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and delivered to said Jamieson-Dixon Mill will was in the custody and control of said Company,” etc., certain merchandise, suffi- | Aaron Baldwin, in the city of Seattle, state of ciently mentions the name of the person by Washington, when said Lena Shay Baldwin whom it was employed, and to whom it pro- died; and that he has failed and refused, vided material. We think the claim was and still refuses, to present said will for prosufficient, and that the proof substantially bate, and to qualify as executor thereof. The sustained it. We have carefully examined prayer of said petition was that the said will all these liens, and, without specially review- might be admitted to probate, and the said ing them, we think that the objections to Aaron Baldwin required to qualify as executhem are exceedingly technical and untena- tor, or formally decline to act as such, in ble, both so far as the sufficiency of the which latter event it was prayed that said claims is concerned and the sufficiency of A. K. Shay be allowed to qualify as administhe proof, and therefore think they should trator with the will annexed of the estate of all be sustained. In fact, we are inclined said Lena Shay Baldwin. It was further to think they should be sustained, even un- prayed therein that an order be issued re der the provisions of the old law. Some ob- quiring the said Aaron Bald win to produce jection is raised by the respondents to the said will within 20 days after the date of such decree of the court, but, as no appeal was order, so that it could be probated in accordtaken from such decree by the respondents, ance with law. Such petition was duly verithis court will not review it. The judgment fied, and was supported by the affidavit of A. will in all things be affirmed.

K. Shay; and, founded thereon, the court

made an order that said Aaron Baldwin be HOYT, C. J., and SCOTT, ANDERS, and required to produce the will of said Lena GORDON, JJ., concur.

Shay Baldwin, in the probate department of the superior court of King county, within 20

days, and it was further ordered that a cer(11 Wash. 111)

tiied copy of such order be forthwith served STATE ex rel. BALDWIN V. SUPERIOR upon the said Aaron Baldwin. Such service

COURT OF KING COUNTY et al. was made upon said Baldwin in the District (Supreme Court of Washington. Feb. 7, 1895.)

of Columbia. Thereafter, he appeared in the WRIT OF PROHIBITION-JURISDiction.

proceeding, and moved the court to set aside Where a court has found, upon the facts,

such order, and, in support thereof, filed certhat a person was at the time of her death a tain affidavits which tended to show that at resident within its jurisdiction, a writ of prohibi- the time of the death of the said Lena Shay tion will not issue to prevent the execution of an

Baldwin she was not a resident of the state order of such court to produce the will of the decedent.

of Washington, but was a resident of the

District of Columbia. The court denied the Application for a writ of prohibition, upon motion, whereupon said Aaron Baldwin, as relation of Aaron Baldwin, against the supe

relator, instituted this proceeding, by which rior court of the state of Washington, in and

he seeks to have the superior court prohibited for the county of King, and others, to restrain

from further proceeding in the enforcement the superior court from enforcing its order

of said order, or in the administration of the issued, requiring him to produce the will of

estate of the said Lena Shay Baldwin. In his deceased wife for probate. Writ denied. his petition for the writ he sets up the facts

Richard Saxe Jones, for relator. Donworth as to the proceeding in the superior court, & Howe, for respondents.

