Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

more than a mile from the wife and she was principle to the present case, I think the moin the house with her father and mother, tion was properly denied. That the deceased who had two guns available for her defense. was killed by violence was fully proved, and These facts were all known to appellant. there were facts and circumstances tending Under these circumstances, the right to in- to show that the defendant was the guilty terpose between the deceased and his wife party. Under no circumstances should the by the use of such extreme measures as court direct the jury to acquit, unless the would necessarily cause death did not exist. evidence is such that there can be no honest If it had been in the immediate presence of difference of opinion as to its force and efthe wife, and a revolver had been drawn, fect. But whether this be the correct rule and threats made as stated, no doubt any or not, in my opinion the verdict was fully reasonable means to prevent the carrying justified by the defendant's own testimony. into effect of the threats would have been Having voluntarily made himself a witness, justifiable. Not only was the distance to his testimony must be considered and interthe wife and sister remote on account of the preted in the same manner, and by the same facts above stated, but also for another rea- rules, as that of any other witness. And, son. It appeared that the deceased had according to his own testimony, he killed the been in the habit of threatening his wife, deceased without any legal excuse whatever, whenever he lost his temper, to such an ex- and the verdict and judgment should not be tent that such threats did not make it proba- disturbed. ble that she would be injured; much less did it make the injury so imminent as to DUNBAR, C. J. (dissenting). I am comjustify such extreme measures for her pro- pelled to dissent from the majority opinion tection. Besides, the fact that such a crush- in this case. I think it was plainly the duty ing blow was delivered upon the back of of the court to have instructed the jury to the head tends strongly to discredit the state- acquit the appellant when the state closed ment of the appellant as to the homicide. its testimony, and the appellant moved the The weapon used must necessarily have court so to do. From the careful examinabeen of such a nature that any one of ordi- tion which I have given this record, I am nary prudence must have known that to unable to find any testimony introduced by strike a person upon the head with it was to the state which would support the verdict in cause death. It follows that its use was this case.

There is certainly none pointed only justified under circumstances of the out by the majority opinion which rises to greatest peril to the appellant, or to a mem- the dignity of testimony. It is true, as the ber of his family. And, when we consider' majority say, that it was proven that the the interest which the appellant had in col- deceased person was a brother-in-law of the oring his testimony to shield himself, it appellant, and that there had been some inseems much more probable that the real terruption of the marital relations existing facts were that if the walk was taken with between appellant's sister, Nellie Johnson, the deceased, as testified to by appellant, one of the defendants in this case, and her the deadly blow was deliberately struck husband; but certainly it cannot be mainwhile he was walking by the side of or be- tained that it is sufficient testimony to warhind the deceased. It is no doubt true that, rant the conviction of a man for murder that excepting so far as guilt was shown by oth- the brother-in-law is afterwards found to er proofs, the story of the appellant must be have been murdered in the neighborhood. taken together, as well those parts which The opinion also states that the other detend in his favor as those tending to crim- fendant, Charles Wilson, was seen with the inate him; but it does not follow from this deceased about the time when, from the apthat the whole story should not be con- pearance of the body, he was killed. I strued in the light of all the surrounding think the majority are mistaken in this concircumstances, as shown by the nature of clusion. The body was not found for more the wound and the probable character of the than a year after the deed must have been weapon with which it was inflicted. We

committed, and the testimony shows that think defendant's own testimony showed it was in such a state of decomposition that that he was guilty at least of murder in the it was impossible to tell with any degree second degree, and that the verdict of the

of certainty just when the death had ocjury was abundantly sustained thereby. curred. Neither did it appear in the testiJudgment and sentence will be aflirmed.

mony, nor does it stand to reason, that a

body under such circumstances could be in SCOTT, J., concurs.

