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the witness Rohde had testified as to the as- Barnett, who soon after left the city of signment of a lease and its contents, over Port Townsend; that he had searched the the objection of appellant, the court over- hotels and boarding houses there, to find ruled an objection by appellant to the ques- him, and get the assignment, and had adtion, "What lease was it, Mr. Rohde, that dressed letters to him at Portland and Van. this assignment purported to assign?” The couver, the only places where he had reason evident object of this question was to show to think he might be found, but got no anthat the instrument mentioned by the wit- swer, and did not know his whereabouts. ness was the assignment referred to in re- While his testimony on its face is somespondent's answer, and, unless a proper what contradictory as to whether he ever foundation for the introduction of secondary received an answer to any of his letters to evidence as to the contents of the alleged Barnett, yet it would seem, taking it as a assignment had not been laid,-a question to whole, that his failure to produce the inbe considered hereafter,-it was not error to strument was not caused by any lack of permit the interrogatory to be propounded | diligence on his part in endea voring to proand answered.
cure it. And assuming, as the court must It is also insisted that the court erred in have assumed, that what he said was true, sustaining the respondent's objection, on the there was no error in permitting secondary ground of immateriality, to the question evidence to prove the contents of the writasked respondent cross-examination, ten assignment. It was shown, both by the "How did you come to get this lease? What testimony of the respondent and of Rohde, object had you in getting it?" We perceive who drew it, that the assignment was in no merit in this objection. It was conceded writing, and was witnessed by two witthat the lease was assigned to the respond- nesses, and properly acknowledged. But the ent,-in fact, it was so alleged in the com- point is made by appellant that it was not plaint,--and it would seem to be altogether shown to have been recorded, and for that immaterial what his object or motive was in reason was not a valid assignment, and theieacquiring it. After one Rohde, an attorney, fore the evidence offered was incompetent. and a witness for the respondent, bad testi- While the statute provides (1 Hill's Code, 8 fied that he wrote the assignment from the 199) that the county auditor shall, upon the respondent to Barnett, he was asked the payment of his fees therefor, record leases question, “Wasn't this assignment, Mr. which have been acknowledged or proved, Rohde, a scheme on your part for to get Mr. no provision is made for recording assignIffland rid of the lease?" The court sustain- ments of those instruments, and therefore ed an objection to the question, as imma- a failure to record them will not alone renterial, and the plaintiff excepted. It is obvi- der them invalid. Leases of real estate for ous, from the very nature of the transaction more than one year, being incumbrances upitself, that the object of making an assign- on the property demised, must, under our ment was to get rid of the lease. And while statutes, be created by deed, and with the we think the question propounded might usual formalities of deeds. But the interest properly have been answered under the lat- conferred by a lease for a term of years, itude permissible in cross-examination, still whether for a long or short period, is only we are unable to perceive wherein the appel- a chattel interest (1 Wood, Landi. & Ten. lant was materially prejudiced by the ruling [2d Ed.] pp. 143, 149; Gear, Landl. & Ten. of the court in that regard. The respondent $ 2), and is generally subject to the law had a perfect right to “get rid of the lease” pertaining to chattels. In this case, the by assigning it, bona fide, even though the lease was transferred by the respondent, as "scheme" originated with the witness. If we have said, by a written instrument which there was any error at all committed, it is so was signed, witnessed, and acknowledged, inconsequential that a reversal cannot justly and was therefore valid, even upon the the. be predicated upon it.
