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(44 Wash. 554) STATE ex rel. PORT TOWNSEND SOUTHERN RY. CO. v. SUPERIOR COURT OF PIERCE COUNTY. (Supreme Court of Washington. Dec. 5, 1906.) CERTIORARI-REMEDY AT LAW.

Where, in condemnation proceedings by a railroad, the court entered an ordinary money judgment for the damages found by the jury, instead of decreeing the same to be paid by the corporation prior to its taking possession of the property, and on a motion to vacate the judgment or modify the same the court ordered the corporation to elect whether it would take the property or refuse to take it, and the corporation declined to make such an election, whereupon the motion to vacate or modify the judgment was denied, such rulings might be reviewed on an appeal from the final judgment, and hence they would not be reviewed on certiorari.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, § 5.]

Certiorari by the state, on the relation of the Port Townsend Southern Railway Company, to review the action of the superior court of Pierce county in entering judgment for damages, and in refusing to vacate or modify such judgment, in proceedings by relator for the condemnation of real estate belonging to Stefano Barbare and another. Application denied.

Chas. Bedford and J. F. Fitch, for relator. Walter M. Harvey, for respondent.

CROW, J. This is an original application for a writ of certiorari. The relator, a railroad corporation, alleges that on July 16, 1906, it filed in the superior court of Pierce county its petition for the condemnation of certain real estate belonging to Stefano Barbare and Lecretia Barbare, his wife; that in the regular course of procedure an order was made adjudging a public use; that a jury, duly impaneled, returned a verdict for $16,000 damages to be paid by the relator; that on October 3, 1906, the judge of the superior court, without notice, entered an ordinary money judgment for such damages, instead of decreeing the same to be paid by the relator prior to its taking possession of the property; that immediately thereafter the relator served and filed a motion to vacate or modify such judgment; that upon the hearing of its motion the superior judge ordered the relator to forthwith elect whether it would take the property under the condemnation proceeding or refuse to take the same; that the relator declined to make any such election at that time, but stood mute, whereupon the court refused to vacate or modify the money judgment for $16,000 already entered; that the relator has appealed to this court from such judgment; that its appeal has been perfected; and that, without waiving any of its rights under such appeal, it now petitions for a writ of certiorari to review the action of the superior court in entering such original money judgment for damages, in ordering the relator to elect whether it would take the property prior to

the determination of its appeal, and also in refusing to vacate or modify the judgment so entered. The respondents have demurred to the relator's affidavit, and the hearing in this court has been upon their demurrer.

The relator's attorneys candidly acknowledge themsevles to be in serious doubt as to whether the relator is entitled to a writ of review, or whether the orders of which it complains may not be reviewed upon the appeal already perfected. They admit that they have presented this application out of the abundance of caution for the complete protection of the rights of their client, but upon the hearing have insisted that this court has jurisdiction to review in this proceeding the orders above mentioned. Although in Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158, we held an appeal would not lie in a condemnation proceeding from an order adjudging a public use, and assigned as our reason that under the condemnation statute (section 5645, Ballinger's Ann. Codes & St.) no question could be considered on appeal other than the propriety and justness of the amount of damages, we have since had occasion to further consider the same section in State ex rel. McCormick v. Superior Court, 86 Pac. 205, where we held that an appeal from the final judgment awarding damages would permit this court to enter upon a much broader scope of inquiry than the mere examination of evidentiary matters directly affecting the amount of damages. A writ of certiorari was sought to review alleged errors of the superior court in the procedure adopted by it in summoning and impaneling the jury which assessed the damages in a condemnation proceeding. In passing upon the relator's application, we said: "It is, however, urged that the writ should issue to review the action of the court in ordering the open venire for the summon. ing of jurors, and in causing the jurors who assessed the damages to be selected from persons other than those regularly drawn by the jury commissioners. It is contended that the above matter cannot be reviewed on appeal from the judgment awarding damages. The argument is based upon the following portion of section 5645, Ballinger's Ann. Codes & St., to wit: 'And such appeal shall bring before the Supreme Court the propriety and justness of the amount of damages in respect to the parties to the appeal.' It is insisted that, inasmuch as this court held that the above does not include the right of appeal from the adjudication as to the public use and necessity, but is confined to the propriety and justness of the amount of damages, it follows that no questions can be reviewed on appeal except evidentiary matters, or those which directly affect the amount of damages. We think, however, that questions involved in the immediate procedure or trial by which the damages are ascertained may be reviewed on appeal."

