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more than a mile from the wife and she was in the house with her father and mother, who had two guns available for her defense. These facts were all known to appellant. Under these circumstances, the right to interpose between the deceased and his wife by the use of such extreme measures as would necessarily cause death did not exist. If it had been in the immediate presence of the wife, and a revolver had been drawn, and threats made as stated, no doubt any reasonable means to prevent the carrying into effect of the threats would have been justifiable. Not only was the distance to the wife and sister remote on account of the facts above stated, but also for another reason. It appeared that the deceased had been in the habit of threatening his wife, whenever he lost his temper, to such an extent that such threats did not make it probable that she would be injured; much less did it make the injury so imminent as to justify such extreme measures for her protection. Besides, the fact that such a crushing blow was delivered upon the back of the head tends strongly to discredit the statement of the appellant as to the homicide. The weapon used must necessarily have been of such a nature that any one of ordinary prudence must have known that to strike a person upon the head with it was to cause death. It follows that its use was only justified under circumstances of the greatest peril to the appellant, or to a member of his family. And, when we consider the interest which the appellant had in coloring his testimony to shield himself, it seems much more probable that the real facts were that if the walk was taken with the deceased, as testified to by appellant, the deadly blow was deliberately struck while he was walking by the side of or behind the deceased. It is no doubt true that, excepting so far as guilt was shown by other proofs, the story of the appellant must be taken together, as well those parts which tend in his favor as those tending to criminate him; but it does not follow from this that the whole story should not be construed in the light of all the surrounding circumstances, as shown by the nature of the wound and the probable character of the weapon with which it was inflicted. We think defendant's own testimony showed that he was guilty at least of murder in the second degree, and that the verdict of the jury was abundantly sustained thereby. Judgment and sentence will be affirmed.

SCOTT, J., concurs.

ANDERS, J. (concurring). Upon a motion to direct a verdict of acquittal, I think the rule is that the evidence introduced by the state must be assumed to be true, and that the state is also entitled to the benefit of all legitimate inferences that may be drawn therefrom in its favor. And, applying this

principle to the present case, I think the motion was properly denied. That the deceased was killed by violence was fully proved, and there were facts and circumstances tending to show that the defendant was the guilty party. Under no circumstances should the court direct the jury to acquit, unless the evidence is such that there can be no honest difference of opinion as to its force and effect. But whether this be the correct rule or not, in my opinion the verdict was fully justified by the defendant's own testimony. Having voluntarily made himself a witness, his testimony must be considered and interpreted in the same manner, and by the same rules, as that of any other witness. And, according to his own testimony, he killed the deceased without any legal excuse whatever, and the verdict and judgment should not be disturbed.

DUNBAR, C. J. (dissenting). I am compelled to dissent from the majority opinion in this case. I think it was plainly the duty of the court to have instructed the jury to acquit the appellant when the state closed its testimony, and the appellant moved the court so to do. From the careful examination which I have given this record, I am unable to find any testimony introduced by the state which would support the verdict in this case. There is certainly none pointed out by the majority opinion which rises to the dignity of testimony. It is true, as the majority say, that it was proven that the deceased person was a brother-in-law of the appellant, and that there had been some interruption of the marital relations existing between appellant's sister, Nellie Johnson, one of the defendants in this case, and her husband; but certainly it cannot be maintained that it is sufficient testimony to warrant the conviction of a man for murder that the brother-in-law is afterwards found to have been murdered in the neighborhood. The opinion also states that the other defendant, Charles Wilson, was seen with the deceased about the time when, from the appearance of the body, he was killed. I think the majority are mistaken in this conclusion. The body was not found for more than a year after the deed must have been committed, and the testimony shows that it was in such a state of.decomposition that it was impossible to tell with any degree of certainty just when the death had occurred. Neither did it appear in the testimony, nor does it stand to reason, that a body under such circumstances could be in such a condition-being buried three or four inches below the surface of the ground, and having been mutilated by wild animals, and exposed to the changes of the seasons for that length of time-that it could be easily recognized, or recognized at all, without there were some definite marks preserved in the frame of the body. The fact is, as shown by the testimony, that the body was only