ory, contended for by appellant, that such The assignment in question was not pro- assignments can only be effectually made by duced at the trial, aud parol testimony was deed. introduced to show how it was executed, The first instruction given by the court and also its contents. The appellant ob- to the jury which is claimed by appellant jected to the giving of such testimony on to be erroneous is as follows: "(5) In this the ground that sufficient diligence to pro- case I instruct you that the defendant, Iffcure the assignment had not been shown, land, had a lawful right to assign the lease and that its nonproduction was not sufficient- of the building for which the plaintiff claims ly accounted for. There was testimony ad- rent to another person, for the purpose of duced on the part of the respondent, and ridding himself of liability to pay rent to which was not contradicted, to the effect plaintiff; and if you believe from the evithat the assignment was in writing, and for dence that the defendant assigned all his a valuable consideration, and that it was interest in the lease on which plaintiff claims delivered to Barnett, the assignee therein rent before the first day of March, 1892, and mentioned. And the respondent himself tes- surrendered possession of the building in tified that he delivered the possession of question to John Barnett, then you must find the premises described in the lease to said for the defendant." This instruction is substantially in accord with the authorities, and could, of course, make such disposition of it appellant's objection is not well taken. 1 as he saw fit. It was therefore immaterial Wood, Landl. & Ten. p. 749; 1 Washb. Real whether he was married or not, so far as the Prop. (5th Ed.) 525; Johnson v. Sherman, right to make the assignment was concerned. 15 Cal. 287; Childs v. Clark, 3 Barb. Ch. 52; There are some other points raised in apTrabue v. McAdams, 8 Bush, 74; Durand v. pellant's brief, but as we do not deem them Curtis, 57 N. Y. 7; Sanders v. Partridge, 108 tenable we will not now stop to discuss them. Mass. 556. Nor was it error to give instruc- The judgment is affirmed, tion No. 6, which is in the following words: "You are instructed that if you find from
DUNBAR, C. J., and STILES and HOYT, the evidence that the defendant assigned the JJ., concur. lease on which rent is claimed before the first day of March, 1892, and surrendered
(10 Wash. 348) possession of the premises to John Barnett,
STATE ex rel. WHITNEY, Pros. Atty., v. then you must find for the defendant, al.
FRIARS et al. though you find that plaintiff had no notice
(Supreme Court of Washington. Dec. 26, of such assignment." Appellantcontends that
1891.) without notice the assignment was ineffectual as to him. But the authorities appear to
County CoMMISSIONERS - MISCONDUCT IN OFFICE
--SUFFICIENCY OF INFORMATION. be the other way. The law applicable to
1. As boards of county commissioners have this, as well as the preceding instruction, is exclusive authority to regulate, license, and stated by Wood, in his valuable treatise on
prohibit the sale of intoxicating liquors in
towng, an information which charges that a Landlord and Tenant, supra, in these words:
board of county commissioners, for the purpose “The assignee may rid himself of all liability of monopolizing the liquor business, refused to to the lessor for rent, and the covenants in issue more than two licenses in certain towns,
is demurrable. the original lease, by reassigning the lease
2. An information charging that a board of to any person. He may do this without giv
county commissioners were at divers times ing notice, or obtaining his lease, and not- wrongfully and illegally in session, for the purwithstanding a covenant in the original.lease
pose of allowing themselves per diem compenthat the lessee, his executors or administra
sation,-in all, 82 days,-is demurrable, as not
stating at what time the alleged illegal sessions tors, should not assign without the license were held, nor the number of days it was necesof the lessor. There is no fraud in the as- sary for the commissioners to sit. signee of a lease reassigning his interest
3. An information charging that a board
of county commissioners, by collusion with the with a view to getting rid of the lease; hence,
county auditor, procured from him warrants he may reassign it to a beggar, or a married for mileage which was not allowed or audited woman, or a person leaving the kingdom, for by the board, is demurrable, as it is the duty
of the auditor to record bills for mileage, and the express purpose of relieving himself of
there is no presumption that the county comliability under the covenants. It is not even missioners are responsible for his failure to necessary that the person to whom the reassignment is made should take possession of
4. An information charging that a board
of county commissioners colluded to defraud the premises, or assent to the lease. In one
the county by making a contract with one P. case it was held that a reassignment of a for the building of certain bridges is demurralease might be lawfully made to a prisoner
ble as not being sufliciently specific, the com
missioners having the general power to make in a fleet, who was paid a sum of money to
such contracts. accept of the assignment.” And to the same effect are the other authorities above cited,
Appeal from superior court, Snohomish The remaining instructions the giving of
county; John C. Denney, Judge. which is assigned as error are the following:
Information upon relation of L. C. Whitney, “(7) The court instructs you that in this
prosecuting attorney of Snohomish county,
against Q. E. Friars, Thomas Moran, and case it makes no difference whether Mr. Mand was a married man or an unmarried
Don W. Evans for malfeasance in office.