and alleges that such court will proceed in

the administration of the estate, unless proHOYT, C. J. In November, 1894, a petition hibited from so doing. He further alleges was filed in the superior court of King county that such court has no jurisdiction over the by or on behalf of Jennie K. Shay and A. K. estate of said Lena Shay Baldwin, or of his Shay, in which was alleged, among other person, and that it has no authority to prothings, that for two years prior to the 18th ceed in the matter. day of April, 1894, Lena Shay Baldwin was Writs of this kind are only issued to ina resident citizen of the city of Seattle and ferior courts when they are proceeding withstate of Washington, and during all that time out, or in excess of, their jurisdiction. Hence, had personal property in said city of the it is only necessary for us to determine as to value of $1,000 or more; that she was the whether or not the superior court of King owner of certain real estate in the District county would have jurisdiction to proceed of Columbia; that on said 18th day of April with the administration of the estate of said she died, leaving in full force and effect a Lena Shay Baldwin, upon any state of facts last will, which devised to the petitioners cer- which such court would be warranted in findtain property rights therein described; that ing from the proofs offered or to be offered said will came into possession of Aaron Bald- in the proceeding. If the jurisdiction dewin, her husband, who was named as execu- pends upon a question of fact, the court in tor thereof; that said Aaron Baldwin was in which such question is presented must be althe city of Seattle at the time of the death of lowed to determine that fact, like any other; said Lena Shay Baldwin, and had knowledge and, if it commits error in so doing, such erthereof at the time it occurred; that said ror can be corrected on appeal. Hence, it will furnish no foundation for a writ of pro | fact that deceased may have been temporarily hibition. If, at the time of her death, said absent therefrom, and an inhabitant, of anLena Shay Baldwin was a resident of King other jurisdiction, at the time of death. None county, the courts thereof have original juris- of the cases so cited in any manner distindiction in the settlement of her estate. If | guish as between permanent residence and she was a resident of the District of Colum- domicile. If the superior court has found, or bia, the courts of this state would, under the does find, as a fact, that Lena Shay Baldwin facts disclosed by this record, have no juris- was at the time of her death a resident of diction. It follows that the only question Seattle, it has the right to proceed with the which we are called upon to decide is as to administration of her estate; and the remedy whether or not the superior court could, upon for such finding, if erroneous, is by appeal. the papers before it, find that said Lena Shay Unless appealed from, such finding would Baldwin was at the time of her death a resi- | become conclusive, so far as the courts of dent of the city of Seattle. Such residence this jurisdiction are concerned. In each juis directly alleged in the petition, and denied risdiction the fact of residence must be de in the affidavits on the part of the relator, cided, and such decision will be conclusive filed with his motion to set aside the order. upon the courts of that jurisdiction, and will Thus a question of fact was presented, which determine the status of property situated the superior court was called upon to decide; therein. In courts of another state the quesand, though such fact related to the question tion of jurisdiction can be raised in opposition of its jurisdiction, any error which it might to auxiliary proceedings, and, if such courts commit in deciding it would furnish reason decide that the court in which the original for an appeal, but none whatever for the is- proceedings were had was without jurisdicsue of a writ of prohibition. For the pur- tion, they will refuse to give such proceedposes of this proceeding, it must be assumed ings force. See Stark v. Parker, 56 N. H. 481. that the superior court found as a fact that The relator questions the regularity of the Lena Shay Baldwin, at the time of her death, service of the order upon him in the District was a resident of Seattle. By reason thereof of Columbia. It is only necessary to say in the courts of King county had ju diction to regard there that, in what we have said, administer her estate. If, in such administra- no force has been given to such service. He tion, errors or irregularities are committed, also questions the form of the order. But in the remedy by appeal is adequate for their view of the fact that the court is proposing correction.

to do nothing thereunder, except to proceed The relator has argued that, upon the un- with the administration of the estate, the disputed facts, the domicile of Lena Shay form of the order was immaterial. Writ deBaldwin, at the time of her death, was in nied. the District of Columbia, and, to sustain such argument, has sought to make a distinction

ANDERS, SCOTT, GORDON, and DUN. between “domicile" and "residence."

In a

BAR, JJ., concur. technical and circumscribed meaning of such terms, there may be some distinction; but,

(54 Kan. 719) under the authorities, we are unable to find

STATE v. FRAZIER. anything in the facts of this case which would warrant us in distinguishing as be

(Supreme Court of Kansas. March 9, 1895.)

