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the witness Rohde had testified as to the assignment of a lease and its contents, over the objection of appellant, the court overruled an objection by appellant to the question, "What lease was it, Mr. Rohde, that this assignment purported to assign?" The evident object of this question was to show that the instrument mentioned by the witness was the assignment referred to in respondent's answer, and, unless a proper foundation for the introduction of secondary evidence as to the contents of the alleged assignment had not been laid,-a question to be considered hereafter,-it was not error to permit the interrogatory to be propounded and answered.

It is also insisted that the court erred in sustaining the respondent's objection, on the ground of immateriality, to the question asked respondent on cross-examination, "How did you come to get this lease? What object had you in getting it?" We perceive no merit in this objection. It was conceded that the lease was assigned to the respondent,-in fact, it was so alleged in the complaint, and it would seem to be altogether immaterial what his object or motive was in acquiring it. After one Rohde, an attorney, and a witness for the respondent, had testified that he wrote the assignment from the respondent to Barnett, he was asked the question, "Wasn't this assignment, Mr. Rohde, a scheme on your part for to get Mr. Iffland rid of the lease?" The court sustained an objection to the question, as immaterial, and the plaintiff excepted. It is obvious, from the very nature of the transaction itself, that the object of making an assignment was to get rid of the lease. And while we think the question propounded might properly have been answered under the latitude permissible in cross-examination, still we are unable to perceive wherein the appellant was materially prejudiced by the ruling of the court in that regard. The respondent had a perfect right to "get rid of the lease" by assigning it, bona fide, even though the "scheme" originated with the witness. If there was any error at all committed, it is so inconsequential that a reversal cannot justly be predicated upon it.

The assignment in question was not produced at the trial, and parol testimony was introduced to show how it was executed, and also its contents. The appellant objected to the giving of such testimony on the ground that sufficient diligence to procure the assignment had not been shown, and that its nonproduction was not sufficiently accounted for. There was testimony adduced on the part of the respondent, and which was not contradicted, to the effect that the assignment was in writing, and for a valuable consideration, and that it was delivered to Barnett, the assignee therein mentioned. And the respondent himself testified that he delivered the possession of the premises described in the lease to said

Barnett, who soon after left the city of Port Townsend; that he had searched the hotels and boarding houses there, to find him, and get the assignment, and had addressed letters to him at Portland and Vancouver, the only places where he had reason to think he might be found, but got no answer, and did not know his whereabouts. While his testimony on its face is somewhat contradictory as to whether he ever received an answer to any of his letters to Barnett, yet it would seem, taking it as a whole, that his failure to produce the instrument was not caused by any lack of diligence on his part in endeavoring to procure it. And assuming, as the court must have assumed, that what he said was true, there was no error in permitting secondary evidence to prove the contents of the written assignment. It was shown, both by the testimony of the respondent and of Rohde, who drew it, that the assignment was in writing, and was witnessed by two witnesses, and properly acknowledged. But the point is made by appellant that it was not shown to have been recorded, and for that reason was not a valid assignment, and therefore the evidence offered was incompetent. While the statute provides (1 Hill's Code, § 199) that the county auditor shall, upon the payment of his fees therefor, record leases which have been acknowledged or proved, no provision is made for recording assignments of those instruments, and therefore a failure to record them will not alone render them invalid. Leases of real estate for more than one year, being incumbrances upon the property demised, must, under our statutes, be created by deed, and with the usual formalities of deeds. But the interest conferred by a lease for a term of years, whether for a long or short period, is only a chattel interest (1 Wood, Landl. & Ten. [2d Ed.] pp. 143, 149; Gear, Landl. & Ten. § 2), and is generally subject to the law pertaining to chattels. In this case, the lease was transferred by the respondent, as we have said, by a written instrument which was signed, witnessed, and acknowledged, and was therefore valid, even upon the theory, contended for by appellant, that such assignments can only be effectually made by deed.