From an order sustaining a demurrer to and man at any of the times mentioned in the
dismissing the information, appeal is taken. testimony, and you will therefore disregard
Affirmed. all testimony as to whether he was a married man or not. (8) The court instructs the L. C. Whitney, John W. Miller, and John jury that the testimony offered to show dil- W. Frame, for appellant. A. D. Austin, A. igence on the part of defendant in producing K. Delaney, and Louis K. Church, for rewritten evidence of the assignment in ques- spondents. tion in this case was directed to the court, and is not for your consideration." The latter DUNBAR, C. J. This action was brought of these instructions but states a familiar under chapter 10, tit. 9, § 679 et seq., Code rule of evidence, and the objection to the Proc., on an information filed by the prosecutformer is wholly untenable. If the respond- | ing attorney of Snohomish county against the ent was a married man, he had the same respondents, who constituted the board of right to assign and transfer the lease that county commissioners of said county, to rehe had to dispose of chattels generally with- move them from office for malfeasance, mis. out the consent of his wife (Gear, Landi. & feasance, corruption, and misdemeanor in Ten. § 183); and if he was unmarried he office, done and committed in their official ca
pacity as such board of county commission- malt, or other intoxicating liquors outside of ers, on five specific charges set out in the in- the corporate limits of each incorporated city, formation. The respondents interposed a gen- could not certainly be construed to be an aceral demurrer to the information, which was tion which would subject them to an informasustained by the court, and the action was tion such as was filed in this case. It may dismissed. From the action of the court in have been an error of judgment on the part sustaining the demurrer and dismissing the of the board, and, if so, any person who felt information, the appellant appeals to this himself aggrieved by such action or decision court. Without investigating many of the of the board would have a right to appeal questions which are presented in this case, we from such action and decision and obtain reare satisfied that the demurrer was rightly dress in that manner. But it is certainly not sustained on the ground that it did not state the policy of the law, nor is it the intention facts sufficient to constitute a cause of action. of the law, that a county commissioner shall The first charge is that the commissioners col- be subject to the necessity of defending his luded together, with persons unknown to the right to his office whenever it may occur to any relator, to corner and monopolize the business citizen that he has committed an error in any of the retail sale of intoxicating liquors at the ruling or decision which he may render in towns of Monte Cristo and Silverton, for the performing the duties of his office. purpose of cheating and defrauding said The second charge, viz. that the defendants county of Snobomish by entering upon the conspired with the auditor to purchase supjournal record of their proceedings the follow- plies for the county, equally fails, it seems to ing resolution: “Whereas, it having been us, to state a cause of action. The county shown to the board of county commissioners commissioners are constituted by the law the of Snohomish county that application for the guardians of the county and its business sale of intoxicating liquors in the towns of managers, and, while the power to appoint an Monte Cristo and Silverton, in Snohomish agent is not expressly granted, the power county, state of Washington, will soon be which they do have under the law necessarily made by various persons; and it further ap- carries with it all the powers necessary to pearing to the said board that said towns take the proper exercise of the power granted. the character of mining towns, and this board The third allegation is that “defendants, in believes that said towns will have residing their official capacity, colluded and conspired therein a great number of persons of objec- | together, during the year 1893, at the begintionable and questionable character, and that ning of their term of office, to cheat and desaid persons will live with the intention and