Volume 23 — Arizona Reports

<p>APPEAL from a judgment of the Superior Court of the County of Mohave, J. E. Jones, Judge. Motion to dismiss appeal.</p>

<p>1. Constitutional Law — Proposed Amendment to Which Legislative Measure is Appended must be -Submitted to Governor. — -If there is appended to a proposed amendment by the legislature any measure essentially legislative or statutory in character, it must be submitted to the Governor for his approval before it can become a law.</p> <p>2. Constitutional Law — Procedure op Special Flections Called por Submission op Proposed Constitutional Amendments GovERNED BY 'ClVIL CODE, AND NOT BY CONSTITUTION. — The procedure of special elections called for submission of proposed amendments to the Constitution is governed by Civil Code of 1913, paragraphs 3323-3339, and not Constitution, article 4, section 1, subdivision 11, the purpose of such constitutional provision having been to supply a guide as to procedure for submission of measures and proposed amendments during the interim between the adoption 'of the Constitution and the time when the legislature should meet and pass laws especially providing the machinery for holding elections on measures and proposed amendments.</p> <p>1. Necessity of approval by governor of proposed amendment to the elate Constitution, note, 4 AnUi Gag. 703,</p> <p>3. Constitutional Law — Act Providing for Submission of Constitutional Amendment at Special Election to be Held Under General Ejection Laws Held “Legislation” Subject to Referendum. Laws of 1921, chapter 85, section 4, enaeted under Constitution, article 21, section 1, providing for submission of amendment to Constitution, article 9, section 5, at a special election to be held on specified date “in manner provided by law for genera] elections,” Jield legislation, in view of its adoption, -by reference, to the general election laws, and therefore subject to the referendum under Constitution, article 4, section 1, subdivisions 1, 2.</p> <p>4. Constitutional Law — Proposed Amendment Submitted at Next General Election 'Where Submission on Date Specified for ■Special Election is Impossible by Reason of Referendum. — ■ Amendment to Constitution, article 9, section 5, proposed by Laws of 1921, chapter 85, will not he submitted to a special election on a specified date as provided for by section 4 in view of referendum petition filed against such section, making it impossible to hold the special election on the designated date, but will take its natural course and be submitted at the next general election.</p> <p>4. Power of courts to determine validity of action by legislature proposing constitutional amendment, note, Ann. Cas. 1914B, 925.</p>

<p>1. Homicide — Evidence Held Insufficient to Show Insanity. — In a prosecution for murder, evidence that defendant attempted to commit suicide by taking poison, and as a result was spasmodic and had paroxysms of vomiting, is not sufficient to establish his insanity at the time of the crime.</p> <p>2. Criminal Law — Instruction Assuming Pacts not in Record Should not be Given. — Requested instructions assuming a state of facts which do not exist in the record should not be given.</p> <p>3. Homicide — Mere Attempt of Accused to Commit Suicide Held not to Justify Instruction as to Sanity. — In a prosecution for murder, a mere attempt by accused to commit suicide after committing the crime is not sufficient evidence to submit by instruction the issue of Ms sanity to a jury.</p> <p>4. Homicide — 'Instruction That if, from Evidence, Jury had Reasonable Doubt as to Sanity of Defendant, They Should Acquit, Held Erroneous. — In prosecution for murder, an instruction that, if the jury entertain a reasonable doubt as to the sanity of the accused at the time of the commission of the crime, they should acquit, does not correctly state the law, since the question of his guilt depends on his ability to distinguish between right and WTOng.</p> <p>5. Criminal Law — Misconduct of Attorney During Trial, in Order to be Available on Appeal, must Appear in the Record. — Misconduct of attorney in abusing defendant must appear in the reeord, in order to be available on appeal.</p> <p>6. Homicide — -Held That Death Penalty was not Excessive. — In proseeution for murder committed deliberately and without legal justification, held, that death penalty was not excessive.</p> <p>1. On weakness of mind as affecting responsibility for criminal act, see note in 10 L. R. A. (KT. S.) 999.’</p> <p>On presumption and burden of proof as to sanity in criminal cases, see notes in 3 Ann. Gas. 926; 15 Ann. Gas. 95; 44 L. R. A. (H. S.) 119.</p> <p>4. On instruction in homicide eases upon rule of reasonable doubt with reference as to cause of death, see note in 49 L. R. A. (N. S.) 913.</p>

<p>1. Habeas Corpus — Legality op Imprisonment Determined on Habeas Corpus. — Under Penal Code of 1913, section 1359, subdivision 7, providing that, if it appear on the return of the writ of habeas corpus that the petitioner has been committed on a criminal charge without reasonable or probable cause, he may he discharged, the legality of imprisonment may he determined on habeas corpus.</p> <p>2. Embezzlement — Partnerships not Included Within Statute Enumerating Persons Liable eor Embezzlement. — Penal Code of 1913, section 503, enumerating persons who can be guilty of embezzlement, and further including any “person otherwise intrusted with or having in his control property for the use of any other person,” does not include partners, as a partner combines in himself at once the character of principal and agent.</p> <p>1, Errors or irregularities in proceedings as reviewable by habeas corpus, note, 11 Ann. Cas. 1051.</p> <p>2. Embezzlement by member of partnership or unincorporated association, note, 14 Ann. Cas. 724.</p>

<p>1. Habeas Corpus — Sufficiency oe Evidence Determined on Habeas Corpus. — Under Penal Code of 1913, seetion 1359, subdivision 7, providing that, if it appear on the return of the writ of habeas corpus that the petitioner has been committed on a criminal charge without reasonable or probable cause, he may be discharged, the sufficiency of the evidence may be determined on habeas corpus.</p> <p>2. Habeas Corpus — Evidence of Homicide at Preliminary Trial Held Insufficient.- — In a preliminary trial of one charged with murder, the evidence, failing to show that deceased came to his death by criminal means, and nothing to connect the petitioner with the homicide, except the fact that petitioner was seen going away from the building immediately after the shooting, held insufficient, and accused entitled to discharge on habeas corpus.</p>

<p>APPEAL from a judgment of the. Superior Court of the County of Yuma. Fred L. Ingraham, Judge.</p>

<p>1. Appeal and Error — Notice op Appeal Required by Statute Held Jurisdictional. — Under Civil Code of 1913, paragraph 1234, providing that 'a party taking an appeal must give notice of appeal in open court which shall be entered on tbe minutes of the court, or by written notice which shall be served upon the adverse party or his attorney and filed with the clerk of the superior court, such notice is jurisdictional.</p> <p>2. Appeal and Error — Notice op Appeal is Essential to Eppeot Appeal and Bond Without Notice is Invalid, Though Reciting That Notice was Given. — The mere fact that an appeal bond was given and had been approved and recited, contrary to fact, that notice of appeal had been given, does, not effeet an appeal, and a bond called a “Bond on Appeal” on file, where the notice of appeal required by statute was not given, is without validity either as an appeal bond or a supersedeas bond.</p> <p>3. Appeal and Error — Notice op Appeal Given Subsequent to Filing op Bond Within Statutory Time Vitalized the Bond.— Under Civil Code of 1913, paragraph 1234, it is not necessary that notice of appeal should be given before the filing of the bond, but is sufficient if given within the statutory time, and, if subsequent to the filing of the bond, will vitalize the bond.</p> <p>4. Appeal and Error — Until Notice op Appeal is Given, a Bond on File is Subject to Order op the Court. — Until notice of appeal is given, an appeal bond on filo, being useless and performing no function, is subject to the order of the court, and treating it as a nullity and releasing its sureties is proper.</p>

