(89 Wash. 449) Department 2. Appeal from Superior Court, Whitman County; R. L. McCroskey, STATE v. HAWKINS. (No. 12855.) (Supreme Court of Washington. Feb. 2, 1916.) | Judge. 1. HOMICIDE 231-EVIDENCE-MALICE. On a trial for homicide, evidence as to defendant's frame of mind when he arrived at a barn where deceased was, his possession of a revolver which the jury might have believed was concealed, and his manner of addressing those present immediately preceding the shooting held sufficient on the question of malice to support a conviction for murder in the second degree, especially as, where a killing is admitted or proved beyond a doubt to have been done by accused, the burden of justifying his act or reducing the crime to manslaughter is upon him. [Ed. Note.-For other cases, Cent. Dig. § 479; Dec. Dig. 231.] see Homicide, 2. HOMICIDE 340-REVIEW-HARMLESS ER BOR. On a trial for homicide, where the jury found defendant guilty of murder in the second degree, thereby finding him not guilty of murder in the first degree, he was not prejudiced by the submission of the question of murder in the first degree, though there was not sufficient evidence of premeditated malice or premeditated design to effect deceased's death to warrant the submission of that degree. 340.] see Homicide, [Ed. Note.-For other cases, Cent. Dig. §§ 715-717, 720; Dec. Dig. 3. CRIMINAL LAW 824 NECESSITY OF REQUESTS. INSTRUCTIONS On a trial for homicide, the court charged that, though deceased made the first attack, still if deceased, after such attack and before the fatal shot was fired, ceased his attack upon defendant and in good faith withdrew from the conflict by retreating or otherwise, then defendant would not be justified in taking deceased's life after he had so withdrawn from the conflict. It was defendant's claim that it was too dark for him to see that deceased was retreating, that he was being attacked by some of those present and because of the darkness did not know just which one, and that he shot without intent to injure any one other than those he thought were actually attacking him at the time. Held that, as the instruction given clearly stated the law generally applicable, defendant could not complain of its failure to present his theory where no instruction presenting such theory was requested. [Ed. Note. For other cases, Law, Cent. Dig. §§ 1996-2004; Dec. Dig. see Criminal 824.] SELF-DEFENSE FOL the second degree, and he appeals. Affirmed. R. M. Burgunder and Thomas Neill, both of kins, was charged by information filed in the PARKER, J. The defendant, John Hawsuperior court for Whitman county with the crime of murder in the first degree, in that he did on the 29th day of November, 1914, "feloniously and with premeditated design to effect the death of one George A. Miller, kill and murder said George A. Miller." His trial before the court and a jury resulted in a verdict of guilty of murder in the second degree against him. Judgment was rendered thereon sentencing the defendant to the penitentiary, from which judgment he has appealed to this court. ing farmers living in Whitman county. On [1] Appellant and deceased were neighborSunday, November 29, 1914, appellant had On returning home near evening he found been hunting, carrying a rifle and a revolver. some of his hogs missing. He also discovered during the day that his boar had been castrated by some one. for his missing hogs. He came to Miller's He started out hunting place about 5 o'clock in the evening, evidently in an angry mood. He carried his revolver with him. cealed on his person, is not very clear from Whether it was purposely conthe evidence, but that it was not seen by the witnesses present at the time of the shooting until it was actually drawn by him immediately preceding the shooting, seems plain. Miller was in his barn feeding his horses. Two of his neighbors, Roberts and Hall, were there talking to him, evidently as mere visitors. Roberts' testimony as to what occurred upon appellant's arrival is as follows: 4. HOMICIDE 120 · LOWING UP ATTACK. "A. He [Miller] was feeding his horses, and The state's evidence tended to show that and John Hawkins dashed into the door and ran me and Mr. Hall was standing talking to him, defendant went to deceased's barn in an angry up where we were at, and Mr. Miller says, mood, carrying a revolver with him which, if not 'Hello, John;' and he says, 'What the hell's the purposely concealed, was at least not seen by matter with you fellows?' and Mr. Miller says, those present until actually drawn immediately 'Nothing, John; what's the matter with you?' preceding the shooting, that he accused those and he says, 'What did you cut my hog for?" present of cutting a hog belonging to him, and and Mr. Miller says, 'I never cut your hog, John;' when they denied it said that there was a lie and he turned to me and says, 'Did you?' and between those present somewhere, that deceased I says, 'No;' and then he says, "There is a damn asked if defendant meant him, and