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with the law if, within 10 days after, the amendments were served, he either (1) presented the proposed bill and amendments to the judge upon five days' notice to the adverse party; or (2) delivered them to the clerk; or (3) delivered them to the judge. He chose the third alternative, but was fully

within the law.

The provision of the law authorizing the moving party to present the proposed bill and amendments to the judge first appears in the Code of Civil Procedure of 1895, and under that provision the moving party assumes the burden, not only of moving in time, but of giving his adversary the required notice. The district judge has not any cognizance of the matter until the time for the settlement arrives; but the moving party is not limited to this remedy. He may choose the third alternative and deliver the bill with the proposed amendments to the judge directly as was the practice in the early days of the territory, or he may deliver the proposed bill and amendments to the clerk. If the moving party pursues either the second or third remedy above, he is relieved from further responsibility. It is true that there is no procedure provided for the settlement of the bill when the proposed bill and amendments are delivered to the judge himself; neither was there in the Revised Statutes of 1879, or in the Compiled Statutes of 1887, but no difficulty whatever was experienced on that account. We think the statute clearly implies that the judge shall settle the bill immediately or fix a subsequent date for settlement. In the present instance, then, the proposed bill and amendments having been delivered to the judge within the time limited by statute, it became the duty of the judge to settle and sign the bill at that time or at such future time as he might designate; and, having thereafter designated September 4th, and then continued the hearing until September 7th, he should then have settled the bill by making it conform to the truth, and should then have signed and allowed the same. In so far as the decision

in Burns v. Napton is contrary to the views herein expressed, that decision is modified.

It is ordered that a peremptory writ of mandate issue, directing Judge McClernan to settle the proposed bill of exceptions and to sign and allow the same. Writ issued.

ceased, etc., is not subject to the objection that because of the position of the verb "did" there is no allegation that the killing was done purposely, etc.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 195, 196; Dec. Dig. § 128.**] 2. CRIMINAL LAW (§ 885*)-VERDICT. the court after finding him guilty of murder in Recommending defendant to the mercy of the first degree does not show doubt as to his guilt, or affect the validity of the verdict.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.*] 3. HOMICIDE (§ 286*)-TRIAL-INSTRUCTIONSDELIBERATION AND PREMEDITATION.

After instructing on the subject of deliberation and premeditation, that the law knows no specified time; if a man reflects on the act a moment before the act, it is sufficient; the time of the deliberation and premeditation need not be long; and, if it furnishes room for reflection, then it is sufficient deliberation-it was error to state that "there need be no appreciable space of time between the formation of the intention to kill and the killing."

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.*] 4. HOMICIDE (§ 14*) 14*) - "DELIBERATION" "PREMEDITATION."

The words "deliberation" and "premedita tion" necessarily imply some appreciable length of time. To deliberate and to meditate on an act means to think it over and to weigh the consequences, and, when there is no appreciable time therefor, there can be no deliberation, and no premeditation.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 19, 20; Dec. Dig. § 14.*

For other definitions, see Words and Phrases, vol. 2, pp. 1951-1955; vol. 8. p. 7632; vol. 6, pp. 5503-5507; vol. 8, p. 7760.]

Department 2. Appeal from Superior Court, Kitsap County; John B. Yakey, Judge Jama Arata was convicted of murder, and appeals. Reversed.

George Friend and Milo A. Root, for ap pellant. Thomas Stevenson, W. F. Magill and C. D. Sutton, for the State.

MOUNT, J. The appellant was tried and convicted of the crime of murder in thế? “ first degree. He appeals from the death sentence.

His counsel argues, first, that the information is insufficient. The information states: "That the said Jama Arata in the county of Kitsap, state of Washington, on the 21st day of November, A. D. 1908, then and there being, purposely, feloniously, and of his deliberate and premeditated malice, did kill one Herbert Richards, by then and there purposely, feloniously, and of his deliberate and

BRANTLY, C. J., and SMITH, J., concur. premeditated malice stabbing, cutting, and

STATE v. ARATA. (Supreme Court of Washington. Dec. 3, 1909.) 1. HOMICIDE (§ 128*)-SUFFICIENCY OF INFOR

MATION.

An information for murder, alleging that defendant "purposely, feloniously and of his deliberate and premeditated malice, did kill" de

mortally wounding said Herbert Richards
with a knife which he, the said Jama Arata,
then and there held in his hands, contrary,"
etc. It is contended that, because the verb
"did" follows the words "purposely, felo-
niously, and of his deliberate and premeditat-
ed malice," there is no allegation that the kill-
ing was done purposely, etc. There is no
merit in this contention.
merit in this contention. To say that a per-

afterwards executed the deliberate determination to take life. If the deliberate intent to kill be thus formed and acted upon, it is immaterial how soon after such evil design is formed that it is executed. There need be no appreciable space of time between the formation of the intention to kill and the killing." This was the whole instruction upon this question, and it is apparent that the instruction was erroneous. While it is correct that the law knows no specific length of time for deliberation and premeditation, and that such time need not be long, it is manifest that there must be some length of time therefor, and that this must be an appreciable length of time. It may be readily understood how a malicious purpose may be formed in an instant without the lapse of any appreciable length of time, and it may be carried into execution immediately without time or opportunity for deliberation or premeditation. But the words "deliberation" and "premeditation" necessarily imply some appreciable length of time. To deliberate and to meditate upon an act means to think it over and to weigh the consequences, and, when there is no appreciable time therefor, there can be no deliberation and no premeditation. In State v. Rutten, 13 Wash. 203, 43 Pac. 30, this same question was considered, and this court there said: "It seems to us that the language used wipes out the distinction made in the statute between murder in the first and second degree. While no great amount of time necessarily intervenes between the intention to kill and the act of killing, yet, under our statute, there must be time enough to deliberate, and no deliberation can be instantaneous; in fact, the idea of deliberation is the distinguishing idea between murder in the first and second de-. gree, and the instructions of the court which we have quoted, give exactly that which would be necessary to define murder in the second degree, because the intention to kill must be in the mind of the slayer, and he must do it purposely and maliciously. Consequently the act of killing must be preceded by the purpose to kill, and it must be a malicious purpose, and that purpose may be formed instantaneously, or, as expressed by the learned court below, 'as instantaneous as the successive thoughts of the mind,' and under the old definition of murder, viz., the unlawful killing of any subject whatsoever through malice aforethought, that would be a proper instruction in regard to murder; but our statute has changed the law in this respect, and has introduced the element of deliberation, and deliberation means to weigh in the mind, to consider the reasons for and against, and consider maturely, to reflect

son purposely and feloniously did an act is | prisoner conceived intent to kill, that he to say that he did it purposely and felonious- meditated upon it, and that he formed and ly. There is no difference in the two expressions. Substantially this form of information has been sustained by this court in many cases as charging murder in the first degree. State v. Cronin, 20 Wash. 512, 56 Pac. 26, and cases there cited; State v. Crawford, 31 Wash. 260, 71 Pac. 1030. The jury returned a verdict of "Guilty of murder in the first degree, and further recommend the defendant to the mercy of the court." It is contended that this shows a compromise verdict, and that the jury were not convinced of defendant's guilt beyond a reasonable doubt, because there is but one penalty provided for the offense, which penalty is death where no mercy can be shown. Many reasonable inferences might be drawn from this recommendation, but the fact remains that the jury unanimously found the defendant guilty of the greater crime charged. That finding was the ultimate finding upon the issues tried. The jury were not concerned about the penalty. It was the duty of the court to pronounce the judgment which the law imposed. Such a recommendation was merely advisory, and, if the penalty were such that the judge might exercise a discretion in pronouncing sentence, he would not be bound thereby. He might heed the recommendation or not as he saw fit. The recommendation was therefore mere surplusage. It did not invalidate the verdict regularly and solemnly rendered. Nor did it necessarily show that there was a doubt in the minds of the jurors as to the guilt of the accused. State v. Bennett, 40 S. C. 308, 18 S. E. 886; State v. Potter, 15 Kan. 302; State v. Bradley, 6 La. Ann. 554; State v. Newman, 49 W. Va. 724, 39 S. E. 655; People v. Lee, 17 Cal. 76. It is contended that the court erred in instructing the jury upon the question of time necessary for deliberation. Upon this question the court, after defining the different degrees of murder and after defining the meaning of the words "purposely," "deliberately," "premeditation," and "malice," said to the jury: "I further instruct you that the law knows no specific time within which any intent to kill must be formed so as to make it murder. If the will accompanies the act a moment antecedent to the act itself which caused death, it is as sufficient to make the offense murder as if it were a day or any other time. I further instruct you that the time of deliberation and premeditation need not be long. If it furnishes room for an opportunity for reflection and the facts show that such reflection existed, and that the mind was busy with the design and made the choice with full chance to choose otherwise, there is sufficient deliberation. I further instruct you that, to warrant the jury in finding a verdict of murder in the first de-upon-and, while it may be difficult to detergree, you must find and so indicate in your verdict that the killing was with delibera

mine just how short a time it will require for the mind to deliberate, yet, if any effect

On an appeal from an order sustaining a demurrer to a petition to vacate a decree of divorce, affidavits attached to the petition will not be stricken out, as the case does not come tempted to use the affidavits as a part of the up for review on the merits, and it is not atevidence without making them a part of the record by bill of exceptions or statement of facts.

Error, Dec. Dig. § 655.*]

[Ed. Note.-For other cases, see Appeal and

3. DIVORCE (§ 167*) - DECREE-VACATING—

JURISDICTION.

a difference between murder in the first and | 2. APPEAL AND ERROR (§ 655*)-RECORDsecond degree, the language used by the STRIKING OUT AFFIDAVITS. learned court is too broad." In State v. Moody, 18 Wash. 165, 51 Pac. 356, this rule was again under consideration, and an instruction stating that "No appreciable space of time need elapse between the forming of such intent and the infliction of the fatal wound," was held error. The cases of State v. Straub, 16 Wash. 111, 47 Pac. 227, State v. Gin Pon, 16 Wash. 425, 47 Pac. 961, and State v. Hawkins, 23 Wash. 289, 63 Pac. 258. were each distinguished from the earlier case of State v. Rutten by reason of the fact that in each of the last-named cases the instruction upon this point provided for an appreciable length of time. In the case at bar, the court said, in substance, the law knows no specific time. If the man reflects upon the act a moment antecedent to the act, it is sufficient. The time of deliberation and premeditation need not be long. If it furnishes room for reflection and the facts show that such reflection existed, then it is sufficient deliberation; and closed the instruction upon this point with the statement: "There need be no appreciable space of time between the formation of the intention to kill and the killing." By these few last words the court destroyed at once all that was good in the entire statement, and gave the jury a rule which this court has fre quently held was erroneous. This was reversible error.

Other errors are assigned upon the instructions relating to self-defense and provocation. Some expressions therein may be subject to criticism, but they do not in our opinion constitute reversible error when considered in relation to all the facts in the case, and do not require extended discussion. On account of the error above pointed out, the judgment is reversed, and the cause remanded for a new trial.

Ballinger's Ann. Codes & St. §§ 4878, 4879 (Pierce's Code, §§ 336, 337), relate to service of summons by publication. Section 4880 (section 333) provides that a defendant served by publication may, except in divorce actions, be allowed to defend after judgment, within one year after its rendition, on such terms as may that the superior court in which a judgment be just. Section 5153 (section 1033) provides has been rendered shall have power after the term to vacate it for fraud in obtaining it, and section 5156 (section 1036) provides that protion setting forth the judgment and the facts ceedings to vacate a judgment shall be by peticonstituting a cause for its vacation. A petition by defendant to vacate a divorce decree set forth an affidavit by plaintiff that he mailed a copy of the summons and complaint to defendant addressed to her at a given street and number in a city named, and alleged that defendant at the time did not live at such address, as plaintiff well knew, and that plaintiff at all times knew her address; after plaintiff secured a decree of divorce without defendant being present or represented; that she did not receive the summons or complaint, and had no knowledge that a divorce action was pending until after the decree; that about three months before the divorce action with the mutual understanding that he would was started defendant left plaintiff to go East join her, and that they would resume housekeeping in some Eastern city; that defendant never had any intimation of the pendency of it was rendered; that, after leaving the state the action or rendering of the decree until after and during the time when plaintiff was prosecuting the divorce action, she received many dress stated in the affidavit and at the post letters from him; that she inquired at the adoffice, and could receive no information that said summons and complaint was ever at such address, and that she alleges and believes that

RUDKIN, C. J., and DUNBAR, CROW, no summons and complaint was ever mailed to and PARKER, JJ., concur.

CHANEY v. CHANEY.

(Supreme Court of Washington. Dec. 2, 1909.) 1. APPEAL AND ERROR (§ 1074*)-HARMLESS ERROR-DISMISSAL.

Where a notice of appeal from an order sustaining a demurrer to a petition to vacate a decree of divorce states that the appeal is taken from an order sustaining a demurrer to "an amended petition," but the record and final order of dismissal referred to it as "a petition," and the notice states that the appeal is taken from this final order, the apparent erroneous reference in the notice to previous orders not final is immaterial, and not ground for dismissing the appeal.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1074.*]

her. Held, that the petition sufficiently sets out the decree secured, and alleges fraud in securing the decree, to give the superior court jurisdiction to vacate the decree.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 167.*]

Court, King County; Boyd J. Tallman,
Department 2. Appeal from Superior
Judge.

beth Chaney for divorce. A default judg
A. C. Chaney brought suit against Eliza-
ment was granted plaintiff, and defendant
filed a petition asking to have the decree
vacated, to which a demurrer was sustain-
ed, the petition dismissed upon defendant's
refusal to plead further, and defendant ap-
peals. Reversed.

Willett, Oleson & Willett and Benj. M. Levine, for appellant. Fred C. Brown, for respondent.

PARKER, J. This is an appeal from orders of the superior court sustaining respondent's general demurrer to, and dismissing, appellant's petition, upon her refusal to plead further, wherein she seeks to nave vacated a decree of divorce rendered against her in this action upon the ground of fraud in obtaining the same. The petition is entitled and filed in the original action, and the allegations thereof which we deem necessary to notice are as follows: "That on May 29, 1908, plaintiff commenced the aboveentitled action for divorce against this defendant, charging this defendant with being guilty of cruelty and personal indignities toward the plaintiff, rendering his life burdensome, and that this defendant struck plaintiff, and that she has a violent and ungovernable temper, and other allegations as appear in the complaint in this action. That on May 28, 1908, plaintiff herein made an affidavit in words and figures as follows, to wit: 'A. C. Chaney, being first duly sworn, on oath deposes and says: That the defendant is a resident of No. 3203 Prairie avenue, Chicago, Illinois; that plaintiff has deposited at the United States post office, at Seattle, Washington, an exact copy of the original summons and complaint herein, in a sealed envelope, with postage prepaid, and addressed to the defendant at No. 3203 Prairie avenue, Chicago, Illinois. This affidavit is made in support of the plaintiff's motion for an order for the service of the summons by publication of the summons herein.' That on the said affidavit the court in this case entered an order granting leave to publish summons, in words and figures as follows, to wit: [Here follows the order.] That thereupon the plaintiff in this case proceeded to serve the defendant, this petitioner, with summons by publication, and that he published a summons for seven consecutive weeks, commencing May 29, 1908, and ending July 10, 1908, and that the said summons was in words and figures as follows, to wit: [Here follows copy of the summons which appears to be in due form.] That thereafter such proceedings were had in said cause that an order of default was entered herein on July 29, 1908. That thereafter this action came on to be heard on August 4, 1908, before the Honorable Arthur E. Griffin, one of the judges of the above-entitled court, as an undefended divorce case, and that at said action plaintiff gave evidence in support of the allegations of his complaint, but that the defendant was not present, and was not represented in said action, and had no knowledge that such a hearing was being held. That thereupon the court on August 4, 1908, made and entered findings of fact and conclusions of law and decree, granting to the plaintiff in this action a divorce from the defendant, on the grounds of cruelty and personal indignities. That said divorce was procured by the plain

That from May 2, 1900, to February 29, 1908, this plaintiff and defendant lived and cohabited together as husband and wife, and that on February 29, 1908, with the plaintiff's knowledge and consent, and under his direction, this defendant bade the plaintiff good-bye for Chicago, at the railway station at Everett, Wash., at which time the plaintiff told this defendant that he intended to sell out his tea and coffee routes in Seattle, Wash., in a few days, after which he would immediately go East, and either call or send for this defendant to resume housekeeping and living together in some Eastern city, and that he would also send this defendant money for her support and maintenance. That since said February 29, 1908, plaintiff has sent this defendant five small remittances, totaling $17, and that between February 29, 1908, and August 1, 1908, the defendant has received from the plaintiff 37 letters, in none of which did he mention in any way the matter of divorce. That this defendant had no notice of any kind direct, or indirect, that suit for divorce had been instituted or was pending in this court, or elsewhere, or that any such action was contemplated, until Saturday, August 29, 1908, when she received through the mails a copy of the Seattle Daily Bulletin dated August 5th, and from which she discovered that a decree of divorce had been granted herein to plaintiff in this action, whereupon she at once consulted an attorney, and on September 25, 1908, she received copies of the papers in this cause, which was the first complete information of this action that ever came to her attention. This defendant further alleges: That she never received any summons and complaint herein, or any notice of any kind, and had no knowledge whatever that a copy of the summons and complaint herein was mailed to her, and further states that she has not resided at No. 3203 Prairie avenue, Chicago, Illinois, since the 1st day of June, 1908, on which date she left said address for No. 3218 Calumet avenue, Chicago, Illinois, where she resided until June 29, 1908, when she went to reside at her present address, No. 3358 Prairie avenue, Chicago, Illinois, and where she now resides with Maurice Chaney, a brother of the plaintiff herein, and his wife and family, and that the plaintiff herein was kept informed continuously of the correct address of this defendant, and knew of the changes in location made by this defendant. That defendant further states that she has made diligent inquiry at No. 3203 Prairie avenue and at the Chicago post office since the said 25th day of September, 1908, for the said copy of summons and complaint, and has obtained no information that said summons and complaint was ever at said address or in the city of Chicago, and affiant alleges and believes that no such summons and complaint was ever mailed to her, and that none was

Chicago, and that during the time the said We are next confronted with the question summons was published the plaintiff and de- of the jurisdiction of the superior court in the fendant were corresponding, and defendant light of section 4880, Ballinger's Ann. Codes was receiving from plaintiff letters correctly & St. (Pierce's Code, § 338), and the case of addressed to her respective street numbers." Metler v. Metler, 32 Wash. 494, 73 Pac. 535, There are other allegations which we think construing that section, upon the authority are sufficient to constitute a defense upon of which it is stated in appellant's brief the the merits. This petition is verified by one learned trial court disposed of this proceedof petitioner's attorneys on account of her ing. Sections 4878 and 4879 (sections 336, nonresidence and absence from the state. 337) relate to the manner of serving sumThere are attached to the petition and made mons by publication; the latter providing part thereof affidavits signed by the petition- that: "Personal service on the defendant er herself, wherein are stated substantially out of the state shall be equivalent to servthe same facts alleged in the formal part ice by publication." It is then provided by of the petition, except the facts shown by section 4880: "If the summons is not serveŭ the record and files in the case leading up to personally on the defendant in the cases proand rendering of the decree of divorce. The vided in the last two sections, he or his repprayer is that the decree be vacated and resentatives, on application and sufficient. she be granted an opportunity to defend the cause shown, at any time before judgment, action. This petition was filed November shall be allowed to defend the action and, ex19, 1908, only a little more than three months cept in an action for divorce, the defendant after the rendering of the decree, which in or his representatives may in like manner be the light of the allegations render it plain allowed to defend after judgment, and within she moved promptly. one year after the rendition of such judgment, on such terms as may be just." Commenting upon this section in the Metler Case, the court said: "It is evident that it was the intention of the Legislature by this section to limit the right of a defendant to defend in an action for divorce to a time prior to the entry of the judgment, while it continued the right to defendants in other actions for a period of one year after that time. This means that the trial court has no control over an action for divorce after it has once rendered a decree therein; that while it may vacate judgments in other actions, for good cause shown, if application be made to it within one year, it has no such power over a judgment rendered in an action for divorce. The court can, of course, lawfully vacate such a decree when entered without jurisdiction, and perhaps where it is the result of fraud practiced on the court or the other spouse, but for reasons which ordinarily call for the exercise of a mere judicial discretion it has no such power." While the court there fully recognized that this section gave to the superior court power to open a cause to let in a defense after judgment, where the service had been by publication and withheld such power as to divorce decrees, it seems plain to us there was no intention of holding that fraud in obtaining a divorce decree could not be shown as a ground for its vacation. Indeed, the language of the opinion seems to assume to the contrary, though that question does not appear to have been in that case. It will be noticed that this section relates only to judgments and decrees rendered upon service by publication; its purpose evidently being to give to parties having judgments and decrees rendered against them upon such service other than in divorce cases an opportunity to appear and defend at any time within one year thereafter when they can show any sufficient cause within the

Counsel for appellant moves to dismiss the appeal because of certain technical defects in the record and notice of appeal, whereby it becomes uncertain as to whether it was an original or amended petition to which the demurrer was sustained when appellant elected to stand upon her petition. In the notice of appeal, it is stated, among other things, that the appeal is taken from the order sustaining the demurrer to the "amended petition," while counsel argues the record fails to show any such petition or order. It is plain, however, from the record and final order of dismissal that a general demurrer to "a petition," which we must presume is the one we find in the record, was sustained and the appellant thereupon elected to stand upon her petition, and for that reason the proceeding was finally dismissed. The notice further plainly states that the appeal is taken from this final order, so the apparent erroneous reference in the notice to previous orders, which were not final, is immaterial. The motion to dismiss is denied.

Counsel moved to strike from the transcript the affidavits of appellant attached to her petition, resting the motion upon the decision of this court in Whidby Land, etc., Co. v. Nye, 5 Wash. 301, 31 Pac. 752. If this case were brought here for review upon the merits, and these affidavits were attempted to be used as a part of the evidence without being made part of the record by bill of exceptions or statement of fact as seems to have been attempted in that case, there would be merit in this motion. But these affidavits are attached to and made part of the petition, they constitute a part of the petitioner's statement of her cause of action, and the statements therein made cannot be stricken any more than statements in the body of the petition can be, and only for

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