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It is next contended that the information RUDKIN, J. This was a prosecution for charges that the dam or structure was erect- the crime of seduction, and from a judgment ed to conduct water for irrigation purposes, of conviction the present appeal is prosecuted. whereas the statute uses the term "agricultur- Errors are assigned in the admission of testial purposes." Regardless of technical defini- mony, in the giving of instructions, and in tions, the phrase "irrigation purposes" or the overruling of a motion for a new trial. "purposes of irrigation" is a common expres- Columbus Stevens, Frank Brooks, and Wilsion in the legislation of this state, and has liam Chapman were called as witnesses on acquired a well-defined meaning, which is the part of the appellant, and each testified synonymous with "agricultural purposes," or, on his direct examination that he had sexual at least, the former is included within the intercourse with the prosecuting witness prilatter.
or to the date of the seduction alleged in the Lastly, it is contended that the dam or information. The following proceedings ocstructure described in the information is not curred on the cross-examination of these witone of the structures mentioned in the sta. nesses: tute. If a dam erected to conduct water for First, the witness Stevens: "Q. Do you irrigation purposes is not one of the struc- know a girl by the name of Carrie Gradertures mentioned in the statute, it is at least
son? Engaged to be married to her on the a structure of a like kind under the rule of 11th? Objected to as being immaterial. Obejusdem generis, and comes within the pur- jection overruled by the court, to which rulview of the statute.
ing the defendant excepts. A. No, sir; I was The information is sufficient in law, and
not. Q. Engaged to her? A. I was, yes. Q. the judgment of the court below is therefore
Date fixed ? A. Not exactly. Q. Wasn't the reversed, and the cause remanded for further
date fixed for the 11th of July? Mr. Welsh.
We object to this class of testimony as being proceedings.
entirely immaterial. Objection overruled by MOUNT, C. J., and HADLEY, FULLER- the court, to which defendant excepts. Q. TON, and CROW, JJ., concur. DUNBAR You say the date was not fixed for the marand ROOT, JJ., not sitting.
riage? Defendant objects on the grounds that it is immaterial. Objection overruled. De
fendant excepts. A. Not exactly. No. Q. (44 Wash. 605)
What do you mean by 'not exactly?' DefendSTATE v. BELKNAP.
ant objects to the testimony as being imma(Supreme Court of Washington. Dec. 8, 1906.) terial, irrelevant, and not proper cross-exam
ination. Objection overruled by the court, to 1. WITNESSES - CROSS-EXAMINATION --SCOPE AND EXTENT.
which defendant excepts. Q. What do you In a prosecution for seduction, evidence mean by saying that the date was 'not exactsought to be elicited by questions on the cross
ly' fixed ? Same objection. Same ruling, to examination of witnesses who had testified to having had sexual intercourse with the prosecut
which defendant excepts. A. We were ening witness, as to the making and breaking of gaged to be married, but there hadn't been engagements to marry, illicit relations with
no exact time. Q. How long had you been at other women, and as to the guilt of one of them
Gile's ranch before Carrie Graderson came of bastardy, was wholly foreign to the issues of the case and permitting the asking of such over there? A. Something like a month. Q. questions was an abuse of discretion not affect- Came over there to see why you wasn't goed by the fact that such court gave the witness
ing to marry her? Defendant objects on the privilege of not answering.
grounds that it is immaterial. [Ed. Note.-For cases in point, see Cent. Dig.
Objection vol. 50, Witnesses, SS 955, 956.)
overruled, and defendant excepts. A. She 2. CRIMINAL LAW
was wanting to go to California. She wanted TRIAL INSTRUCTIONS -ASSUMPTIONS AS TO FACTS-FLIGIIT OF
to get married before she went down. I ACCUSED.