The first instruction given by the court to the jury which is claimed by appellant to be erroneous is as follows: "(5) In this case I instruct you that the defendant, Iffland, had a lawful right to assign the lease of the building for which the plaintiff claims rent to another person, for the purpose of ridding himself of liability to pay rent to plaintiff; and if you believe from the evidence that the defendant assigned all his interest in the lease on which plaintiff claims rent before the first day of March, 1892, and surrendered possession of the building in question to John Barnett, then you must find for the defendant." This instruction is sub

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stantially in accord with the authorities, and appellant's objection is not well taken. Wood, Landl. & Ten. p. 749; 1 Washb. Real Prop. (5th Ed.) 525; Johnson v. Sherman, 15 Cal. 287; Childs v. Clark, 3 Barb. Ch. 52; Trabue v. McAdams, 8 Bush, 74; Durand v. Curtis, 57 N. Y. 7; Sanders v. Partridge, 108 Mass. 556. Nor was it error to give instruction No. 6, which is in the following words: "You are instructed that if you find from the evidence that the defendant assigned the lease on which rent is claimed before the first day of March, 1892, and surrendered possession of the premises to John Barnett, then you must find for the defendant, although you find that plaintiff had no notice of such assignment." Appellant contends that without notice the assignment was ineffectual as to him. But the authorities appear to be the other way. The law applicable to this, as well as the preceding instruction, is stated by Wood, in his valuable treatise on Landlord and Tenant, supra, in these words: "The assignee may rid himself of all liability to the lessor for rent, and the covenants in the original lease, by reassigning the lease to any person. He may do this without giving notice, or obtaining his lease, and notwithstanding a covenant in the original lease that the lessee, his executors or administrators, should not assign without the license of the lessor. There is no fraud in the assignee of a lease reassigning his interest with a view to getting rid of the lease; hence, he may reassign it to a beggar, or a married woman, or a person leaving the kingdom, for the express purpose of relieving himself of liability under the covenants. It is not even necessary that the person to whom the reassignment is made should take possession of the premises, or assent to the lease. In one case it was held that a reassignment of a lease might be lawfully made to a prisoner in a fleet, who was paid a sum of money to accept of the assignment." And to the same effect are the other authorities above cited. The remaining instructions the giving of which is assigned as error are the following: "(7) The court instructs you that in this case it makes no difference whether Mr. Iffland was a married man or an unmarried man at any of the times mentioned in the testimony, and you will therefore disregard all testimony as to whether he was a married man or not. (8) The court instructs the jury that the testimony offered to show diligence on the part of defendant in producing written evidence of the assignment in question in this case was directed to the court, and is not for your consideration." The latter of these instructions but states a familiar rule of evidence, and the objection to the former is wholly untenable. If the respondent was a married man, he had the same right to assign and transfer the lease that he had to dispose of chattels generally without the consent of his wife (Gear, Landl. & Ten. § 183); and if he was unmarried he

could, of course, make such disposition of it as he saw fit. It was therefore immaterial whether he was married or not, so far as the right to make the assignment was concerned.

There are some other points raised in appellant's brief, but as we do not deem them tenable we will not now stop to discuss them. The judgment is affirmed.

DUNBAR, C. J., and STILES and HOYT, JJ., concur.

(10 Wash. 348)

STATE ex rel. WHITNEY, Pros. Atty., v. FRIARS et al.

(Supreme Court of Washington. Dec. 26, 1894.)

COUNTY COMMISSIONERS-MISCONDUCT IN OFFICE -SUFFICIENCY OF INFORMATION.

1. As boards of county commissioners have exclusive authority to regulate, license, and prohibit the sale of intoxicating liquors in towns, an information which charges that a board of county commissioners, for the purpose of monopolizing the liquor business, refused to issue more than two licenses in certain towns, is demurrable.

2. An information charging that a board of county commissioners were at divers times wrongfully and illegally in session, for the purpose of allowing themselves per diem compensation,-in all, 82 days,-is demurrable, as not stating at what time the alleged illegal sessions were held, nor the number of days it was necessary for the commissioners to sit.

3. An information charging that a board of county commissioners, by collusion with the county auditor, procured from him warrants for mileage which was not allowed or audited by the board, is demurrable, as it is the duty of the auditor to record bills for mileage, and there is no presumption that the county commissioners are responsible for his failure to do so.

4. An information charging that a board of county commissioners colluded to defraud the county by making a contract with one P. for the building of certain bridges is demurrable as not being sufficiently specific, the commissioners having the general power to make such contracts.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Information upon relation of L. C. Whitney, prosecuting attorney of Snohomish county, against Q. E. Friars, Thomas Moran, and Don W. Evans for malfeasance in office. From an order sustaining a demurrer to and dismissing the information, appeal is taken. Affirmed.

L. C. Whitney, John W. Miller, and John W. Frame, for appellant. A. D. Austin, A. K. Delaney, and Louis K. Church, for respondents.