<p>1. Master and Servant — Actionable Injury must Be Caused by Bisk of Employment. — Under Employers’ Liability Law, the unavoidable risk and hazardous character of the occupation or em- . ployment in which the workman is at the time engaged must be the cause of the aceident resulting in injury before damages are recoverable; the fault, wrong, or negligence of the employer being entirely immaterial.</p> <p>2. Master and Servant — Eecovery Under Employers’ Liability Law Limited to “Compensatory Damages.” — Under the Employers’ Liability Law, the amount of recovery for personal injury is limited to “compensatory damages,” which means a sum which will compensate the injured employee for the injuries sustained, and no more.</p> <p>3. Master and Servant — Evidence That Injured Employee had Dependent Wife and Daughter Irrelevant. — In an action for damages under the Employers’ Liability Law, the measure of damages is the loss the injured employee himself sustained, and evidence that he had a dependent wife and ehild who were supported by him up to the time of the accident is irrelevant and immaterial.</p> <p>4. Appeal ' and Error — Evidence That Injured Employee had Dependents Prejudicial Error. — In an action for damages under Employers’ Liability Law, evidence that employee had a dependent wife and daughter had a tendency to win the sympathy of the jury for the plaintiff and enhance the verdict, and thereby prejudice the rights of the defendant.</p> <p>5. Appeal and Error — Error in Admitting Evidence That Injured Employee had Dependents not Cored by Pleading as Setoee, Payment for Benefit of Him and His Family. — In an aetion for damages under Employers’ Liability Law, an error in admitting evidence that employee had a dependent wife and daughter was not cured by pleading a setoff pursuant to Revised Statutes of 1913, section 3160, alleging payment of money for the benefit of employee and his family, and mention of his family in proof of ■payments, since the mention of Ms family in both answer and evidence was unnecessary and immaterial.</p> <p>6. Appeal and Error — Error in Admission of Evidence of Number of Dependents of an Injured Workman is not Cured by Correct Instruction on Damages.- — In an action for damages by a workman under the Employers’ Liability Law, an error in admitting evidence of the number of dependents in the family of the injured is not cured by an instruction that recovery was limited to .actual loss- suffered by the injured as a proximate and direet result of the accident causing the injury.</p> <p>7. Trial — Jury may Consider Incompetent Evidence if Admitted.— In an aetion for damages under the Employers’ Liability Law, the erroneous admission of evidence of the number of dependents in the family of the injured servant justified the jury in considering it.</p> <p>8. Appeal and Error — That Improper Evidence of the Number of Dependents in Family of Injured Workman may have Reached the Jury Otherwise Would not Cure Error in Admission of Incompetent Evidence. — In an action for damages under Employers’ Liability Law, improper evidence of the number of dependents in the servant’s family cannot he held- harmless, though the same facts may have reached the jury otherwise.</p> <p>9. Appeal and Error — No Affirmance on Condition of Remittitur Where Verdict was Enhanced by Incompetent Evidence. — An excessive judgment will not be affirmed on condition of filing a remittitur in the amount held to be excessive, where the verdiet was enhanced through the weight of immaterial, irrelevant, and incompetent evidence, since the court cannot estimate the amount the verdict was enhanced.</p>

<p>Forgery — Check oe Individual Admitted in Evidence Held Materially Dieeerent erom: the Check oe Same Person- as Superintendent, Described in the Information. — In a proseeution for forgery, the check offered in evidence, purporting to be by one as superintendent, differed materially from the copy set out in the information, purporting to be by the same person as an individual, and the variance was fatal.</p>

<p>1. Bape — Evidence That Prosecuting Witness was not Wipe op Accused Need not be Direct, but Circumstances Held Suppicient. — Evidence that the prosecuting witness was not the wife of the accused need not be 'direct, and circumstantial evidence held sufficient.</p> <p>2. Criminal Law — Evidence op Similar Oppenses not Admissible in Prosecution por Bape.- — -In a prosecution for forcible rape, evidence of other similar crimes against other persons than prosecutrix is inadmissible.</p> <p>3. Criminal Law — Misconduct op Counsel por the State in Trial por Bape Held Prejudicial.- — Misconduct of the state’s attorney in a prosecution for rape, in repeatedly propounding improper and incompetent questions to accused and two other witnesses, the purpose in asking the questions being to get before the jury statements in the guise of questions, though objections to evidence were sustained, held prejudicial.</p> <p>2. Ou evidence of other crimes in prosecution for rape, or assault to rape, see notes in 8 Ann. Cas. 459; 18 Ann. Cas. 442; Ann. Cas. 1915D, 164; 62 L. B. A. 193; 48 L. R. A. (N. S.) 236.</p>

<p>1. Indictment and Information — Defendant. Palling to Move to Set Aside Information Before Pleading, cannot Object That He was not Legally Committed, or That Information was not Signed by County Attorney. — Under Penal Code of 1913, sections 972, 973, defendant’s failure to move to set aside information before he pleads precludes him from thereafter objecting that he was not legally committed by the magistrate, or that the information was not signed by the county attorney.</p> <p>!!. Indictment and Information — Prosecution on Information Without Preliminary Examination or Waiver Thereof Held not Yiolative of Defendant’s Constitutional Eights. — Where de* fendant charged with homicide waived preliminary examination, his prosecution on another information, charging the same offense, after county attorney had been permitted to withdraw the first information without a preliminary examination or waiver of such examination, held not violative of defendant’s constitutional rights.</p> <p>1. íime and method of objecting to sufficiency of indictment, note, 1 Ann. Cas. 479.</p> <p>3. Criminal Law — Assignment of Error from Which It Could not be Determined Whether Testimony was Competent Held Insufficient. — Assignment of error, complaining of answer of witness to certain question containing the question and answer, and objection to answer not assigning any reason why it was incompetent or irrelevant or immaterial, held insufficient, in that it could • not be determined therefrom whether the answer was competent.</p> <p>4. Homicide — Insufficient Assignment Considered in Hirst Degree Murder Prosecution. — In prosecution for first degree murder, the Supreme Court will consider insufficient assignment of error in view of the gravity of the charge, involving the death penalty.</p> <p>5. Criminal Law — Testimony as to Statement Made to Defendant not Inadmissible as Hearsay. — Testimony as to statement by father of the witness held not inadmissible as hearsay, in view of the father’s previously given testimony that the statement had been made to the defendant.</p> <p>6. Criminal Law — Court’s . Kemark Harmless in Yiew of Testimony. — Court’s remark, on objection to testimony as to statement made by father of witness, that it presumed- the statement to have been made to the defendant, held harmless, in view of father’s previously given testimony that the statement had been made to the defendant.</p> <p>7. Criminal Law — Opinion Testimony not Considered on Appeal in Absence of Objection. — Admission of opinion testimony will not be considered on appeal, in absence of objection in lower court that the testimony constituted the opinion of the witness, or that the witness was not competent to testify as an expert.</p> <p>8. Criminal Law- — -Confessions Obtained by Coercion, Threat, or Promise Inadmissible. — Confessions obtained by coercion, threat, or promise are not admissible, since such confessions are as apt to be false as true.</p> <p>9. Criminal Law — -Confession Held not to have Been Obtained by Coercion, Threat, or Promise. — Confession to having committed first degree murder, made by defendants after they had been arrested and had been shot after attempting to shoot officers in resisting arrest, but before they had been accused of any crime, in response to question, “What have yon boys done that makes you so wild?” held not to have been obtained by threat, coercion, or promise.</p> <p>9. The question of voluntariness of confession induced by threats is discussed in notes, 18 L. K. A. (IT. S.) 833, and 50 L. R. A.' (N. S.) 1077.</p> <p>10. Criminal Law — Confession in Eesponse to Appeal to Conscience Held not Procured With Threat. — Confession to having committed first degree murder, made by defendants after they had been arrested and had been shot ‘ after attempting to shoot officers in resisting arrest, but before they had been accused of any crime, in response to question: “What have you fellows done that you didn’t want to be arrested? If you are the men that done the robbery and murder at Tempe you better say so, because you will save some innocent man suffering” — held: not to have been made under a threat or promise; the question being merely an appeal to their conscience.</p> <p>11. Criminal Law — Confession in Eesponse to an Appeal to Beligious or Moral Sentiment not Inadmissible. — A confession in response to an appeal to religious or moral sentiment is not inadmissible.</p> <p>12. Criminal Law — Confession not Inadmissible Because Made to an Officer. — A confession was not inadmissible because made to an officer.</p> <p>13. Homicide — Defendant Guilty of Murder Eegardless of Whether He or Accomplice Fired Particular Shot. — Where many shots were fired by defendant and his accomplice while robbing a store, both were guilty of murder of a boy killed during the shooting, regardless of which of the two fired the particular shot that killed the boy, they having acted together in such manner as to make each responsible for the act of the other in the furtherance of their criminal purpose.</p> <p>13. Authorities passing on the question of homicide in the commission of an unlawful act are collated in notes in 8 Ann. Cas. 973; 63 Ii. K. A. 353.</p>

