and delivered to said Jamieson-Dixon Mill Company," etc., certain merchandise, sufficiently mentions the name of the person by whom it was employed, and to whom it provided material. We think the claim was sufficient, and that the proof substantially sustained it. We have carefully examined all these liens, and, without specially reviewing them, we think that the objections to them are exceedingly technical and untenable, both so far as the sufficiency of the claims is concerned and the sufficiency of the proof, and therefore think they should all be sustained. In fact, we are inclined to think they should be sustained, even under the provisions of the old law. Some objection is raised by the respondents to the decree of the court, but, as no appeal was taken from such decree by the respondents, this court will not review it. The judgment will in all things be affirmed. HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur. (11 Wash. 111) STATE ex rel. BALDWIN v. SUPERIOR COURT OF KING COUNTY et al. (Supreme Court of Washington. Feb. 7, 1895.) WRIT OF PROHIBITION-JURISDICTION. Where a court has found, upon the facts, that a person was at the time of her death a resident within its jurisdiction, a writ of prohibition will not issue to prevent the execution of an order of such court to produce the will of the decedent. Application for a writ of prohibition, upon relation of Aaron Baldwin, against the superior court of the state of Washington, in and for the county of King, and others, to restrain the superior court from enforcing its order issued, requiring him to produce the will of his deceased wife for probate. Writ denied. Donworth Richard Saxe Jones, for relator. & Howe, for respondents. HOYT, C. J. In November, 1894, a petition was filed in the superior court of King county by or on behalf of Jennie K. Shay and A. K. Shay, in which was alleged, among other things, that for two years prior to the 18th day of April, 1894, Lena Shay Baldwin was a resident citizen of the city of Seattle and state of Washington, and during all that time had personal property in said city of the value of $1,000 or more; that she was the owner of certain real estate in the District of Columbia; that on said 18th day of April she died, leaving in full force and effect a last will, which devised to the petitioners certain property rights therein described; that said will came into possession of Aaron Baldwin, her husband, who was named as executor thereof; that said Aaron Baldwin was in the city of Seattle at the time of the death of said Lena Shay Baldwin, and had knowledge thereof at the time it occurred; that said will was in the custody and control of said Aaron Baldwin, in the city of Seattle, state of Washington, when said Lena Shay Baldwin died; and that he has failed and refused, and still refuses, to present said will for probate, and to qualify as executor thereof. The prayer of said petition was that the said will might be admitted to probate, and the said Aaron Baldwin required to qualify as executor, or formally decline to act as such, in which latter event it was prayed that said A. K. Shay be allowed to qualify as administrator with the will annexed of the estate of said Lena Shay Baldwin. It was further prayed therein that an order be issued requiring the said Aaron Bald win to produce said will within 20 days after the date of such order, so that it could be probated in accordance with law. Such petition was duly verified, and was supported by the affidavit of A. K. Shay; and, founded thereon, the court made an order that said Aaron Baldwin be required to produce the will of said Lena Shay Baldwin, in the probate department of the superior court of King county, within 20 days, and it was further ordered that a certised copy of such order be forthwith served upon the said Aaron Baldwin. Such service was made upon said Baldwin in the District of Columbia. Thereafter, he appeared in the proceeding, and moved the court to set aside such order, and, in support thereof, filed certain affidavits which tended to show that at the time of the death of the said Lena Shay Baldwin she was not a resident of the state of Washington, but was a resident of the District of Columbia. The court denied the motion, whereupon said Aaron Baldwin, as relator, instituted this proceeding, by which he seeks to have the superior court prohibited from further proceeding in the enforcement of said order, or in the administration of the estate of the said Lena Shay Baldwin. In his petition for the writ he sets up the facts as to the proceeding in the superior court, and alleges that such court will proceed in the administration of the estate, unless prohibited from so doing. He further alleges that such court has no jurisdiction over the estate of said Lena Shay Baldwin, or of his person, and that it has no authority to proceed in the matter. Writs of this kind are only issued to inferior courts when they are proceeding without, or in excess of, their jurisdiction. Hence, it is only necessary for us to determine as to whether or not the superior court of King county would have jurisdiction to proceed with the administration of the estate of said Lena Shay Baldwin, upon any state of facts which such court would be warranted in finding from the proofs offered or to be offered in the proceeding. If the jurisdiction depends upon a question of fact, the court in which such question is presented must be allowed to determine that fact, like any other: and, if it commits error in so doing, such error can be corrected on appeal. Hence, it absent therefrom, and an inhabitant of another jurisdiction, at the time of death. None of the cases so cited in any manner distinguish as between permanent residence and domicile. If