PROSECUTION FOR RAPE-INSTRUCTION AS TO ATtween the domicile and the residence of the

TEMPT-FEMALE UNDER AGE Of CoxsENT--PLEA said Lena Shay Baldwin. That the right of IX ABATEMENT-WHAT CONSIDERED ON DEMURoriginal administration rests with the courts of the jurisdiction of which the deceased was 1. Where a demurrer to a plea in bar or in a resident at the time of her death is well es

abatement of a criminal prosecution, stating

matters which, considered alone, constitute a tablished. This appears from authorities cit

bar to the further prosecution of the case or ed by the attorney for the petitioner.

In re

sufficient ground for the abatement of the acWashburn's Estate (Minn.) 47 N. W. 790.

tion, is sustained by the court, a conviction thereThe citation from 2 Woerner, Adm'n, pp. 492,

after had will not be for that reason set aside,

if the record of the case, as it stood at the time 495, was for the purpose of showing that of the hearing of the demurrer, conclusively courts make a distinction between "domicile" showed that the plea was not good. and “residence." The text cited seems to give

2. It is not error to overrule a challenge to

the array of jurors, made on the ground that the color to the contention, as it is stated therein

proper officer of one township or city in the counthat administration belongs to the place of ty failed to return a list of names of persons the domicile, even although the residence of

suitable to act as jurors, and for that reason the deceased at the time of death is · else.

no jurors from the township or city were includ

ed in the panel, the jurors constituting the panel where. But a reference to the authorities having been legally returned, drawn, and sumcited in support of the text clearly shows moned. that, if founded thereon, it is without au

3. Under section 31 of the act regulating

crimes and punishinents, the carnal knowledge thority. None of them tend in the least de

of a female under the age of 18 years is unlawgree to establish any such doctrine. The ful if the person having such carnal knowledge most that can be established therefrom is

is not her husband. All commerce between the that original jurisdiction is in the place of

sexes, except in lawful wedlock, is unlawful,

whether any penalty for the particular offense be the domicile or residence, notwithstanding the denounced by a statute or not.

RER.

4. The defendant was charged in two counts of the Criminal Code, we are required to dis. with the crime of rape, and of attempt to com- regard. The general rule, however, with refmit rape.

Two verdicts were rendered, one acquitting on the first count, the other convicting

erence to pleadings, is that a demurrer of an attempt under the second count. On ac- searches all the pleadings; and we think the count of the insufliciency of the averments of court had a right, on the hearing of this the second count, the conviction was set aside, and a new trial ordered by this court. State v.

demurrer, to examine the whole record, and Frazier, 36 Pac. 58, 53 Kan. 87. Afterwards

that the former conviction of an attempt and an amended information was filed, and the de- acquittal of the completed offense did not fendant again convicted of an attempt to commit rape. The court, in instructing the jury, operate as a bar to a trial under the amended

information. correctly defined the crime charged, put refused the request of the defendant for an instruction A plea in abatement was also filed, allegthat, if they found from the evidence that the ing that the defendant had never had a precompleted offense had been committed, they

liminary examination. To this, also, a demust acquit. The evidence showing an attempt

murrer was clear and satisfactory: that tending to show

was filed, and sustained. The dea completed offense very slight. Held that, while fendant, having been once tried for this the instruction asked should ordinarily be given. same offense, cannot now for the first time no reversible error was committed by the refusal

complain of the want of a preliminary exin this particular case.

amination. (Syllabus by the Court.)

At the trial, the defendant challenged the Appeal from district court, Saline county; array of jurors, on the ground that the jury R. F. Thompson, Judge.

was not made up as required by law, beGeorge W. Frazier was convicted of a cause no list of names had been returned crime, and appeals. Affirmed.

from the city of Salina, and therefore no jurors were drawn from Salina.