<p>1. Municipal Corporations — Complaint op Owner op Lot Abutting on Street Held to Charge City With Negligence in Failing to Provide por Drainage op Water Opp op Lot Apter Elevation op Grade op Street. — In action against a city by owner of lot abutting on street for damages to lot from surface water following elevation in grade of street, complaint held to charge the city with negligence in failing to provide for the drainage of surface water off of plaintiff’s lot during rainstorms, and not to charge that city had been negligent in elevating the street grade or in failure to construct a sufficient drain as a part of the improvement.</p> <p>2. Municipal Corporations — Not Required to Provide por Drainage op Lot Abutting on Street Apter Elevation op Grade. — A city having acted within its rights in elevating the grade of a street, thereby causing abutting lot to be lower than the level of the street, was not required to provide for the drainage of such abutting lot to protect it from storm and flood waters.</p>

<p>1. Husband and Wife — Property Acquired During Coverture Presumed to be Community. — In the absence of a contrary showing, the presumption is that all property acquired and all business transacted during coverture by either spouse is for the community.</p> <p>2. Husband and Wife — Wife Sued Alone can Plead Nonjoinder of Husband in Abatement. — Even though the plaintiff suing a married woman without joining her husband, as required by Civil Code of 1913, paragraph 403, except in specified eases, need not plead facts which bring the case within one of the exceptions, the wife may, by answer in abatement, under paragraphs 468, 469, set out that the contract did not concern her separate property.</p> <p>3. Appeal and Error- — Finding Contrary to Evidence cannot be Presumed to Support Judgment. — It cannot be presumed, in support of a judgment against a married woman sued without joining her husband, that the trial court found that the contract on which the suit was based concerned her separate property, where the evidence was all the other way.</p> <p>4. Statutes — Cessation of Season for Joining Husband Does not Authorize Court to Disregard Statute Bequiring It. — Though Civil Code of 1913, paragraph 3852, giving married women the same legal rights as men, has abolished the reason for requiring the husband to be made party with his wife, the courts cannot, for that reason, disregard the statute requiring such joinder.</p> <p>6. Husband and Wipe — Statute Requiring Joinder op Husband Imperative. — Civil Code of 1913, paragraph 403, requiring the husband to be joined in all transactions against a married woman not concerning her separate property, is imperative, and cannot be disregarded by the courts against the insistence of the married woman.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge.</p>

<p>1. Eminent Domain — Damages Allowable Before Taking Exclude Injury from Possible Improper Construction. — Where damages are assessed before the taking, nothing can be included for wrongful or negligent acts, upon the theory that they may occur, but the damages are limited to such as necessarily arise from the lawful taking and the proper construction and operation of the improvement.</p> <p>2. Eminent Domain — Damages Becoverable After Construction of Works Include Injury from Improper Construction. — Damages assessed after the construction of the works should be on the basis of the works as constructed, even if improperly constructed, for the condemnor should not be allowed to assert its own wrong.</p> <p>3. Eminent Domain — Damages to Land, from Diversion of Water, Caused by Pilling Bridge Approach to Supersede Small Bridge, not from Exercise of Power. — The act of the state in filling in bridge approach to supersede small bridge was not in itself an act of appropriation under the power of eminent domain under Constitution, article 2, section 17, or so connected with such an act as to impose liability upon the state to pay compensation for damage to land from diversion of the waters of the river by reason of solid embankment, since the making of the fill constituted no new use of the state highway or new appropriation, but was a mere act of repair, and since, if the fill was negligently made, the negligence had no connection with the appropriation as originally made.</p> <p>4. States — Not Liable for Negligence of Officers, Agents, or Servants, Except When Immunity Expressly Waived. — Damages cannot be recovered from the state for the negligence of its officers, agents, or servants, except when it has expressly waived immunity or assumed liability by constitutional or legislative enaetment.</p>