wasn't ready yet, and told the girl that I Where defendant, in a prosecution for seduc- wasn't going to get married yet, and she tion, testified that he saw an officer coming
could go to California. Q. She insisted it to arrest him, that he knew what he was coming for, and fled, an instruction that the jury had been fixed for the 11th of July? Dewere authorized to consider his flight, after the fendant objects on the grounds that it is imissuance of the warrant for his arrest, or after
Defendant he learned that a prosecution was to be in
Objection overruled. stituted against him, and that it was for them to
excepts. A. No. Q. She wanted you to marsay how much weight should be given to that ry her? Same objection by defendant. Same fact as evidence of guilt was not improper for ruling. Defendant excepts. A. No. Q. You assuming that defendant's flight was proven.
didn't, and never married her? Same objec[Ed. Note.For cases in point, see Cent. Dig. vol. 14, Criminal Law, SS 754, 755.]
tion by defendant. Same ruling. Defendant
excepts. A. No, never have. Q. You went Appeal from Superior Court, Pacific Coun
off and left her at Oregon City without sayty; A. E. Rice, Judge.
ing where you were going? Defendant obWilliam Belknap was convicted of seduc
jects on grounds that it is immaterial. Obtion, and appeals. Reversed, and new trial
jection overruled. Defendant excepts. A. ordered.
Yes, sir; I did.” Welsh & Welsh, for appellant. H. W. B. Second, the witness Brooks: "Q. Was she Hewen and William G. Crosby, for the State. the first woman you ever had sexual intercourse with? Mr. Welsh. Objected to as he wants to answer that question. A. I do being immaterial. Objection overruled by the not care to answer that question.” court. To which defendant excepts. A. No, Courtrooms are bad enough when their sir; it was not. Q. With whom had you had proceedings are conducted under proper resexual intercourse prior to your having sex- strictions, and they should not be made ual intercourse with Miss Hughes? Objected schools for scandal. The extent to which to as being immaterial and irrelevant. Ob- cross-examinations will be permitted is no jection overruled by the court. Defendant doubt in a large measure in the discretion excepts. A. Well, I don't know who it was. of the trial court, and it is difficult to draw People of that class do not usually go under the line as to where the legal discretion as their right names. Q. Was there no woman to the admission or exclusion of such testiwith whom you had sexual intercourse prior mony commences and where it ends, but we to Miss Hughes, whose right name you do have no hesitation in saying that soun judknow? Wr. Welsh. Objected to as immate- icial discretion was abused in this case. rial, irrelevant, and improper cross-examina- Whether one of the witnesses was engaged tion. The court. He can answer if he has to another woman, whether the engagement no objection himself, but he does not have to was broken off, and the circumstances suranswer unless he wants to. Defendant ex- rounding such engagement, were questions (epts. No answer. Q. Ever live in Willapa wholly foreign to the issues in this case. The Valley ? A. Yes, I have. Q. Have sexual relations of the witnesses with other women, intercourse with a girl living up there? Vr. and whether one of them had been accused Welsh. Objected to as immaterial,
of or was guilty of bastardy falls within the vant, and improper cross-examination. The
same category. Wharton's Criminal Evicourt. The objection is overruled. He can
dence states the rule thus: “Every man is use his pleasure about answering. Defend
entitled to such a measure of oblivion for ant objects. No answer. No answer. Q. Did you have
the past as will protect him from having it sexual intercourse with a young girl living
ransacked by mere volunteers; and aside in Willapa Valley from whom the birth of
from this general sanction, if witnesses were an illegitimate child resulted at any time
to be compelled to answer fishing questions prior to this? Mr. Welsh. Same objection.
as to any scandals in their past lives the witThe court. Overruled. Leave it to the wit
ness box would become itself a scandal which ness to answer as he wants to. Defendant ex
no civilized community would tolerate. Alcepts. A. No, sir; I never did. Q. Have you
low unqualified liberty in this respect, and no ever been charged or is it claimed by any
witness, no matter how respectable, could girl living in this county, that she has an
be sworn, without being required, if it should illegitimate child of which you are the father?
please the opposing party, to have even the Mr. Welsh. Objected to as immaterial, irrel
most remote passages of his past life exevant, and improper cross-examination. The
plored, and without being himself compelled court. Overruled. Leave it to the witness to decide whether he wants to answer. De
to narrate any events in that life which fendant excepts. A. No, sir; there is no
were discreditable; no matter for how long
a time such discredit had been atoned for girl, not to my knowledge. It is a sad mis
by penitence, by reformation, and by correctake if there is. Q. Is there any girl claim
tion of the wrong. Such inquisitions, howing that you are the father of an illegitimate child, that is not now living? Mr. Welsh.