It was David Ritchie, for appellant. F. B. Dawes,

shown that no list of names for jurors was Atty. Gen., and R. A. Lovitt, for the State.

filed with the county clerk, and consequent

ly none were in attendance from the city. ALLEN, J. The defendant was charged

In the case of State v. Jenkins, 32 Kan. 477, with the crime of rape, and a second count

4 Pac. 809, it was said: “We think we betwas added to the original information, de

ter rule, and the one most likely to do jusfectively charging an attempt to commit

tice, is that while mere irregularities in a rape. Two verdicts were returned by the

the drawing of jurors, or mere informalities jury, one acquitting on the first count, and

on the part of the officers charged with the the other convicting on the second. From

drawing, ought not to be a sufficient ground this conviction the defendant appealed to

for sustaining a challenge to an array, yet this court, and the judgment was reversed

it is otherwise where the essential provi. for the insufficiency of the second count of

sions of the statute have been palpably disthe information, on which the conviction was

regarded.” In that case it appeared that based. State v. Frazier, 53 Kan. 87, 36

the names of the jurors placed on the list Pac. 58.

were taken from the assessment rolls for On the former hearing in this court the

the year 1883, when they should have been defendant asked an absolute discharge from

taken from the rolls of 1882; and it was further prosecution, on the ground that the held, that a challenge to the array ought first count of the information included a

to have been sustained, because the law had charge, not only of the completed offense, been disregarded. In that case no jurors but also of an attempt; but it was held that were drawn or summoned from a list made he was not entitled to such discharge, and up in accordance with law. In this case it the case was remanded for a new trial.

is not claimed that the jurors in attendance Afterwards an amended information was on the court were improperly placed on the filed by the county attorney, which suficient

list or were persons improperly summoned. ly charges an attempt to commit rape. Το

The sole objection to the array is that the tnis the defendant filed his plea in bar, city of Salina ought to have contributed its alleging that he had been once tried and

quota of names to the list from which the acquitted of the identical offense charged in jurors were drawn. To hold that a failure the amended information. To this plea the by a township or city officer to comply with county attorney demurred. It is urged that the law, and return names of persons suitaa demurrer to the plea admits its averments, ble to serve as jurors, would be sufficient and that the plea is clearly good, as it al- ground of challenge to the array, would be leges an acquittal on the first, and says likely to occasion great public expense and innothing about a conviction on the second, convenience in many cases, without any subcount. Even if we were to concede that

stantial benefit to persons on trial. We have on a demurrer the court may not look be- no reason to believe that the jury in this yond the plea, and that, if it state facts case was less favorably inclined to the deconstituting a bar, it should be sustained by fendant than one would have been if drawn the court, where the record, as in this case, from a list including residents of Salina. shows that the plea ought to have been over- We do not think the constitutional right of a ruled, we think the error, if error it be, trial by an impartial jury has been denied a technical one, which, under section 293 the defendant.

The defendant moved to quash the amend- states, it has always been held that the ed information, for the reason that it does female child below the age prescribed is not state facts sufficient to constitute a

