the evening of December 25. At the close | these cases is exemplified by this quotation
of the state's case the court, on formal mo- from People v. Jenness, supra:
tion of counsel, required the county attor-
ney to elect upon which of the several acts
he would rely. He elected to stand on the
one which occurred on the evening of Decem-
ber 25th. The charge to the jury contained
these paragraphs:

"No. 10. You are instructed in this case it is not necessary for the state to prove the date of the alleged offense precisely as charged in the information herein. Therefore, if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, D. H. Harris, at the county of Yellowstone and state of Montana, accomplished an act of sexual intercourse with the prosecuting witness, Vivian Brooke, as alleged in the information, and that at the time of such intercourse the said Vivian Brooke was under the age of 18 years, and not the wife of the defendant, and you further find that such intercourse was had at any time within five years prior to the filing of the information in this case, then you should find a verdict of guilty."

"No. 17. The court instructs the jury that the state in this case has selected the particular act of sexual intercourse alleged to have taken place at the defendant's barber shop on Christmas night of 1914, as the act upon which they are to depend for conviction, and you are instructed that in this case, unless it is proven to you beyond all reasonable doubt that the defendant had said act of sexual intercourse with Vivian Brooke, then you are to find the defendant not guilty.

"No. 18. The court instructs the jury that the state having selected the act of sexual intercourse alleged to have taken place at defendant's barber shop on Christmas night of 1914, as the alleged act of intercourse on which they intend to rely for conviction, any testimony as to any other acts of intercourse by the defendant with the complaining witness Vivian Brooke at any other time is to be disregarded, except in so far as it is corroborative of the act alleged to have been committed at the barber shop on Christmas night, and that unless the state proves to you beyond all reasonable doubt that the defendant had said particular act of sexual intercourse with Vivian Brooke, then you are to find the defendant not guilty."

"The prosecutor having the right to select among all the acts of the kind which he could prove to have been committed between the parties, within the period alluded to, and within the jurisdiction, any one of those acts, before evidence had been introduced, was as properly the act charged in the information, as any other. In other words, until evidence of some such act had been given, the charge in the information was floating and contingent, aimed as much at one as another, and at no one act in particular; and it remained for the evidence tended. But when evidence had been introduced to point the charge to the particular act intending directly to the proof of one act, and for the purpose of procuring a conviction upon it, from that moment that particular act became the act charged.' What had, till then, been floating and contingent, had now become certain and fixed. The prosecutor had made his election, and could not elect again; nor could he be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause. The information act had been entangled in its meshes; every could be used as a drag net only till the first other act must be allowed to escape this throw of the net; and thenceforward the evidence must be aimed at this act. If others of the same kind lie in the same range, they can only be noticed for a secondary purpose, as they may be connected with or bear upon this."

This reasoning seems to us to give importance to form rather than substance. Other courts have announced the view that an election made at the close of the state's case serves all useful purposes, and we think this view is founded upon the better reasoning. State v. Acheson, 91 Me. 240, 39 Atl. 570; State v. Parish, 104 N. C. 679, 10 S. E. 457.

It is settled law in this jurisdiction that in this class of cases proof of similar acts by the defendant and the prosecuting witness is always admissible to corroborate the testimony of the latter. State v. Peres, 27 Mont. 358, 71 Pac. 162; State v. Vinn, 50 Mont. 27, 144 Pac. 773. The rule is recognized by all the cases cited. Since the evidence is ad