ever, the courts have refused to permit Same objection. Same ruling. Defendant
*.” Wharton's Criminal Evidence (9th
Ed.) $ 472. In Gt. w. Turnpike Co. v. Loomexcepts. A. Not to my knowledge. I don't think there is."
is, 32 N. Y. 127, 88 Am. Dec. 311, the court Third, the witness Chapman: “Q. You
said: “The proposition that no witness has
a right to complain of an opportunity to vinsay in the summer of 1904 you had inter
dicate his integrity by his own oath, is plaucourse with Miss Hughes. Had you had sexual intercourse with any other girl before that?
sible and specious, but illusory. It ignores Objected to as immaterial and improper cross
the indignity of a degrading imputation, examination. Objection overruled by the
when there is nothing in the circumstances court, to which defendant excepts. A. Yes,
of the case to justify it. It ignores, too, the I did. Q. Who was it? Objected to as be
humiliation of public arraignment by an iring immaterial, irrelevant, and improper responsible accuser, misled by an angry clicross-examination. The court. The objec- ent, and shielded by professional privilege. tion is overruled, but the witness may an- Few men of character, or women of honor, swer or not as he likes. The defendant ex- could suppress, even on the witness stand, cepts. A. I do not care to answer that ques- the spirit of just resentment which such an tion. Q. Did you, at any time prior to these examination, on points alien to the case, acts with Miss Hughes that you have testi- would naturally tend to arouse. The indigfied to have sexual intercourse with a girl nation with which sudden and unworthy imnamed [name withheld]. Objected to as irrel- putations are repelled, often leads to injurievant, incompetent, immaterial, and improp- ous misconstruction. A question, which it er cross-examination. The court. Overruled. is alike degrading to answer or decline to Let the witness decide for himself whether answer, should never be put, unless, in the
judgment of the court, it is likely to promote based, and neither an answer nor a refusal the ends of justice. A rule which would to answer could remove the insinuation from license indiscriminate assaults on private the minds of the jurors. The privilege is character, under the forms of law, would con- not that of the witness alone. If the crosstribute little to the development of truth, and examination is so conducted as to deprive still less to the furtherance of justice. It the appellant of a fair and impartial trial, would tend neither to elevate the dignity of he has just grounds to complain, and we our tribunals, nor to inspire reverence for our think that such is the case before us. After system of jurisprudence.” In Elliott v. the appellant rested, the court reopened the Boyles, 31 Pa. 65, the court said: “It would case, and permitted the respondent to offer be absolutely intolerable that a man, by be- further testimony in chief. This ruling is ing brought into court as a witness, should assigned as error, but inasmuch as the quesbe bound to submit all the acts of his life to tions will not arise on a retrial we will not the exposure of malice, under the pretense of consider it on this appeal. Error is assigntesting his credibility. If such were the test, ed in the giving of the following instruction: courts would often present, in language and “The jury are authorized to consider the temper, scenes of unmitigated russianism, and flight of the defendant afrer a warrant was the means of enforcing law and order in so- issued for his arrest, or after he learned that ciety, would be denounced as sources of cor- a prosecution was to be instituted against ruption and disorder." In Buel v. State, 101 him, and it is for them to say just how much Wis. 132, 80 N. W. 78, the court said: “The weight, if any, they shall give that fact