Identified as that of Johnson by a ring and some other trinkets which were found in the immediate vicinity of the body, and it is not shown that the appellant here was acquainted with these articles of jewelry, or knew that they were possessed by his brother-in-law, Johnson, the murdered man. To sum up the testimony, then, all there is upon which to base a conviction is the fact that the murdered man was found in the neighborhood, about a mile distant from the house of the appellant; that he was the brotherin-law of the appellant; and that his relations with appellant's sister had not been harmonious. Such a state of facts, if they warranted anything at all, could only warrant the slightest and vaguest suspicion. But, under our law, men should not be convicted of murder on suspicion, even where the suspicion is of a strong character, much less where it is of such a flimsy character as in the present instance. It is a principle of the law, as old as the law itself, that a defendant is presumed to be innocent until he is proven guilty. The burden never was placed upon him to prove himself innocent; and, if the life of the citizen can be placed in jeopardy or sacrificed upon bare suspicions like these, no person is safe, and what we have always been taught about the tender solicitude of the law for the life or liberty of Its citizens becomes hollow mockery, and it would seem that the policy of the law has been changed, and that its policy now is that it is better that 99 innocent persons should be punished than that 1 guilty one should escape.

The court in this instance certainly should not have pronounced judgment upon the testimony offered, and it was, therefore, its plain duty, it seems to me, to have granted the motion asked for by the appellant. There is no question here of weighing the testimony, and of this court substituting its judgment on the weight of the testimony for the judgment of the jury, for, as I have shown, there was no testimony to weigh. Consequently, there was no room for the exercise of judgment. The state had absolutely failed to make out a case. The presumption of innocence had not in the least been disturbed at the time the state rested its case, and this presumption, which is guarantied by the law to citizens charged with crime, is no meaningless thing, and is not to be arbitrarily disregarded by juries or by courts, and the judgment in this case can only be sustained by reversing the presumption, and making the presumption of guilt attach upon the mere charge of the commission of crime, and placing the burden upon the defendant of proving his innocence. But, going a step further, even if the ruling that the appellant was rightly put upon his defense was correct, then all the testimony there was in favor of the state was the testimony of the appellant himself, and it must be accepted as true. I do not think I ever read the testimony of

a witness which impressed me more forcibly with the idea that every word uttered was true than the testimony of the appellant in this case, and if it was true then the act of the killing was justified. Here was this young man, in a manly attempt to protect his sister from the violence of a malicious, half-crazed, and irate husband, who came there, according to the testimony, for the purpose of compelling his wife to live with him or to kill her. The appellant was striving to lead him away from their home, and to persuade him to go out of the neighborhood, and let his sister alone. He had succeeded in getting him about a mile from the house when, with the desperation of a madman, Johnson declared that he would go back. The testimony shows he was a dangerous man; that he had before attempted his wife's life with a revolver, and had been interrupted in the attempt. It might be possible that the appellant did not pursue the best and most reasonable course, or such a course as a man would adopt in his cool and deliberate moments, but he was acting under the excitement of the moment, and believing that he could only protect his sister and prevent a tragedy by disabling the deceased, he struck him with a club. The appellant was unarmed, and the deceased was armed. He says he did not intend to kill him, and, that being all the testimony there is on the subject, there being no circumstances, in my judgment, to prove any intention otherwise, it must be conceded that he did not intend to kill him. However, I am not at all certain that under the provocation he had he would not have been justified even in attempting to inflict upon him a fatal injury. Again, it is true it would have been the exercise of better sense to have made known to the community the result of this encounter, instead of clandestinely burying the body, as he did, but this probably he would have done had he had time to reflect. It is hard to tell what the ordinary person would do under the excitement of the circumstances surrounding this encounter. Whether guilty or innocent,-the more frequently probably when guilty than when innocent,-a panic of fear is liable to seize and control a person's mind, and for a time dethrone reason. Being a stranger in the community, and feeling that his whole action and motive might be misunderstood, and that he might be convicted of a crime of which he was not guilty (and the sequel of this trial, and of the action of the court in refusing to grant the motion of dismissal, on the conclusion of the state's evidence, show that his apprehensions were well grounded), he made the mistake of attempting to conceal rather than to expose the whole transaction; and this, taking his own testimony, is the only iota of testimony which could in any degree be tortured into testimony tending to support the verdict in this case, and, as I have before said, I do not think this sufficient. I think, therefore, that

the court erred in not granting the motion to dismiss, and, in the second place, that there was no testimony in the case which can sustain the verdict. But, conceding that the jury had a right to believe a portion of defendant's testimony and discard the rest, there is absolutely nothing that would support a verdict for anything more than manslaughter. The judgment should, therefore, be reversed, with instructions to the court to grant the order asked for by the appellant.