fraud said county, by auditing and allowing for the purpose of committing depredations themselves compensation in the way of per diagainst the peaceable inhabitants thereof, and em and mileage, and, in pursuance of said that in granting license to sell intoxicating liq. collusion and conspiracy, willfully and coruors therein it will be necessary for this board | ruptly continued the sessions of said board of of county commissioners to see that no person county commissioners at divers times during is granted a license for the sale of intoxicat. said year, from time to time and day to day, ing liquors who is not a man of good charac- and were wrongfully and illegally in session ter, and a person who will carry on the busi- for the purposes aforesaid the total number ness in as respectable manner as it can be of eighty-two days, for which time, so wrongcarried on, and a person who will be respon- fully in session, the defendants willfully and sible to the law: Therefore it is considered corruptly audited and allowed themselves per and ordered by the board of county commis- diem," etc. This count is bad for indefinitesioners of Snohomish county that not more ness, if there were no other objections to it. than two different licenses for the sale of in- There is no statement here at what terms of toxicating liquors in each of said towns be court, or at what time, these alleged illegal granted.” And the order proceeds to the ef- sessions were held. It is not alleged what the fect that the treasurer is commanded not to number of days is that were necessary for receive any moneys for licenses to be issued the commissioners to transact the business of in said towns except for the number of sa- the county in; so that the commissioners, in loons above stated, and then only from such answering this charge, would have to go into persons as the board of county commissioners a computation to determine the particular shall direct him to receive from; and that the days on which they were charged with illegalorder shall remain in effect for six months, or ly sitting, if it could be determined at all until the same is ordered by the board to be from the allegations of the information, which null and void. The information sets up the we think is doubtful. fact that, after such order was promulgated The fourth count in the information charges by the board, various persons applied for a li- the defendants with the wrongful allowance cense to sell liquor in the towns aforesaid, and of compensation and mileage to themselves; were refused such license. This action of the alleges that during the year 1893 defendboard, in view of the statute which provides ants, as county commissioners of said county, that the county commisstoners shall have the willfully and corruptly colluded and conspirsole and exclusive authority and power to ed together to cheat and defraud said county, regulate, restrain, license, and prohibit the and in pursuance of said collusion and consale and disposition of spirituous, fermented, spiracy, at divers times, willfully and cor
ruptly colluded with the auditor of said coun- nized it. The body was found in defendant's ty, and had and procured said auditor to issue neighborhood, though_not until about a year and deliver to each of defendants warrants
after the homicide. Held, that the motion was
properly denied. upon the county treasurer for large sums of 3. In such case, the only other evidence was money, for which there is no allowance on the testimony of defendant that deceased came record upon the minutes of their proceedings
to the house to see his wife; that, when deceased
left, he, in order to get the check to his sister's as county commissioners, and which seem
trunk and to induce deceased to stay away, never to have been audited and allowed by went with him; that deceased, hen a mile said board. The law makes it the business of
from the house, stopped, and said that he was
going to return and kill his wife; that defendthe auditor to record such bills, and there can
ant thereupon picked up a stick, and struck debe no presumption that the county commis- ceased on the head, killing him. The autopsy sioners are responsible for the failure of the showed that the blow was of such violence as
to crush the back of deceased's head. Held, auditor to perform a clerical duty.