as administration of justice requires that trial an evidence of guilt.” If the question of courts shall not have their discretionary pow. | flight was a controverted one on the trial, ers circumscribed by any very narrow bound- this was a clear comment on the facts, but aries, but does require that such limit shall such was not the case. The appellant himself he placeil upon them as will prevent any testified that he saw the deputy sheriff commere prejudice to be built up in the course ing, knew what he was coming for, and fled. of a trial, especially in an important case While courts should be cautious in assuming like this, which will tend to influence a jury facts as proven in a criminal case, yet where to determine the facts otherwise than from a defendant himself testifies to a fact he canthe legitimate evidence produced in court. not complain if the court assumes his testiIt seems clear that such limit was passed in mony to be true in its charge to the jury. allowing the cross-examination in question, People v. Phillips, 70 Cal. 68, 11 Pac. 493; to the extent to which it was carried. State v. Archer, 73 Iowa, 320, 35 N. W. 241; * * * A reading of the questions under State v. Day, 79 Me. 120, 8 Atl. 544; State consideration leads to the irresistible con- V. Angel, 29 N. C. 27. clusion that no idea was entertained by the We find no error in the other rulings comcross-examiner that proof would be elicited plained of, but for the error in admitting eviof the matters implied by them. We say dence on cross-examination the judgment is “implied' because the asking of the direct reversed, and a new trial ordered. questions in the manner in which they were asked implied to some degree that the ex- MOUNT, C. J., and ROOT, DUNBAR, and aminer was possessed of information upon Crow, JJ., concur. FULLERTON and HADwhich the questions were based, and although LEY, JJ., not sitting. the answers were in the negative, the bad effect of the insinuations thrown out by the questions was not, and could not have been,
(44 Wash. 700) entirely removed from the minds of the jur- STANDARD ICE CO. V. PRATT et al. ors. It is useless to refer to authorities on
(Supreme Court of Washington. Dec. 12, 1906.) this subject. Text-writers and adjudged cases are generally in accord that, so long
SALES-ACTION FOR PRICE-SUFFICIENCY OF
EVIDENCE. as the cross-examination is carried on with
Evidence in an action for price of goods reasonable fairness, to test the credibility o: sold held sufficient to sustain a finding as to the witness, it is permissible, but the moment the price at which they were sold. questions are asked concerning facts touch
Appeal from Superior Court, King County ; ing the witness' character, which are irrel
Geo. E. Morris, Judge. evant to the facts in issue, for any other pur
Action by the Standard Ice Company pose than to affect his credibility, or which
against A. W. Pratt and another. Judgment manifestly do not bear on the subject of cred- for plaintiff. Defendants appeal.
. Affirmed. ibility, the right of cross-examination is abused, and on objection should be restrained Ira Bronson and D. B. Trefethen, for appelwithin legitimate limits."
lants. Horace A. Wilson, for respondent. Nor is it material that the witnesses were not required to answer the questions. As PER CURIAM. This action was brought said by the court in Buel v. State, supra, to recover on account of a quantity of ice the questions themselves implied to some de- sold by the plaintiff to the defendants. A gree that the examiner was possessed of in- trial was had before the court without a jury, formation upon which the questions were and a judgment was rendered in favor of
plaintiff in the sum of $603.90, from which 3. NAVIGABLE WATERS-RIGHITS OF RIPARIAN
OWNERS-PROTECTION BY INJUNCTION. the defendants have appealed.