<p>1. Statutes — Not Void por Uncertainty or Ambiguity Unless Impossible to Clear up Doubt. — A court will not declare a law void for uncertainty or ambiguity unless, after using every authorized means to ascertain and give the' act an intelligible meaning, it is found impossible to clear up the doubt and dissolve the obscurity.</p> <p>2. Statutes — Construed in Accordance With Legislative Intent.— Where the intent of a statute is not evident or plainly expressed, the court, consistently with established principles of construction, must search for the legislative intent, that it may be declared and enforced.</p> <p>3. Statutes — To Discover Intent, Resort may be had to Words, Context, Subject Matter, etc. — In arriving at the intention of a statute, resort may he had to the words, context, subject matter, effects and consequences, spirit and reason of the law, and other acts in pari materia.</p> <p>4. Statutes — Upheld and Given Operation if Language will Permit Instead op Being Treated as Meaningless. — It is the duty of the court to sustain and uphold statutes rather than to ignore or defeat them, and to give them operation, if the language will permit, instead of treating them as meaningless.</p> <p>5. Statutes — Legislative Intent may be Determined prom Necessary Implication. — The legislative intent of a statute may be determined from necessary implication, wbat is necessarily implied being as much a part of tbe statute as what is expressed.</p> <p>6. Schools and School Districts — Statute Allowing Interest on Unpaid School Warrants Held to Require Interest at Six P'er Cent. — Since the objects of Laws of 1921, chapter 10, allowing interest on school warrants indorsed “no funds” at not to exceed eight per cent, were to effect a greater parity of right between creditors of school districts and county creditors generally, who are entitled to interest-bearing warrants .on depleted funds, under Civil Code of 1913, paragraph 2568, and to promote the public welfare by insuring the uninterrupted operation of the educational processes of the state, such chapter, which fixes no specific rate of interest on school warrants, when construed with the latter section, which fixes a rate of six per cent on all warrants not paid for want of funds, requires that all sehool warrants bear interest at six per cent.</p> <p>7. Schools and School Districts — Trustees may Fix Sate oe Interest on Unpaid School Salary Warrants. — Since neither the county treasurer, under Civil Code of 1913, paragraph 2568, fixing the rate of interest on warrants indorsed by him, “Not paid for want of funds,” at six per cent, nor the county sehool superintendent, under Civil Code, paragraph 2708, subdivisions 1 and 2, authorizing him to draw warrants only on the order of the hoard of school trustees of the district, except as provided iu paragraphs 2709 and 2711, can fix the rate of interest on sehool salary warrants indorsed “No funds,” the hoard of school trustees, who are authorized, by paragraph 2733, subdivisions 3 and 8, to manage the school property and employ all sehool employees and required, by paragraph 2751, to use the sehool moneys exclusively for the payment of salaries and other expenses therein provided for, are by necessary implication exclusively empowered to fix such rate at more than six per cent, as fixed by paragraph 2568, with reference to unpaid warrants generally, but not exceeding eight per cent, as provided in Laws of 1921, chapter 10, section 1, with reference to school salary warrants; their power over the principal of the debt reasonably implying power to fix the rate of interest, where not definitely fixed by law.</p> <p>8. Schools and School Districts — Act Allowing Interest on Unpaid School Warrants Held to Eepeal Act Prohibiting Drawing oe Warrants on Depleted Funds. — Since Laws of 1921, chapter 10, limiting the rate of interest on school salary warrants not paid for want of funds to eight per cent, assumes that warrants may be drawn on depleted funds, it is so plainly, irreeoneil ably, and necessarily repugnant to Civil Code of 1913, paragraph 2708, subdivision 2, prohibiting the drawing of any warrant unless the money is in the proper fund to pay it, as to effect an implied “ repeal thereof, though it merely assumes the earlier law is no longer operative and does not expressly confer the power to draw warrants under such circumstances.</p> <p>9. Statutes — Statute Allowing Interest on Unpaid School Warrants Held not Unconstitutional on Ground Title Did not Indicate Intent to Eepeal Law Prohibiting Drawing oe Warrants on Depleted Funds. — Laws of 1921, chapter 10, entitled “An act-' providing for the payment of interest upon sehool warrants whenever there are no funds in the hands of the county treasurer to the credit of the school district,” providing that sehool warrants indorsed, “No funds,” shall draw interest at not to ex-eeed eight per cent, and repealing all acts in conflict therewith, is not repugnant to Constitution, article 4, part 2, section 13, requiring that the subject of every aet be expressed in tbe title, on the ground the latter did not indicate that the statutory inhibition (Civ. Code 1913, par. 2708, subd. 2) against the drawing of warrants against the sehool fund, when there were no funds in it, was to be repealed, since such title adequately described tbe law and stated its purpose and scope, and the radical change effected was such as could not fail to impart notice of the provisions of the act.</p> <p>10. Statutes — Act Allowing Higher Interest Hate on Unpaid • School Salary Warrants Than on Other Salary Warrants Held not Unconstitutional as a Special or Local Law Granting a Special or Exclusive Privilege. — Laws of 1921, chapter 10, allowing interest at not to exeeed eight per cent on sehool salary warrants drawn by tbe county superintendent on the order of the trustees, and indorsed, “No funds,” by the county treasurer, is not repugnant to Constitution, article 4, part 2, section 19, subdivision 13, prohibiting local or special laws granting special or exclusive privileges, on the ground it allows a rate of interest on salary warrants of one class of public servants different from that allowed other classes, under Civil Code of 1913, paragraphs 2567 and 2568, fixing the interest on warrants generally at six per cent, the aet applying and operating alike on every eounty school superintendent, county treasurer, school district, board of trustees, and employee or creditor thereof in the state.</p> <p>11. Constitutional 'Law —Statute Allowing Higher Interest on Unpaid School Salary Warrants Than on Other Salary Warrants Held not Class Legislation. — Laws of 1921, chapter 10, providing for the payment of interest at not to exeeed eight per cent on sehool salary warrants not paid for want of funds, is not such class legislation as is denounced by Constitution, article 2, section 13, though the rate, of interest on all other such unpaid salary warrants is fixed at six per cent (Civ. Code 1913, par. 2708); such classification being neither arbitrary nor capricious, but based on a natural principle of public policy.</p> <p>12. Constitutional Law — Legislative Judgment as to Necessity for Distinction Between Classes Binding on Courts Unless Undoubtedly Erroneous.' — The legislative judgment as to the necessity for making a distinction between different classes of persons is binding on the courts unless beyond all rational doubt erroneous.</p>

A. C. Lockwood, Judge. STATEMENT OF FACTS. On April 24, 1919, plaintiff commenced an action, by her attorneys, Leslie C. Hardy and James D. Andrews, in the superior court of Santa Cruz county, Arizona, against the defendant, for an absolute divorce, for the custody of the issue of their marriage, to wit, two sons, Abraham and Henry, aged twenty and eighteen years, respectively, for a division of the community property, and for support for herself and minor children,…

<p>APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Appeal of , Town of Flagstaff dismissed.</p>