the superior court has found, or does find, as a fact, that Lena Shay Baldwin was at the time of her death a resident of Seattle, it has the right to proceed with the administration of her estate; and the remedy for such finding, if erroneous, is by appeal. Unless appealed from, such finding would become conclusive, so far as the courts of this jurisdiction are concerned. In each jurisdiction the fact of residence must be decided, and such decision will be conclusive upon the courts of that jurisdiction, and will determine the status of property situated therein. In courts of another state the question of jurisdiction can be raised in opposition to auxiliary proceedings, and, if such courts decide that the court in which the original proceedings were had was without jurisdiction, they will refuse to give such proceedings force. See Stark v. Parker, 56 N. H. 481. 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 Lena Shay Baldwin was a resident of King county, the courts thereof have original jurisdiction in the settlement of her estate. If she was a resident of the District of Columbia, the courts of this state would, under the facts disclosed by this record, have no jurisdiction. It follows that the only question which we are called upon to decide is as to whether or not the superior court could, upon the papers before it, find that said Lena Shay Baldwin was at the time of her death a resident of the city of Seattle. Such residence is directly alleged in the petition, and denied in the affidavits on the part of the relator, filed with his motion to set aside the order. Thus a question of fact was presented, which the superior court was called upon to decide; and, though such fact related to the question of its jurisdiction, any error which it might commit in deciding it would furnish reason for an appeal, but none whatever for the issue of a writ of prohibition. For the purposes of this proceeding, it must be assumed that the superior court found as a fact that Lena Shay Baldwin, at the time of her death, was a resident of Seattle. By reason thereof the courts of King county had jurisdiction to administer her estate. If, in such administration, errors or irregularities are committed, the remedy by appeal is adequate for their correction. In re The relator has argued that, upon the undisputed facts, the domicile of Lena Shay Baldwin, at the time of her death, was in the District of Columbia, and, to sustain such argument, has sought to make a distinction between "domicile" and "residence." In a technical and circumscribed meaning of such terms, there may be some distinction; but, under the authorities, we are unable to find anything in the facts of this case which would warrant us in distinguishing as between the domicile and the residence of the said Lena Shay Baldwin. That the right of original administration rests with the courts of the jurisdiction of which the deceased was a resident at the time of her death is well established. This appears from authorities cited by the attorney for the petitioner. Washburn's Estate (Minn.) 47 N. W. 790. The citation from 2 Woerner, Adm'n, pp. 492, 495, was for the purpose of showing that courts make a distinction between "domicile" and "residence." The text cited seems to give color to the contention, as it is stated therein that administration belongs to the place of the domicile, even although the residence of the deceased at the time of death is elsewhere. But a reference to the authorities cited in support of the text clearly shows that, if founded thereon, it is without authority. None of them tend in the least degree to establish any such doctrine. The most that can be established therefrom is that original jurisdiction is in the place of the domicile or residence, notwithstanding the He The relator questions the regularity of the service of the order upon him in the District of Columbia. It is only necessary to say in regard thereto that, in what we have said, no force has been given to such service. also questions the form of the order. But in view of the fact that the court is proposing to do nothing thereunder, except to proceed with the administration of the estate, the form of the order was immaterial. Writ denied. ANDERS, SCOTT, GORDON, and DUNBAR, JJ., concur. (54 Kan. 719) STATE v. FRAZIER. 1. Where a demurrer to a plea in bar or in abatement of a criminal prosecution, stating matters which, considered alone, constitute a bar to the further prosecution of the case or sufficient ground for the abatement of the action, is sustained by the court, a conviction thereafter had will not be for that reason set aside, if the record of the case, as it stood at the time of the hearing of the demurrer, conclusively showed that the plea was not good. 2. It is not error to overrule a challenge to the array of jurors, made on the ground that the proper officer of one township or city in the county failed to return a list of names of persons suitable to act as jurors, and for that reason no jurors from the township or city were included in the panel, the jurors constituting the panel having been legally returned, drawn, and summoned. 3. Under section 31 of the act regulating crimes and punishments, the carnal knowledge of a female under the age of 18 years is unlawful if the person having such carnal knowledge is not her husband. All commerce between the sexes, except in lawful wedlock, is unlawful, whether any penalty for the particular offense be denounced by a statute or not. 4. The defendant was charged in two counts with the crime of rape, and of attempt to commit rape. Two verdicts were rendered, one acquitting on the first count, the other convicting of an attempt under the second count. On account of the insufliciency of the averments of the second count, the conviction was set aside, and a new trial ordered by this court. State v. Frazier, 36 Pac. 58, 53 Kan. 87. Afterwards an amended information was filed, and the defendant again convicted of an attempt to commit rape. The court, in instructing the jury, correctly defined the crime charged, but refused the request of the defendant for an instruction that, if they found from the evidence that the completed offense had been committed, they must acquit. The evidence showing an attempt was clear and satisfactory; that tending to show a completed offense very slight. Held that, while the instruction asked should ordinarily be given, no reversible error was committed by the refusal in this particular case. (Syllabus by the Court.) Appeal from district court, Saline county; R. F. Thompson, Judge. George W. Frazier was convicted of a crime, and appeals. Affirmed. David Ritchie, for appellant. F. B. Dawes, Atty. Gen., and R. A. Lovitt, for the State. ALLEN, J. The defendant was charged with the crime of rape, and a second count was added to the original information, defectively charging an attempt to commit a rape. Two verdicts were returned by the jury, one acquitting on the first count, and the other convicting on the second. From this conviction the defendant appealed to this court, and the judgment was reversed for the insufficiency of the second count of the information, on which the conviction was based. State v. Frazier, 53 Kan. 87, 36 Pac. 58. To On the former hearing in this court the defendant asked an absolute discharge from further prosecution, on the ground that the first count of the information included a charge, not only of the completed offense, but also of an attempt; but it was held that he was not entitled to such discharge, and the case was remanded for a new trial. Afterwards an amended information was filed by the county attorney, which sufficiently charges an attempt to commit rape. this the defendant filed his plea in bar, alleging that he had been once tried and acquitted of the identical offense charged in the amended information. To this plea the county attorney demurred. It is urged that a demurrer to the plea admits its averments, and that the plea is clearly good, as it alleges an acquittal on the first, and says nothing about a conviction on the second, count. Even if we were to concede that on a demurrer the court may not look beyond the plea, and that, if it state facts constituting a bar, it should be sustained by the court, where the rècord, as in this case, shows that the plea ought to have been overruled, we think the error, if error it be, a technical one, which, under section 293 of the Criminal Code, we are required to dis regard. The general rule, however, with reference to pleadings, is that a demurrer searches all the pleadings; and we think the court had a right, on the hearing of this demurrer, to examine the whole record, and that the former conviction of an attempt and acquittal of the completed offense did not operate as a bar to a trial under the amended information. A plea in abatement was also filed, alleging that the defendant had never had a preliminary examination. To this, also, a demurrer was filed, and sustained. The defendant, having been once tried for this same offense, cannot now for the first time complain of the want of a preliminary examination. At the trial, the defendant challenged the array of jurors, on the ground that the jury was not made up as required by law, because no list of names had been returned from the city of Salina, and therefore no jurors were drawn from Salina. It was shown that no list of names for jurors was filed with the county clerk, and consequently none were in attendance from the city. In the case of State v. Jenkins, 32 Kan. 477, 4 Pac. 809, it was said: "We think e better rule, and the one most likely to do justice, is that while mere irregularities in the drawing of jurors, or mere informalities on the part of the officers charged with the drawing, ought not to be a sufficient ground for sustaining a challenge to an array, yet it is otherwise where the essential provisions of the statute have been palpably disregarded." In that case it appeared that the names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from the rolls of 1882; and it was held, that a challenge to the array ought to have been sustained, because the law had been disregarded. In that case no jurors were drawn or summoned from a list made up in accordance with law. In this case it is not claimed that the jurors in attendance on the court were improperly placed on the list or were persons improperly summoned. The sole objection to the array is that the city of Salina ought to have contributed its quota of names to the list from which the jurors were drawn. To hold that a failure by a township or city officer to comply with the law, and return names of persons suitable to serve as jurors, would be sufficient ground of challenge to the array, would be likely to occasion great public expense and inconvenience in many cases, without any substantial benefit to persons on trial. We have no reason to believe that the jury in this case was less favorably inclined to the defendant than one would have been if drawn from a list including residents of Salina. We do not think the constitutional right of a trial by an impartial jury has been denied the defendant. The defendant moved to quash the amended information, for the reason that it does not state facts sufficient to constitute a public offense. The prosecution is based on section 31 of chapter 31 of the General Statutes of 1889, which reads as follows: "Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female under the age of eighteen years, or by forcibly ravishing any woman of the age of eighteen years or upwards, shall be punished by confinement and hard labor not less than five years nor more than twentyone years." It is insisted by counsel for the appellant with much earnestness and ingenuity that the act of the defendant must be shown to be unlawful; that it must be in violation of something else than the moral law. It is said that fornication between unmarried persons, unaccompanied by any public indecency, and which fails to fall under any statutory penalty, is permissible; that in the section under consideration the legislature has not undertaken to declare what acts are unlawful, but has simply denounced penalties against acts already made unlawful by other statutory provisions. It is urged that there are no common-law crimes punishable in this state, and that a statute must be found authorizing it before a prosecution can be sustained upon any charge. The court charged the jury that, "by the laws of this state, a female under the age of eighteen years is incapable of giving consent to any act of sexual intercourse; so that every act of sexual intercourse with such female constitutes the crime of rape, whether with or without the consent of such female, unless the parties are married." "Unlawful" is defined by Webster: "Not lawful; illegal; not permitted by law." Every act of sexual intercourse must be either lawful or unlawful. No law, statutory or moral, sanctions intercourse between the sexes except within the bonds of lawful wedlock. However remiss lawmakers may have been in prescribing punishment for what is denominated simple fornication, nothing is clearer than that the moral sense of mankind, the recognized customs and usages of society, and the plainest dictates of morality deny the lawfulness of all fornication. The legislature clearly so regarded it in enacting this section. Under the original section, rape might be committed by carnally and unlawfully knowing a female child under the age of 10 years. In 1887 the section was amended, extending to females between the ages of 10 and 18 years the same protection that had been given to those under the age of 10 before the new enactment took effect. The effect of this amendment was to take away from girls under the age of 18 the legal capacity to consent to sexual commerce. Fornication is sexual intercourse by parties not lawfully wedded, by their mutual consent. Under the old statute and similar ones in other states, it has always been held that the female child below the age prescribed is utterly without capacity to consent, and therefore there can be no such thing as fornication with a female child under the age of consent. As this statute has merely raised the age, it must be held under it that there can be no such thing as consent by a girl under the age of 18 years to sexual intercourse. If she cannot consent, then any person lewdly touching her commits an assault, and an assault is always an unlawful act. The court correctly stated the law in the instruction quoted. The protection of the law extends to every unmarried female under the age of 18 years. The validity of this section of the statute was under consideration in this court in the case of State v. White, 44 Kan. 514, 25 Pac. 33. While the policy of the law was questioned, its validity was upheld. Complaint is also made of the refusal of the court to instruct the jury that, if they should find that the defendant actually consummated the offense, they could not convict of the attempt. Section 418 of the crimes act provides: "No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt." It is insisted that there was evidence of the completed offense, and that the court was bound to charge as requested. The statute is unambiguous in its provisions, and ought to be given effect in accordance with the intent of the legislature. Where there is evidence showing the commission of a completed crime, the instruction asked should be given. The status of this case on the second trial was peculiar. The defendant had already been acquitted of the crime of rape, and therefore could not be further prosecuted for the completed offense. The only purpose we are able to perceive that this section was intended to accomplish is the prosecution and punishment of every offender for the full offense committed by him. Even if we concede that the evidence in this case fairly presents the question, the purpose of the statute has not been defeated. We think no substantial error was committed by the court in refusing the instruction asked. It is provided in section 213 of the Code of Criminal Procedure that "proof of actual penetration into the body shall be sufficient proof to sustain an indictment, or information for rape." The prosecuting witness was a girl 13 years of age. Her testimony is not clear to the fact that there was any penetration, and shows it to have been very slight, if at all. The jury were instructed that "the word 'attempt' means an effort or endeavor; an act tending towards the accomplishment of a purpose, which exceeds 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 UNDER DIFFERENT WRITS. A sheriff receiving two attachments on the same day, the earlier directing him 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, plaintiff's appeal. Affirmed. J. A. Williams, for appellants. Wilson I. Snyder, for respondent. 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 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 November, 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, debtors of Young & Adderly, naming them, and then, leaving certain blank lines in their letter, 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 personal 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 |