The substantial effect of the above language

is to hold that, upon the hearing of an appeal taken from a final judgment awarding damages in a condemnation proceeding, this court may inquire into all matters of procedure, practice, and evidence which incidentally arise during the trial of the question of the amount of damages to be assessed, and it would naturally follow that any order made afterwards, arising out of or based upon the verdict for damages, may also be reviewed upon such appeal. To hold otherwise would necessitate a procedure which might frequently result in this court being compelled to hear, at one and the same time, an application for a writ of certiorari and also an appeal, both arising out of one and the same judgment. We must assume that the Legislature had good and sufficient reasons for failing to permit an appeal from the preliminary order by which a public use is adjudged. As the practice now stands, any party who may be dissatisfied with the preliminary order of the superior court may apply for a writ of certiorari to have the judicial question of the public use finally determined by this court before damages can be assessed. This procedure avoids the possibility of any assessment of damages being made, and this court thereafter holding that no public use existed. Otherwise a petitioner might be compelled, in a condemnation proceeding, to return the property after it had actually paid for and taken the same, and after this court on final hearing determined no public necessity existed. Taking a comprehensive view of the entire statute, we arrive at the conclusion that, upon an appeal from the final judgment awarding damages, all questions which incidentally arise during the trial before the jury for the determination of such damages, or after the return of the verdict of the jury, can be reviewed by this court.

As the relator will be entitled to have all the questions which it now presents finally determined upon its appeal, already perfected, its application for a writ of review is denied.

MOUNT, C. J., and DUNBAR, ROOT, FULLERTON, HADLEY, and RUDKIN, JJ.,

concur.

(44 Wash. 549)

STATE v. MOBLEY. (Supreme Court of Washington. Dec. 5, 1906.) 1. RAPE-EVIDENCE-OTHER OFFENSES.

In a prosecution for statutory rape, evidence of acts of intercourse between prosecutrix and accused other than that relied on for a conviction, is admissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Rape, §§ 63, 64.]

2. SAME-EVIDENCE-ADMISSIBILITY.

In a prosecution for rape, where the only corroboration of the testimony of prosecutrix was her pregnant condition, evidence that she was in the habit of going and staying out late at nights was admissible.

3. SAME-INSTRUCTIONS.

In a prosecution for rape, an instruction that the relation of the prosecutrix to the crime is analogous to that of an accomplice, and that the jury ought not to convict on her testimony alone, unless, after a careful examination, they are satisfied of its truth beyond a reasonable doubt, is properly refused.

Appeal from Superior Court, Yakima County; H. B. Rigg, Judge.

Max A. Mobley was convicted of rape, and appeals. Reversed and remanded.

E. B. Preble and Ira P. Englehart, for appellant.

CROW, J. The defendant Max A. Mobley has appealed to this court from the judgment and sentence of the superior court of Yakima county, entered upon his conviction of the crime of rape, committed upon the person of one Lydia G. Palmer, a female child under the age of 18 years.

The particular act upon which the state elected to rely for conviction was alleged to have been committed on January 15, 1905, at which time the prosecuting witness was something over 15 years of age. She testified, that three several acts of sexual intercourse took place between the appellant and herself. That the first occurred shortly after Christmas in 1904. That the last act, being the one upon which the state elected to rely for conviction, occurred about January 15, 1905. That she lived at the house of appellant from the fall of 1904, to February, 1905. That appellant's wife, by soliciting the prosecutrix to have intercourse with appellant, aided and abetted him in the commission of the crime with which he is charged, and was present with appellant and herself in a room at their home on each of the three occasions above mentioned. That by reason of her relations with the appellant she was pregnant at the date of the trial, which occurred on October 9, 1905, and that she had never sustained sexual relations with any man other than the appellant, and never with him except on the three occasions named. She failed to state whether the appellant's acts were accomplished by force, or whether she actually consented to the same, although legally incapable of giving consent. Her evidence, which was emphatically denied by the appellant and his wife, was without any corroboration other than her condition of pregnancy to which she testified, and which, if it actually existed, must have been apparent to the jury.

