of Payette determined to curtail the expenses | for their determination. That being true, incident to holding of an election, and pro- we are of the opinion that the law was subvided for the submission to the electors of stantially complied with in this respect. the city all of those propositions separately, Law v. City and County of San Francisco, that the electors might determine which, if 144 Cal. 384, 77 Pac. 1014. any, of them they would adopt or reject. When we consider the expenses incident to publication of city ordinances, proclamations for elections, the publication of the notices of election, as well as all other expenses incident to municipal elections and the frequency of such elections under our form of government, we can readily understand why the Legislature did not intend that the word "any" should require a technical or limited construction, when a municipality by its council desires to submit to the electors more than one question looking to the issuance of municipal bonds.

4. HABEAS Corpus (§ 33*)—BAIL (§ 44*)-PROCEEDINGS REVIEWABLE DISCRETION COURT-ADMISSION TO BAIL.

OF

nance, we cannot but reach the conclusion | which imposes a term of imprisonment, admisthat the property sought to be charged with sion to bail is a matter of discretion. the cost of the installation of the said sewer Dig. § 145; Dec. Dig. § 44.*] [Ed. Note. For other cases, see Bail, Cent. system by the city is sufficiently described and can be readily identified. The general character of the proposed sewer system and sewerage disposal works are in our judg ment sufficiently set out in section 2 of said ordinance. The estimated cost is made within a certain limit, and all the statute requires is that the estimated cost of the same be contained in the ordinance.

We think that the provisions of the statute should receive a liberal construction, and a substantial compliance is all that is required of the council, in view of the fact that the provisions in the ordinance are merely preliminary steps leading up to the final issue of the bonds, providing the electors of the municipality should conclude that the improvements were necessary or would be beneficial. We therefore conclude that all the statutory provisions have been complied with, and that the bond issue is a legal, binding obligation against the city.

The judgment of the lower court is affirmed, and costs are awarded against the appellant.

Where a defendant who has been convicted and sentenced to serve a term of imprisonment appeals from such judgment, and applies to the trial judge for admission to bail, such application is addressed to the sound legal discretion of such judge or court, and, unless it clearly appears that such discretion has been abused, the action of the trial judge or court will not be disturbed or interfered with by the Supreme Court on application for a writ of habeas cor

pus.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 31; Dec. Dig. § 33;* Bail, Cent. Dig. § 145; Dec. Dig. § 44.*]

Application by Henry Schriber and Earl D. Haggerty for writs of habeas corpus. Petitioner Schriber admitted to bail, and petitioner Haggerty remanded to custody.

John A. Bagley, K. I. Perky, T. L. Glenn, and E. J. Hornibrook, for petitioners. D. C. McDougall, Atty. Gen., and J. H. Peterson and O. M. Van Duyn, Asst. Attys. Gen., for the State.

AILSHIE, P. J. Two petitions have been

AILSHIE, P. J., and SULLIVAN, J., con- filed for writs of habeas corpus. In the

cur.

(19 Idaho, 531)

Ex parte SCHRIBER et al. (Supreme Court of Idaho. March 11, 1911.)

(Syllabus by the Court.)

1. BAIL (§ 42*)-CONSTITUTIONAL PROVISIONS. The Constitution of this state (section 6, art. 1), which provides that "all persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great," has reference only to those cases in which the party has not yet had a trial, and applies to all persons prior to conviction. but does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.

[Ed. Note.-For other cases, see Bail, Cent. Dig. 144; Dec. Dig. § 42.*]

2. CONSTITUTIONAL LAW (§ 21*)-CONSTRUCTION OF CONSTITUTION-PROVISIONS ADOPTED FROM ANOTHER STATE-PRESUMPTIONS.

Where a constitutional provision has been adopted from another state, and the court of last resort of such state had construed the provision in that state prior to its adoption in this state, the presumption arises that the framers of the Constitution in adopting such provision meant and intended to also adopt the construction that had been placed upon it by the highest court of the state from which it

was taken.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 17; Dec. Dig. § 21.*] 3. BAIL ( 44*)-RIGHT TO BAIL-APPEAL FROM JUDGMENT IMPOSING A FINE.

Under the provisions of section 8104, Rev. Codes, a defendant who has appealed to the Supreme Court from a judgment imposing a fine only is entitled to bail as a matter of right; but where a defendant appeals from a judgment

one case, it appears that Henry Schriber was convicted of a violation of the local option statute, and was sentenced to pay a fine of $250, or in default thereof to be imprisoned in the county jail for one day for each $2 of such fine. He thereupon took an appeal from the judgment, and on application to the trial judge was admitted to bail. Haggerty was likewise convicted of violation of the local option statute, and was sentenced to pay a fine, and also to serve a term of imprisonment in the county jail. On application to the trial judge he was granted a certificate of probable cause and was admitted to bail. The appeals were taken in these cases in June, 1910. Up to the present time, however, the records on appeal have not been filed in this court.