<p>1. Municipal Corporations — May Suppress Disorderly House. — The power to prohibit and suppress disorderly houses, mentioned by Civil Code of 1913, paragraph 1831, is, under reeent legislation, still possessed by common councils in towns like Miami. a</p> <p>2. Municipal Corporations — Town Held not Authorized to Punish Prostitutes in General. — A town, under Civil Code of 1913, paragraph 1831, subdivision 18, is only authorized to punish keepers and inmates of disorderly houses, and not prostitutes in general.</p> <p>3. Municipal Corporations — Statute Held to Belate Only to Confinement, and not Punishment.- — Civil Code of 1913, paragraph 1831, subdivision 27, authorizing towns to establish workhouses and appoint necessary keepers to “provide for the confinement of vagrants, strollers, and persons leading an idle and dissolute life,” and others, does not authorize the confinement of such persons in any other place.</p> <p>4. Municipal Corporations — Statute Held not to Authorize General Punishment of Prostitute. — Assuming that Civil Code of 1913, paragraph 1831, subdivision 28, authorizes towns to punish persons pursuing the vocation of prostitutes as idle and disorderly persons leading an immoral or profligate life, when “found loitering or strolling about in public places or where liquor is sold,” it does not authorize the general punishment of prostitutes.</p> <p>5. Municipal Corporations — Statute Belating to Establishment of Police Held not to Authorize Ordinance for Punishment of Prostitution. — Civil Code of 1913, paragraph 1831, subdivision 12, only authorizes the establishment and regulation of watchmen and policemen, and does not authorize punishment of prostitution in general.</p> <p>6. Municipal Corporations — Statute Belating to Prevention of Disease Held not to Authorize Punishment of Prostitution. Civil Code of 1913, paragraph 1831, subdivisions 24-26, having relation to the prevention of disease and the abatement and removal of certain nuisances, do not justify the passage of an ordinance punishing prostitution in general.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>1. Livery-stable and Garage Keepers — Garage-keepers Held not Entitled to Lien for Storage Under Statute Giving Liens for Kepairs. — Civil Code of 1913, paragraphs 3673, 3674, giving a person who has repaired any vehicle a lien thereon for such repairs, did not give garage-keeper a lien on automobile for storage charges.</p> <p>2. Liens — Statutory Liens cannot be Extended. — Statutory liens cannot be extended by the courts to eases not provided for by the statute.</p> <p>3. Livery-stable and Garage Keepers — Garage-keepers not Entitled to Lien on Automobile for Storage Under Statute Kelating to “Proprietors of Livery and Public Stables” — “Vehicle.-”—Civil Code of 1913, paragraph 3672, giving “proprietors of livery or public stables” a lien on “animals placed with them for feed, care and attention and also upon such carriages, buggies, vehicles or other equipment as may have been placed in their eare for the amount of charges against the same,” held not to give a garage-keeper a lien on automobile for storage charges, though automobile is included within the term “vehicle”; a garage-keeper not being a proprietor of livery or public stables within the statute.</p> <p>4. Bailments — Garage-keeper is Entitled to Lien, for Kepairs on Automobile Under Statute Providing for Lien for Kepairs on “Vehicle.” — A garage-keeper has a lien on automobile for repairs under Civil Code of 1913, paragraph 3673, providing for liens for repairs on any “vehicle”; an automobile being a “vehicle.”</p> <p>5. Livery-stable and Garage Keepers — No Common-law Lien on Automobile for Storage, Unless Kept in Garage Strictly for Storage Without Agreement as to Owner’s Eight to Continuous Use. — Under Civil Code of 1913, paragraph 3687, keeper of garage in which automobile was kept did not have a common-law lien on such automobile for storage charges, unless it was left with the garage-keeper strictly for the purpose of storage without any agreement, either express or implied, that owner should have the right of its continuous use, since such lien is merely the right to detain the automobile until charges are paid, and is therefore dependent upon possession, and since the automobile is not in the possession of the garage-keeper if subject to the owner’s control.</p> <p>4. Bight to lien on automobile for repairs or storage, notes, Ann, Gas. 1916A, 630; L. S. A. 1918D, 330.</p> <p>6. Livery-stable and Garage Keepers — Common-law Lien on Automobile eor Storage Charges not Subject to Foreclosure by Sale. — Garage-keeper, with common-law lien on automobile for storage charges, had no right to foreclose lien by sale of car, since such lien is merely the right to retain possession until payment of charges.</p> <p>7. Livery-stable and Garage Keepers — Lien on Automobile eor Storage Charges can be Foreclosed by Sale of Automobile When Created by Agreement Between the Parties. — Garage-keeper and automobile owner may by contract give garage-keeper a lien on the automobile for storage charges which can be foreclosed by sale of the automobile.</p>

<p>1. Divorce — Admissions op a Party are not Rendered Incompetent by Fact That They are not Corroborative. — Admissions by a party to a divorce suit are not rendered incompetent evidence by the fact that they are not corroborative of the testimony of the other party under Civil Code of 1913, paragraph 3861.</p> <p>2. Divorce — Corroboration op Party may be by Testimony or Admissions op Other Party — “Other Evidence.” — Under Civil Code of 1913, paragraph 3861, permitting either party to be a witness in suit for divorce, but providing that it shall not be granted on testimony or admissions of a party-unless corroborated by “other evidence,” the phrase “other evidence” does not mean evidence aside from that of the husband or wife, but means other evidence than the testimony or admissions of the party testifying or admitting some material fact, any competent evidence testified to by any witness qualified to testify, whether direet or circumstantial; evidence from another source, but not necessarily of a different kind or quality, so that the corroboration required could be by the testimony or admissions of the adversary spouse. »</p> <p>3. Divorce — Rule Requiring Corroboration Relaxed Where No Collusion Exists.- — The reason of the rule expressed in Civil Code of 1913, paragraph 3861, requiring corroboration of parties to secure a divorce, being to prevent collusion, when it is evident that collusion does not exist in a given case, the rule, both under the common law and under the statute, is relaxed.</p> <p>4. Divorce — Contest Shows Noncollusion and Relaxes Rule Requiring Corroboration of Party. — That defendant in divorce employs counsel and vigorously contests the suit by proper pleadings and evidence warrants conclusion that there is no collusion, authorizing relaxation of the rule requiring corroborating evidence.</p> <p>5. Divorce — Constructive Desertion by Spouse Compelling Other to Leave Abode. — While the party leaving the home is ordinarily chargeable with the desertion, the rule does not apply where such party has been compelled to leave because of intolerable conduct of the other, in which case there is constructive desertion by the party guilty of the intolerable conduct.</p> <p>6. Divorce — Intention Bssential Element of "Desertion.” — To constitute “desertion” there must be more than living apart for the prescribed time, it being essential that the deserting party intends to make the separation permanent and have nothing more to do with the other spouse and to disavow the marital obligations without justification.</p> <p>7. Divorce — Trial Court’s Bindings, Fairly Sustained, not Reviewable. — The rule that findings of fact by the trial court will not, when fairly sustained by the evidence, be revised, applies to suits for divoree.</p> <p>8. Divorce — Requesting Husband to Return After Bight Years Held Too Late. — 'Under Civil Code of 1913, paragraph 3859, fixing one year as the period for desertion for a divorce, where wife’s conduct has caused plaintiff husband to leave home, her request to him, made some eight years after the separation and a long time after his cause of action had accrued, was too late.</p> <p>5. Whether a spouse who by force or misconduct causes the other party to leave the marital home deserts the latter, note, 29 L. R. A. (N. S.) 614.</p> <p>■8. Effort by one spouse to induce the other to return home as a condition of desertion by the latter, note, 39 L. R. A. (N. S.) 1118.</p> <p>9. Divorce — Expressions oe Endearment by Husband Held not to Condone Wipe’s Desertion. — Where parties separated in 1907 and did not resume marital relations, letters by the husband in 1915, while ill, addressing her as “my dear wife,” did not condone her original conduct in driving him from the home.</p>