STILES, J. I fully concur in the views of the chief justice. If the appellant and the other witnesses for the defense had not gone upon the stand, but the case had been submitted to the jury upon the evidence for the state alone, and if there had been a verdict of guilty, upon an appeal to this court I am satisfied that the verdict would have been set aside even more promptly than it was done in the case of State v. Pagano, 7 Wash. 549, 35 Pac. 387, for there was far less evidence in the case before us than in Pagano's Case. The only person who could possibly be said to have been implicated in the homicide by the evidence in chief was the father of appellant, who was informed against with him, but was acquitted, and I am impressed with the belief that appellant would never have been put upon the stand but for the fear he had, lest, by some mischance, his father should suffer.

(10 Wash. 393)

NEUFELDER v. NORTH BRITISH & MERCANTILE INS. CO. (Supreme Court of Washington. Dec. 27, 1894.)

ATTACHMENT IN ANOTHER STATE-EFFECT OF AsSIGNMENT FOR CREDITORS-FILING CLAIM WITH ASSIGNEE-RECOVERY IN SUIT.

1. An assignment for the benefit of creditors by a resident does not affect attachments levied against him in another state, though it dissolves under the statute attachments in the state where the assignment is made.

2. A creditor of an insolvent, who has levied an attachment against him in another state, does not waive his rights under the attachment by filing his claim with the insolvent's assignee.

3. Any amount recovered by such creditor in his suit against the insolvent will be deducted from the amount of his claim.

Hoyt, J., dissenting.

Britain and Ireland, and at the times hereinafter mentioned was lawfully conducting the business of insurance in this state, and was represented by a local agent in the city of Seattle. It was also engaged in similar business in California, and in all other states and territories on the Pacific coast, and had a general agent for the management thereof in all of said states and territories, including this state, whose office and place of business was at San Francisco, in the state of California. All moneys collected by local agents were remitted to this general agent, and the funds of the company for the payment of osses were kept in San Francisco, and disbursed by him only; the local agents through out said states and territories having no av thority to settle or pay losses on account of the company, except as requested and directed by him. On July 2, 1890, the respondent, by its agent at Seattle, delivered a properly executed policy of insurance to one C. H. Knox, a citizen of this state, whereby it agreed to insure him against loss or damage by fire to the amount of $1,000 on a stock of merchandise owned by him in Seattle, for the period of one year from said date. On September 19, 1890, and while the policy was in full force and effect, the property so insured was totally destroyed by fire. Thereafter the respondent adjusted the loss at $1,000, but before the same was paid, and on October 1, 1890, certain creditors of Knox, residing in San Francisco, commenced actions in the superior court of the city and county of San Francisco to recover the amount of their respective claims, and on the following day caused the amount due from respondent to Knox on the policy of insurance to be attached by process of garnishment, in the manner prescribed by the laws of California. Subsequently, and on October 25, 1890, the said Knox made a general assignment to appellant, in this state, for the benefit of his creditors. After having qualified according to law as assignee, the appellant brought this action in the superior court of King county to recover from the respondent the sum due on the policy issued to his assignor, Knox. The respondent admitted its liability on the policy upon which the action was brought, and disclaimed any desire to evade payment, but asked the trial court to stay this proceeding until its

Appeal from superior court, King county; liability in the attachment suits in California R. Osborn, Judge.

Action by E. C. Neufelder, assignee, against the North British & Mercantile Insurance Company. From an order staying the action until defendant's liability should be determined under attachment proceedings in California, plaintiff appeals. Affirmed.

Strudwick & Peters, for appellant. Stratton, Lewis & Gilman, for respondent.

ANDERS, J. The respondent is a corporation organized and existing under and by virtue of the laws of the kingdom of Great

should be determined. The cause was tried by the court without a jury, and upon the facts found, and conclusions of law based thereon by the court, a judgment was entered staying further proceedings in accordance with the prayer of the defendant.