[1-5] It is argued that the court committed prejudicial error in failing to require the missible, what substantial difference can it county attorney to announce his election make to the defendant whether it comes into when the suggestion was first made. Some the case prior or subsequent to the time at of the courts hold to the rule contended for which he is given the information that conby counsel. People v. Castro, 133 Cal. 11, viction will be asked for upon the particular 65 Pac. 13; People v. Williams, 133 Cal. 165, act? Of course he is entitled to have this 65 Pac. 323; People v. Flaherty, 162 N. Y. information before he enters upon his de532, 57 N. E. 73; State v. Hilberg, 22 Utah, fense, and either by admonitions given the 27, 61 Pac. 215; Newsom v. Commonwealth, jury at the time or in the formal instructions 145 Ky. 627, 140 S. W. 1042; People v. Jen- to have them specifically informed that eviness, 5 Mich. 305; Elam v. State, 26 Ala. 48. dence of other such acts than the one selectThe rule deducible from these cases is that, ed is to be considered for the secondary purwhile the specific act alleged in the informa- pose of corroboration only. He cannot be tion need not be proved as charged and con- required to make defense against but a sinviction may be had upon proof of any of the gle act. The statute declares that the charge acts of the same kind, provided it occurred must be "a statement of the facts constituting within the period of limitation prior to the the offense, in ordinary and concise language, filing of the information, when the evidence and in such manner as to enable a person of discloses two or more offenses, the defendant common understanding to know what is inis entitled to know against which he is re- tended." Rev. Codes, § 9147. But when he quired to defend; and if the court does not has committed several acts constituting a require an election to be made at the open- series, upon proof of any one of which he ing of the trial, the law makes the election of may be convicted, of what substantial con

fendant being exempt under the universal rule
process while in attendance on court and for a
privileging foreign witnesses from service of
reasonable time in coming and going.
[Ed. Note.-For other cases, see Process,
Cent. Dig. § 150; Dec. Dig. 120.]
2. APPEARANCE 24-APPEARANCE AS CON-
FERRING JURISDICTION-STATUTE.

Under Rev. Codes, § 6526, providing that the voluntary appearance of a defendant is equivalent to personal service of the summons and a copy of the complaint upon him, a general appearance must be voluntary to constitute a waiver of defective service of process.

[Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. 24.] 3. APPEARANCE 24-GENERAL APPEARANCE -"WAIVER OF LACK OF SERVICE.

officer does not make his selection of the par-ness, such service was void and inoperative, deticular act until the close of the state's case? To be sure it would be the more orderly procedure to require an earlier selection, but the court may in its discretion control the order of proof, and if at the proper time and in the proper way it admonishes the jury as to the particular one for which alone a conviction may be had, the defendant has no just cause of complaint. At most, the course of procedure adopted by the trial court can be regarded as nothing more than an irregularity which this court must disregard. Rev. Codes, § 9415. The omission to give specific instructions would be prejudicial error for otherwise each juror would be left to select the particular act upon which he would cast his vote, and the result might be that the defendant would be convicted of several acts instead of one. We think the court fully discharged its duty in requiring the county attorney to elect at the close of the state's case. If a jury is to be regarded as having any intelligence, in view of the specific directions in instructions 17 and 18, supra, the jury in this case could not have entertained any doubt as to the limitation imposed upon them.

[6] It is argued that the court committed prejudicial error in submitting paragraph 10 of its charge. We agree that under the facts in this case, the latter part of the instruction relating to the period of limitation applicable, should have been omitted. There was no question that the offense, if committed at all, had been committed within that period. Evidently the court had in mind the section of the statute (Rev. Codes, § 9152) declaring that the precise time of the criminal act need not be alleged in the information, but that it may be alleged as having occurred at any time before the filing thereof. Under the specific direction given in paragraphs 17 and 18, an instruction on this subject was not necessary. Even so, under these instructions the jury could not have understood that they could convict for any act other than that which occurred on December 25, 1914. Nor do we think the paragraph in conflict with the others. As limited and explained by them, the power of the jury was sufficiently defined.

The judgment and order are affirmed.
Affirmed.

SANNER and HOLLOWAY, JJ., concur.

STATE ex rel. LANE v. DISTRICT COURT
OF SECOND JUDICIAL DIST. IN AND
FOR SILVER BOW COUNTY et al.
(No. 3765.)

(Supreme Court of Montana. Dec., 1915.) 1. PROCESS 120-SERVICE-PRIVILEGE FOREIGN WITNESSES.