<p>1. Sales — Evidence Held to Sustain Finding That Contract was With Corporation, and not With Manager Personally.— In an action against seller for breach of eontraet to ship scrap iron, evidence held to show that the contract of sale was between plaintiff corporation and defendant, and not between defendant and tbe traveling manager of plaintiff personally. ,</p> <p>2. Appeal and Error — Finding on Conflicting Evidence not Disturbed. — When a finding of fact is made by tbe trial court on conflicting testimony, and error is assigned on tbe insufficiency of the evidence to sustain it, the Supreme Court will not examine the reeord, with the view of determining on which side the weight of the evidence lies, but only for the purpose of ascertaining if there is substantial evidence in support of the finding.</p> <p>3. Corporations — Defendant, Seeking to Avoid Liability to Plaintiff Foreign Corporation on Ground That it is Unlawfully Doing Business in State, Held Required to Allege and Prove That it is Doing Business Therein. — When it does not appear, either from the complaint or the proof, that plaintiff foreign corporation is doing business in the state, and the defendant seeks to' avoid the cause of action alleged, on the ground that such corporation was doing business in the state and had not complied with its laws, he can do so only by pleading this new matter by way of defense that it is so doing business, and sustaining it by proof, under Civil Code of 1913, paragraph 2226.</p> <p>4. Corporations — Entering into Single Contract not “Carrying on or Doing Business” Within State. — Entering into one contract in the state does not constitute “carrying on or doing business therein,” within the meaning of Civil Code of 1913, paragraph 2226, requiring certain acts to be done before doing business in the state.</p> <p>4. Whether a single or isolated transaction by foreign corporation constitutes doing business within the state, notes, 85 Am. St. Rep. 914; 2 Ann. Cas. 307; Ann. Cas. 1913E, 1154; 10 L. R. A. (3ST. S.) 693.</p> <p>Mode of proving authority of foreign corporation to do business within the state, note, 2 A. L. R. 1235.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Judgment — Court Presumed to have had Jurisdiction in Action on Its Judgment in Other State Where Eecord had Been Duly Authenticated.- — In action on judgment of other state where record thereof has been duly authenticated under Eevised Statutes of the United States, section 905, originally aet of Congress May 26, 1790, it will be presumed, in the absence of proof to the contrary, and although the record may be silent or ambiguous on the point, that the court which rendered the judgment iad jurisdiction.</p> <p>2. Judgment — Eecord of Judgment Against a Foreign Corporation Inadmissible - in Other State, Unless It Shows Corporation was Doing Business in State Where Eendered. — The record of a judgment of a court of one state against a foreign corporation will not be received as evidence in action thereon in other state, unless it shows on its faee that the corporation was doing business in the state in which the judgment was rendered.</p> <p>3. Corporations — To be Amenable to Service of'Process Therein Corporation must be Transacting Business in Foreign Jurisdiction. — To render a corporation amenable to service of process in a foreign jurisdiction, it must appear that the corporation is transacting business therein to such an extent as to subject it to the jurisdiction and laws thereof.</p> <p>4. Corporations — Service of Process on Foreign Jurisdiction must be on Agent Bepresenting Corporation in Its Business. — In service of process on a foreign corporation, the person on whom process is served must be an agent of the corporation, representing it in the foreign jurisdiction in the transaction of its business.</p> <p>5. Judgment- — Against Duly Served Foreign Corporation Doing Business in State Entitled to Full Faith and Credit in Other -State. — Judgment against a foreign corporation doing business in the state and maintaining an agent or agents therein, after service of process upon a proper agent, is entitled to full faith and credit in every other state of the union.</p> <p>6. Judgment — Eecord of Judgment of Other State Against Foreign Corporation Held Sufficient to Entitle Judgment to Full Faith and Credit in Other State.- — Where the record of judgment of other state authenticated under Revised Statutes of the United States, section 905, contained petition alleging that the defendant foreign corporation was doing business in the state and that named person was the loeal agent of such corporation upon whom process might be served, and where the return of the sheriff showed service of process on such agent, the judgment was valid on its face, and entitled to full faith and credit in other state.</p> <p>Effect in other states of judgment confessed on warrant of attorney, notes, 20 Aim. Cas. 262; 3 L. E. A. (U. S.) 449.</p> <p>7. Judgment — Court of Other -State Presumed to have Jurisdiction Over Defendant in Action on Its Judgment. — In action on judgment of other state, the court will presume as a matter of comity and general law that the courts of other state would not exercise jurisdiction over the person of a defendant,, unless jurisdiction was acquired under the laws of such state.</p> <p>8. Judgment — Contradiction of Foreign Judgment Recitals by Recitals in Return of Service must be Explicit and Irreconcilable. — The contradiction of reeitals in foreign judgment by recitals in return of process, to overthrow the judgment recitals, must be explicit and irreconcilable.</p> <p>9. Judgment — Suit on Judgment of Other State may Show Court of Other State to have had No Jurisdiction.- — In action on judgment of other state the defendant may, notwithstanding any allegation in the record itself to the contrary, plead and prove that the court of other state had no jurisdiction to' render supposed judgment.</p> <p>10. Judgment — Defendant, Claiming Judgment of Other State Void for Want of Jurisdiction, had Burden of Proof. — In action on judgment of other state, the defendant, having alleged that court of other state had no jurisdiction, had burden of so proving.</p> <p>11. Appeal and Error — Trial Court’s Finding Given Effect by Supreme Court, Unless Unsupported by Evidence. — Trial court’s finding must be given effect by the Supreme Court, unless it is unsupported by the evidence.</p> <p>12. Judgment — Evidence Held to Support Finding That Defendant Foreign Corporation was Doing Business in Other State at Time of Service of Process. — In action on judgment of other state in which defendant foreign corporation claimed that it was not doing business in such other state at the time -of suit therein, and that person upon whom process was served was not its agent, evidence held to support the finding that the defendant was doing business in such other state at the time of service of process, and that person upon whom process was served was its agent at such time.</p> <p>13. Evidence — Trier of Fact cannot Arbitrarily Befuse to Give Force to Uncontradicted ' Testimony. — The trier of fact in any case may not arbitrarily refuse to give force or effect to uneontradieted testimony.</p> <p>14. Pleading — Refusal to Compel Plaintiff to Elect Between Cause of Action of Foreign Judgment and Original Cause of Action Held not Abuse of Discretion. — In action on judgment of another state, in which defendant claimed judgment was void for want of jurisdiction, action of court in permitting plaintiff to file amended complaint, containing additional cause of action for recovery of indebtedness on which the judgment had been rendered, and refusal to compel plaintiff to eleet between sueh causes of action, held not abuse of discretion.</p>

<p>New Trial — Order Taking Motion Under Advisement Held a Sueitcient Continuance to Prevent Loss oe Jurisdiction.— Under Civil Code of 1313, paragraph 591, ^providing that motions for new trials shall be deemed denied if ' not determined within twenty days after judgment, unless continued by order of the court or by stipulation, where the hearing of such a motion was duly continued until January 15th, on whieh date it was argued, an order then made, taking the motion under advisement, was a sufficient order of continuance to prevent the court from losing jurisdiction to rule on the motion.</p>

<p>Account, Action on — Complaint Pleading Open Book Account must Disclose How Indebtedness Originated. — Complaint pleading indebtedness on open boot aeeount must state what the account grew out of, or how it arose, and a complaint alleging in one paragraph that plaintiff performed services for defendant in repairing defendant’s automobile, and alleging in another paragraph that defendant purchased supplies from plaintiff for his automobile, and in a third paragraph that defendant became indebted to plaintiff upon an open book account, without alleging that the indebtedness on the book account arose by reason of such services and supplies, and without disclosing other origin of such indebtedness, held insufficient.</p>

<p>1. Appeal and Error — Error, in Judgment Showa by Replevin Order and Return, and Reporter’s Transcript, is Revisable. — Under Civil Code of 1913, paragraph 565, relative to the contents of the judgment-roll, paragraph 602, providing that documents, etc'., shall constitute part of the record and that the oral testimony, etc., may be made a part of the record by filing- a statement of facts, bill of exceptions, or transcript of the court reporter’s notes, and paragraphs 1256 and 1257, relative to the portions of the reeórd to be brought to the Supreme Court, where the record on appeal showed the order on replevin and return thereto, and the duly authenticated transcript of the reporter’s notes from which it appeared that plaintiff had possession of the property, the error in a judgment for plaintiff for the value of the property eould be revised.</p> <p>2. Replevin — Plaintiff in Possession not Entitled to Elect to Take Money Judgment. — Under Civil Code of 1913, paragraph 1616, where plaintiff at the time of the entry of final judgment in replevin had possession of the property by virtue of an order for taking under paragraph 1605, defendant having given no forthcoming bond, plaintiff was not entitled to eleet to take judgment for the value of the property, but was only entitled to a judgment for possession.</p> <p>3. Replevin — Plaintiff’s Unauthorized Election to Take Money Judgment Does not Vest Defendant With Title. — Under Civil Code of 1913, paragraph 1618, providing, relative to replevin, that an election by either party to take a money judgment vests title to the property in the other party, plaintiff’s election to take a money judgment did not vest title in defendants, where plaintiff was in possession of the property and had no right to elect to take a money judgment.</p> <p>4. Replevin — Assessment of Value of Property When Plaintiff in Possession Held Surplusage and ' not to Vitiate the Verdict. — Where the jury found for plaintiff in replevin and plaintiff at the time had possession of the property, it was unnecessary for the jury to assess/its value, and such assessment should be treated as surplusage not vitiating the verdiet or preventing a proper judgment in favor of plaintiff for possession of the property.</p>

<p>Insurance — Passenger Could Recover erom: Insurer eor Injuries in Collision Notwithstanding His Pailure to Give the Notice oe Accident Required by Policy. — Where policy insuring automobile driver engaged in business of carrying passengers for hire against liability required insured to give insurer written notice of accident, and provided in indorsement on policy that it should inure to the benefit of persons damaged, “regardless of any of the conditions of this policy,” a passenger, who recovered a judgment against insured for injuries sustained in accident, could recover the amount thereof from the insurer, notwithstanding insured’s failure to give the prescribed notice or failure of passenger herself to give insurer such notice.</p>

<p>1. Taxation — Statute Held to Forbid Execution After Five Tears Without Revival of Judgment — “Process” — “Proceeding.”— Under Laws of 1903, Act No. 92, section 87, requiring notice and processes in suits for taxes thereunder to be sued out and served in the same manner as in civil actions, and providing that the general laws of the territory as to practice and proceedings in civil cases should apply so far as applicable, and section 88, providing that execution should be executed as in other cases, Civil Code of 1901, paragraphs. 2557, 2558, forbidding execution after the expiration of five years from the rendition of the judgment without revival of the judgment, applied to tax judgments, since “process” included an execution, in view of Civil Code of 1901, paragraph 2536, defining process as including writs, etc., while “proceedings” was used in its most comprehensive sense as including practically every step from the beginning of the action until the final process was executed, especially as section 97 of the Act of 1903 prohibited actions for taxes more than five years after the delinquency.</p> <p>2. Adverse P'ossession — Statutory Requisites must Concur. — Under Civil Code of 1913, paragraph 697, relative to adverse possession, peaceable and adverse possession for five years, cultivation, use, and enjoyment for five years, payment of taxes, if any, for five years all under a claim under deeds duly recorded for the full period of five years, must concur.</p> <p>3. Appeal and Error — When Evidence Sharply Conflicting, Trial Court's Conclusion as to Adverse Possession not Disturbed.— Where the testimony was sharply in conflict as to plaintiff’s adverse possession, cultivation, use, and enjoyment of premises for five yéars, the trial court’s conclusion in favor of defendant will he adopted.</p> <p>2. On unbroken continuity as essential element in adverse possession, see notes in 13 Am. Dec. 185; Ann. Cas. 1916A, 606; 15 L. R. A. (N. S.) 1202.</p>

<p>1. Corporations- — -Service of Summons on Statutory Agent Held Sufficient, Though Return Showed Service on Him as Defendant. — In a suit against a corporation, a summons, bearing a return that it was served on “D., being the defendant named,” who was the statutory agent, required by Civil Code of 1913, paragraph 2117, on whom summons might be served, was served on the corporation, so as to give jurisdiction, and the defect may be remedied on proof supplied after judgment.</p> <p>2. Mines and Minerals — Judgment Foreclosing Liens Without Jurisdiction and Void After Being Yacated as to One Party. After the -judgment in favor of claimants in a suit to enforce liens under Civil Code of 1913, paragraph 3654, subdivision 2, as amended by -Session Laws of 1915, chapter 67, giving a lien on mining claims for work done for, and materials furnished, lessee “for such sums as are unpaid,” was vacated as to lessee who was made a party, but not served, it did not show that anything was owing by lessee, and it was without jurisdiction and void.</p> <p>3. Mines and Minerals — Lessee Held' Necessary Party to Suit to Enforce Lien for Work and Materials Furnished Him. — Lessee of mining claims is, in absence of a waiver by the owner, a necessary party to a suit under Civil Code of 1913, paragraph 3654, subdivision 2, as'amended by Session Laws-of 1915, chapter 67, to enforce a lien for work done and materials furnished to lessee, in view of paragraph 3650, making it the duty of a contractor, when an action to foreclose a lien is brought by a person other than himself, to defend it at his own expense.</p> <p>4. Mines and Minerals — Court’s Jurisdiction Held Limited to Single Lien Claimant Where Others Joined Without Service of Alias Summons and Complaint. — Civil Code of 1913, section 3660, in permitting joinder of all lien claimants in the same action, was intended to dispose of all claims in one action or proceeding, and, in providing that the owner of the property shall be made a party, requires that he shall be advised of every lieu claim by summons and complaint in the manner provided by law, whether in a joint complaint or a separate action, and so when after suit begun by a single claimant to foreclose a lien on mining claims, other claimants are joined by amendments of complaint, but without serving the owner with alias summons and complaint or erosseomplaint, as in independent suits as to their claims, the court’s jurisdiction was limited to rendering judgment as to the claim made in the original complaint.</p> <p>5. Process' — Service by Mail op Amended Complaint not the Service Provided by Law. — Service by mail of an amended complaint, joining another party as plaintiff and pleading a separate cause of action in favor of sueh party, was not the service provided by law; defendant in such case being entitled to be served with process as in an independent suit, which it was in effect.</p> <p>6. Appearance — Appearance to Move Vacation op Judgment and to Prosecute an Appeal is a General Appearance por All Purposes on Retrial. — The appearance of a party to move that a judgment be vacated and to prosecute an appeal is a general appearance for all purposes on retrial.</p> <p>6. Appeal by party irregularly served as constituting appearance binding him as to subsequent proceedings, note, Ann. Cas. 1912D, 411.</p>

<p>1. Witnesses — Refusal to Permit Defendant, Testifying as to Hostility of State’s Witness, to Testify as to What had Caused Trouble Between Himself and Wife, Proper. — Where defendant, being prosecuted for manufacturing intoxicating liquor, testified that he had had considerable family trouble, and that one of the state’s witnesses had interfered with him and his family, exclusion of answer to question “And what has caused that family trouble?” held proper; the question calling for the conclusion of the witness upon an irrelevant and immaterial matter.</p> <p>2. Witnesses — Exclusion of Evidence as to How State’s Witness had Interfered Between Defendant and His Wife Held Proper, Where Interference was not Denied. — Refusal to permit defendant, for purpose of showing prejudice and hostility of witness, to testify as to manner in which state’s witness had interfered between defendant and his wife, held proper, where such witness had never denied interfering.</p> <p>3. Witnesses — Foundation Necessary to Introduction of Evidence to Show Interest or Bias of Witness. — To warrant the introduction of evidence to show interest or bias, a foundation must first be laid by interrogating the witness concerning the specific matters which it is proposed to show.</p> <p>4. Criminal Law — Sustaining of Objection to Question Harmless Where Answer not Stricken. — Sustaining of objection to question after answer had been given held harmless where the answer was not stricken out.</p> <p>5. Criminal Law — Hostility and Credibility of Witnesses for the Jury. — The question of whether the witnesses were hostile or whether their' testimony was worthy of credit was a matter for the determination of the jury.</p>