when defend- lie between you fellows somewhere;' and I says, ant failed to answer struck him on the temple, 'Do you mean me, John?' and he says, 'No;' that defendant drew his gun and shot deceased, though deceased was retreating and begging him not to shoot. Held that, while defendant may not have been the aggressor in the sense of striking the first blow, he was the aggressor in the sense that his actions brought on the affray, if the state's testimony was true, and if this did not deprive him of the right of self-defense he was not in any event justified in following up the affray rather than retreating or desisting in the light of the facts shown. and Mr. Miller says, 'You mean me, John?' and he didn't say anything; and Mr. Miller says so again and again, and he didn't say anything, and Mr. Miller tapped him with his fist and says, 'You mean me?' and he said- Q. What kind of a blow did he strike him? A. Like that (indicating), a kind of side strike, in the temple on this side (indicating). Then Hawkins drew a gun, and Mr. Miller he went running back and hollowing for him not to shoot, and Mr. Miller ran back eight or nine feet, and Hawkins followed him about eight feet before firing, and Mr. Miller was just running in behind Mr. Hall, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 175; Dec. Dig. 120.] he fired just then, and he had backed up along | How far was Hawkins from Miller when the beside of me, and was drawing his gun toward first shot was fired? A. Well, about eight fac me, and I knocked the gun back, and he shot at Q. How far was he away at the time the me as he turned round to his left, and we scuf- ond shot was fired? A. Well, I should judge fled there, and while we was scuffling Mr. Mil- about three or four feet." ler stepped over against the hay, and Hawkins kept on scuffling towards him, and when he got up to two or three feet drew his gun up in Mr. Miller's breast and shot him. Then we got the gun away from him and held him until the sheriff come. Q. What was the effect of those two shots on Mr. Miller? A. How did it affect Mr. Miller? Q. Yes. A. Well, the first shot I couldn't tell that it affected him very much, only he just leaned against the hay and hollowed the first shot, 'He shot me!" and the last shot killed him. Q. How long did he live after the last shot? A. I should judge half a minute, something like that." The jury was fully warranted by the eridence in believing, as it evidently did, that those versions of the affray given by Roberts and Hall in their testimony were substantially correct, and that it was light enough there to readily distinguish the action of each ste present, though appellant in his testimeny insists that it was dark at the time; that he did not know that Miller was in fact retreating, and believed that some one was 2tually assaulting him at the time he fired the Hall's testimony is substantially to the shots. same effect as follows: "A. Well, I, Mr. Roberts, and Mr. Miller were in the barn at Mr. Miller's place, and Mr. Miller was feeding the horses. Mr. Hawkins came in the barn and replied, 'Who of you- He said first, 'What the hell's the matter with you fellows?' Mr. Miller says, 'Nothing, what's the matter with you, John?" John says, 'Who of you fellows cut my hog?" Mr. Miller says, 'It wasn't me.' Then he turned around to Mr. Roberts and asked him, and he says, 'It wasn't me either, John.' Mr. Hawkins says, "There is a damn lie out among you fellows.' And Mr. Roberts was standing a little closer than Mr. Miller, and Mr. Roberts says, 'Do you mean me, 'John?' and he says, 'No; I didn't mean you." And Mr. Miller made the same reply, and he made no answer. He walked around to him and asked him again, and he made no reply; and Mr. Miller struck him with his fist and staggered him over a little ways against a sack pile there. Mr. Hawkins raised with his gun in his hand. Mr. Miller asked him not to shoot, and I asked him the same thing, and Mr. Roberts also. He didn't hesitate, but shot Mr. Miller. Mr. Miller walked around behind me. At the time he put the first shot into Mr. Miller he was It is contended by counsel for appellant that the trial court erred in refusing to withdraw from the consideration of the jury the charges of murder in both the first and see ond degrees and submit to the jury only two forms of verdict: One, "Not guilty;" and another, "Guilty of manslaughter" so that the jury would have no alternative but to find in one or the other of these two fores The substance of this contention is that there was not sufficient evidence of malice to war rant the jury finding the appellant guilty & murder in either the first or second degrees. It seems to us, however, that the facts abore noticed, which the jury were clearly warrant ed in believing, fully answer this contention, especially in view of the general rule recog nized by this and other courts as stated in State v. Drummond, 70 Wash. 260, 263, 126 Pac. 541, 542, as follows: burden of justifying his act