Argument for Appellant.

persons, not in the presence of appellant, to the effect that he had been molesting and bothering her.

5. Where the testimony of the prosecutrix is contradictory, or her general reputation for truth, honesty and integrity in the community wherein she resides is shown to be bad, and where the accused testified and denied specifically her accusations and was corroborated by other witnesses, the testimony of the prosecutrix, standing alone and without corroboration, will not warrant a conviction. By corroboration is meant evidence other than that of the prosecutrix which, in itself and without the aid of her testimony, tends to connect the accused with the commission of the offense.

[As to necessity and sufficiency of corroboration of prosecutrix in prosecutions for rape, see note in Ann. Cas. 1913D, 660.]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. J. J. Guheen, Judge.

Appellant was convicted of the crime of incest. Judgment reversed.

A. L. Merrill and Budge & Barnard, for Appellant.

When this defendant was taken before Justice of the Peace Knowles, of Pocatello Precinct, this justice had absolutely no jurisdiction over the cause. The matter of preliminary examinations is purely statutory and the provisions of the statute must be complied with at every step. (State v. Huegin, 110 Wis. 189, 95 N. W. 1046, 62 L. R. A. 700.)

When the defendant was taken before Justice Knowles he waived his preliminary hearing, and Justice Knowles signed a certificate of waiver. This fact, however, did not waive any right of the defendant, as a waiver of preliminary examination before a justice not having jurisdiction is ineffectual for any purpose. (State v. Davis, 26 Kan. 205.)

When a man is brought before an American court, it must be upon an information charging facts-not conclusions of law. (McCaskill v. State, 55 Fla. 117, 45 So. 843.)

An information charging incest must specifically set forth the particular facts that show clearly that the crime was committed in an act of adultery or in an act of fornication. (Martin v. State, 58 Ark. 3, 22 S. W. 840; State v. Fritts, 48

Opinion of the Court-Morgan, J.

Ark. 66, 2 S. W. 256; State v. Phillips, 48 Ark. 66, 2 S. W. 256; State v. Ratcliffe, 61 Ark. 62, 31 S. W. 978.)

In rape cases the complaint of prosecutrix, to be relevant, must have been made soon after the offense, and even then the details of the conversation are not relevant. (State v. Fowler, 13 Ida. 318, 321, 89 Pac. 757.)

A conviction in this case cannot be sustained without corroborating evidence. (State v. Baker, 6 Ida. 496, 56 Pac. 81; State v. Anderson, 6 Ida. 706, 59 Pac. 180; State v. Trego, 25 Ida. 625, 138 Pac. 1124; State v. Clark, 27 Ida. 48, 146 Pac. 1107.)

J. H. Peterson, Atty. Genl., Herbert Wing, D. A. Dunning and T. C. Coffin, Assistants, for Respondent.

Only the limit of the county is the limit of jurisdiction in matters of preliminary examinations, and the prosecuting officer will designate the precinct where, and the magistrate before whom, such examination will be had. (State v. Griffin, 4 Ida. 462, 40 Pac. 58.) The allegations of the information follow the wording of the statute. (People v. Stratton, 141 Cal. 604, 75 Pac. 166.)

The defendant was in no way prejudiced by allegations of this nature, as he was fully apprised of the charge he would be called upon to meet. (People v. Cease, 80 Mich. 576, 45 N. W. 585; Baker v. State, 30 Ala. 521.)

MORGAN, J.-Appellant was accused of the crime of incest charged to have been committed with his daughter, who will be hereinafter referred to as the prosecutrix. The trial resulted in a verdict and judgment of conviction, from which, and from an order denying a motion for a new trial, this appeal has been taken.

The assignment of errors contains twenty-two specifications, which will not be considered separately, but the principles of law involved in the case will be sufficiently discussed to indicate the views of the court upon the questions thereby presented.

The record discloses that on May 24, 1915, the prosecutrix appeared before H. A. Westenfelder, Esq., a justice of the

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peace in and for Grace precinct, Bannock county, and made and filed her verified complaint wherein she charged appellant with the commission of the crime above mentioned. The justice of the peace thereupon issued a warrant for his arrest, which was placed in the hands of the sheriff and was served by his deputy, who arrested the accused and took him before J. M. Knowles, Esq., a justice of the peace in and for Pocatello precinct, Bannock county, where, on May 25, 1915, he waived preliminary examination, and was held to answer in the district court.