that a conviction of murder in the second degree The fifth allegation, that defendants entered
would not be disturbed. into collusion to defraud the county by mak- 4. Deceased, being a mile from appellant's ing a contract with one Palmer for the build-house, threatened to return and kill his wife, ing and construction of certain bridges in
who was appellant's sister, having at the time
in his possession a revolver. Appellant was said county, is equally faulty with the others. aware that deceased had made such threats be There is no statement concerning the particu- | fore, and also knew that his father was at home, lar fault or deficiency in the contract, and, as
and had in the house two guns with which to
protect his daughter. Held, that the danger to the county commissioners have the power to
his sister was not sufficiently imminent to juscontract for the building of bridges under the tify appellant in striking deceased on the head law, a inistake of judgment would not subject
with such violence as to necessarily cause death. them to an information seeking to deprive
Dunbar, C. J., and Stiles J., dissenting. them of their office. If the county commis- Appeal from superior court, Spokane counsioners illegally awarded this contract, any ty; James Z. Moore, Judge. taxpayer coulů take an appeal from such ac- Benton Wilson, convicted of murder, aption. Besides, there is not in any of these peals. Affirmed. counts any definite, distinct charge. The gen
W. T. Stoll, for appellant. James E. Feneral allegations that the county commission- ton and L. H. Plattor, for the State. ers "fraudulently and collusively conspired," etc., are simply conclusions of law, and are
HOYT, J. Appellant was charged jointly not statements of facts, which are required with his father, Charles Wilson, and his sis. under the statute providing for the filing of ter, Nellie Johnson, with the crime of murinformations. These actions are in the nature der in the first degree. A plea of not guilty of criminal actions. A penalty is imposed, was entered as to all of them, and they were viz. the loss of the office; and, when officers tried together. Charles Wilson and Nellie are called upon to defend an action which in- Johnson were acquitted, and appellant was volves the loss of their office for alleged mal- | convicted of murder in the second degree, feasance in the performance of their official and from such conviction has prosecuted this duties, law and common justice require that appeal. All of the errors assigned may be the facts shall be stated as definitely as they considered under four heads: (1) In admitare stated in an indictment or information in ting in evidence a certain letter from Johnson a criminal action. We think the demurrer to Cowgill; (2) in denying the motion for a was rightfully sustained, and the judgment directed verdict for the defendants, at the will be affirmed.
close of the plaintiff's case; (3) error in in
structing the jury; and (4) in denying the moSCOTT, HOYT, and STILES, JJ., concur. tion for a new trial.
As to the first assignment, it is not easy to
see how this letter could bave any particular (10 Wash. 402)
connection with the question at issue before STATE v. WILSON.
the jury, but it was so connected with the ap
pellant, by his inquiries in regard thereto be(Supreme Court of Washington. Dec. 27, 1891.)
fore the time of its receipt by Cowgill, that
it was not error as against him to allow it PROSECUTION FOR MURDER-SUFFICIENCY OF EviDENCE-DIRECTING VERDICT-JUSTIFICA
to go in evidence. But, whether it was or TION-DEFENSE OF RELATIVE.
not, we should refuse to reverse the judgment 1. Error in the admission of evidence which on account of its admission in evidence, for could not have influenced the jury is not ground the reason that we do not see how it could for reversing a conviction. 2. On motion for a directed verdict of ac
have influenced the verdict of the jury. quittal, the evidence tended to show that de- The second assignment presents a more difceased had had some trouble with his wife, de- ficult question, and, in order to decide it, it fendant's sister-in-law, who had left him, and was living with her family; that defendant's
becomes necessary to determine the duty of father, a codefendant, was seen with deceased
a court in the trial of a cause to a jury when about the time of the killing, and that then their a motion of this kind is interposed. In our greeting showed that there was some ill feeling
opinion, it is its duty to deny the motion, between them; and that at the time the body was found, though it wils in a fair state of pres