or reducing the crime to that of manslaughter was upon hir State v. Ware, 58 Wash. 526, 109 Pac. 279: State v. Clark, 58 Wash. 128, 107 Pac. 107, and cases there cited." "The killing being admitted or proved beyond standing pretty near behind me. Then he turn-a doubt to have been done by the appellant, the ed around the second shot and shot at Mr. Roberts, and Mr. Roberts grabbed hold of him and turned him kind of around, and then the last shot, the next shot he fired at Mr. Miller again. As soon as he done it, Mr. Miller replied, "He has killed me.' By that time Mr. Roberts got Indeed, even aside from this rule, the evihold of Hawkins and succeeded in taking the dence seems ample to support the conclusion gun away from him. I held Mr. Hawkins then, and Mr. Roberts went to phone for the sheriff. reached by the jury, so far as the question While he was gone to phone for the sheriff I of malice is concerned, in view of the frame asked him, 'Why did you do that?' and he says: of mind in which appellant arrived upon the 'I don't know what in the world I done it for. I didn't have a thing against you fellows. I scene, his possession of the revolver which just got mad and lost my head.' Q. the jury might well have believed was con When he came in, did you notice the position cealed, and his manner of addressing those of his hands before the shot was fired? A. Yes, present immediately preceding the shooting. It seems quite plain to us that the trial court was amply justified in submitting to the jury at least the question of appellant's guilt of murder in the second degree. * sir; he had them under his sweater coat. Q. Which hand? A. The right hand. Q. What position was his left hand? A. Swinging down by his side. Q. When Miller struck him, what kind of a blow did he hit? A. Kind of a side blow. Q. Whereabouts did he strike him? A. On the left side of his face. Q. You say he staggered him? A. Yes, sir; some, over against a sack pile in the barn. Q. When did you first see the revolver in his hand? A. He was just about straightened up when I seen the revolver. He almost had it leveled when I noticed it. Q. When was the first time you saw his right hand when he came in the barn? A. Just as I looked around at him. I took a minute at that time to notice what he was going to do. Q. When was the first time after he came in the barn that you saw his right hand? A. Not until he pulled the gun. Q. At the time he pulled the gun, where was Miller? A. Stepping back behind me, kind [2] It is contended in appellant's behalf that the trial court in any event erred in refusing to withdraw from the jury the question of appellant's guilt of murder in the first degree; an instruction to that effect having been requested and refused. This contention we think finds its answer in the fact that appellant was not found guilty of murder in the first degree, but was acquitted thereof by the finding of his guilt of murder in the second degree. The argument seems of premeditated malice or “premeditated de- | sign to effect the death" of Miller, using the language of section 2392, Rem. & Bal. Code, defining murder in the first degree, to warrant the submission of that question to the jury. Were we to so hold as a matter of law, still appellant having been acquitted of that degree of murder, the denial of the request for withdrawal of that question from the jury proved not to be prejudicial to his rights. The following decisions support this view: State v. Underwood, 35 Wash. 558, 573, 77 Pac. 863; State v. Phillips, 59 Wash. 252, 109 Pac. 1047; State v. Blaine, 64 Wash. 122, 116 Pac. 660; Downing v. State, 11 Wyo 86, 70 Pac. 833, 73 Pac. 758. [3] The trial court instructed the jury in part as follows: "You are instructed that although you may believe from the evidence that deceased struck the defendant with his fist, and thereby made the first attack, still, if you further believe from the evidence that the deceased after such attack, and before the fatal shot was fired, ceased his attack upon defendant and in good faith withdrew from the conflict by retreating or otherwise, then the defendant would not be justified in taking the life of the deceased after the deceased, if you so find, had withdrawn from the conflict." Counsel for appellant make but little contention against the correctness of this as a statement of the law, but urge that the in struction does not state all upon that subject which appellant was entitled to in view of the theory of his defense, which is, that he was acting in self-defense, that it was not light enough in the barn for him to see or know that Miller was retreating, that he was being attacked by some of those present, that he did not know just which one it was because of the want of sufficient light and the confusion and that he shot without intent to injure any one other than those he thought were actually attacking him at the time he shot. The complaint of appellant's counsel against the instruction seems to be that it fails to