Where a resident of another state was served with summons while in the state for the sole purpose of attending the district court as a wit

and served with summons while in the state Where defendant, resident of another state solely to attend the district court as witness, appeared specially to object to the jurisdiction, saving his exception, and again reserving the question raised by his special appearance in his answer, he did not, by general appearance, waive his right to object to the jurisdiction, since a "waiver" is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, while a party who saves his exception shall not be deemed to have waived it unless his intention is manifested.

[Ed. Note. For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. 24. For other definitions, see Words and Phrases, First and Second Series, Waiver.] 4. TRIAL 419 MOTION FOR NONSUIT WAIVER BY PROCEEDING.

An exception to an order overruling a motion for nonsuit is not waived by proceeding with the trial.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. ~419.] 5. PROHIBITION

10-EXISTENCE OF REME

DY AT LAW-STATUTE.

the writ of prohibition may be issued where Under Rev. Codes, § 7228, providing that there is not a plain, speedy, and adequate remedy in the ordinary course of law, where relator sought prohibition to restrain the district he had been served with process while in the court from proceeding with an action in which state for the sole purpose of attending district court as a witness, though he was a nonresident, the writ will be granted, despite the existence of a remedy by appeal, since an application of such character is addressed to the sound discretion of the court, and whenever it is made to appear that under no conceivable circumstance can the district court render a valid judgment because of lack of jurisdiction, the writ should be issued to save needless litigation.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 37-56; Dec. Dig. 10.]

Prohibition by the State, on the relation of Thaddeus S. Lane, against the District Court of the Second Judicial District for the County of Silver Bow and the judges thereof. Peremptory writ to issue.

John F. Davies, of Spokane, Wash., T. J. Davis, of Butte, and Gunn, Rasch & Hall, of Helena, for relator. Nolan & 'Donovan, of Butte, for respondents.

HOLLOWAY, J. In an action pending in Silver Bow county wherein William H. Hall was plaintiff, and Thaddeus S. Lane, a res

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ident of Spokane, Wash., was defendant,

We think the trial court erred in refusing service of summons was made in Butte while to quash the service of summons. Lane was there for the sole purpose of at- [2, 3] 2. Does a party who appears specialtending the district court as a witness. Aly to test the jurisdiction of the court and motion to quash the service was overruled; in the absence of the defendant and his counsel and by order of the court, the defendant was directed to answer within 20 days. Pursuant to the order, an answer was filed, admitting some of the allegations of the complaint and denying all others. Application was then made to this court for a writ

of prohibition to stay further proceedings. Three questions are presented: (1) Was Lane exempt from service of summons under the circumstances? (2) Was service of summons waived by filing the answer? and (3) Is prohibition an available remedy?

[1] 1. The overwhelming weight of authority in this country sustains the rule announced in 32 Cyc. 492, as follows:

"Suitors and witnesses coming from foreign jurisdictions for the sole purpose of attending court, whether under summons or subpoena or not, are usually held immune from service of civil process while engaged in such attendance and for a reasonable time in coming and going." Considerations of public policy and the due administration of justice prompt the enforcement of the rule, to the end that the personal presence of witnesses from foreign jurisdictions in the local courts may be encouraged.

In Diamond v. Earle, 217 Mass. 499, 105 N. E. 363, 51 L. R. A. (N. S.) 1178, Ann. Cas. 1915D, 984, the court expressed itself upon the subject as follows:

who reserves his exception to the adverse ruling upon his motion, waive the advantage by his general appearance thereafter? Upon this question the authorities are in hopeless conflict. The author of the article on Appearances, in 3 Cyc. 525, treats the subject as follows:

"In many jurisdictions the rule is well settled that, where a defendant appears specially, any error of the court in deciding adversely to him is waived by a subsequent general appearance; though in many others, and by what seems the sounder reasoning, it is held that a defendant does not lose the benefit of his attack on the jurisdiction by thereafter answering and pleading to the merits, provided he obtain a ruling in relation to the objection to jurisdiction, and save exceptions to such ruling."