such a condition--being buried three or four

inches below the surface of the ground, and ANDERS, J. (concurring). Upon a motion having been mutilated by wild animals, and to direct a verdict of acquittal, I think the exposed to the changes of the seasons for rule is that the evidence introduced by the that length of time—that it could be easily state must be assumed to be true, and that recognized, or recognized at all, without there the state is also entitled to the benefit of were some definite marks preserved in the all legitimate inferences that may be drawn frame of the body. The fact is, as shown therefrom in its favor. And, applying this by the testimony, that the body was only Identified as that of Johnson by a ring and a witness which impressed me more forcibly some other trinkets which were found in with the idea that every word uttered was the immediate vicinity of the body, and it true than the testimony of the appellant in is not shown that the appellant here was ac- this case, and if it was true then the act of quainted with these articles of jewelry, or the killing was justified. Here was this knew that they were possessed by his broth- young man, in a manly attempt to protect er-in-law, Jobpson, the murdered man. To his sister from the violence of a malicious, sum up the testimony, then, all there is upon half-crazed, and irate husband, who came which to base a conviction is the fact that there, according to the testimony, for the the murdered man was found in the neigh- purpose of compelling his wife to live with borhood, about a mile distant from the house him or to kill her. The appellant was strivof the appellant; that he was the brother- ing to lead him away from their home, and in-law of the appellant; and that his rela- to persuade him to go out of the neighbortions with appellant's sister had not been bood, and let bis sister alone. He had sucharmonious. Such a state of facts, if they cecded in getting him about a mile from the warranted anything at all, could only war- house when, with the desperation of a madrant the slightest and vaguest suspicion. But, man, Johnson declared that he would go back. under our law, men should not be convict- The testimony shows he was a dangerous ed of murder on suspicion, even where the man; that he had before attempted bis wife's suspicion is of a strong character, much less life with a revolver, and had been interruptwhere it is of such a flimsy character as in ed in the attempt. It might be possible that the present instance. It is a principle of the the appellant did not pursue the best and law, as old as the law itself, that a defend- most reasonable course, or such a course as ant is presumed to be innocent until he is a man would adopt in his cool and deliberate proven guilty. The burden never was placed moments, but he was acting under the exciteupon bim to prove himself innocent; and, if ment of the moment, and believing that he the life of the citizen can be placed in jeop- could only protect his sister and prevent a ardy or sacrificed upon bare suspicions like tragedy by disabling the deceased, he struck these, no person is safe, and what we have him with a club. The appellant was unarmed, always been taught about the tender solic- and the deceased was armed. He says he itude of the law for the life or liberty of did not intend to kill him, and, that being its citizens becomes hollow mockery, and it all the testimony there is on the subject, there would seem that the policy of the law has being no circumstances, in my judgment, to been changed, and that its policy now is that prove any intention otherwise, it must be It is better that 99 innocent persons should conceded that he did not intend to kill him. be punished than that 1 guilty one should However, I am not at all certain that under escape.

the provocation he had he would not have The court in this instance certainly should been justified even in attempting to inflict not have pronounced judgment upon the tes- upon him a fatal injury. Again, it is true timony offered, and it was, therefore, its it would have been the exercise of better plain duty, it seems to me, to have granted sense to have made known to the community the motion asked for by the appellant. There the result of this encounter, instead of clanis no question here of weighing the testi- destinely burying the body, as he did, but mony, and of tbis court substituting its judg- this probably he would have done bad he had ment on the weight of the testimony for the time to reflect. It is hard to tell what the judgment of the jury, for, as I have shown, ordinary person would do under the excite there was no testimony to weigh. Conse- ment of the circumstances surrounding this quently, there was no room for the exercise encounter. Whether guilty or innocent,-the of judgment. The state had absolutely fail- more frequently probably wben guilty than ed to make out a case. The presumption of when innocent,-a panic of fear is liable to innocence had not in the least been disturbed seize and control a person's mind, and for a at the time the state rested its case, and this time dethrone reason. Being a stranger in presumption, which is guarantied by the law the community, and feeling that his whole to citizens charged with crime, is no meaning. action and motive might be misunderstood, less thing, and is not to be arbitrarily disre- and that he might be convicted of a crime of garded by juries or by courts, and the judg- which he was not guilty (and the sequel ment in this case can only be sustained by of this trial, and of the action of the court reversing the presumption, and making the in refusing to grant the motion of dismissal, presumption of guilt attach upon the mere on the conclusion of the state's evidence, charge of the commission of crime, and pla- show that his apprehensions were well groundcing the burden upon the defendant of proving ed), he made the mistake of attempting to his innocence. But, going a step further, conceal rather than to expose the whole even if the ruling that the appellant was transaction; and this, taking his own testirightly put upon his defense was correct, mony, is the only iota of testimony which then all the testimony there was in favor of could in any degree be tortured into testithe state was the testimony of the appellant mony tending to support the verdict in this himself, and it must be accepted as true. I case, and, as I have before said, I do not do not think I ever read the testimony of think this sufficient I think, therefore, that the court erred in not granting the motion to Britain and Ireland, and at the times hereindismiss, and, in the second place, that there after mentioned was lawfully conducting the was no testimony in the case which can sus- business of insurance in this state, and was tain the verdict. But, conceding that the represented by a local agent in the city of jury had a right to believe a portion of de- Seattle. It was also engaged in similar busifendant's testimony and discard the rest, ness in California, and in all other states and there is absolutely nothing that would sup- territories on the Pacific coast, and had a port a verdict for anything more than man- general agent for the management thereof in slaughter. The judgment should, therefore, all of said states and territories, including be reversed, with instructions to the court this state, whose office and place of business to grant the order asked for by the appellant. was at San Francisco, in the state of Cali

fornia. All moneys collected by local agents STILES, J. I fully concur in the views of were remitted to this general agent, and the the chief justice. If the appellant and the funds of the company for the payment of other witnesses for the defense had not gone losses were kept in San Francisco, and disupon the stand, but the case had been submit- bursed by him only; the local agents through ted to the jury upon the evidence for the out said states and territories having no av state alone, and if there had been a verdict thority to settle or pay losses on account of the of guilty, upon an appeal to this court I am company, except as requested and directed by satisfied that the verdict would have been him. On July 2, 1890, the respondent, by its set aside even more promptly than it was agent at Seattle, delivered a properly exedone in the case of State v. Pagano, 7 Wash. cuted policy of insurance to one C. H. Knox, 549, 35 Pac. 387, for there was far less evi- a citizen of this state, whereby it agreed to dence in the case before us than in Pagano's | insure him against loss or damage by fire to Case. The only person who could possibly the amount of $1,000 on a stock of merchanbe said to have been implicated in the homi- dise owned by him in Seattle, for the period cide by the evidence in chief was the father of one year from said date. On September of appellant, who was informed against with 19, 1890, and while the policy was in full him, but was acquitted, and I am impressed force and effect, the property so insured was with the belief that appellant would never totally destroyed by fire. Thereafter the rehave been put upon the stand but for the spondent adjusted the loss at $1,000, but be fear he had, lest, by some mischance, his fore the same was paid, and on October 1, father should suffer.

1890, certain creditors of Knox, residing in San Francisco, commenced actions in the

superior court of the city and county of San (10 Wash. 393)

Francisco to recover the amount of their reNEUFELDER v. NORTH BRITISH &

spective claims, and on the following day MERCANTILE INS. CO.

caused the amount due from respondent to (Supreme Court of Washington. Dec. 27,

Knox on the policy of insurance to be attached 1894.)

by process of garnishment, in the manner ATTACHMENT IN ANOTHER STATE-EFFECT OF As.

prescribed by the laws of California. . SubseSIGNMENT FOR CREDITORS-FILING CLAIM WITH quently, and on October 25, 1890, the said ASSIGNEE-RECOVERY IN Scit.

Knox made a general assignment to appel1. An assignment for the benefit of credit

lant, in this state, for the benefit of his credors by a resident does not affect attachments levied against him in another state, though it

itors. After having qualified according to law dissolves under the statute attachments in the

as assignee, the appellant brought this action state where the assignment is made.

in the superior court of King county to recover 2. A creditor of an insolvent, who has ler

from the respondent the sum due on the polied an attachment against him in another state, does not waive his rights under the attachment

icy issued to his assignor, Knox. The respondby filing his claim with the insolvent's assignee. ent admitted its liability on the policy upon 3. Any amount recovered by such creditor

which the action was brought, and disclaimed in his suit against the insolvent will be deducted from the amount of his claim.

any desire to evade payment, but asked the Iloyt, J., dissenting.

trial court to stay this proceeding until its Appeal from superior court, King county; liability in the attachment suits in California

should be determined. The cause was tried R. Osborn, Judge.

Action by E. C. Neufelder, assignee, against by the court without a jury, and upon the the North British & Mercantile Insurance

facts found, and conclusions of law based Company. From an order staying the action

thereon by the court, a judgment was entered until defendant's liability should be determin

staying further proceedings in accordance ed under attachment proceedings in Califor

with the prayer of the defendant.

It is disclosed by the record that other innia, plaintiff appeals. Affirmed.

surance companies besides the respondent, inStrudwick & Peters, for appellant. Stratton, debted to Knox on policies of insurance coverLewis & Gilman, for respondent,

ing the burned stock of goods, were likewise

garnished in the attachment proceedings in ANDERS, J. The respondent is a corpora- the California court. The total amount of intion organized and existing under and by yir- debtedness so attached, including the amount tue of the laws of the kingdom of Great due from the respondent, was $4,500. The total amount of the claims of the California ciled in Massachusetts is attached in Concreditors upon which suits were brought, and necticut by a creditor of the payee, and the in which garnishments were served upon re- payee, between the levying of the attachment spondent, was $5,078.15. Two of the cred- and the judgment entered thereon, makes an itors who caused garnishment process to be assignment, this assignment will not pass the served upon the respondent in California, debt as against the attachment creditor, even namely, Wheaton, Luhrs & Co. and Esberg, though by the laws of Massachusetts such an Bachman & Co., afterwards filed their claims assignment operates to dissolve prior attachin this state with the appellant, as assignee ments; and from this the conclusion is deof Knox. From what we have stated it will duced by appellant that, in no event, will a be observed that the facts in this case are court of one state give effect to the laws of almost identical with those involved in the another state which are not in barmony with case of Neufelder v. Insurance Co., 6 Wash. its own.

But, suppose the assignment in 336, 33 Pac. 870. In that case this court held Massachusetts had been made, in that case, that the California court acquired jurisdiction prior to the levying of the attachment in Conof the debt owing by the insurance company necticut, what would then have been the deto Knox, and, having acquired jurisdiction, cision of the court? It appears that this quescould enforce its payment by the garnishee. tion has been answered by the same court, in The appellant does not seek to have us recon- accordance with the view hereinbefore indisider our ruling in that case, but contends that cated, in the later case of Clark v. Peat Co., this appeal presents for decision points not 35 Conn. 303. In that case a debt due from raised in the former case. The first and most a citizen of Connecticut to citizens of Massamaterial point made is that the trial court, in chusetts was attached by a citizen of the rendering its judgment, overlooked one of the former state to whom the Massachusetts credprovisions of our insolvent law, to the injury itors were indebted. Before the attachment, of the appellant, or rather of the creditors in the debt had been assigned, in good faith, by this state. The claim, more specifically stated, the Massachusetts creditors, to a citizen of is that, inasmuch as, by virtue of our insol- Massachusetts. It seems that the assignment vent debtor's act then in force, prior attach- would not have been valid, under the law of ments were dissolved, in this state, by a gen- Connecticut, for want of notice; yet the court eral assignment, the court should have held held that, being good in Massachusetts, where the law operative to the same extent upon the made, it was good in Connecticut, and passed California attachments, and permitted the the debt attached to the assignee. It can action to proceed without any regard what- hardly be said that the court disregarded or ever to the proceedings in that state. The overlooked the laws of Connecticut by giving appellant's contention is based upon the gen- effect to the assignment in Massachusetts. It eral proposition that the laws of a state have simply decided, in effect, that, after a valid no binding force beyond its territorial limits, transfer of the debt had been there made, it and are only permitted to operate in other was not subject to attachment in Connecticut. states upon the principle of comity, and when So, in this case, the trial court merely held neither the state where the foreign law is that the debt sued upon, having been lawfully sought to be applied nor its citizens would attached and held for the satisfaction of any be injured by its application. We have no judgments the California creditors might redisposition to dispute this proposition, for it cover against Knox, prior to the assignment, may be said to be the statement of an ele- passed to the appellant, as assignee, subject mentary principle of law. Suth. St. Const. to those attachments. Nor was the effect of 12; Dunlap v. Rogers, 47 N. H. 287. But, this ruling, as suggested by counsel, tantawhile it is true that, if writs of attachment mount to enforcing a lien claimed under a had been levied upon the property of Knox at foreign law, which would be ineffectual under the suit of creditors in this state, they would the provisions of our own statute. The court have been dissolved by his assignment by simply took into consideration the status of operation of law, it does not necessarily follow the debt, at the time of the assignment, and that the court erred in recognizing the Cali- thereby gave “full faith and credit" to the fornia attachments as valid and binding there. judicial proceedings of a sister state. That It is said by the learned author above cited the conclusion of the court below was not im(page 12) that the observance and recognition proper will also, we think, be disclosed by an of foreign laws rest in comity and conven- examination of the decision of the supreme ience, and in the aim of the law to adapt its court of the United States in the well-consid. remedies to the great ends of justice. And ered case of Green v. Van Buskirk, 7 Wall. courts, in furtherance of justice, do recognize 118, wherein the court said: “Attachment the validity of acts done under foreign laws laws, to use the words of Chancellor Kent, are which would not be valid if done in the juris- legal modes of acquiring title to property by diction of the forum, as will be hereafter operation of law. They exist in every state shown. The learned counsel for the appellant for the furtherance of justice, with more or cite the case of Upton v. Hubbard, 28 Conn. less of liberality to creditors. And if the title 274, in support of their contention.