take account of his theory of the defense in that it makes no mention of what appellant's rights might be in the light of his want of knowledge of Miller's retreating. We note that counsel for appellant made no request for any instruction of this nature. We therefore think he is not in position to complain of the instruction above quoted, since it seems to clearly state the law generally applicable to such cases. [4] While appellant may not have been the aggressor in the sense of striking the first blow, he manifestly was the aggressor in the sense that his actions brought on the affray, if the versions given by Roberts and Hall are to be believed, as the jury had the right to believe them. In the text of 21 Cyc. 807, touching the question of what constitutes one an aggressor in such an affray, it is said: "Any wrongful or unlawful act of the accused which is reasonably calculated to lead to an affray or deadly conflict, and which provokes the difficulty, is an act of aggression or provocation which deprives him of the right of self-defense. although he does not strike the first blow. So one is the aggressor when he provokes another into a quarrel causing a fatal affray, or commences an assault upon the other. The act of provocation must have been committed at the ed to the assault in the resistance of which the time the homicide occurred, and must have relatassailant was killed." These observations seem to be well sup ported by the authorities. This view of the law, as applied to the facts of this case, would argue strongly against appellant's right of self-defense. In any event, he was not justified in following up the affray rather than retreating or at least desisting in the light of the facts which the jury were warranted in believing, and evidently did believe. 21 Cyc. 820. It seems quite plain to us that this record shows no prejudicial error against appellant, and that he has been awarded a fair trial. The judgment is affirmed. MORRIS, C. J., and MAIN, BAUSMAN, and HOLCOMB, JJ., concur. (171 Cal. 741) NEWLANDS v. SUPERIOR COURT OF LOS (Supreme Court of California. Jan. 19, 1916.) Only a clear abuse of discretion of the trial court in granting or refusing temporary alimony given by Civ. Code, § 137, will be reviewed by the Supreme Court. Cent. Dig. 88 769, 770; Dec. Dig. 286.] Where the discretion of the trial court in granting, under Civ. Code, § 137, temporary alimony to enable wife to support herself or to prosecute a pending action of divorce, could be exercised in only one way, mandamus to enforce such discretion will issue. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 73, 78; Dec. Dig. 32.] 3. DIVORCE COURT. 182-ALIMONY-DISCRETION OF Where the evidence showed that the wife had deserted her husband, that her action for divorce was not instituted until after the husband had inherited large estate, and that the husband was the aggrieved party and entitled alimony under Civ. Code, § 137, pending an apto a decree, the court may refuse to award peal from the decree for husband, the fact that the wife was afflicted with a disease incapacitating her for work not rendering her husband liable for her support. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 568. 587, 588, 625, 638, 641, 657; Dec. Dig. 182.] Where the husband consented that the fees of attorneys for his wife should be determined at the conclusion of her appeal from a divorce decree in his favor, the court may properly deny fees pending appeal, it being no hardship to require the attorneys to wait the determination For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the action, as the payment of the fees was not jeopardized by the delay. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 568, 587, 588, 625, 638, 641, 657; Dec. Dig. 182.] on Apr 3, 1911, plaintiff took the train ad went to New Orleans, where she remained until about the 4th of August, 1914. During the first year of her absence plaintiff wre several letters to her husband asking him to In Bank. Application by Viola Newlands send her money to enable her to return. The for writ of mandate against the Superior court found that defendant did not send her Court of the County of Los Angeles. Man-money directly, but did send money in pay date denied, and writ discharged. R. A. Dunnigan, of Los Angeles, for petitioner. George Beebe, of Los Angeles, for respondent. ment of debts which she had contracted in New Orleans. The court further found that her offers to return and her demand for noney were not made in good faith, and that plaintiff was at the time carrying on a earrespondence of an improper character with another man in the city of Los Angeles. Fer about three years before her return to Les HENSHAW, J. This is an original petition for mandate to compel the superior court of Los Angeles county and Hon. Charles Monroe, judge thereof, to grant the petitioner ali-Angeles she had no manner of communication mony pendente lite, attorneys' fees and costs, growing out of the matter of her