On

There has been apparently some delay in the matter of prosecuting the appeal. the 1st day of March, 1911, Hon. Alfred Budge, judge of the district court, and from whose district these convictions were had, made an order revoking the previous order admitting both parties to bail, and directed the sheriff to arrest them and commit them to the county jail. The order recited that the defendants are not prosecuting their appeals with diligence and in good faith. Counsel for the parties insist that under the provisions of section 6 of article 1 of the state Constitution, all persons are bailable as a matter of right, except in capital cases, and that this is true both before and after conviction, provided an appeal is prosecuted. Section 6, art. 1, of the Constitution reads

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

*

*

as follows: "All persons shall be bailable by | missed or determined on its merits, he is sufficient sureties, except for capital offens- clearly entitled to admission to bail. This es, where the proof is evident or the pre- court will therefore order and direct the sumption great. * "" The Constitu- trial judge to admit the petitioner Schriber tion of California contains a like provision, to bail in such sum as he may deem just and section 6 of article 1 of our Constitu- and sufficient to insure his appearance for tion was evidently adopted from the Cali- final judgment in the case. fornia Constitution. As early as 1871, the Supreme Court of California in Ex parte Voll, 41 Cal. 29, passed upon this provision of the California Constitution, and held that it applied to all persons prior to conviction, but that it had no reference to any person after a conviction by a court of competent jurisdiction and pending an appeal. This case has been uniformly followed and approved by the California court ever since that time, as may be seen by an examination of the following cases: Ex parte Hoge, 48 Cal. 5; Ex parte Smallman, 54 Cal. 36; Ex parte Brown, 68 Cal. 177, 8 Pac. 829. According to the rule heretofore announced by this court in Stein v. Morrison, 9 Idaho, | 426, 75 Pac. 246, "When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or Constitution, it is to be presumed that it was taken in view of such judicial interpretation, and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken." The courts of this state would be most strongly inclined to follow the interpretation placed upon the like constitutional provision by the California court prior to our adoption of the same. This construction appeals to us as being reasonable and just, and fairly within the contemplation of the framers of the Constitution. It would certainly be disastrous if we should hold that this provision of the Constitution grants to a person convicted of crime the absolute right to be admitted to bail pending appeal, irrespective of the merits of the

case.

Turning now to the statutes we find that section 8104 of the Revised Codes provides as follows: "After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only. 2. As a matter of discretion in all other cases."

A somewhat different question arises with reference to the petitioner Haggerty. He has been sentenced both to pay a fine and to serve a term of imprisonment. Under the provisions of section 8104, above quoted, the admission to bail in such a case after conviction is "a matter of discretion." The trial judge exercised his discretion in admitting the petitioner to bail. For some reason the judge subsequently concluded that he should no longer be admitted to bail. So far as we are informed by the petition, the trial judge bases this conclusion on the fact that the petitioner is not prosecuting his appeal in good faith. We would not feel justified in interfering with the discretion of the trial judge under the facts and circumstances as they present themselves to us in this petition. The petitioner can again apply to the judge for admission to bail, and if he can possibly convince the judge of his good faith in the prosecution of his appeal and the merits thereof, he may be again admitted to bail. He has also applied to this court for admission to bail in the event the court does not see fit to release him from custody, but we are not inclined to do so. We are not familiar with the situation and the circumstances of the petitioner, and we think that is a matter with which the trial judge can deal more justly and wisely. He is familiar with the parties and their ability to give bail, and also knows the facts surrounding the commission of the offense for which he was convicted.

The trial judge is directed to admit the petitioner Schriber to bail pending the appeal. The application of the petitioner Haggerty is denied.

SULLIVAN, J., concurs.

(19 Idaho, 524)

STATE v. HENDERSON. (Supreme Court of Idaho. March 11, 1911.)

(Syllabus by the Court.)

It would seem clear that under the provi- 1. CRIMINAL LAW (§ 369*)-EVIDENCE-OTHER sions of the foregoing statute, the defendant OFFENSES. Schriber is entitled by statute to be admit-crime of statutory rape, the existence of the Where a defendant is prosecuted for the ted to bail until his appeal is finally dispos- sexual passion in the defendant for the proseed of. Whether his appeal be in good faith cutrix may be shown by acts of intercourse with or not must be ultimately determined by the prosecutrix subsequent to the date of the this court. If he fails to prosecute it with act for which the defendant is prosecuted as corroborative evidence of the principal facts diligence, it may be dismissed on motion by sought to be established. proper showing in this court; but until the appeal is disposed of, either by being dis

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 369.*]

Evidence that the prosecutrix gave birth to a child which might have been begotten at about the date of the offense charged is admissible to corroborate the prosecutrix.