utterly without capacity to consent, and public offense. The prosecution is based on therefore there can be no such thing as section 31 of chapter 31 of the General Stat- fornication with a female child under the utes of 1889, which reads as follows: "Every age of consent. As this statute has merely person who shall be convicted of rape, either raised the age, it must be held under it that by carnally and unlawfully knowing any fe- there can be no such thing as consent by male under the age of eighteen years, or by a girl under the age of 18 years to sexual forcibly ravishing any woman of the age intercourse. If she cannot consent, then of eighteen years or upwards, shall be pun- any person lewdly touching her commits an ished by confinement and hard labor not assault, and an assault is always an unlawless than five years nor more than twenty- ful act. The court correctly stated the law one years." It is insisted by counsel for in the instruction quoted. The protection the appellant with much earnestness and of the law extends to every unmarried feingenuity that the act of the defendant must male under the age of 18 years. The vabe shown to be unlawful; that it must be lidity of this section of the statute was unin violation of something else than the moral der consideration in this court in the case law. It is said that fornication between un- of State v. White, 44 Kan. 514, 25 Pac. 33. married persons, unaccompanied by any pub- While the policy of the law was questioned, lic indecency, and which fails to fall under its validity was upheld. any statutory penalty, is permissible; that Complaint is also made of the refusal of in the section under consideration the leg. the court to instruct the jury that, if they islature has not undertaken to declare what should find that the defendant actually conacts are unlawful, but has simply denounced summated the offense, they could not conpenalties against acts already made unlaw- vict of the attempt. Section 418 of the ful by other statutory provisions. It is urged crimes act provides: "No person shall be that there are no common-law crimes pun- convicted of an assault with intent to comishable in this state, and that a statute mit a crime, or of any other attempt to must be found authorizing it before a pros- commit any offense, when it shall appear ecution can be sustained upon any charge. that the crime intended or the offense atThe court charged the jury that, "by the tempted was perpetrated by such person laws of this state, a female under the age at the time of such assault, or in pursuance of eighteen years is incapable of giving of such attempt.” It is insisted that there consent to any act of sexual intercourse; so was evidence of the completed offense, and that every act of sexual intercourse with that the court was bound to charge as resuch female constitutes the crime of rape, quested. The statute is unambiguous in its whether with or without the consent of such provisions, and ought to be given effect in female, unless the parties are married." accordance with the intent of the legisla“Unlawful” is defined by Webster: “Not ture. Where there is evidence showing the lawful; illegal; not permitted by law." commission of a completed crime, the inEvery act of sexual intercourse must be struction asked should be given. The status either lawful or unlawful. No law, statu- of this case on the second trial was peculiar. tory or moral, sanctions intercourse between The defendant had already been acquitted the sexes except within the bonds of lawful of the crime of rape, and therefore could not wedlock. However remiss lawmakers may be further prosecuted for the completed of. have been in prescribing punishment for fense. The only purpose we are able to what is denominated simple fornication, perceive that this section was intended to nothing is clearer than that the moral sense accomplish is the prosecution and punishof mankind, the recognized customs and ment of every offender for the full offense usages of society, and the plainest dictates committed by him. Even if we concede of morality deny the lawfulness of all for- that the evidence in this case fairly prenication. The legislature clearly so regard- sents the question, the purpose of the stated it in enacting this section. Under the ute has not been defeated. We think no original section, rape might be committed substantial error was committed by the court by carnally and unlawfully knowing a fe- in refusing the instruction asked. male child under the age of 10 years. In It is provided in section 213 of the Code 1887 the section was amended, extending to of Criminal Procedure that "proof of actual females between the ages of 10 and 18 years penetration into the body shall be sufficient the same protection that had been given to proof to sustain an indictment, or informathose under the age of 10 before the new tion for rape.” The prosecuting witness was enactment took effect. The effect of this a girl 13 years of age. Her testimony is amendment was to take away from girls not clear to the fact that there was any under the age of 18 the legal capacity to penetration, and shows it to have been very consent to sexual commerce. Fornication is slight, if at all. The jury were instructed sexual intercourse by parties not lawfully that "the word 'attempt' means an effort or wedded, by their mutual consent. Under endeavor ; an act tending towards the acthe old statute and similar ones in other complishment of a purpose, which exceeds

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a mere intent or design, and falls short of an execution of it.” “The words 'sexual intercourse mean the actual contact of the sexual organs of a man and woman, and an actual penetration into the body of the latter." The defendant is an old man. That he attempted to violate the person of this little girl appears perfectly clear from the evidence, and he has been convicted by two juries. It is, at least, doubtful whether the evidence of the prosecutrix would be sufficient to uphold a conviction for rape. Where the correctness of the verdict is so manifest, we should hesitate to require another trial, unless there were satisfactory reasons for doing so. We do not think the defendant has been deprived of any substantial right, or convicted of a crime greater or less than he is guilty of. The judgment is therefore affirmed.

(11 Utah, 181)

REMINGTON et al. v. WEBER, Sheriff.

(Supreme Court of Utah. March 16, 1895.) Sheriff-GARNISHMENT-PRIORITY OF LEVIES UN

DER DIFFERENT WRITS. A sheriff receiving two attachments on the same day, the earlier directing hiin generally to garnish any persons indebted to the attachment defendant after filling in certain blanks with their names from books in his possession, and the later specifically directing him to garnish certain persons named therein, is justified in first obeying the directions in the later writ; and his paying to the plaintiff therein the moneys paid him by the garnishees does not render him liable to the plaintiff in the earlier writ, under Comp. Laws Utah, $ 3314, requiring the officer to make service upon any person who he is informed in writing has property of the debtor in his possession.

Appeal from district court, Third district; before Justice Merritt.

Action by Remington, Johnson & Co. against J. L. Weber, sheriff. From a judgment for defendant, plaintiffs appeal. Affirmed.

J. A. Williams, for appellants. Wilson I. Snyder, for respondent.

plaintiffs lived in Salt Lake City, while the attorney for Smith & Co. lived in Park City. The attachment in favor of the plaintiffs was levied on the 16th day of November, 1891, and the attachment in favor of M. E. Smith & Co. was levied upon the same property on the 17th day of Novembe 1891. Under this attachment in favor of Smith & Co. the defendant garnished some 25 persons owing money to the firm of Young & Adderly, and from these garnishees afterwards collected $454. He paid this money over to Smith & Co., and this money is the subject of controversy upon this appeal. The facts, so far as they are necessary to be further stated, are that Williams & Bonta, attorneys for the plaintiffs, on the 17th day of November, sent a letter to defendant, Weber, telling him to garnish two certain mining companies, debt. ors of Young & Adderly, naming them, and then, leaving certain blank lines in their let. ter, instructed the sheriff on another sheet of paper to fill in the names of all persons who owed the firm of Young & Adderly into the blank spaces, and garnish them; the sheriff at the time having seized the books of account. On the same day (but it is doubtful which was received first) Smith & Co., by their attorney, handed to the sheriff writs of attachment, filled out, and directed the sheriff to garnish the persons mentioned in his return, and from whom he subsequently collected the money. It is admitted that Snyder had gotten the names of those persons from the books of account which the sheriff had in his possession.

Section 3314 of the Compiled Laws of Utah provides: “Upon receiving information in writing from the plaintiff for his attorney that any person has in his possession or under his control, any credits, or other person. al property belonging to the defendant, or is owing any debt to defendant, the officer making the service must serve upon such person a copy of the writ,” etc. It is not disputed by the appellants, as we understand it, that the directions given by the attorney of Smith & Co. to the sheriff was a complete compliance with this statute, and it is not denied that the sheriff had the Remington writ in his hands before he received the Smith writ. The only point of serious controversy is whether, under the facts, the Remington writ should be considered as levied upon the debts in the hands of the garnishees prior to the Smith writ. There was no direction in writing from the attorney of Remington to garnish these particular persons. His letter was written containing the names of two garnishees, and there is no question about them in this case, and the blank space was left, with the direction to the sheriff to fill in the names of the other debtors of Young & Adderly from the books in his possession. We think, under the statute just cited, that it is the information in writing from the plaintiffs or his attorney which directs and controls the action of the

SMITH, J. This action was commenced against the defendant by the plaintiffs to recover, on what is claimed to be the first cause of action, the sum of $600. It is alleged that the plaintiffs are entitled to recover this amount by reason of the fact that the sheriff wrongfully, illegally, and unlawfully conducted himself in the service of certain attachments in favor of the plaintiffs and against the firm of Young & Adderly. The plaintiffs sued out an attachment against Young & Adderly, who were merchants in Park City, and delivered the writ of attachment to the defendant for service. He levied upon a stock of goods under such attachment, and also seized the account books of the firm of Young & Adderly. Upon the same day that the account books were seized, M. E. Smith & Co. sued out an attachment against Young & Adderly. The attorneys for

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