It is disclosed by the record that other insurance companies besides the respondent, indebted to Knox on policies of insurance covering the burned stock of goods, were likewise garnished in the attachment proceedings in the California court. The total amount of indebtedness so attached, including the amount due from the respondent, was $4,500. The

total amount of the claims of the California creditors upon which suits were brought, and in which garnishments were served upon respondent, was $5,078.15. Two of the creditors who caused garnishment process to be served upon the respondent in California, namely, Wheaton, Luhrs & Co. and Esberg, Bachman & Co., afterwards filed their claims in this state with the appellant, as assignee of Knox. From what we have stated it will be observed that the facts in this case are almost identical with those involved in the case of Neufelder v. Insurance Co., 6 Wash. 336, 33 Pac. 870. In that case this court held that the California court acquired jurisdiction of the debt owing by the insurance company to Knox, and, having acquired jurisdiction, could enforce its payment by the garnishee. The appellant does not seek to have us reconsider our ruling in that case, but contends that this appeal presents for decision points not raised in the former case. The first and most material point made is that the trial court, in rendering its judgment, overlooked one of the provisions of our insolvent law, to the injury of the appellant, or rather of the creditors in this state. The claim, more specifically stated, is that, inasmuch as, by virtue of our insolvent debtor's act then in force, prior attachments were dissolved, in this state, by a general assignment, the court should have held the law operative to the same extent upon the California attachments, and permitted the action to proceed without any regard whatever to the proceedings in that state. The appellant's contention is based upon the general proposition that the laws of a state have no binding force beyond its territorial limits, and are only permitted to operate in other states upon the principle of comity, and when neither the state where the foreign law is sought to be applied nor its citizens would be injured by its application. We have no disposition to dispute this proposition, for it may be said to be the statement of an elementary principle of law. Suth. St. Const. 12; Dunlap v. Rogers, 47 N. H. 287. But, while it is true that, if writs of attachment had been levied upon the property of Knox at the suit of creditors in this state, they would have been dissolved by his assignment by operation of law, it does not necessarily follow that the court erred in recognizing the California attachments as valid and binding there. It is said by the learned author above cited (page 12) that the observance and recognition of foreign laws rest in comity and convenlence, and in the aim of the law to adapt its remedies to the great ends of justice. And courts, in furtherance of justice, do recognize the validity of acts done under foreign laws which would not be valid if done in the jurisdiction of the forum, as will be hereafter shown. The learned counsel for the appellant cite the case of Upton v. Hubbard, 28 Conn. 274, in support of their contention. It was there decided that if a debt due from a person domiciled in Connecticut to a person domi

ciled in Massachusetts is attached in Connecticut by a creditor of the payee, and the payee, between the levying of the attachment and the judgment entered thereon, makes an assignment, this assignment will not pass the debt as against the attachment creditor, even though by the laws of Massachusetts such an assignment operates to dissolve prior attachments; and from this the conclusion is deduced by appellant that, in no event, will a court of one state give effect to the laws of another state which are not in harmony with its own. But, suppose the assignment in Massachusetts had been made, in that case, prior to the levying of the attachment in Connecticut, what would then have been the decision of the court? It appears that this question has been answered by the same court, in accordance with the view hereinbefore indicated, in the later case of Clark v. Peat Co., 35 Conn. 303. In that case a debt due from a citizen of Connecticut to citizens of Massachusetts was attached by a citizen of the former state to whom the Massachusetts creditors were indebted. Before the attachment, the debt had been assigned, in good faith, by the Massachusetts creditors, to a citizen of Massachusetts. It seems that the assignment would not have been valid, under the law of Connecticut, for want of notice; yet the court held that, being good in Massachusetts, where made, it was good in Connecticut, and passed the debt attached to the assignee. It can hardly be said that the court disregarded or overlooked the laws of Connecticut by giving effect to the assignment in Massachusetts. It simply decided, in effect, that, after a valid transfer of the debt had been there made, it was not subject to attachment in Connecticut. So, in this case, the trial court merely held that the debt sued upon, having been lawfully attached and held for the satisfaction of any judgments the California creditors might recover against Knox, prior to the assignment, passed to the appellant, as assignee, subject to those attachments. Nor was the effect of this ruling, as suggested by counsel, tantamount to enforcing a lien claimed under a foreign law, which would be ineffectual under the provisions of our own statute. The court simply took into consideration the status of the debt, at the time of the assignment, and thereby gave "full faith and credit" to the judicial proceedings of a sister state. That the conclusion of the court below was not improper will also, we think, be disclosed by an examination of the decision of the supreme court of the United States in the well-considered case of Green v. Van Buskirk, 7 Wall. 148, wherein the court said: "Attachment laws, to use the words of Chancellor Kent, are legal modes of acquiring title to property by operation of law. They exist in every state for the furtherance of justice, with more or less of liberality to creditors. And if the title acquired under the attachment laws of a state, and which is valid there, is not to be held valid in every other state, it were better that