On September 13, 1915, the prosecuting attorney filed his information in the district court charging appellant with the commission of the aforesaid crime. To this information a motion to quash was interposed upon the ground that the provisions of sec. 7525, Rev. Codes, had not been complied with, in that the magistrate before whom appellant was taken for preliminary examination had no jurisdiction over him. The motion was supported by an affidavit which discloses, in addition to the facts hereinbefore set forth, that appellant was arrested in Grace precinct and that he was not taken before the justice of the peace who issued the warrant and who resided in that precinct, wherein it is alleged the crime was committed and wherein resided all of the witnesses who may have been available for his defense, but that he was taken immediately to Pocatello, a distance of about seventy miles from his home. No reason for the failure of the deputy sheriff to take him before the justice who issued the warrant appears in the record, and we must assume that none which would be recognized as sufficient existed. The motion to quash was denied, and that ruling is assigned as error.

Appellant relies upon sec. 7525, supra, which is as follows: "If the offense charged is one which must afterward be investigated by the grand jury, or presented to the district court upon information, the officer making the arrest must take the defendant before the magistrate who issued the warrant, but if such magistrate does not reside in the precinct where the offense was committed or the majority of the witnesses reside, the officer having the charge of the defendant

Opinion of the Court-Morgan, J.

must take him, and the warrant, deposition, and all papers in the case, before some magistrate in such precinct for hearing and examination, or if there be no magistrate in such precinct, then before some magistrate residing in some other precinct, but all hearings on preliminary examinations must, as far as possible, be had before the magistrate most convenient to the majority of the witnesses for the prosecution, unless for good cause it is ordered to be held elsewhere, and in all such cases the preliminary examination must be had as hereinafter provided, unless such person shall waive his right to such examination, and for taking such examination the magistrate must be allowed twenty cents per folio."

Counsel for respondent cite and rely upon the case of State. v. Griffin, 4 Ida. 462, 40 Pac. 58, a case wherein the accused was arrested upon a warrant issued by and made returnable to a justice of the peace of a precinct other than that in which the offense was charged to have been committed. The syllabus in that case is as follows:

"It is the province of the prosecuting officer to designate the precinct where, and the magistrate before whom, a preliminary examination upon a criminal charge shall be had, within the county wherein the offense is alleged to have been committed, and most convenient to a majority of the witnesses for the prosecution."

The case is not exactly in point, for it does not appear that in the case at bar the prosecuting officer designated the precinct where, and the magistrate before whom, the preliminary examination was to be had.

The jurisdiction of a justice of the peace, sitting as a committing magistrate, extends throughout the county, and such a magistrate with whom a criminal complaint is filed charging that a felony or an indictable misdemeanor has been committed and who entertains the complaint and issues a warrant for the arrest of the accused thereby acquires jurisdiction to hold a preliminary examination of such charge, and he cannot be ousted therefrom by the officer who makes the arrest. It was the duty of the officer in this case to take appellant for preliminary examination before the magistrate who issued

Opinion of the Court-Morgan, J.

the warrant, and appellant had a right to have the preliminary examination conducted by that magistrate, unless some reason existed and was made to appear to the contrary. But this was a right which he could and did waive by his failure to demand that he be returned to Grace precinct, and to the justice of the peace who issued the warrant for preliminary examination.

Justice Knowles, in Pocatello precinct, had jurisdiction to inquire into the case, by way of preliminary examination, had it been commenced in his court or properly transferred to it; and appellant, by his failure to make objection, and by. his express waiver of preliminary examination, effectually waived his right to object to the proceedings had before that magistrate.

The information charges that appellant, on or about the 8th day of March, 1915, at Turner, in the county of Bannock, state of Idaho, did then and there wilfully, unlawfully, knowingly, feloniously and incestuously commit adultery with the prosecutrix (naming her), who was then and there his daughter, they then and there being persons within the degrees of consanguinity within which marriages are declared by law to be incestuous and void. Objection was made to the introduction of any evidence in support of the allegations of the information upon the ground that it did not state facts sufficient to constitute a public offense. The objection was overruled, and the ruling is assigned as error.

It is urged that this information falls short of charging that an act of sexual intercourse occurred, and that, while appellant was accused of having committed adultery with the prosecutrix, that is but a conclusion of law based upon a certain state of facts set out in sec. 6807, Rev. Codes, as follows:

"A married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman, a married woman who has sexual intercourse with a man not her husband, and an unmarried woman who has sexual intercourse with a married man, shall be guilty of adultery. . .