DUNBAR, C. J. This action was brought under chapter 10, tit. 9, § 679 et seq., Code Proc., on an information filed by the prosecuting attorney of Snohomish county against the respondents, who constituted the board of county commissioners of said county, to remove them from office for malfeasance, misfeasance, corruption, and misdemeanor in office, done and committed in their official ca

It may

malt, or other intoxicating liquors outside of
the corporate limits of each incorporated city,
could not certainly be construed to be an ac-
tion which would subject them to an informa-
tion such as was filed in this case.
have been an error of judgment on the part
of the board, and, if so, any person who felt
himself aggrieved by such action or decision
of the board would have a right to appeal
from such action and decision and obtain re-
dress in that manner. But it is certainly not
the policy of the law, nor is it the intention
of the law, that a county commissioner shall
be subject to the necessity of defending his
right to his office whenever it may occur to any
citizen that he has committed an error in any
ruling or decision which he may render in
performing the duties of his office.

The second charge, viz. that the defendants conspired with the auditor to purchase sup

us, to state a cause of action. The county commissioners are constituted by the law the guardians of the county and its business managers, and, while the power to appoint an agent is not expressly granted, the power which they do have under the law necessarily carries with it all the powers necessary to the proper exercise of the power granted.

pacity as such board of county commissioners, on five specific charges set out in the information. The respondents interposed a general demurrer to the information, which was sustained by the court, and the action was dismissed. From the action of the court in sustaining the demurrer and dismissing the information, the appellant appeals to this court. Without investigating many of the questions which are presented in this case, we are satisfied that the demurrer was rightly sustained on the ground that it did not state facts sufficient to constitute a cause of action. The first charge is that the commissioners colluded together, with persons unknown to the relator, to corner and monopolize the business of the retail sale of intoxicating liquors at the towns of Monte Cristo and Silverton, for the purpose of cheating and defrauding said county of Snohomish by entering upon the journal record of their proceedings the follow-plies for the county, equally fails, it seems to ing resolution: "Whereas, it having been shown to the board of county commissioners of Snohomish county that application for the sale of intoxicating liquors in the towns of Monte Cristo and Silverton, in Snohomish county, state of Washington, will soon be made by various persons; and it further appearing to the said board that said towns take the character of mining towns, and this board believes that said towns will have residing therein a great number of persons of objectionable and questionable character, and that said persons will live with the intention and for the purpose of committing depredations against the peaceable inhabitants thereof, and that in granting license to sell intoxicating liquors therein it will be necessary for this board of county commissioners to see that no person is granted a license for the sale of intoxicating liquors who is not a man of good character, and a person who will carry on the business in as respectable manner as it can be carried on, and a person who will be responsible to the law: Therefore it is considered and ordered by the board of county commissioners of Snohomish county that not more than two different licenses for the sale of intoxicating liquors in each of said towns be granted." And the order proceeds to the effect that the treasurer is commanded not to receive any moneys for licenses to be issued in said towns except for the number of saloons above stated, and then only from such persons as the board of county commissioners shall direct him to receive from; and that the order shall remain in effect for six months, or until the same is ordered by the board to be null and void. The information sets up the fact that, after such order was promulgated by the board, various persons applied for a license to sell liquor in the towns aforesaid, and were refused such license. This action of the board, in view of the statute which provides that the county commissioners shall have the sole and exclusive authority and power to regulate, restrain, license, and prohibit the sale and disposition of spirituous, fermented,

The third allegation is that "defendants, in their official capacity, colluded and conspired together, during the year 1893, at the beginning of their term of office, to cheat and defraud said county, by auditing and allowing themselves compensation in the way of per diem and mileage, and, in pursuance of said collusion and conspiracy, willfully and corruptly continued the sessions of said board of county commissioners at divers times during said year, from time to time and day to day, and were wrongfully and illegally in session for the purposes aforesaid the total number of eighty-two days, for which time, so wrongfully in session, the defendants willfully and corruptly audited and allowed themselves per diem," etc. This count is bad for indefiniteness, if there were no other objections to it. There is no statement here at what terms of court, or at what time, these alleged illegal sessions were held. It is not alleged what the number of days is that were necessary for the commissioners to transact the business of the county in; so that the commissioners, in answering this charge, would have to go into a computation to determine the particular days on which they were charged with illegally sitting, if it could be determined at all from the allegations of the information, which we think is doubtful.