proposed appeal from the judgment and decree of divorce awarded against her. with her husband, and made no offer nor effort to return to him and to her child. tent evidence justifying and demanding of the court the findings of fact, conclusions of law, and decree of divorce, which were giv Defendant's mother died in 1914, and up her death he inherited property to the val By his answer respondent shows that peti- ue of at least $100,000. Thereupon a we tioner, Viola Newlands, brought her action man, an enemy of defendant, caused adver against her husband, Joseph R. Newlands, tisements to be published in New Orleans on the 24th day of August, 1914. She charg- newspapers seeking to locate plaintiff and pe ed that the defendant abandoned her in the titioner. She was thus located, and this we city of New Orleans on the 3d day of April, man then wrote to petitioner, telling of her 1911, and ever since has without cause failed husband's inheritance, and advising her to to provide for her. She also charged him come to Los Angeles and bring suit and ob with the infliction of extreme cruelty upon tain some of the money. As a result of these her. The defendant answered and likewise efforts petitioner returned to Los Angeles in filed a cross-complaint in which he sought a 1914 and began her action for separate maindivorce from plaintiff upon the twofold tenance. Upon the trial the respondent grounds of her desertion and her cruelty. found and determined that plaintiff's case Pending the trial of this action plaintiff, un- was without merit, and found and determinder order not made by respondent, was in re-ed that there was an abundance of compe ceipt of alimony pendente lite. The trial had before respondent resulted in his finding, upon ample legal evidence, that defendant had not deserted plaintiff and had not treated heren. In view of all these facts and circun with cruelty, had not applied to her violent stances and of the conclusion of the court and offensive names, and had never struck embodied in its judgment that plaintifs or beaten her; that defendant was not, as cause of action against her husband was charged, at the time he contracted marriage without merit and the defendant was enti affiicted with a loathsome venereal disease; tled to a divorce from plaintiff and petition that plaintiff upon the trial introduced evi-er, the respondent, in the exercise of the disdence to show that she was and had been suf- cretion vested in him by law, denied petifering from a venereal disease called gonor- tioner's motion for alimony pendente lite, rhea, but neither this nor any other disease under the conviction that she was no longer had been communicated to plaintiff by defend- entitled to look to her husband for any sup ant; that during their married life together port, and that her husband was neither moraldefendant provided for plaintiff according to ly nor legally bound to contribute to that suphis circumstances; that they were married port. In the matter of the appeal the re in the city of New Orleans in 1909, and came spondent declares further his conviction that to California in 1910; that on the 3d day of the appeal is not taken in good faith, bat April, 1911, plaintiff, against the protest of that to the end that petitioner may not be her husband, insisted upon returning to New deprived of the power to present such matOrleans and did return, deserting and aban-ters upon appeal as may be thought to be doning her husband and her child about one meritorious, provision has already been made year of age; that defendant protested against this desertion and abandonment of himself and their child, and that plaintiff with profanity declared her intention of returning to New Orleans, and demanded money of defendant to enable her to do so, threatening to commit suicide and to kill herself and child if the money was not forthcoming. for the payment of the cost of preparing the transcript on appeal, which cost it has been arranged will be met by defendant. In the matter of attorneys' fees, expressing the same conviction that the proposed appeal is without merit and is not taken in good faith, respondent further declares that his discretion in the matter of the fixing of the fee coming down of the remittitur following the the attorney in such a case than is imposed determination of the appeal to this court, and that he is prepared at the present time, upon suggestion or mandate from this court, to fix a minimum fee in the sum of $50, with the understanding that full compensation will be awarded for the services of petitioner's attorney upon the termination of the litigation, when respondent's discretion can be the more wisely exercised to this end. upon the attorney for an executor or other trustee who must first perform the services and await the settlement of the executor's or trustee's account before receiving his award. Upon the determination of this appeal and the going down of the remittitur, the trial court will still have the parties