in any case, civil or criminal, on the ground stinct. Human beings act upon knowledge of misdirection of the jury or the improper and belief. The sacred things of life are admission or rejection of evidence, or as matters of belief. The common things of life to error in any matter of pleading or pro- are matters of knowledge. The dog knows cedure, unless, in the opinion of the court to his master, whom he has seen. The human which application is made, after an ex- being believes in and worships God, whom he amination of the entire record, it appears has not seen. In all ages men have died for that the error complained of has probably matters of belief. Such a thing as matheresulted in a miscarriage of justice, or con-matical certainty cannot exist in the enforcestitutes a substantial violation of a constitutional or statutory right."

Here is a legislative recognition and indorsement of all that we have ever said upon this subject; in fact, it is simply a restatement of the position assumed and maintained by this court from the day of its organization. In our opinion it would be a miscarriage of justice to reverse convictions upon any purely technical objections. We have been frequently asked, "What is a technicality?" Many different answers can be given to this question, which would not be applicable to the matter now before us; but, that the bar may more fully understand what our position is, we will say that a technicali- | ty, as applicable to the statute above quoted, is an abstract proposition of law, which is correct, but which does not involve the jurisdiction of the court or the substantial rights of the parties in the case under consideration. If a principle of law has been violated during a trial which involves the jurisdiction of the court or which affects the substantial rights of a defendant, it would not constitute a technicality, but, under the statute above quoted, such violation would amount to reversible error; but the burden is on the party who seeks a reversal to show that the law was violated in such a manner as to involve the jurisdiction of the court or to deprive the defendant of a substantial right; unless this is done, where the evidence shows that the defendant is guilty, this court has neither the legal right nor power to set aside a conviction. From this it appears that, although the trial court may have violated some abstract principle of law, yet, if such principle did not go to the jurisdiction of the court or affect the substantial rights of the defendant, an objection based upon such violation would be a mere technicality and not a ground for reversal. In this connection we deem it proper to restate our position as to whether or not an error committed should be ground for reversal.

We are frequently asked the question, "How do you know that a given error did not deprive a defendant of a substantial right?" Our answer is that it is not necessary for us to know anything of the kind. For a full discussion of this question, see Coleman v. State, 6 Okl. Cr. 252, 118 Pac. 594; Brown v. State, 9 Okl. Cr. 132 Pac. 359. If only those cases were to be affirmed which this court knew to be right, all convictions would be reversed, for it is always possible in any given case that the conviction may be wrong. Brutes act upon knowledge and in

ment of law. All that courts and juries can act upon is belief to a moral certainty. A moral certainty always admits the possibility of error. Our statute was substantially taken from the decisions of this court and indorses them, for it says that no conviction shall be reversed "unless in the opinion of the court to which application is made, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right." This is not only our opinion, but it is the statute law of Oklahoma. This is the yard stick of the law by which the rights of a convicted defendant must be measured. It will be well for counsel, who appeal cases to this court, to bear the decisions of this court and this statute in mind.

It is impossible for human wisdom to foresee and anticipate every contingency which may arise in the affairs of men; therefore the law cannot provide fixed rules applicable alike to all cases. The best that can be done is to provide general rules, which may or may not be applicable to a given case, according to its individual facts and circumstances. Of course this system is not perfect, and there is a possibility of mistakes; but it is the best that poor, weak, erring mortals can do. It would take perfect men to make perfect laws and to perfectly enforce them. It is admitted that the wisest and best men sometimes make mistakes; therefore the best that we can do is to approximate justice as near as possible. It must always be remembered that the law is not and cannot be an exact science.

[2] Second. The first proposition contained in the motion for rehearing is as follows: "The plaintiff in error had 14 assignments of error to which he had directed the attention of the court in his brief, and which were properly preserved on the trial, and in the opinion there is but one assignment of error discussed." This proposition is entirely too general to receive consideration in that it does not point out any specific error complained of and relied upon.