2. RAPE (8 38*)-PROSECUTION-CORROBORAT- | trial, over the objection of counsel for the ING EVIDENCE. defendant, the complaining witness was permitted to testify that the defendant had had sexual intercourse with her a number of times subsequent to the said 6th day of December. The action of the court in admitting such testimony is assigned as error. It ap

[Ed. Note.-For other cases, see Rape, Dec. Dig. § 38.*]

3. RAPE (§ 35*)—PROSECUTION-ADMISSIBILI- pears from the record that the complaining TY OF EVIDENCE.

Held, that it was not error to refuse to permit the defendant, upon cross-examination, to prove the color of the child's hair, as that was not a material fact or circumstance in the case, and would not throw any light on the issue as to whether the defendant did commit the crime of rape, as the paternity of the child was not in issue.

[Ed. Note. For other cases, see Rape, Dec. Dig. § 35.*]

4. RAPE (§ 38*)—PROSECUTION—ADMISSIBILITY OF EVIDENCE.

Where certain evidence is offered by the defendant to show that the prosecutrix had the opportunity of having sexual intercourse with another, and evidence is offered that the child had dark, kinky hair, dark eyes, and dark complexion, thus resembling the one with whom it was claimed she had opportunity to have such intercourse, the rejection of such evidence held

not error.

[Ed. Note.-For other cases, see Rape, Dec. Dig. § 38.*]

IM

witness gave birth to a child on the 14th day of September, 1909, she being at that time a minor and not capable of consenting to the act complained of, under the laws of this state. There is a clear distinction in many of the cases where the prosecutrix is under the age of consent and where she is not. However, the great weight of authority in cases involving statutory rape, where the element of force need not be shown, is to the effect that such intercourse may be shown to have taken place both before and after the date alleged.

Referring to the rule applicable to statutory rape where the element of force need not be shown, in 1 Wigmore on Evidence, § 398, the author says: "The prior or subsequent existence of a sexual passion in A. for B. is relevant, on the same principle and to 5. WITNESSES (§ 344*) — IMPEACHMENT the same extent as in the foregoing topics, MORAL CONDUCT. to show its existence at the time in issue. Certain evidence offered by the defendant The circumstance that the prior or subseand rejected by the court as to certain physical quent conduct exhibiting the passion is peculiarities of said child, and offered for the purpose of discrediting the prosecutrix and to criminal does not alter the case nor affect show acts of unchastity, such evidence held the admissibility of the evidence." The aunot admissible. thor then proceeds to the discussion of the rule, and distinguishes between cases of rape when the element of force is a necessary element, and also refers to other cases where the intercourse is had without force and with the consent of the female. This rule is not applied in rape cases where force is [Ed. Note. For other cases, see Rape, Cent. a necessary element. In subdivision 3 of Dig. 4; Dec. Dig. § 4.*]

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.*] 6. RAPE (§ 4*)-FEMALE UNDER AGE OF CONSENT-UNCHASTE CONDUCT.

The unchaste conduct of a girl under the age of consent is no defense for the one who committed rape upon her.

7. SUFFICIENCY OF EVIDENCE.

section 402, of the same volume, the author

The evidence held sufficient to sustain the points out the distinction between the two

verdict.

Appeal from District Court, Oneida County; Alfred Budge, Judge.

crimes, and declares the rule therein announced to have been uniformly held to apply to statutory rape. As bearing upon this question, see 1 Greenleaf on Evidence,

William Martin Henderson was convict (13th Ed.) § 454; State v. Bridgman, 49 Vt. ed of rape, and he appeals from the judg- 202, 24 Am. Rep. 124; Thayer v. Thayer, ment and an order denying a new trial. Af-101 Mass. 111, 100 Am. Dec. 110; Commonfirmed. wealth v. Nichols, 114 Mass. 285, 19 Am. Rep. George E. Gray, for appellant. D. C. Mc-346; Wharton on Criminal Law (8th Ed.) Dougall, Atty. Gen., and J. H. Peterson and § 1733; Bishop, Statutory Crimes, § 682. O. M. Van Duyn, Asst. Attys. Gen., for the State.

SULLIVAN, J. The defendant was convicted of the crime of statutory rape and was sentenced to serve a term of five years in the state penitentiary. A motion for a new trial was denied, and this appeal is from both the judgment and order denying the new trial.

It is alleged in the information that the crime was committed on the 6th day of December, 1908. During the progress of the

It is next argued by counsel for appellant that the court erred in permitting the prosecuting witness to testify that she was delivered of a child on September 14, 1909. The purpose of this testimony was to corroborate the story of the prosecutrix that approximately nine months had elapsed between the date when the crime was committed and the birth of the child, which fact would prove that at about the time alleged some one committed rape upon her. It was not error for the court to admit that evidence. The rule in regard thereto is well

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

stated in volume 10 of Ency. of Evidence, p. | Howell's house to his own house, and kept 599, as follows: "Where the prosecutrix her there something like a week, and that is under the age of consent, evidence that she gave birth to a child, which might have been begotten at about the date of the offense charged, is admissible, and the child itself may be exhibited to corroborate such evidence, but not to prove its resemblance to the defendant, though, as to the latter proposition, the contrary has been held."