Petition for certiorari by the state of Washington, on the relation of Curtis Egbert and others, against the superior court of King county and T. J. Humes, Judge. Granted.

T. A. Gamble, for relator. I. E. Moses, for respondents.

HOYT, J. A complaint was filed in a justice's court against one of the relators to recover, on a contract for the payment of money only, the sum of $91, and interest thereon from such a date that the principal and interest amounted to the sum of $109, in which sum judgment was prayed. Upon default of defendant, judgment in that amount was rendered against him. From such judgment he took an appeal to the superior court, and the other relators joined with him, as sureties in the bond given upon such appeal. The superior court, having dismissed the appeal, made an order affirming the judgment of the justice's court, and rendered a judgment in the superior court against the principal and sureties in the appeal bond for the amount thereof, with costs, and is now proceeding to enforce the collection of said judgment against said principal and sureties. Relators have filed their petition in this court setting out these, among other facts, and praying a writ of certiorari to be directed to said superior court, and to Thomas J. Humes, the judge in whose department the proceedings were had, to the end that the record may be certified here, and the action of the court reviewed. Such writ will not be awarded if the superior court was proceeding within its jurisdiction, and the question whether or not these facts show that such court had not jurisdiction is the one which we are called upon to consider upon this application. It is claimed on the part of the relators that said court had not jurisdiction, for two principal reasons: First, that the justice's court had no jurisdiction, and for that reason the superior court could get no jurisdiction on appeal; and, second, that, if the superior court did get jurisdiction of the subject-matter upon appeal, it had no jurisdiction to render a judgment upon the bond without having first brought the sureties before it on proper notice.

As to the first contention, the rule is well settled that if the court from which an appeal is taken had no jurisdiction of the subject-matter, and for that reason its judgment was absolutely void, the appellate court, by virtue of the appeal, can get no jurisdiction to do more than to reverse the judgment or dismiss the appeal. This rule is so well established that it is not necessary to cite authorities or make argument in support thereof. Did the justice's court have jurisdiction of the subject-matter upon the complaint filed, which was the foundation of the judgment from which the appeal was taken? This question must be decided upon the con

struction to be placed upon such complaint. It is claimed upon the part of the relators that the cause of action stated in the complaint arose upon a contract for the recovery of money only, and that the sum claimed was more than $100. On the other side, it is contended that since the principal sum was less than $100, and it was brought above that amount only by the claim for interest thereon, for the purposes of the statute giving ju risdiction to justices' courts the sum claimed was less than $100. 2 Hill's Code, § 23. It is not contended but that if the sum claimed was for more than $100, within the meaning of such statute, the justice's court got no jurisdiction of the subject-matter by reason of the filing of such complaint. In our opinion, the claim for interest due upon the principal sum is as much a part of the sum claimed as is the principal itself. The interest, while not technically a part of the contract, is so connected with it that, when the claim is made therefor in a complaint, it forms a part of the claim arising upon the contract. The claim, interest and all, is upon a contract for the recovery of money. A part of it is upon the contract which gave rise to the principal indebtedness, and the remainder is upon a contract, express or implied, for interest thereon. The statute upon the subject intended that justices of the peace should have jurisdiction in all matters of contract where the entire amount claimed by the plaintiff did not exceed the sum of $100, and it is nowhere made to appear therefrom that, when a part of such claim is for interest, it could exceed such amount. In our opinion, then, the justice's court had no jurisdiction of the subject-matter.

The other contention made by the relators presents a somewhat more difficult question. In regard thereto, we only now desire to say that no provision of the statute or condition of the bond on appeal from the justice's court has been called to our attention which would warrant the court in summarily rendering judgment against the sureties in the appeal bond without their having had their day in court. The writ prayed for will be awarded.

SCOTT, STILES, and ANDERS, JJ., con

cur.

DUNBAR, C. J. (dissenting). I concur in the opinion of the court on the propositions therein argued, but there was another question raised in this case, viz. that, the amount involved in the suit being under $200, this court has no jurisdiction of the cause, on appeal or otherwise. This question, while directly raised, is not referred to in the majority opinion, probably for the reason that it has heretofore been decided by this court adversely to the contention of the respondent; but I am still unable to see how, under any construction of the constitution, the supreme court can assume jurisdiction in this kind of

a case. Section 4, art. 4, of the constitution provides that the appellate jurisdiction of the supreme court shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy or the value of the property does not exceed the sum of $200, unless the action involves the legality of a tax, etc.; and this case, being a plain action for the recovery of money, does not fall within any of the exceptions. Following this restriction of the appellate power of the supreme court, and in the same section, it is provided that the supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. I think that all these provisions must be construed with reference to the provisions concerning the appellate jurisdiction of the court, and that the limit imposed upon the appellate jurisdiction was intended to be absolute. It cannot be contended for a moment that this writ is made by virtue of the appellate jurisdiction of the court, for the appellate jurisdiction does not attach in this kind of a case by reason of the limitation imposed by the constitution above referred to. Neither can it attach by reason of the force of the provision granting revisory jurisdiction, for there is nothing revisory in the action of this court in this kind of a proceeding. Webster defines "revisory" as having the power or purpose of revision, and "revision" as the act of re-examination to correct, review, alter, or amend. The central idea of revision is a work upon something already in hand, and, in a legal sense, to correct or revise where the jurisdiction had already obtained, and the court desired to correct its own rulings, orders, or judgments. If the constitution had granted this jurisdiction for the purpose of carrying into effect the supervisory powers of the supreme court, there could be no question but that this court would assume jurisdiction in such cases, for "supervising" means to oversee or direct, to superintend the work of some one else, having, so far as the person is concerned, exactly the opposite meaning of "revising." This court, then, cannot assume jurisdiction in a case of this kind without, by judicial construction, importing into the constitution the word "supervisory" after the word "revisory." This importation is not at all necessary for the administration of justice, and, in my judgment, is directly opposed to the will of the makers of the fundamental law. The idea of the constitution is that the superior courts can be relied upon to absolutely and finally determine cases involving less than $200, and the construction given by the majority to the constitution simply allows a litigant, by indirect methods, to obtain a benefit by certiorari he could not obtain by a direct appeal. It seems to me that the assumption of jurisdiction in this kind of cases by this court is a usurpation of the constitu

(Supreme Court of Washington. July 7, 1894.) MURDER-SUFFICIENCY OF EVIDENCE.

1. Where, in a prosecution for murder, the evidence showed that the body which was supposed to be that of the deceased was very much burned, yet several witnesses testified that they recognized it from certain physical peculiarities, and the surroundings showed that a homicide had been committed, a conviction will not be set aside on the ground that the evidence failed to show the "corpus delicti."

2. Where, in a prosecution for murder, the evidence, though circumstantial, is so cogent and convincing that no fair-minded jury could have found defendant not guilty, a conviction for murder in the first degree will not be set aside.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

H. D. Smith was convicted of murder in the first degree, and appeals. Affirmed.

D. W. Henley, for appellant. S. G. Allen, for the State.

ANDERS, J. The appellant was tried upon an information charging him with the crime of murder in the first degree in the killing of John Wyant, in Spokane county, on June 9, 1892, by shooting him with a gun and cutting him with a knife. The jury returned a verdict of guilty as charged, upon which verdict, after overruling motions in arrest of judgment and for a new trial, the court adjudged him guilty, and sentenced him to be hanged. To reverse this judgment and sentence, the defendant prosecutes this appeal.

The first error relied upon as a ground for reversal of the judgment is the overruling of the defendant's demurrer to the information. This objection is not tenable. The information is substantially in accordance with the precedent of an indictment for murder formulated and recommended by our territorial supreme court in the case of Leonard v. Territory, 2 Wash. T. 381, 7 Pac. 872, and is sufficient both in form and substance. No material allegation is omitted and no superfluous averments are contained therein, and the facts constituting the crime charged are set forth in plain and concise language, in accordance with the requirements of the Code.

Nor did the court, in our opinion, commit error in overruling the motion in arrest of judgment. Nothing appears in the record showing the absence of the conditions which must exist in order to warrant the prosecution of a public offense by information, rather than by indictment. On the contrary, we think it sufficiently appears that the prosecuting attorney was fully justified

It is contended by the learned counsel for the defendant that the evidence in this case is entirely insufficient to sustain the verdict, and that the court therefore erred in denying the defendant's motion for a peremptory instruction in his favor, and also in overruling his motion for a new trial, based upon the insufficiency of the evidence; and it is especially urged in the brief of appellant that the death of John Wyant is not shown by the testimony adduced at the trial. But a careful consideration of the evidence leads us to a different conclusion. The evidence discloses that Wyant was an unmarried man, and for some years prior to June 9, 1892, had resided alone upon his farm, about 5 miles southwest of the village of Spangle, in Spokane county, and some 18 or 20 miles from the city of Spokane. He was supposed to have considerable means, and, owing to his peculiar custom of always converting his money into coin, it was generally rumored and believed among his acquaintances that he was hoarding his money by burying it. He was seen at work in one of his fields on the afternoon of the day above mentioned, but was never seen or heard of alive afterwards. On the evening of that day, at half past 10 o'clock, his barn, which was situated some distance from his house, was, by Mrs. Morris, discovered to be on fire. She aroused her husband, and he and some of his neighbors went to Wyant's premises. Soon after they arrived at the burning building, they discovered what they supposed to be the form of a human being in the midst of the flames, lying in that portion of the barn where hay was usually kept. Other neighbors were called, and, after satisfying themselves that what they had before believed to be a human body was in fact such, they proceeded to examine the premises. Upon entering the house, they found the dining table with dishes upon it, which had been used, bat were unwashed; a chair near it, and a diary, such as Wyant always kept, lying open upon the table, containing a brief account of what he did on the 9th day of June; and eggshells upon the hearth of the stove. Nothing in the house appeared to have been molested, and, judging from appearances, Wyant had eaten his supper, and at once left the room. Further investigation developed the fact that his riding horse was missing from the pasture where he was kept and where the other horses were found. In the morning, the fresh tracks of the missing horse were traced past the house of Mr. Rohweder to the end of the lane. From there, instead of following the usually traveled road to Spokane, which passes through Spangle, the tracks indicated that the horse took a short cut, which was rough, and but little traveled, and which was known to the appellant. On the evening of June 10th, this horse was found on the usually traveled road between

south of Spokane, and was going towards home. He was also seen and recognized at Spangle, and appeared to have been ridden hard, having dried sweat and saddle marks upon him. The tracks of this horse were easily identified and followed, on account of the fact that there was a peculiarly shaped notch in one of his hoofs. The coroner, having been sent for, went to the Wyant farm the morning after the fire, accompanied by Dr. Hoxie, and held an inquest on the body, which was still lying untouched in the ruins of the barn. It was found that the legs of the deceased to the knees and the arms to the elbows had been entirely consumed by the fire, and the remaining portion of the body was greatly charred and blackened, and covered with a coating of ashes, which seems, in a measure, to have preserved it from further consumption. The general outlines of the face had not been destroyed, and, owing to the fact that a cloth around the neck had been saturated with blood, It had not burned, and it was discovered that the throat had been cut, as the witnesses expressed it, from ear to ear. In the stomach undigested eggs were found, and it was shown that Wyant was in the constant habit of eating eggs. A bullet had passed through the head from left to right, just above the ears, and another had apparently pierced the abdomen. It was thus made apparent that a heinous crime had been committed. Somebody had evidently been killed by violence inflicted by another. Who was it? Several of the neighbors and intimate friends of John Wyant swore positively that it was he, and the jury so found, and we think rightly. Some of the witnesses recognized the body as that of Wyant by the peculiar shape of the head and face. Others knew him by the absence of a certain tooth and by a certain front tooth which stood alone. A quid of tobacco was found between the lip and the teeth of the corpse, and one of the witnesses testified that Wyant habitually held his tobacco in that peculiar manner; and they all agreed that the curly hair which was found unburnt on the back of the head resembled that of John Wyant. With all of this evidence before them, the jury could hardly have arrived at the conclusion that the death of John Wyant was not proven beyond any reasonable doubt.

And that appellant killed him, we think, is equally certain. For some weeks prior to the homicide, appellant had been rooming and boarding at the Albion Hotel, in the city of Spokane, and was known by the name of H. C. Jones, which he says he assumed in order to avoid being recognized by certain persons who had been in the penitentiary with him in California. On June 6, 1892, he went out to the farm of Mr. Rohweder, near the Wyant place, saw Wyant, but, Mr. Rohweder not being at home, returned to Spangle, where he spent the night at an hotel.

The next morning, June 7th, this Mr. Rohweder, having gone to Spangle on business, met appellant, with whom he had been acquainted for about 12 years, and for whom he had worked at one time in California, and took him back to his home, where he spent the day, Wyant being there also a portion of the time. Appellant tried to purchase Wyant's farm for his brother, who had been in that vicinity some time previously, but was then in California, but Wyant was not disposed to sell. During the conversation at Rohweder's, Wyant remarked, in the presence of the appellant, that he (Wyant) had money, but not nearly so much as people thought he had. Wyant went home before night, and the appellant remained all night with Rohweder. The next morning, June 8th, Rohweder took appellant to Spangle in a wagon, where he took the train for Spokane; but, before going on board the cars, he was seen to purchase a ticket to Spokane and return to Spangle. On the next afternoon, June 9th, at about half past 1 o'clock, appellant borrowed overalls, a "jumper," and an old coat from the day clerk at the Albion Hotel, saying he wanted them because he was going to work in a well that night. Soon after, he left the hotel, and was not again seen there by any of the employés until 4 or 5 o'clock on the following morning. But he was seen on the train which left Spokane for Spangle at 2:30 o'clock on the afternoon of June 9th, and got off at the latter place on the arrival of the train at about half past 3 o'clock, and was then wearing clothing similar to that he had borrowed at his hotel a short time previously. Appellant was not again noticed until a little after sunset, when he was seen by Rohweder in Wyant's field, going down a place which was a little lower than the ordinary level of the ground in the direction of Wyant's house. He was then 200 or 250 yards distant from Rohweder, but the latter testified positively that he knew him. Both Mr. and Mrs. Morris saw a man whom they did not know at about the same time and place. About 9 o'clock that evening, Mrs. Vila, who lived but a short distance from Wyant's house, heard two shots fired at or in the locality of his barn. Near 10 o'clock, Mrs. Morris heard a horse run down the road past her house, and coming from the direction of Wyant's ranch; and Rohweder, who lived further down, also heard a horse running down the road. He says he looked out of the window, and saw the appellant on' John Wyant's horse, going past his house at full speed. The moon was shining brightly, and he watched him until he disappeared in the distance. When opposite the window, appellant was only 40 or 50 feet from Rohweder, and he testified that he recognized him, and also the horse. This was the horse which, as we have stated, was missing from the pasture a few hours later, and whose tracks were followed towards Spokane, and which was found loose in the

highway the next evening. On the morning of June 9th, appellant went to the office of an attorney in Spokane, and had a contract of sale of the Wyant farm and everything thereon, including the live stock, prepared ready for signing, which he paid for and carried away. When on the witness stand in his own behalf, he explained this transaction by saying, in effect, that he expected to meet Wyant at Spokane that afternoon on the arrival of the train from Spangle, and desired to have the contract ready when he arrived, but he did not come. In explanation of his absence from his boarding house from the time he borrowed the clothes until the next morning, appellant testified that he went down the river fishing in the afternoon, and in the evening, as he was walking about somewhere in Browne's addition, he was attacked by two men, who attempted to rob him. One of them, he said, presented a pistol, which he grabbed with his left hand, and it was discharged, the bullet grazing and slightly injuring his hand. He further stated that, just at that moment, the other man struck him in the stomach, and made him sick; and, after they both ran away, he lay down on the ground for an indefinite length of time, and then went to his hotel. He admitted that he gave no alarm, and never mentioned the occurrence to the police. On the following day it was observed that his hand was injured, and, on being asked what the matter was, he replied that he had cut it. He was arrested a day or two afterwards, and on examination it was found that his left hand had been wounded by a gunshot, which had been fired from, and not towards, him, as he testified. Powder was still sticking in the skin on the upper side of his thumb and index finger. His legs were chafed, and showed that he had recently been riding. In his valise, which was in his room at the time of his arrest, were found the borrowed overalls and jumper, a soft hat, which he did not wear about town, and a revolver, perfectly clean, and with every chamber loaded, and a wiper, which bore evidence of very recent use. The coat which he got with the overalls was upon the floor at the foot of his bed. No explanation whatever was given why he did not work in a well on that fatal night. With all the facts and circumstances appearing in the record before us, we are unable to say that the jury were not fully warranted by the evidence in arriving at the conclusion which they did, that the appellant was the person who perpetrated the atrocious crime charged in the information. While the evidence is largely circumstantial, it is to our minds so cogent and convincing that we believe no fair-minded and impartial jury could have found the appellant not guilty.

The appellant also complains of the instructions given by the court to the jury. They are very voluminous, and many of them were given at the request of defend

ant's counsel. We have carefully examined them, and are of the opinion that, as a whole, they are singularly free from substantial errors, and are as favorable to the appellant as he had any right to demand or expect. We see in them no positive misdirection, nor anything by which the jury could have been misled to the prejudice of the defendant. The defendant had the benefit of able and industrious counsel in the trial and presentation of his case to the jury, and was deprived of no right to which he was entitled under the law. The judgment and sentence are therefore affirmed, and the court below will, in accordance with the statute (section 1354, Code Proc.), proceed to appoint a day for the carrying of the same into effect.

DUNBAR, C. J., and SCOTT, HOYT, and STILES, JJ., concur.

(9 Wash. 85)

SMITH et al. v. COCHRANE. (Supreme Court of Washington. Aug. 24, 1894.) Dissenting opinion.

For report of majority opinion, see 37 Pac. 311.

HOYT, J. (dissenting). I am unable to agree with the conclusions of the majority stated in the foregoing opinion. It is conceded therein that the greater number of the decided cases is in favor of the proposition that it is within the power of the legislature to provide for constructive notice in proceedings of this kind, and in my opinion the weight of reason and authority is to the same effect. The reasoning of the majority by which it is attempted to detract from the force of the cases so holding, and to show that under our constitution they are not in point, though ingenious, is unsatisfactory, to my mind. But, even if it were satisfactory, from the premises which are assumed as its foundation I should still be unable to concur therein, as I am unable to interpret the provisions of our constitution, which are referred to and used as a foundation for the argument, as do the majority of the court. It is therein assumed that under the provisions of section 16 of article 1 of our constitution, municipal corporations, as well as all others, must first make compensation in money before they can appropriate a right of way. I am unable thus to construe the section. It is true that in the case of Lewis v. City of Seattle, 5 Wash. 741, 32 Pac. 794, it was held that such was its proper construction, but this question was not necessarily involved in that case, and upon further consideration I think what was said therein upon that question was not warranted by the language of the section of the constitution under consideration. In that case it was held that the provision which required that the damages assessed should be irrespective of any benefit from any proposed improve

ment did not apply when the condemnation was sought by a municipal corporation, and a like course of reasoning would exempt municipal corporations from the prior payment of the damages in money. In fact, when we apply to the provisions of that section the ordinary rules of interpretation, such construction seems to me a necessary one. One of such rules is that every word must, if possible, be given significance; hence it must follow that the word "first" before "made" in the second clause, relating to the subject, must be given force; and, if it is, the result will be that as to municipal corporations the compensation need not be first made in money, or ascertained, and paid into court for the owner. In the first clause it is provided that no property shall be taken or damaged without just compensation having been first made, and, if the intent had been to make the same rule applicable to the appropriation of rights of way by municipal corporations, there would have been no use whatever in again inserting the word "first." If, as claimed by the majority, the second clause is to be governed by the provisions of the first, the intent would have been made clear if the word "first" had not been repeated. It follows that under the construction given by the majority the use of the word "first" the second time is disregarded, and the rule above referred to violated, while the construction which results in holding that by the language of the second clause municipal corporations were exempted not only from the provision as to the setting off of benefits, but also from the one as to prior payment, every word will be given force, and the general rule of construction followed. This construction will result in no hardship not fully contemplated by the language of the constitution, for the general provision will still apply to municipal corporations that they can take or damage no property without just compensation. The only effect will be to allow such corporations to take possession of property necessary for their use upon providing that there shall be paid therefor just compensation. This construction may at times work some little hardship upon property owners, but it will be insignificant when compared to the benefit to the public flowing therefrom. The method in which municipal corporations do their business is such that public policy demands that an exception be made as to the time of payment, and that they should be allowed to take possession of property condemned whenever, under the law, they have taken such steps that the owner is assured of just compensation; and such, to my mind, was the evident intent of the constitution makers when they made use of the language under consideration.

I see no reason for the suggestions of evil growing out of such a holding, contained in the opinion of the majority. The action of the legislatures of the several states has always been in the line of proper protection