[3] Third. The second proposition contained in the motion for rehearing is as follows: "Because the court overlooked the principal assignment of error, where witnesses were asked about other horses which it was alleged the defendant, Oce Jones, had stolen, for which he had never been tried or convicted and was altogether a different transaction, which assignment is known as No. 8." In their brief touching this matter counsel say:

"Eighth. The county attorney asked the wit-, appellant, that he had heard appellant claimness Priest: 'Now you say Oce (meaning defendant) had some horses there in a stalk field about that time? Yes, sir. Did you know who owned the stalk field? Indians by the name of Sams own the land. Isn't it a fact that Mr. Meadows and others went up there and out of the stalk field, where Oce Jones had his horses there, that they got some other horses that had been stolen? (Objected to. The Court: It is admissible only as to why Meadows was up there. Exception.) Not that I know of. Don't you know that Meadows went up there looking for the Cook horses and Gibson horses that had been stolen, and that they got them out of the stalk field where Oce Jones' horses were there? (Objected to, and court said: Admitted for the purpose of showing why Meadows was up there. Exception.) Meadows was up there looking for the horses? Yes, sir. And he got the horses, didn't he? Yes, sir. (Objected to. The court let him answer. Exception.)" "

In this connection it should be stated that the evidence above objected to was brought out by the county attorney on the cross-examination of the witness Priest when he had been placed upon the stand by appellant, and when his testimony was evidently intended to throw suspicion upon Meadows as the real thief. He testified that he had seen Meadows near the place where the stolen horses were found. Under these conditions it was proper for the state to show why Meadows was there. The ruling of the trial court is therefore approved.

[4] Fourth. The next ground contended in the motion for rehearing is as follows: "Because the court overlooked the fifth and sixth assignments of error, where the trial court permitted witnesses to be asked about what other witnesses had told them, and that the witness had assisted the defendant in driving stock to a pasture a year previous, as a circumstance to show that the defendant was then in possession of the pasture which he had abandoned long prior to the offense charged against him."

ing the pasture in which the stock was found. No one else was shown to have ever made any claim to it. The testimony of the witness Meadows that about a year before the larceny he had assisted appellant in driving stock into this pasture tended to prove that appellant was asserting an interest in it. The length of time that had elapsed merely went to the weight of the testimony and did not in any manner affect its admissibility. The admission of the testimony of the witness Holden as to what he had said to Simmons cannot be regarded as reversible error. Simmons came to the home of Holden with appellant, and the circumstances strongly indicate that Simmons was connected with appellant in a general conspiracy to steal stock. In fact, the evidence in the case is strongly suggestive of the idea that a general conspiracy existed between appellant and many of those with whom he was associated to steal horses and cattle, and that No Man's Pasture was the common place for concealing said stock; but even if Simmons was not acting in the common conspiracy with appellant, and such evidence was not admissible upon this ground, its admission was harmless error, because Holden, while on the witness stand, testified positively that the brand on the mare ridden by appellant looked like an acid brand. This was material to the case, be cause it was proven that, on the evening before the larceny was committed, appellant had purchased carbolic acid from Dr. Heflin in the town of Lone Grove, and that the stolen horses when found in No Man's Pasture had had their brands altered by an application of carbolic acid. All of these circumstances tended to prove the guilt of appellant, and the trial court did not err in the admission of the testimony complained of.

[5] Fifth. The next ground set up in the motion for rehearing is as follows: "Because the court overlooked the fifth, sixth, eighth, ninth, and tenth assignments of error, because according to a previous decision rendered by this court the evidence was inadmissible and was sufficient to reverse the cause for a new trial." We have already disposed of the fifth, sixth, and eighth assignments of error. We will now consider the ninth and tenth assignments.

In their brief counsel for appellant say: "Fifth. Because the court permitted the witness Meadows, in testifying for the state, to testify that he had assisted the plaintiff in error in driving stock a year before to the pasture where the alleged stolen horses were found. "Sixth. The court erred in permitting the ty attorney: "You say Mr. Jones left home witness Holden to testify he told a man named Simmons that the brand on a mare ridden by plaintiff in error looked like an acid brand."

When Mrs. Jones, the wife of appellant, was on the stand, she was asked by the coun

on the morning of the 19th (January)? Yes, sir. How long after that until Mr. Jones was back? (Objected to. Overruled. Exception reserved.) I reckon it was in August. You know when he surrendered to Buck Garrett down here." Mrs. Jones had taken the witness stand to testify to an alibi in behalf of her husband. She swore that he was at home on the night of the 18th of Jan

ments for securing payment of the debt, etc., the complaint in such an action does not state facts it shows on its face the reasons for its presufficient to constitute a cause of action unless mature filing.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. § 214; Dec. Dig. § 119.*] 2. APPEAL AND ERROR (§ 71*)-DECISIONS REVIEWABLE-"INTERLOCUTORY ORder.'

An order dissolving or refusing to dissolve an attachment is an "interlocutory order" and appealable only by virtue of the statute.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 386–401; Dec. Dig. § 71.* For other definitions, see Words and Phrases, vol. 4, p. 3715.]