That the injuries to a riparian owner are The sole controversy is in reference to
the natural result of the use of a stream as a what price the appellants are obligated to highway cannot be set up as a defense to a suit pay for the ice. We find the evidence very for an injunction against a boom company, conflicting and confusing as to what was the
where it not only uses the water below high
water mark, but causes the lands of the riparian agreement and understanding between the
owners to be overflowed and logs to be driven parties. It appears that, prior to June 2, thereon. 1903, ice was being furnished at $2 per ton [Ed. Note.--For cases in point, see Cent. Dig. at the ice plant. Appellants contend that vol. 37, Navigable Waters, SS 248, 251.] they had a written contract for $3 per ton 4. SAME-DECREE. delivered, afterwards modified orally calling
In a suit for injunction against a boom
company, a decree enjoining and restraining it for its delivery at the ice plant at $2 rer ton,
from obstructing the river to navigation in front for a period of three years. But respondent of the lands of plaintiffs, from sorting, holding, disputes this, and the evidence is not clear or rafting logs in the waters of the river opposite that the minds of the parties ever actually
their lands or on or against the banks of the
premises, from operating any boom so as to met upon such an agreement. In any event,
cause logs to jam or fill the river so as to however, on June 2d the respondent gave ap- prevent navigation in the usual manner, from pellants written notice that thereafter the operating artificial means to increase the volume
or flow of water past plaintiffs' premises or ocprice would be $3.25 per ton, and that they
cupying or damaging the premises of plaintiffs, could get ice at the plant of the Washington and from using the banks of their lands above Cold Storage Company, where respondent had the line of the mean high water for the retention arranged for them to get it until further no
of the boom was proper. tice. Appellants objected to the price, but
Appeal from Superior Court, Chehalis proceeded to take the ice at the place men
County; W. 0. Chapman, Judge. tioned in respondent's notice, knowing that
Action by 0. P. Burrows and wife against the price fixed in the notice was $3.25 per
the Grays Harbor Boom Company and anton. By reason of such facts the court found
other. From a judgment in favor of plainas follows: "That between the 1st and 24th
tiffs, defendants appeal. Affirmed. days of June, 1905, the plaintiff, at the special instance and request of the defendants,
J. B. Bridges and Ben Sheeks, for appelsold and furnished to the defendants certain
lants. J. W. Robinson and Bogle, Hardin & quantities of ice, to wit, 15.8 tons at $2 per
Spooner, for respondents. ton, and 176.7 tons at $3.23 per ton."
We think the finding is sustained by the DUNBAR, J. This was a suit to enjoin evidence, and the judgment is affirmed. 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 (44 Wash. 630)
a short summary of it. It alleged that the BURROWS et ux. v. GRAYS HARBOR
plaintiffs were the owners of certain lands BOOM CO. et al.
bordering on the Humptulips river in Che(Supreme Court of Washington. Dec. 8, 1906.) halis county, Wash.; that the river was 1. NAVIGABLE WATERS OBSTRUCTION
about 250 feet in width, navigable for the RIGIITS OF Boom COMPANY.
floatage of sawlogs and other timber proLaws 1889–90, p. 470, § 1, providing that any
ducts, and for small boats; that the waters corporation organized to boom logs may acquire
of the river opposite plaintiffs' premises were real or personal property by lease or purchase necessary for carrying on its business, and that if suitable for domestic purposes; that plainsuch a corporation cannot agree with persons tiffs had built a home on the west bank of owning land or other property as to the amount
the river, and were residing there; that of compensation, the compensation may be assessed and determined, and the appropriation
the river furnished them the most convenmade in the manner provided for the appropria- ient public highway; that the defendants tion of private property by railways, does not were corporations, under the laws of the give such companies the right to interfere with
state of Washington, and had constructed the navigation of streams or with the use of abutting land by upper owners, especially in
boomworks in the river immediately below view of Laws 1895, p. 130, c. 72, § 4, providing the premises of the plaintiffs; that, by reathat nothing shall be constructed by boom com
son of such construction, the river, at and panies that shall in any way interfere with the navigation of rivers or streams.
opposite plaintiffs' premises, was, for a great 2. EMINENT DOMAIN_CONSTITUTIONAL PROVI
portion of the time, completely filled with SION_RIGHTS OF BOOM COMPANY.
sawlogs, thus depriving plaintiffs of their Under Const. art. 1, § 16, providing that right to navigate said river and to cross the no private property shall be taken or damaged
same and to go down the same to the waters for private or public use without just compensation having been first made or paid into court
of Grays Harbor ; that defendants used the for the owner, boom companies cannot be given
west bank of the river where plaintiffs' lands the right by the Legislature to overflow the were located as the west wall of their boom, lands of upper riparian owners by backwater
and the large number of logs accumulating or to run logs on their land by the use of splash dams without having acquired it by contract or
in the river at and near plaintiffs' premises condemnation,
caused the water or the river to dam up and the year
overflow plaintiffs' lands and endanger their dence upon said premises until the acts of home, and to prevent the use of the water the defendants prevented them from so using for domestic purposes; that the maintenance them; that the water in said river in front of and operation of the boom caused the banks plaintiffs' premises was suitable for domestic of plaintiffs' land to be washed away; that and live stock purposes during the whole of such injury was continuous; and that the the year, excepting during the months of July defendants used the said river, both oppo- and August when it was slightly brackish; site and below the plaintiffs' premises, for that the plaintiffs purchased these lands in the storage of logs. Other allegations in
- and thereafter erected on relation to future damage, which would be the west bank of said river on said premises incurred in the operation of the boom and a dwelling, consisting of 10 rooms, being a driving companies, appear in the complaint. two-story frame building, and a barn, with The facts found by the court, and which, the usual outhouses for wood, hogs, cattle, from an investigation of the testimony, we chickens, etc., and had cleared and put in will accept as the facts in the case, will cultivation about
acres of land in more concisely divulge the allegations of the vicinity of the house adjoining said river, the complaint, as they are based upon such and removed to such premises with their allegations. The answer denies practically family, consisting of plaintiffs and their all the complaint, or that portion of it which children, two boys and two girls, being from alleged that damage was being done to the the age of 212 to 18 years; that they put plaintiffs by reason of the operation of the out fruit trees and constructed fences upon booms, and further alleged that the defend- said premises, and have kept, and did keep ants were corporations duly organized and at the time of the trial, live stock consisting existing by virtue of the laws of the state of of cows and other cattle, hogs, horses, and Washington in relation to boom companies, chickens, all of which stock pastured and and that, whatever they had done, they had fed upon said premises and depended upon the permission of the state of Washington said river for fresh water for drinking purand the United States government to do. poses; that said live stock had no other way And it may be said here that this is the of getting water except by going down the pivotal question in the case, whether they west bank of said stream to the waters of had the permission of the state of Washing- said river; and that these plaintiffs purton and of the United States government to chased and improved said premises for a perdo the things which it was found by the court manent home, and particularly because said they had done.
premises abutted upon said river and public The court found, in substance, that the waterway; that the said river in its natural Grays Harbor Boom Company and the Hump- | condition, unobstructed, constitutes a natural tulips Driving Company, defendants, were public highway for these plaintiffs, and the both corporations, organized and existing only public highway leading to and from under the laws of the state of Washington,
their residence: that ever since about the each having its principal office and place of
1st day of September, 1905, the defendants business at Aberdeen, Wash., and that C. D. had caused said public waterway to be filled Burrows and A. P. Stockwell were, at all the with sawlogs from bank to bank in front of dates mentioned in the complaint, and were plaintiffs' premises, and above the boom at the time of the trial, the only stockholders located there, and that said sawlogs håd and officers of each of said corporations. wholly obstructed said waterway to naviga(Under this finding, the correctness of which tion in front of plaintiffs' premises during the is not disputed, we will not find it necessary
whole of this period, except for a few days at to enter into a discussion of the different a time not exceeding altogether the period of responsibilities of these two alleged differ- three weeks from the 1st day of September, ent corporations.) Found that the plaintiffs 1905, to the date of the trial hereof (which was were the owners of certain land adjoining
about the middle of March, 1906); that, by the Humptulips river at the place alleged in
reason of such operations of the defendants, the complaint; that the Humptulips river plaintiffs had been deprived of the use of was a government meandered fresh-water the river for navigation and of their rights stream, emptying into the waters of Grays of ingress and egress, and many of said logs Harbor; that it was navigable in its natural had rested or lain against the banks of plaincondition for small craft, and was floatable tiffs' lands both below and above the line for many miles inland and through the plain- of mean high water, and that in places certiffs' lands; that the average width of the tain sawlogs lie in part upon the banks above river from the mouth to the north line of the line of mean high water, and that during plaintiffs' lands was about 250 feet; that much of this time these sawlogs have been the water therein for that distance was of a so closely packed and jammed in said river depth of from 10 to 15 feet mean high water, from bank to bank that these plaintiffs have and from 4 to 5 feet low water; that the been unable to use this river for any purwater was suitable for domestic and live pose whatsoever; that the public schoolstock purposes in front of plaintiffs' premises, house in that school district is located on the and was used by them for domestic and live east side of the river, and the plaintiffs' stock purposes from the date of their resi- | children, notwithstanding that they have