To the same effect are 2 R. C. L. 339; 2 Ency. P. & P. 629. In the note to Fisher v. Crowley, 4 Ann. Cas. 290, will be found collected the cases which sustain the doctrine that such appearance does not constitute a waiver of the defective process or service. In Black v. Glendenin, 3 Mont. 44, the court, considering the question now before us, said:

About the same time the Supreme Court of the United States, in Harkness v. Hyde, 98 U. S. 479, 25 L. Ed. 237, reached the same conclusion, which Southern Pac. Co. v. Denton, 146 U. S. 202, was later approved in 13 Sup. Ct. 44, 36 L. Ed: 942.

"The respondent insists that the appellant his answer and proceeding to a trial. This posiwaived these errors and irregularities by filing tion is not tenable. It has been held in California that a party who moves to dismiss a defective summons, or set aside the return of the service of a summons, and saves his exception to the action of the court in overruling the motion, does not waive his right to be heard there"The rule has been stated generally that suit-on upon appeal, by appearing subsequently and ors and witnesses from a foreign jurisdiction are answering and submitting to a trial. Deideexempt from service of civil process while at- sheimer v. Brown, 8 Cal. 339; Gray v. Hawes, tending court and for such reasonable time be-8 Cal. 562; Lyman v. Milton, 44 Cal. 630; fore and after as may enable them to come from Kent v. West, 50 Cal. 186. The exceptions of and return to their homes. This statement is the appellant were saved properly, and were not broad enough to include the parties plaintiff as waived by his conduct in the action after the well as defendants and witnesses. The rule is motions to set aside the proceedings under the an ancient one. The reason upon which it rests summons and subpoena were refused." is that justice requires the attendance of witnesses cognizant of material facts, and hence that no unreasonable obstacles ought to be thrown in the way of their' freely coming into court to give oral testimony. Nonresidents cannot be compelled to come within the jurisdiction to testify. As such testimony may be essential in the due administration of justice, they ought to be protected in coming voluntarily into our courts to aid in the ascertainment of truth and in the accomplishment of right results by the courts. It is not merely a privilege of the person; it is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice. Every party has a right to testify in his own behalf. He cannot do this freely, if hampered by the hazard that he may become entangled in other litigation in foreign courts. The rule is applied almost universally in behalf of witnesses coming from a foreign state." Skinner, Mounce & Co. v. Waite (C. C.) 155 Fed. 828; Fox v. Hale. etc., Min. Co., 108 Cal. 478, 41 Pac. 308; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48; Coatsworth v. Hally, 177 Mich. 565, 143 N. W. 881; Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483, 15 Am. St. Rep. 547; Malloy v. Brewer, 7 S. D. 587, 64 N. W. 1120, 58 Am. St.

Counsel for respondents, however, insist that in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 135 Am. St. Rep. 622, the decision in Black v. Glendenin was in effect, if not in fact, overruled. Black v. Glendenin involved the precise question now under consideration. State ex rel. Mackey v. District Court involved a question of waiver under these circumstances: In the case of Lemcke v. Makey et al. substituted service upon nonresident defendants was sought to be made. Mackey appeared specially to question the jurisdiction of the court, and, his objection being overruled, he then applied to the court fer, and secured, an order granting him 40 days within which to answer to the merits. The decision in Black

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ceedings," and would lie to review the commis- | Commission of all the papers, instruments, sion's action. and statements, with proper verifications, [Ed. Note.-For other cases, see Mandamus, therein especially named and enumerated. Cent. Dig. §§ 189-194; Dec. Dig. 87.

For other definitions, see Words and Phrases, First and Second Series, Proceeding.]