The appellant has made numerous assignments of error, but we will only discuss those which we regard as of controlling importance. He contends that the trial court erred in admitting, over his objection, evidence of acts of intercourse between the prosecuting witness and himself subsequent to the first act to which she had previously testified, and also in charging the jury that the state had elected to rely upon the third act for conviction. The substance of this objection

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The undisputed evidence shows that during all the time the prosecutrix lived at the home of appellant, his family and household consisted of himself, his wife, their two small children, the father and brother of his wife, and a young lady, a Miss McArdle. appellant produced William Nichol and Charles Nichol, the father and brother of Mrs. Mobley, and also Miss McArdle, as witnesses, and in substance asked each of them to state to the jury whether or not the prosecuting witness, Lydia G. Palmer, during the time she and the witnesses were all residing at appellant's house, was in the almost constant habit of being out alone late at nights and returning at any time from midnight to 4 o'clock in the morning. Upon objections interposed by the state, the witnesses were not permitted to answer these questions. Thereupon the appellant by his attorney attempted to state what he offered to prove by these witnesses. But the trial court interrupted him, with the statement that his offer would not be permitted. Upon these rulings the appellant has assigned er

In refusing to permit answers to the above questions, the trial court committed prejudicial error. The state was relying for conviction upon evidence of the prosecutrix, which was without corroboration except in so far as such corroboration was afforded by her condition of pregnancy, if such condition in fact existed. She attributed such alleged pregnancy to the acts of appellant. The jury undoubtedly knew from her personal appearance upon the witness stand whether she was telling the truth as to her pregnancy, the usual period of gestation having then about expired. If her testimony in this regard was manifestly truthful, it necessarily appeared that some person was guilty of the offense for which the appellant was on trial. If he could do so, the appellant was therefore legally entitled to show by competent evidence what the habits and conduct of the prosecuting witness had been at or about the time she claimed he had sustained illicit relations with her. If, in fact, this young girl was habitually away from home night after night, and made a practice of returning at any time from midnight until 4 o'clock in the morning, she was certainly conducting herself in a highly improper manner, and was guilty of conduct which, to say the least, would seriously reflect upon her character for chastity and affect her credibility. The dates fixed by appellant's

counsel in the questions above mentioned exactly coincided with those upon which she had charged appellant. The testimony of these witnesses, had the same been admitted, might have developed evidence tending to account for the condition of the prosecutrix, consistently with the innocence of appellant. The courts have almost universally recognized the difficulty under which a defendant necessarily labors in seeking to exculpate himself from a charge of this character when once made, and a considerable liberality should be exercised in permitting him to fully show the situation of the parties, and all the circumstances surrounding them at or about the date of the act charged; and this is especially proper in this state where a conviction may be had upon the unsupported testimony of the prosecuting witness.

The appellant further contends that the court erred in refusing to give the jury the following instruction requested by him: "The prosecuting witness, Lydia G. Palmer's relation to the alleged crime is analogous to that of an accomplice, and the jury should act upon her testimony with great care and caution and subject it to careful examination in the light of all the other evidence in the case, and the jury ought not to convict upon her testimony alone unless, after a careful examination of such testimony, you are satisfied of its truth beyond a reasonable doubt." We think that no error was committed in this regard. The law is well settled in this state that a defendant may be convicted of the crime with which the appellant is charged upon the uncorroborated evidence of the prosecuting witness. State v. Fetterly, supra ; State v. Patchen, 37 Wash. 24, 79 Pac. 479. We have carefully examined the entire charge given by the trial court, and find that the jury were properly instructed as to the necessity for finding the defendant guilty beyond a reasonable doubt, and that they were also sufficiently cautioned as to their duty in the matter of weighing the evidence, and passing upon the credibility of the witnesses. The appellant, as shown by the evidence, is a man about 32 years of age, and it appears from the record that he was sentenced by the trial court to imprisonment in the state penitentiary for the period of his natural life. As this case will be remanded for a new trial, we feel constrained to say that to our minds the penalty imposed by the trial judge seems to be excessively severe, especially in view of the facts disclosed by the record.

By reason of the error above mentioned, the judgment of the superior court is reversed, and the cause remanded with instructions to grant the appellant a new trial.

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(44 Wash. 54€)

CUSCINER v. LONGBEHN et al. (Supreme Court of Washington. Dec. 5, 1906.) 1. APPEAL-RECORD-STATEMENT OF FACTSI'ROCEEDINGS FOR SETTLEMENT.