and allow the case to go to the jury, unless ervation, defendant did not show that he recog. i there is such a want of necessary proofs as to make it clear that a verdict rendered there- the verdict will not be disturbed if the proofs on against the defendant would be set aside. were of such a nature that the determination It is not sufficient to authorize the granting of the jury was clearly warranted. of such a motion that it should appear that It is claimed by the appellant that a new upon a careful review of plaintiff's evidence trial should have been granted upon two it was not sufficient to support a verdict grounds: (1) newly-discovered evidence; and against the defendant, but it must further ap- (2) because there was not sufficient testimony pear that such a result is so evident that the to sustain the verdict. As to the first, the mind of the court would not hesitate in re- facts set up in the affidavits were not of such gard thereto. Such motion is interposed dur- materiality that a new trial should be granting the pendency of the action before the ed on the ground of their discovery subsejury, and it is the duty of the court to pass quent to the trial. The other objection reupon the same without that careful research quires a consideration of the facts testified to and consideration which it should give by appellant when placed upon the stand in to the same question upon a motion for a his own behalf, which, briefly stated, were new trial; and since, if it commits error in as follows: That the deceased had come to denying such a motion, it can be remedied their house for an interview with his wife; upon a more careful consideration after ver that she was more or less frightened at his dict, it is its duty to deny it unless from a appearance, and desired him to go away; superficial examination it appears that the that she was also desirous of obtaining from evidence is insufficient. Investigating the him a check for her trunk, which he had in proofs offered by the plaintiff in the light of his possession; that he finally started to go the above suggestions, we hold that the ac- away without giving her the check; that the tion of the court in denying the motion was appellant went with him, for the alleged purproper. The evidence was not very strong, pose of obtaining from him the check, and but there were some circumstances proven inducing him to go away and leave his sister from which the jury would have been war- alone; that at the time appellant was inranted in inferring the guilt of the accused. formed by his sister that the deceased carIt was made to appear that the deceased per- ried a loaded revolver, and that he must son was the brother-in-law of the appellant, "look out,” or something to that effect; that being the husband of Nellie Johnson, one of he walked with deceased for the distance of the defendants. It also appeared that there about a mile, during which time they passed had been some interruption of the marital Charles Wilson, the father of the appellant, relations as between said defendant Nellie on his way home; that during the walk. he Johnson and her husband; that Charles Wil. was trying to persuade deceased to give up son, the other defendant, was seen with the the check, and go away, and not try to have deceased at about the time when, from the any further communication with his wife; appearance of the body, he was killed; that that at times the deceased would appear to be the greeting between them at that time show- reasonable, and would say that he would go ed that there was more or less feeling on the away, and at others he would threaten to go part of said defendant against the deceased. back, and do violence to his wife, or compel It further appeared that at the time the body her to come with him; that he finally gave was exhumed it was in a fair state of pres- to appellant the check for the trunk, and they ervation, and in such a condition that one continued on together until the deceased dewell acquainted with the deceased person clined to go any further, and turned around, would be likely to recognize it; that the ap- saying that he would go back and kill his pellant saw the body after it was exhumed, wife and then himself; that thereupon apbut made no sign to in any manner show pellant picked up a stick and struck him a that he recognized it. On the contrary, his single blow, which killed him; that he was actions were such as to show that he clearly much frightened, and dragged the body into intended to have it understood that he had the woods, and went back to the house and no knowledge whatever as to whose body it told what he had done, and that afterwards was. These and some other incriminating he returned and buried the body. This is circumstances which were proven would have the substance of the transaction, as detailed authorized the jury to infer the guilt of the by the appellant. The facts proven in condefendants.
nection with the autopsy of the body show The instruction which is the foundation of that a blow of such violence had been rethe third assignment was as to the weight to ceived by the deceased as to crush in the be given to the good character of the defend- entire back portion of the head and disloant. The instruction in that regard is not cate the neck. The statement of the appelwhat it should have been, but we are of the lant, interpreted in the light of all the ciropinion that the error could not have preju- cumstances, seems to us to warrant the verdiced the rights of the defendant, as the dict of the jury. His theory is that he was criticism which is made of it goes only to justified in what he did, upon the ground a case where there was positive proof as to that it was in defense of his sister. But the guilt of the defendant, and, except ap- we are unable to hold that his sister was pellant's own statement, the evidence was all shown to be in such imminent danger as to circumstantial. But, however that may be, | justify the taking of life. The parties were