litigant before it and the respondent can then, as he suggests, the more wisely exercise his discretion in the matter of the allowance of attorneys' fees. [1, 2] It must be conceded and indeed is not questioned but that a discretion is vested in the trial court in the matter here under The objection that an allowance of such consideration (Civ. Code, § 137), and that attorneys' fees cannot be made after the only a plain abuse of discretion is subject services have actually been rendered, which to correction at our hands (Smith v. Smith, objection is based upon the declarations in 147 Cal. 143, 81 Pac. 411; Gay v. Gay, 146 Mudd v. Mudd, 98 Cal. 322, 33 Pac. 114, Cal. 240, 79 Pac. 885). Nor does it require Loveren v. Loveren, 100 Cal. 493, 35 Pac. the citation of authority to the proposition 87, and Lacey v. Lacey, 108 Cal. 45, 40 Pac. that even where discretion is vested, if that 1056, is entirely obviated by force of the cirdiscretion under the facts can be legally ex- cumstance that in this case the husband did ercised in but one way, mandate will lie to not object, but stipulated in writing his concompel the inferior tribunal so to exercise it. sent that this might be done. As the hus[3] The simple question left for considera- band is the only person whose rights could tion, therefore, is one of fact. Can it be said be injuriously affected by such an order, his that under respondent's showing of fact the consent thereto removes any possible diffiposition which he has taken evinces a plain culty in the way of its legality and enforceabuse of discretion? He was the judge who ment. And, finally, it may here be said that tried the cause. Before him appeared all the same showing which we hold is sufficient of the witnesses and he heard all of the evi- to sustain the court's order refusing alimony dence. It was his right to take into consid-pendente lite will equally sustain its order eration all of these matters in exercising refusing any attorneys' fees whatsoever. his discretion in the decision of the motion Therefore it is unnecessary that mandate subsequently made before him. Harron v. should issue. A suggestion to the trial court that it proceed to do what it has declared its Harron, 128 Cal. 305, 60 Pac. 932; Gay v. willingness to do is sufficient in the premises. Gay, 146 Cal. 238, 79 Pac. 885. His concluMandate is denied, and the writ dission upon the main case that plaintiff's action for separate maintenance was without charged. merit and that defendant was entitled to a divorce, necessarily contained in it his con We concur: ANGELLOTTI, C. J.; SHAW, J.; SLOSS, J.; MELVIN, J.; LAWLOR, J. (171 Cal. 691) OF STATE OF CALIFORNIA. (L. A. 3986-3988.) (Supreme Court of California. Jan. 17, 1916.) CERTIORARI 24-DECISIONS REVIEWABLE— viction that the husband was no longer legally or equitably charged with the support of the wife. The affidavits of the wife filed in support of her motion that the venereal HOLABIRD v. RAILROAD COMMISSION disease from which she suffered had impaired her health and rendered her incapable of performing manual labor as a domestic, which, it is said, was the only kind of labor at which she could support herself, would, if petitioner were destitute, make her an object of charity, but did not impose upon the divorced husband the duty of maintenance. The second phase of the matter, namely the costs upon appeal, is sufficiently covered by respondent's answer that costs upon appeal have actually been provided for and the appeal has been taken. [4] In the matter of attorneys' fees we can perceive no objection to the attitude which the trial court took and has maintained. In all other cases an attorney's compensation is estimated when his services have been performed. It is not even 'open to question but that the value of those services can be better arrived at after they are performed than before. No more hardship is imposed upon FINALITY-PRELIMINARY ORDER. Code Civ. Proc. § 1068, authorizes a writ of review when an inferior court, etc., exercising judicial functions, has exceeded its jurisdiction, and there is no appeal nor any adequate and speedy remedy, and section 1074 declares that review shall not extend further than the determination whether such inferior tribunal has regularly pursued its authority. Public Utilities Acts (St. Sp. Sess. 1911, p. 55; St. 1915, p. 161) 67, provides that one aggrieved by any order of the Railroad Commission may apply to the Supreme Court for a writ of review to determine whether the commission has regularly pursued its authority, and section 60, giving the commission certain powers, does not authorize a proceeding to determine whether a particular person, etc., is carrying on a public utility or a private enterprise. The commission, on complaints of several parties that petitioner, a corwater to the public for irrigation purposes, had poration organized to sell, rent, and distribute refused to deliver water to complainants, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |