR, and Crow, JJ., concur. FULLERTON and HADLEY, JJ., not sitting.

(44 Wash. 700)

STANDARD ICE CO. v. PRATT et al. (Supreme Court of Washington. Dec. 12, 1906.) SALES ACTION FOR PRICE-SUFFICIENCY OF

EVIDENCE.

Evidence in an action for price of goods sold held sufficient to sustain a finding as to the price at which they were sold.

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by the Standard Ice Company against A. W. Pratt and another. Judgment for plaintiff. Defendants appeal. Affirmed.

Ira Bronson and D. B. Trefethen, for appellants. Horace A. Wilson, for respondent.

PER CURIAM. This action was brought to recover on account of a quantity of ice sold by the plaintiff to the defendants. A trial was had before the court without a jury, and a judgment was rendered in favor of

plaintiff in the sum of $605.90, from which 3. NAVIGABLE WATERS-RIGHTS OF RIPARIAN the defendants have appealed.

The sole controversy is in reference to what price the appellants are obligated to pay for the ice. We find the evidence very conflicting and confusing as to what was the agreement and understanding between the parties. It appears that, prior to June 2, 1905, ice was being furnished at $2 per ton at the ice plant. Appellants contend that they had a written contract for $3 per ton delivered, afterwards modified orally calling for its delivery at the ice plant at $2 per ton, for a period of three years. But respondent disputes this, and the evidence is not clear that the minds of the parties ever actually met upon such an agreement. In any event, however, on June 2d the respondent gave appellants written notice that thereafter the price would be $3.25 per ton, and that they could get ice at the plant of the Washington Cold Storage Company, where respondent had arranged for them to get it until further notice. Appellants objected to the price, but proceeded to take the ice at the place mentioned in respondent's notice, knowing that the price fixed in the notice was $3.25 per ton. By reason of such facts the court found as follows: "That between the 1st and 24th days of June, 1905, the plaintiff, at the special instance and request of the defendants, sold and furnished to the defendants certain quantities of ice, to wit, 15.8 tons at $2 per ton, and 176.7 tons at $3.25 per ton."

We think the finding is sustained by the evidence, and the judgment is affirmed.

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Laws 1889-90, p. 470, § 1, providing that any corporation organized to boom logs may acquire real or personal property by lease or purchase necessary for carrying on its business, and that if such a corporation cannot agree with persons owning land or other property as to the amount of compensation, the compensation may be assessed and determined, and the appropriation made in the manner provided for the appropriation of private property by railways, does not give such companies the right to interfere with the navigation of streams or with the use of abutting land by upper owners, especially in view of Laws 1895, p. 130, c. 72, § 4, providing that nothing shall be constructed by boom companies that shall in any way interfere with the navigation of rivers or streams.

2. EMINENT DOMAIN-CONSTITUTIONAL PROVISION-RIGHTS OF BOOM COMPANY.

Under Const. art. 1, § 16, providing that no private property shall be taken or damaged for private or public use without just compensation having been first made or paid into court for the owner, boom companies cannot be given the right by the Legislature to overflow the lands of upper riparian owners by backwater or to run logs on their land by the use of splash dams without having acquired it by contract or condemnation.

OWNERS-PROTECTION BY INJUNCTION.

That the injuries to a riparian owner are the natural result of the use of a stream as a highway cannot be set up as a defense to a suit for an injunction against a boom company, where it not only uses the water below highwater mark, but causes the lands of the riparian owners to be overflowed and logs to be driven thereon.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 248, 251.] 4. SAME-Decree.

In a suit for injunction against a boom company, a decree enjoining and restraining it from obstructing the river to navigation in front of the lands of plaintiffs, from sorting, holding, or rafting logs in the waters of the river opposite their lands or on or against the banks of the premises, from operating any boom so as to cause logs to jam or fill the river so as to prevent navigation in the usual manner, from operating artificial means to increase the volume or flow of water past plaintiffs' premises or occupying or damaging the premises of plaintiffs, and from using the banks of their lands above the line of the mean high water for the retention of the boom was proper.

Appeal from Superior Court, Chehalis County; W. O. Chapman, Judge.

Action by O. P. Burrows and wife against the Grays Harbor Boom Company and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

J. B. Bridges and Ben Sheeks, for appellants. J. W. Robinson and Bogle, Hardin & Spooner, for respondents.

DUNBAR, J. This was a suit to enjoin the appellants from interfering with alleged rights of respondents as riparian owners and otherwise. The complaint is so long that space and time will permit presenting but a short summary of it. It alleged that the plaintiffs were the owners of certain lands bordering on the Humptulips river in Chehalis county, Wash.; that the river was about 250 feet in width, navigable for the floatage of sawlogs and other timber products, and for small boats; that the waters of the river opposite plaintiffs' premises were suitable for domestic purposes; that plaintiffs had built a home on the west bank of the river, and were residing there; that the river furnished them the most convenient public highway; that the defendants were corporations, under the laws of the state of Washington, and had constructed boomworks in the river immediately below the premises of the plaintiffs; that, by reason of such construction, the river, at and opposite plaintiffs' premises, was, for a great portion of the time, completely filled with sawlogs, thus depriving plaintiffs of their right to navigate said river and to cross the same and to go down the same to the waters of Grays Harbor; that defendants used the west bank of the river where plaintiffs' lands were located as the west wall of their boom, and the large number of logs accumulating in the river at and near plaintiffs' premises caused the water or the river to dam up and

overflow plaintiffs' lands and endanger their home, and to prevent the use of the water for domestic purposes; that the maintenance and operation of the boom caused the banks of plaintiffs' land to be washed away; that such injury was continuous; and that the defendants used the said river, both opposite and below the plaintiffs' premises, for the storage of logs. Other allegations in relation to future damage, which would be incurred in the operation of the boom and driving companies, appear in the complaint. The facts found by the court, and which, from an investigation of the testimony, we will accept as the facts in the case, will more concisely divulge the allegations of the complaint, as they are based upon such allegations. The answer denies practically all the complaint, or that portion of it which alleged that damage was being done to the plaintiffs by reason of the operation of the booms, and further alleged that the defendants were corporations duly organized and existing by virtue of the laws of the state of Washington in relation to boom companies, and that, whatever they had done, they had the permission of the state of Washington and the United States government to do. And it may be said here that this is the pivotal question in the case, whether they had the permission of the state of Washington and of the United States government to do the things which it was found by the court they had done.

The court found, in substance, that the Grays Harbor Boom Company and the Humptulips Driving Company, defendants, were both corporations, organized and existing under the laws of the state of Washington, each having its principal office and place of business at Aberdeen, Wash., and that C. D. Burrows and A. P. Stockwell were, at all the dates mentioned in the complaint, and were at the time of the trial, the only stockholders and officers of each of said corporations. (Under this finding, the correctness of which is not disputed, we will not find it necessary to enter into a discussion of the different responsibilities of these two alleged different corporations.) Found that the plaintiffs were the owners of certain land adjoining the Humptulips river at the place alleged in the complaint; that the Humptulips river was a government meandered fresh-water stream, emptying into the waters of Grays Harbor; that it was navigable in its natural condition for small craft, and was floatable for many miles inland and through the plaintiffs' lands; that the average width of the river from the mouth to the north line of plaintiffs' lands was about 250 feet; that the water therein for that distance was of a depth of from 10 to 15 feet mean high water, and from 4 to 5 feet low water; that the water was suitable for domestic and live stock purposes in front of plaintiffs' premises, and was used by them for domestic and live stock purposes from the date of their resi

dence upon said premises until the acts of the defendants prevented them from so using them; that the water in said river in front of plaintiffs' premises was suitable for domestic and live stock purposes during the whole of the year, excepting during the months of July and August when it was slightly brackish; that the plaintiffs purchased these lands in the year -, and thereafter erected on

the west bank of said river on said premises a dwelling, consisting of 10 rooms, being a two-story frame building, and a barn, with the usual outhouses for wood, hogs, cattle, chickens, etc., and had cleared and put in cultivation about acres of land in

family, consisting of

the vicinity of the house adjoining said river, and removed to such premises with their family, consisting of plaintiffs and their children, two boys and two girls, being from the age of 212 to 18 years; that they put out fruit trees and constructed fences upon said premises, and have kept, and did keep at the time of the trial, live stock consisting of cows and other cattle, hogs, horses, and chickens, all of which stock pastured and fed upon said premises and depended upon said river for fresh water for drinking purposes; that said live stock had no other way of getting water except by going down the west bank of said stream to the waters of said river; and that these plaintiffs purchased and improved said premises for a permanent home, and particularly because said premises abutted upon said river and public waterway; that the said river in its natural condition, unobstructed, constitutes a natural public highway for these plaintiffs, and the only public highway leading to and from their residence; that ever since about the 1st day of September, 1905, the defendants had caused said public waterway to be filled with sawlogs from bank to bank in front of plaintiffs' premises, and above the boom located there, and that said sawlogs håd wholly obstructed said waterway to navigation in front of plaintiffs' premises during the whole of this period, except for a few days at a time not exceeding altogether the period of three weeks from the 1st day of September, 1905, to the date of the trial hereof (which was about the middle of March, 1906); that, by reason of such operations of the defendants, plaintiffs had been deprived of the use of the river for navigation and of their rights of ingress and egress, and many of said logs had rested or lain against the banks of plaintiffs' lands both below and above the line of mean high water, and that in places certain sawlogs lie in part upon the banks above the line of mean high water, and that during much of this time these sawlogs have been so closely packed and jammed in said river from bank to bank that these plaintiffs have been unable to use this river for any purpose whatsoever; that the public schoolhouse in that school district is located on the east side of the river, and the plaintiffs' children, notwithstanding that they have

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