2. MANDAMUS 87-FOREIGN BENEFICIARY SOCIETY-RIGHT TO DO BUSINESS IN STATE STATUTE "MAY."

It is alleged that, notwithstanding the application for license to transact business, which in all respects conformed to the law, the "said Arizona Corporation Commission, without just or legal ground or excuse, and Constitution, art. 15, § 5, provides, that the without assigning any legal reason therefor, Corporation Commission shall have the sole power to issue licenses to foreign corporations has refused and neglected, and still does reto do business in this state as may be prescribed fuse and neglect, to grant to plaintiff a perby law. Civ. Code 1913, par. 3486, declares mit and license to transact business in the any society entitled to a license to transact state of Arizona. business within the state upon filing with the state Corporation Commission the papers and No return to the alternative writ was made, statements therein enumerated, and furnishing but the appellant moved to strike it, and filed it with such other information as it may deem its demurrer to the complaint. The motion necessary to a proper exhibition of its business to strike and the demurrer both raised the and plan of insurance, and that the commission

may issue a license to such society to do busi-point that the complaint showed upon its ness in the state. Held, that the Constitution face that the writ of mandamus was sought gave the sole power to issue licenses to the com- to control the discretion and the judgment of mission, leaving the Legislature to prescribe the kinds of corporations that might do business in the appellant Corporation Commission in the the state, and made it the duty of the commis- performance by it of a duty imposed by law sion to issue licenses to such corporations upon that is quasi judicial in its nature. The approper application; that the word "may" was pellant answered, admitting that: not used in a permissive or optional sense, but was mandatory, having the sense of "shall," so that the commission, on a proper application, could not arbitrarily refuse to issue a license, and that mandamus would lie to compel its issu

ance.

It "is required by article 6 of title 24, Civil fraternal, and beneficiary societies coming withCode 1913, to grant to all foreign, in the definition and description of such societies as contained in said article and title which have foreign, fraternal, and beneficiary societies a complied with the requirements regulating such license, certificate, and permit to transact business in the state of Arizona, and further admits that plaintiff made an application for license and permit to transact its business in the state Appeal from Superior Court, Maricopa of Arizona to the Arizona Corporation ComCounty; R. C. Stanford, Judge. mission on the 22d day of April, 1915."

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 189-194; Dec. Dig. 87.

For other definitions, see Words and Phrases, First and Second Series, May.]

Mandamus by Heralds of Liberty, a foreign fraternal beneficiary society, against the Arizona Corporation Commission. Judgment making the alternative writ absolute, and the defendant appeals. Affirmed.

Wiley E. Jones, Atty. Gen., and Leslie C. Hardy and Geo. W. Harben, Asst. Attys. Gen., for appellant. George J. Stoneman, of Phonix, for appellee.

ROSS, C. J. The appellant, the Arizona Corporation Commission, prosecutes this appeal from the judgment of the superior court of Maricopa county in mandamus proceedings requiring and compelling it to issue to the appellee, a foreign fraternal beneficiary society incorporated under the laws of the state of Alabama, a license authorizing the appellee to transact and carry on the business of fraternal insurance. The appellee showed in its complaint that it was one of the kinds of fraternal beneficiary societies described in article 6 of title 24 of Civil Code 1913, and that it had filed with the appellant, Corporation Commission, on the 22d day of April, 1915, its application for license to transact the business of insurance in the state of Arizona, which application was made a part of the complaint. In the particulars required by paragraph 3486 of said chapter and title the application for license was sufficient, in that it showed the filing with the Corporation

Upon the trial it was admitted by the appellant that:

The appellee "had performed the physical acts and had filed with the Corporation Commission of the state of Arizona the several instruments set forth in its verified complaint and application for alternative writ of mandamus filed herein."

Upon the pleadings and the stipulation judgment was entered making the alternative writ absolute. From the judgment and the orders of the court overruling the demurrer and motion to strike, this appeal was taken.

[1] It is seen from the admitted facts that the appellee had conformed to the requirements of law, and was entitled to a license to do business in the state, unless the contention of the appellant that the Corporation Commission's act in refusing the license was a discretionary one or a quasi judicial act is well founded, and not subject to revision in this proceeding. Paragraph 3486, supra, provides, among other things, that:

"When the Corporation Commission refuses to license any society, or revokes its authority to do business in this state, the commission shall and file the same in the office of the Corporareduce its ruling, order or decision to writing tion Commission and shall furnish a copy thereof, together with a statement of its reasons, to the officers of the society, upon request, and the reviewable by proper proceedings in any court action of the Corporation Commission may be of competent jurisdiction within the county of Maricopa, state of Arizona."