Ballinger's Ann. Codes & St. § 5058, provides that, after the service of a proposed statement of facts, the opposite party may file and serve amendments, after which either party may serve a notice of an application to the court to settle and certify the statement. Held that, where amendments have been proposed, and the statement is certified without service of notice or the appearance of the party who proposed the amendments, the statement will be stricken, on motion, on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2524.]

2. JUDGMENT-MATTERS CONCLUDED-ISSUES.

A judgment in favor of defendants in replevin to recover furniture sold by plaintiff to defendants, the action being brought on the theory of a conditional sale contract, was a bar to a subsequent action on the ground that the furniture had been secured from secured from plaintiff through fraud.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 1089.]

having replied, this cause was tried without a jury, and, from a final judgment entered in favor of the defendants, this appeal is prosecuted.

The respondents have moved this court to strike the statement of facts, for the reason that no notice has ever been given to them of the time when, or place where, it would be settled. The record shows that proposed amendments were filed and served by the respondents within the statutory time. There is no proof that any notice of the time and place for the settlement of the statement was ever served upon the respondents, nor is there any showing that they appeared at the time of settlement. Section 5058, Ballinger's Ann. Codes & St. provides that, within 10 days after the service of a proposed statement of facts, any other party may file and serve onl the proposing party any amendments which he may propose thereto, and that either party may thereafter serve upon the other a written notice that he will apply to the court at a time and place therein specified to settle and

Appeal from Superior Court, Spokane Coun- certify the statement. Where amendments ty; D. C. Carey, Judge.

Action by I. N. Cuschner against Madeline L. Longbehn and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

have been proposed, the court is without jurisdiction to certify the statement, in the alsence of such service of notice, or the appearance of the party who proposed the amendments. No notice having been given and no

Samuel R. Stern, for appellant. J. M. Simp- appearance of the respondents being shown, son. for respondents.

CROW, J. This action was instituted by I. N. Cuschner, plaintiff, against the defendants Madeline L. Longbehn and John C. Longbehn, her husband, to recover possession of certain furniture. The plaintiff alleged that the defendants had fraudulently induced him to sell and deliver the furniture to them, by

representing that they were the owners of

certain real estate which was free from in

cumbrance except a mortgage for $1.700: that they then and there offered to give him a second mortgage thereon for the value of the furniture; that, relying on such representations, he was induced to, and did, sell them the furniture in question, and took a second mortgage on their real estate for the purchase price thereof; that their representations were false and fraudulent; that defendants had no right to incumber said real estate; and that plaintiff's so-called second mortgage was worthless. The theory of the complaint was that the plaintiff had elected to rescind his contract of sale and to recover possession of the property sold. The defendants alleged that, in a previous action between the same parties, the plaintiff herein had sought to recover possession of the same furniture upon the theory that it had been delivered to the defendants by him on a conditional bill of sale; that the former action had been decided in favor of the defendants; and that the furniture which had theretofore been taken by plaintiff had been ordered by the court returned to them. The plaintiff

87 P.-52

the court was without authority to make the certificate, and the statement of facts will therefore be stricken.

The only question remaining for the consideration of this court is whether the indings of fact made by the trial court sustain the final judgment. From the findings it apthe final judgment. pears that on March 23, 1904. a former action of replevin (No. 19,024) was instituted in the superior court of Spokane county, by the appellant herein against the respondents herein, for the recovery of certain furniture alleged to have been sold to respondents by the appellant upon a conditional sale contract; that said action No. 19,024 was brought to trial before the judge of said court, who, after making findings of fact and conclusions of law, entered a judgment thereon in favor of the respondents and against the appellant herein, for the return of the furniture described in the complaint, or for its value in the event that the same could not be returned: that no appeal was taken from such final judgment; that this cause was begun by the appellant on April 4, 1905; that appellant alleged he returned the furniture mentioned in the original cause No. 19.024. and also alleged that he had again taken the same furniture from the respondents in this action; that the first action, No. 19,024, was brought upon the theory of a conditional sale contract; that this action had been brought upon the theory that possession of the same furniture had been secured by the respondents through fraud; that the respondents had answered the complaint in this ac

tion, denying its allegations, and pleading | ber 10, 1906, and show cause why your saloon the affirmative defense of res adjudicata; that, upon the trial, the appellant had introduced testimony; and that the defendants had simply denied plaintiff's allegations of fraud, and introduced the records of the former action.

Upon these findings of fact, which show a former adjudication between the same parties as to their right to the possession of the identical furniture here involved, the trial court entered a final judgment in favor of respondents. As it is apparent that such judgment necessarily resulted from the findings made, the same is now affirmed.

MOUNT, C. J., and DUNBAR, ROOT, RUDKIN, and HADLEY, JJ., concur.

(44 Wash. 526)

STATE ex rel. CITY OF ABERDEEN v. SUPERIOR COURT OF CHEILALIS COUNTY.

(Supreme Court of Washington. Nov. 28, 1906.) INTOXICATING LIQUORS-LICENSES-REVOCATION-REVIEW.

Under Ballinger's Ann. Codes & St. § 2934. giving the mayor and council or other governing body of each incorporated city, town, or village sole and exclusive authority to regulate the sale of liquors, and section 2935, providing that the authorities granting the license shall have full authority and power to declare it forfeited for the violation of any of the terms on which it is granted, the action of the mayor and council of a city in revoking a retail liquor license is not subject to review by the superior

court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 117.]

Application by the city of Aberdeen for a writ of prohibition to the superior court of Chehalis county. Granted.

W. I. Agnew and G. C. Israel, for plaintiff. W. H. Abel, for respondent.

MOUNT, C. J. This is an application for a writ of prohibition to prevent the superior court of Chehalis county from reviewing the action of the mayor and city council of Aberdeen in revoking a retail liquor license. It appears that the city of Aberdeen, on March 11, 1906, issued a retail liquor license to Simon Hoffman and W. L. McDonald, for the term of one year. Thereafter, in April, this license was, by the consent of the city, transferred to Art Burk and A. W. Jakobsson, who thereafter conducted a saloon in said city by virtue of said license, under the name of Jakobsson & Burk. On September 10. 1906, the city was notified by its police officers that the saloon conducted by Jakobsson & Burk was a disorderly place. On that same day a special meeting of the city council was called, and notice was issued by the city clerk and served upon the said Jakobsson & Burk, notifying them to "appear before the city council of the city of Aberdeen, Washington, at the council chamber of said city at the hour of 7:30 o'clock, p. m., Monday, Septem

license shall not revoked." This notice was served at about 4:30 o'clock of said day. The said Jakobsson & Burk appeared at the meeting of the council, and by their attorney objected to the proceedings, upon the ground that no charges in writing had been filed with the city council; that they had no knowledge of the nature of the purported charges; that the notice served upon them was insufficient, and that the council had no jurisdiction to revoke their license. The council, without passing upon these objections, proceeded to hear statements of certain persons not under oath, and gave no opportunity to the said Jakobsson & Burk to crossexamine such persons. The council thereupon adjourned until the next day, when a meeting was held at which said Jakobsson & Burk were not present or permitted to attend, and at which meeting a resolution was passed revoking the said license, and notice thereof was immediately given. Thereupon the said Jakobsson & Burk filed an affidavit in the superior court of Chehalis county, setting out the facts substantially as above, and also alleging that they had kept an orderly house, and had in all things complied with the terms of the license, and prayed for a writ of review. On this showing a temporary writ was issued. The city of Aberdeen appeared in answer to the writ and moved to quash the same, upon the ground that the superior court had no jurisdiction to review the action of the mayor and city council in revoking the license. The superior court, on hearing this motion, denied the same. Whereupon the city of Aberdeen applied to this court for a writ of prohibition.

The question presented here is, has the superior court jurisdiction to review the action of the mayor and city council of the city of Aberdeen in revoking a license to sell intoxicating liquors? We think the superior court has no jurisdiction. The statute provides, at section 2934, Ballinger's Ann. Codes & St., that "the mayor and council or other governing body of each incorporated city, incorporated town, or porated town, or incorporated village in the state of Washington shall have the sole and exclusive authority and power to regulate, retrain, license, or prohibit the sale or or disposal of spirituous, fermented, malt, or other intoxicating liquors within the corporate limits of their respective cities, towns or villages," etc. Section 2935 provides: "In granting the license authorized by this chapter the proper authorities shall exact from each applicant a bond in the sum of $1,000, conditioned that the applicant shall keep an orderly house, and will not sell liquor to minors. He shall in case of violating the terms of the license forfeit the same, and be subject to the other penalties provided by law for illegal selling of spirituous, fermented, malt, or other intoxicating liquors; the authorities granting the license

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