The fourth count in the information charges the defendants with the wrongful allowance of compensation and mileage to themselves; alleges that during the year 1893 defendants, as county commissioners of said county, willfully and corruptly colluded and conspired together to cheat and defraud said county, and in pursuance of said collusion and conspiracy, at divers times, willfully and cor

ruptly colluded with the auditor of said county, and had and procured said auditor to issue and deliver to each of defendants warrants upon the county treasurer for large sums of money, for which there is no allowance on record upon the minutes of their proceedings as county commissioners, and which seem never to have been audited and allowed by said board. The law makes it the business of the auditor to record such bills, and there can be no presumption that the county commissioners are responsible for the failure of the auditor to perform a clerical duty.

The fifth allegation, that defendants entered into collusion to defraud the county by making a contract with one Palmer for the building and construction of certain bridges in said county, is equally faulty with the others. There is no statement concerning the particular fault or deficiency in the contract, and, as the county commissioners have the power to contract for the building of bridges under the law, a mistake of judgment would not subject them to an information seeking to deprive them of their office. If the county commissioners illegally awarded this contract, any taxpayer could take an appeal from such action. Besides, there is not in any of these counts any definite, distinct charge. The general allegations that the county commissioners "fraudulently and collusively conspired," etc., are simply conclusions of law, and are not statements of facts, which are required under the statute providing for the filing of informations. These actions are in the nature of criminal actions. A penalty is imposed, viz. the loss of the office; and, when officers are called upon to defend an action which involves the loss of their office for alleged malfeasance in the performance of their official duties, law and common justice require that the facts shall be stated as definitely as they are stated in an indictment or information in a criminal action. We think the demurrer was rightfully sustained, and the judgment will be affirmed.

SCOTT, HOYT, and STILES, JJ., concur.

(10 Wash. 402)

STATE v. WILSON. (Supreme Court of Washington. Dec. 27, 1891.)

PROSECUTION FOR MURDER-SUFFICIENCY OF EVI-
DENCE-DIRECTING VERDICT-JUSTIFICA-
TION-DEFENSE OF RELATIVE.

1. Error in the admission of evidence which could not have influenced the jury is not ground for reversing a conviction.

2. On motion for a directed verdict of acquittal, the evidence tended to show that deceased had had some trouble with his wife, defendant's sister-in-law, who had left him, and was living with her family; that defendant's father, a codefendant, was seen with deceased about the time of the killing, and that then their greeting showed that there was some ill feeling between them; and that at the time the body was found, though it was in a fair state of preservation, defendant did not show that he recog

nized it. The body was found in defendant's neighborhood, though not until about a year after the homicide. Held, that the motion was properly denied.

3. In such case, the only other evidence was the testimony of defendant that deceased came to the house to see his wife; that, when deceased left, he, in order to get the check to his sister's trunk and to induce deceased to stay away, went with him; that deceased, when a mile from the house, stopped, and said that he was going to return and kill his wife; that defendant thereupon picked up a stick, and struck deceased on the head, killing him. The autopsy showed that the blow was of such violence as to crush the back of deceased's head. Held, that a conviction of murder in the second degree would not be disturbed.

4. Deceased, being a mile from appellant's house, threatened to return and kill his wife, who was appellant's sister, having at the time in his possession a revolver. Appellant was aware that deceased had made such threats before, and also knew that his father was at home, and had in the house two guns with which to protect his daughter. Held, that the danger to his sister was not sufficiently imminent to justify appellant in striking deceased on the head with such violence as to necessarily cause death. Dunbar, C. J., and Stiles J., dissenting.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Benton Wilson, convicted of murder, appeals. Affirmed.

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HOYT, J. Appellant was charged jointly with his father, Charles Wilson, and his sister, Nellie Johnson, with the crime of murder in the first degree. A plea of not guilty was entered as to all of them, and they were tried together. Charles Wilson and Nellie Johnson were acquitted, and appellant was convicted of murder in the second degree, and from such conviction has prosecuted this appeal. All of the errors assigned may be considered under four heads: (1) In admitting in evidence a certain letter from Johnson to Cowgill; (2) in denying the motion for a directed verdict for the defendants, at the close of the plaintiff's case; (3) error in instructing the jury; and (4) in denying the motion for a new trial.

As to the first assignment, it is not easy to see how this letter could have any particular connection with the question at issue before the jury, but it was so connected with the appellant, by his inquiries in regard thereto before the time of its receipt by Cowgill, that it was not error as against him to allow it to go in evidence. But, whether it was or not, we should refuse to reverse the judgment on account of its admission in evidence, for the reason that we do not see how it could have influenced the verdict of the jury.