It was

acquired under the attachment laws of a state, there decided that if a debt due from a per- and which is valid there, is not to be held son domiciled in Connecticut to a person domi- valid in every other state, it were better that chese laws were abolished, for they would nounced is one which will lead to much inprove to be but a share and a delusion to the convenience and be productive of great hardcreditors.” If the title to property acquired ship to the residents of this state who hold by attachment in one state, and which is policies in any of the larger insurance compavalid there, is to be deemed valid in every nies, and sustain a loss which makes the other state, it would seem logically to follow company liable thereon. Under the rule that an attachment, valid in the state where therein announced, the one entitled to enit is levied, ought to be held valid in every force the liability flowing from the loss may other state. Nor, as we understand it, does be sued in any of the states of the Union the case of Cole v. Cunningham, 133 U. S. 107, where the company which issued the policy 10 Sup. Ct. 269, cited by appellant, overrule is doing business; and, as the larger compaor modify the court's former decision in 7 nies are doing business in nearly or all of Wallace, above cited. Under the circumstan- such states, he might be called upon to re ces, therefore, we are unable to perceive spond to actions brought against him in all wherein the appellant was injured by the of such states, all of which might be prose judgment complained of. If the respondent cuted at the same time. The result would is compelled to pay the sum of money here be that any one baving the semblance of a claimed, or any part of it, to the creditors in claim will be tempted to bring suit thereon San Francisco, of course it ought not to be in some state remote from the residence of obliged to pay it again to appellant. But, if the defendant, hoping that the difficulty of It is not compelled to pay there, then the final making a defense will lead to some comprojudgment of the court in this state will be in mise, or that from want of pecuniary ability favor of the appellant for the amount due or other reason defense will be impossible. upon the policy.

It will often result that the entire amount It is further claimed by the appellant that of the policy will be absorbed in the payWheaton, Luhrs & Co. and Esberg, Bachman ment of unjust claims, or frittered away in & Co., by filing their claims with the appel- | paying the expenses incident to making a delant as assignee, abandoned any rights they fense against them. Besides, the inconvenmight otherwise have had under the attach- ience to the companies doing the business ments. But we do not think the position is will be very great under such rule. They, strictly tenable. A creditor may prosecute of course, are not entitled to the same considtwo actions against his debtor for the same eration as is the insured, for the reason that cause in different jurisdictions (Stanton v. they generally have attorneys in each of the Embrey, 93 U. S. 548; Bliss, Code Pl. 410); states where they transact business, and are and therefore the waging of one action can- of sufficient pecuniary ability to look after not be said to be a waiver or an abandonment their own interests; but the result to them, of another. But those creditors, by filing their taken in connection with the great injustice claims with the assignee, became parties to to the insured which will be wrought, so well the insolvency proceedings, and will be bound establishes the fact that the rule announced by them. Should the insolvent assignor be is against public policy that I am unable to discharged from his debts, they cannot there- yield assent thereto. Such a construction as after maintain an action against him for the to the status of insurance companies doing recovery of the debt proved by them, and business in the several states is, to my mind, their claims will be paid pro rata with those

When we take into consideraof domestic creditors, if any payments are tion the fact that the almost universal weight here made. But the amount, if any, which of authority is to the effect that a corporation may be received by them by means of the has its domicile only in the state under the attachments in California, ought to be de laws of which it is organized, it seems to ducted from the claims as filed with the as- me it is illogical, and should not be sugsignee, and the balance treated as the true tained, even although no injustice would be amount of indebtedness. Fay & Co. v. Jenks wrought thereby, and that, in view of its & Co., 78 Mich. 304, 44 N. W. 378. We per- possible or probable results, some other conceive no error prejudicial to appellant, and struction is imperative. A simple solution of the judgment is therefore affirmed.

the whole question would be to hold that a

corporation has only one domicile for the purDUNBAR, C. J., and SCOTT and STILES, poses incident to its organization; that rights JJ., concur.

and liabilities in general must be procured

by or enforced against it in the state where HOYT, J. (dissenting). The ruling upon it has such domicile,-that is, in the state un what I deem to be the most important ques- der the laws of which it has been incorporattion in this case is founded upon the decision ed; that it has a special and limited domicilo in the case of Neufelder v. Insurance Co., 6 in each of the other states in which, under Wash. 336, 33 Pac. 870. I dissented from the laws thereof, it may be allowed to do the opinion of the majority of the court in business; that its domicile in those states that case, but gave no reasons for such dis- is only for the purposes of the business transsent. I therefore think it necessary at this acted therein. The result would be that as time to say a word in regard to the question to all of the business transacted in a state, therein decided. The ruling therein and rights and obligations flowing therefrom,

se unnecessary

an

« ΠροηγούμενηΣυνέχεια »