these laws were abolished, for they would prove to be but a snare and a delusion to the creditors." If the title to property acquired by attachment in one state, and which is valid there, is to be deemed valid in every other state, it would seem logically to follow that an attachment, valid in the state where it is levied, ought to be held valid in every other state. Nor, as we understand it, does the case of Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, cited by appellant, overrule or modify the court's former decision in 7 Wallace, above cited. Under the circumstances, therefore, we are unable to perceive wherein the appellant was injured by the judgment complained of. If the respondent is compelled to pay the sum of money here claimed, or any part of it, to the creditors in San Francisco, of course it ought not to be obliged to pay it again to appellant. But, if it is not compelled to pay there, then the final judgment of the court in this state will be in favor of the appellant for the amount due upon the policy.

It is further claimed by the appellant that Wheaton, Luhrs & Co. and Esberg, Bachman & Co., by filing their claims with the appellant as assignee, abandoned any rights they might otherwise have had under the attachments. But we do not think the position is strictly tenable. A creditor may prosecute two actions against his debtor for the same cause in different jurisdictions (Stanton v. Embrey, 93 U. S. 548; Bliss, Code Pl. 410); and therefore the waging of one action cannot be said to be a waiver or an abandonment of another. But those creditors, by filing their claims with the assignee, became parties to the insolvency proceedings, and will be bound by them. Should the insolvent assignor be discharged from his debts, they cannot thereafter maintain an action against him for the recovery of the debt proved by them, and their claims will be paid pro rata with those of domestic creditors, if any payments are here made. But the amount, if any, which may be received by them by means of the attachments in California, ought to be deducted from the claims as filed with the assignee, and the balance treated as the true amount of indebtedness. Fay & Co. v. Jenks & Co., 78 Mich. 304, 44 N. W. 378. We perceive no error prejudicial to appellant, and the judgment is therefore affirmed.

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

HOYT, J. (dissenting). The ruling upon what I deem to be the most important question in this case is founded upon the decision In the case of Neufelder v. Insurance Co., 6 Wash. 336, 33 Pac. 870. I dissented from the opinion of the majority of the court in that case, but gave no reasons for such dissent. I therefore think it necessary at this time to say a word in regard to the question therein decided. The ruling therein an

nounced is one which will lead to much inconvenience and be productive of great hardship to the residents of this state who hold policies in any of the larger insurance companies, and sustain a loss which makes the company liable thereon. Under the rule therein announced, the one entitled to enforce the liability flowing from the loss may be sued in any of the states of the Union where the company which issued the policy is doing business; and, as the larger companies are doing business in nearly or all of such states, he might be called upon to respond to actions brought against him in all of such states, all of which might be prosecuted at the same time. The result would be that any one having the semblance of a claim will be tempted to bring suit thereon in some state remote from the residence of the defendant, hoping that the difficulty of making a defense will lead to some compromise, or that from want of pecuniary ability or other reason defense will be impossible. It will often result that the entire amount of the policy will be absorbed in the payment of unjust claims, or frittered away in paying the expenses incident to making a defense against them. Besides, the inconven

ience to the companies doing the business will be very great under such rule. They, of course, are not entitled to the same consideration as is the insured, for the reason that they generally have attorneys in each of the states where they transact business, and are of sufficient pecuniary ability to look after their own interests; but the result to them, taken in connection with the great injustice to the insured which will be wrought, so well establishes the fact that the rule announced is against public policy that I am unable to yield assent thereto. Such a construction as to the status of insurance companies doing business in the several states is, to my mind, unnecessary. When we take into consideration the fact that the almost universal weight of authority is to the effect that a corporation has its domicile only in the state under the laws of which it is organized, it seems to me it is illogical, and should not be sustained, even although no injustice would be wrought thereby, and that, in view of its possible or probable results, some other construction is imperative. A simple solution of the whole question would be to hold that a corporation has only one domicile for the purposes incident to its organization; that rights and liabilities in general must be procured by or enforced against it in the state where it has such domicile,-that is, in the state un der the laws of which it has been incorporated; that it has a special and limited domicile in each of the other states in which, under the laws thereof, it may be allowed to do business; that its domicile in those states is only for the purposes of the business transacted therein. The result would be that as to all of the business transacted in a state, and rights and obligations flowing therefrom,

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