The second assignment presents a more difficult question, and, in order to decide it, it becomes necessary to determine the duty of a court in the trial of a cause to a jury when a motion of this kind is interposed. In our opinion, it is its duty to deny the motion, and allow the case to go to the jury, unless there is such a want of necessary proofs as

to make it clear that a verdict rendered thereon against the defendant would be set aside. It is not sufficient to authorize the granting of such a motion that it should appear that upon a careful review of plaintiff's evidence it was not sufficient to support a verdict against the defendant, but it must further appear that such a result is so evident that the mind of the court would not hesitate in regard thereto. Such motion is interposed during the pendency of the action before the jury, and it is the duty of the court to pass upon the same without that careful research and consideration which it should give to the same question upon a motion for a new trial; and since, if it commits error in denying such a motion, it can be remedied upon a more careful consideration after verdict, it is its duty to deny it unless from a superficial examination it appears that the evidence is insufficient. Investigating the proofs offered by the plaintiff in the light of the above suggestions, we hold that the action of the court in denying the motion was proper. The evidence was not very strong, but there were some circumstances proven from which the jury would have been warranted in inferring the guilt of the accused. It was made to appear that the deceased person was the brother-in-law of the appellant, being the husband of Nellie Johnson, one of the defendants. It also appeared that there had been some interruption of the marital relations as between said defendant Nellie Johnson and her husband; that Charles Wilson, the other defendant, was seen with the deceased at about the time when, from the appearance of the body, he was killed; that the greeting between them at that time showed that there was more or less feeling on the part of said defendant against the deceased. It further appeared that at the time the body was exhumed it was in a fair state of preservation, and in such a condition that one well acquainted with the deceased person would be likely to recognize it; that the appellant saw the body after it was exhumed, but made no sign to in any manner show that he recognized it. On the contrary, his actions were such as to show that he clearly intended to have it understood that he had no knowledge whatever as to whose body it was. These and some other incriminating circumstances which were proven would have authorized the jury to infer the guilt of the defendants.

The instruction which is the foundation of the third assignment was as to the weight to be given to the good character of the defendant.

The instruction in that regard is not what it should have been, but we are of the opinion that the error could not have prejudiced the rights of the defendant, as the criticism which is made of it goes only to a case where there was positive proof as to the guilt of the defendant, and, except appellant's own statement, the evidence was all circumstantial. But, however that may be,

the verdict will not be disturbed if the proofs were of such a nature that the determination of the jury was clearly warranted.

It is claimed by the appellant that a new trial should have been granted upon two grounds: (1) newly-discovered evidence; and (2) because there was not sufficient testimony to sustain the verdict. As to the first, the facts set up in the affidavits were not of such materiality that a new trial should be granted on the ground of their discovery subsequent to the trial. The other objection requires a consideration of the facts testified to by appellant when placed upon the stand in his own behalf, which, briefly stated, were as follows: That the deceased had come to their house for an interview with his wife; that she was more or less frightened at his appearance, and desired him to go away; that she was also desirous of obtaining from him a check for her trunk, which he had in his possession; that he finally started to go away without giving her the check; that the appellant went with him, for the alleged purpose of obtaining from him the check, and inducing him to go away and leave his sister alone; that at the time appellant was informed by his sister that the deceased carried a loaded revolver, and that he must "look out," or something to that effect; that he walked with deceased for the distance of about a mile, during which time they passed Charles Wilson, the father of the appellant, on his way home; that during the walk. he was trying to persuade deceased to give up the check, and go away, and not try to have any further communication with his wife; that at times the deceased would appear to be reasonable, and would say that he would go away, and at others he would threaten to go back, and do violence to his wife, or compel her to come with him; that he finally gave to appellant the check for the trunk, and they continued on together until the deceased declined to go any further, and turned around, saying that he would go back and kill his wife and then himself; that thereupon appellant picked up a stick and struck him a single blow, which killed him; that he was much frightened, and dragged the body into the woods, and went back to the house and told what he had done, and that afterwards he returned and buried the body. This is the substance of the transaction, as detailed by the appellant. The facts proven in connection with the autopsy of the body show that a blow of such violence had been received by the deceased as to crush in the entire back portion of the head and dislocate the neck. The statement of the appellant, interpreted in the light of all the circumstances, seems to us to warrant the verdict of the jury. His theory is that he was justified in what he did, upon the ground that it was in defense of his sister. But we are unable to hold that his sister was shown to be in such imminent danger as to justify the taking of life. The parties were

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