3. APPEAL and Error (§ 874*)-SCOPE OF REVIEW APPEALS FROM INTERLOCUTORY OBDERS.

An order refusing to dissolve an attachment will not be reversed for insufficiency of the complaint if it is capable of amendment so as to state a cause of action, since the time to determine whether the court erred in overruling a demurrer to the complaint is on an appeal from the final judgment.

dence justified the jury in believing that he | from the state, and refuses to make arrangewas an old and experienced criminal and was a corruptor of the youth of the country. In fact, from the evidence in the record, he might be called an instructor in the art of larceny. He induced two young boys, about 19 years of age, to join with him in the commission of this crime, and after it was committed he fled the country and was gone for seven months, during which time he was evidently manufacturing an alibi. Two of the witnesses who testified in his behalf were directly impeached by the state's evidence. The others testified to the most improbable stories, and the jury doubtless came to the conclusion that their testimony was manufactured from beginning to end. Without disrespect to the counsel for appellant, we cannot see how any impartial, fair-minded, or intelligent man can read the record and come to any other conclusion. Upon the trial appellant did not take the stand in his own behalf and deny or explain a single word of testimony against him. It is true that this could not be considered by the jury in determining his guilt; but after his guilt has been established and he comes to this court and seeks to have the verdict of the jury set aside, or the judgment modified, this court cannot overlook the fact that appellant did not dare to go upon the witness stand in his own behalf. Men who steal the property of others in the dead hours of night, and who induce boys to do so, and then come into court with evidently manufactured evidence, should receive the extreme penalty of the law; in fact, the longer such men are locked up in the penitentiary the better it is for society. Honest people must have protection against such characters, or the courts are a farce, and law is a mockery, a snare, and a delusion.

We find no error in the trial in the lower court. We do not see how the jury could have come to any other conclusion than that appellant was guilty, and we think that his punishment was less than he deserves. The judgment of the lower court is in all things affirmed. The mandate will issue at once. Justice has too long been delayed in this

case.

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

Error, Cent. Dig. §§ 3478, 3480, 3481, 3484, 3530-3540; Dec. Dig. § 874.*]

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Magna N. Johnson against Fred Muenz. From orders overruling a demurrer to the complaint and denying a motion to dissolve an attachment, defendant appeals.

Affirmed.

F. B. Carpenter, of Seattle, for appellant. Daniel Landon, of Seattle, for respondent.

CHADWICK, J. Plaintiff brought this action against defendant to recover upon an immature debt and sued out a writ of attachment.

[1] The complaint does not state any of the facts necessary to be shown under section 649, Rem. & Bal. Code. The affidavit for the attachment was in proper form, alleging that the defendant was about to remove from the state; that he refused to make any arrangement for securing the payment of the debt when it falls due; and that such contemplated removal was not known to the plaintiff at the time the debt was contracted. Defendant demurred to the complaint upon

ARMSTRONG, P. J., and DOYLE, J., con- the grounds that the complaint does not state

cur.

(76 Wash. 526)

facts sufficient to constitute a cause of action and moved for a dissolution of the attachment. The demurrer to the complaint was overruled, and, after a hearing upon affidavits submitted by both parties, an order refusing to dissolve the attachment was entered. Notice of an appeal from the order refusing to dissolve the attachment was given overruling the demurrer and from the order in open court.

JOHNSON v. MUENZ. (Supreme Court of Washington. Dec. 5, 1913.) 1. ATTACHMENT (§ 119*) SUFFICIENCY OF COMPLAINT. Under Rem. & Bal. Code, § 649, providing that an action may be commenced and the property of a debtor attached before the debt becomes due, when nothing but time is wanting to This court has held as often as the question fix an absolute indebtedness, and when the af- has been submitted to it that a complaint fidavit in addition to that fact states that the filed under our attachment law, which does defendant is about to dispose of his property with intent to defraud creditors or to remove not show upon its face the reasons for its

(76 Wash. 533)

(Supreme Court of Washington. Dec. 5, 1913.)

premature filing, is obnoxious to a demurrer for the want of facts. Cox v. Dawson, 2 SIMPSON LOGGING CO. v. NORTHWEST Wash. 381, 26 Pac. 973; Augir v. Foresman, BRIDGE CO. et al. 23 Wash. 595, 63 Pac. 201; Carstens v. Milo, 40 Wash. 335, 82 Pac. 410. Tested by these cases the complaint before us does not state facts sufficient to constitute a cause of action.

[2, 3] It does not follow, however, that the order refusing to dissolve the attachment must be reversed. An appeal from an order dissolving or refusing to dissolve an attachment is an appeal from an interlocutory order and is permissible only in virtue of the statute, and an appellate court will not in such cases ordinarily review any alleged error that does not go to the merit of the particular question or issue raised on the appeal.

1. PRINCIPAL AND SURETY (§ 112*)-RIGHTS OF SURETY.

Under a contract for the construction of a bridge for a logging company, which provided for the retention of a part of the contract price until the completion and acceptance of the work, a surety company which executed a bond conditioned for the faithful performance of the contract by the contractor, and which provided ty in writing before the last payment, or any that the logging company should notify the surereserve due the principal under the contract should be paid, was entitled to have the logging company hold the whole of the reserve payment until notice to it, since a surety is entitled to have such a reserve held as indemnity until his rights and liabilities are determined.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 226-234; Dec. Dig. § 112.*]

2. GUARANTY (8 27*)-PRINCIPAL AND SURETY (§ 59*)

LIABILITY.

SCOPE AND EXTENT OF SURETY'S

Sureties and guarantors are not to be held liable beyond the express terms of their engage

ment.

Under a contract for the construction of a

The governing principle is well stated in Belding v. Washington Cornice Co., 36 Wash. 549, 79 Pac. 37. In that case an appeal was prosecuted from an order overruling a demurrer to the complaint and from an order appointing a temporary receiver. The court said: "That a complaint does not state facts [Ed. Note. For other cases, see Guaranty, sufficient to constitute a cause of action can, Cent. Dig. § 28; Dec. Dig. § 27 Principal and of course, be urged as a ground for reversing Surety, Cent. Dig. §§ 103, 1032; Dec. Dig. § an order appointing a temporary receiver; | 59.*] but, to be effective, it must be shown that 3. PRINCIPAL AND SURETY (§ 114*)-LIABILIthe complaint not only fails to state a cause TY OF SURETY. of action but that it is so far incapable of amendment that no action at all can be maintained for the cause stated. That it is merely defective and subject to demurrer on such ground is not sufficient; it must appear that the complainant has no cause of action whatsoever, and that the only order that can be entered is a dismissal of the action, before it will have that effect. The complaint here does not present such a case. An action will lie for the causes stated in the complaint, and, if the complaint is defective in any particular, it can only be reviewed on appeal from the final judgment. It will thus be seen that the time to test an order of the court overruling a demurrer to the complaint would be when the case is before us upon an appeal from a final judgment. The logic of the decision just cited and quoted from is that, upon appeal from an interlocutory order when the insufficiency of the complaint is urged, we will not look to the complaint further than to ascertain whether the complaint is capable of amendment. If it is, it will be passed until properly before us. If it is not, we will order the action dismissed.

Passing to the merits of the appeal, we have read the record and are unable to say that the trial judge erred in refusing to dissolve the attachment. The evidence is decidedly conflicting, with a possible preponderance in favor of the plaintiff. Affirmed.

bridge for a logging company, which provided for the retention of the last payment on the contract price until the completion and acceptance of the work, and the performance of which was secured by a bond which provided that the owner should notify the surety in writing before the last payment or any reserve due the principal should be paid, the logging company before the completion of the work made certain payments on behalf of the contractor from the amount specified as the last payment. Thereafter it wired the surety that there were outstanding claims and bills to the amount of apcontractor of $7,000, which was the amount of proximately $10,000, with a credit still due the the stipulated last payment, to which the surety replied, consenting to the application of the balance of the contract price in settlement of such lienable claims as might be approved by the contractor. Some of the amounts paid by the logging company from the $7,000 were not lienable items, and it could not be determined which items were lienable and which nonlienable. Held, that the payments on nonlienable items constituted as to the surety a misapplication pro tanto of the funds due the contractor, and, it not being possible to determine which items were lienable, the whole demand was nonlienable, and hence the surety was not liable for the amounts paid by the logging company in excess of such $7,000.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 240-243; Dec. Dig. § 114.*]

4. PRINCIPAL AND SURETY (§ 82*)—BUILDING

CONTRACT-EXTENT OF OBLIGATION.

A contract for the construction of a bridge provided that the contractor would furnish all materials and labor necessary to construct the bridge ready for the rails, and further provided that, if he did not make a profit of 10 per cent. on the cost of the bridge, the owner would make

CROW, C. J., and GOSE, ELLIS, and the 10 per cent. good up to a specified maximum MAIN, JJ., concur.

amount, and that cost covered all costs of

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