<p>1. Public Lands — Entryman has Sufficient Possession to Support Forcible Entry and Detainer. — The actual possession which will support an action of forcible entry and detainer does not require actual physical presence on the premises, and where an entryman, or proposed entryman, under any of the public land laws of the United States, has taken possession of the land and taken steps to exercise dominion and control over it, and has not been absent for such a period as would justify a conclusion that he had abandoned the premises, he has sufficient possession.</p> <p>2. Public Lands — Person Entering Held to have Sufficient Possession to Maintain Action. — Where plaintiff initiated a desert land entry under Act Cong. March 28, 1908 (U. S. Comp. Stats., secs. 4681-4683), entered on the land through her agent, posted a possessory right notice at each corner, and drove corner stakes, and thereafter cleared along three sides a strip in order to run lines and for reclamation purposes, she was in actual possession, and could maintain an action of forcible entry and detainer, though from April 10th until May 2d, when defendant was found in possession, she or her agent had not been actually on the land more than once.</p> <p>3. Appeal and Error — Presumed That Court Ignored Incompetent Evidence. — Where in an action tried by the court without a jury there is sufficient competent evidence in the record to justify the court’s finding, it will be presumed that evidence objected to, if incompetent, was ignored by the court.</p> <p>4. Public Lands — Possessory Eight Notice Under Land Laws Admissible to Show Possession. — In an action for forcible entry and detainer brought by one who had initiated a desert land entry under Act Cong. March 28, 1908 (U. S. Comp. Stats., secs. 4681-4683), her possessory right notice was admissible on the question of possession, though the validity of title is not tried in such aetion.</p> <p>5. Public Lands — Possessory Eight Notice Admissible, Though Covering More Than One Hundred and Sixty Acres. — Where the possessory right notice of one initiating a desert land entry was not drawn in compliance with Civil Code of 1913, paragraph 4718, but based on Act Cong. March 28, 1908 (TJ. S. Comp. Stats., secs. 4681-4683), it was not inadmissible in an action of forcible entry and detainer because covering more than 160 acres.</p> <p>6. Courts — Rights oe Entryman to Possession Protected by State Courts. — When an entryman has complied with the laws of the United States relative to taking possession of unsurveyed and unappropriated public lands, and has performed acts in settlement thereon, the state courts will protect him in his possession as though he had initiated his rights under the state law.</p> <p>6. Interference by courts to protect possessory rights in public lands as between conflicting claimants, note, 12 Ann. Cas. 32.</p>

<p>1. Executors and Administrators — Decedent’s Debts Presumed PAid or Barred by Limitations on Petition for Appointment of Administrator Eight Years After Death.. — On petition for appointment of administrator more than eight years after decedent’s death, it will be presumed, in the absence of showing to the contrary, that debts against the estate have been paid or are barred by the statute of limitations.</p> <p>2. Executors and Administrators — Administrator Primarily Represents Creditor and Secondarily Heirs. — An administrator primarily represents the creditors and secondarily the heirs.</p> <p>3. Executors and Administrators — Land Purchased With Proceeds of Sale of Decedent’s Land Without Administration by Consent of Heirs not Subject .to Administration as Estate of Deceased. — Where surviving husband sold deceased wife’s land without administration with children’s consent, the land purchased by husband with the proceeds will not be administered as the wife’s estate on the children’s application for appointment of administrator eight years thereafter, since the property so purchased by husband is not a part of the wife’s estate, not having been owned by her at time of her death, and since the children’s rights as to sueh land were not those of wife’s heirs, but were based upon either express or implied contract, made when the wife’s land was sold without administration.</p> <p>4. Descent and Distribution — Decedent’s Land Sold by Heirs Without Administration Subject to Payment of Decedent’s Debts. — Decedent’s land, sold without administration with the consent of all the heirs, can be subjected to payment of decedent’s debts even after its sale by the heirs under Civil Code of 1913, paragraph 904.</p> <p>5. Executors and Administrators — Settlement oe Estates Without Administration by Agreement Between Heirs Eavored.— The settlement of the estate of decedents by agreement between heirs without administration, where fairly made, and where the rights of creditors are not afiieeted, is favored by the law.</p>

<p>1. Appeal and Error — In Statute Fixing Time for Appeal the Term “Bendering Judgment" Means Act of Announcing Final Determination.. — Under Civil Code of 1913, paragraph 1233, providing that appeal may be taken from a final judgment of the superior court in a civil action -within “six months after rendition of such judgment," the term “rendering judgment” means the court’s announcement of its final determination of the rights of the parties, and not formal written judgment signed by the judge and filed.</p> <p>2. Appeal and Error — That the Judge Omitted Interest and Costs Does not Prevent Date of His Pronouncement Being the Date of Computing Time to Appeal. — The fact that costs were not mentioned in the judge’s oral pronouncement of judgment between the parties, which matter is taken care of by other provisions of statute, that the amount of interest is not named which is a mere matter of calculation, the suit being on a promissory note, does not prevent such pronouncement from being a “judgment,” in view of Civil Code of 1913, paragraph 1233, giving six months after rendition in which to appeal.</p> <p>3. Appeal and Error — Judgment in Action on Promissory Note Held not Lacking in Finality. — In an action on a promissory note a judgment, announced orally by the court, reeiting that the court had the ease under advisement and was fully advised in the premises and finding for the plaintiff and ordering that judgment be entered for the plaintiff and against the defendant for the sum prayed for with interest, and a specified sum as attorney’s fees, held not lacking in finality and to be the judgment rendered, from which, time within which to appeal must be calculated, in view of Civil Code of 1913, paragraph 1233.</p>

<p>1. Appeal and Error — Finding on Defense of Contributory Negligence by Jury is Binding on Courts. — In an action for negligent injuries by an automobile, where there was sufficient evidence of defendant’s negligence to send the case to the jury, under Constitution, article 18, section 5, providing that the defense of contributory negligence or assumption of risk shall in all cases be a question of fact and be left to the jury, the finding of the jury upon the defense of contributory negligence is binding on the courts.</p> <p>2. Trial — Admonition of Court Against Objections to Argument of Counsel, Without Stating Specific Grounds Therefor, was not Error. — Where the disparity between the argument of plaintiff’s counsel and the evidence concerning the condition of a sidewalk was very slight, the action of the court in admonishing defendant’s counsel, who had made several objections, not to interrupt counsel, was not a comment on the evidence where objections were not specific.</p> <p>3. Trial — Objections to Argument of Counsel Should be Stated With Specific Reasons. — Where objections are made to argument of counsel, they should be specific, and the reasons for them stated.</p> <p>4. Municipal Corporations — Refusal to Charge That Person About to Cross Street, and Neglecting to Look Both Ways fob Vehicles, is Negligent as a Matter of Law Held not Error.— In an aetion for damages because of injury by au automobile, a refusal to charge that person about to cross a street, neglecting to look both ways for vehicles, is negligent as a matter of law, was not error, as a pedestrian is required under such circumstances to exercise only reasonable care.</p> <p>4. Rights and duties of pedestrians and vehicles on highways, notes, 4 Ann. Cas. 398; Ann. Cas. 1914A, 249.</p> <p>5. Municipal Corporations — Trial—Requested Instruction, Which was Misleading and Unduly Stressed Evidence, was Properly Refused.. — In an aetion for injuries by an automobile in which the gravamen of the aetion is that defendant was negligent in the use of the road, an instruction that defendant had a right to drive his automobile on any part of the right side of the road, and that he could not be found guilty of negligence merely because he drove his automobile partly on the unpaved portion of the road, was misleading, as treating defendant’s rights without relation to the rights of the plaintiff, and erroneous as laying undue stress on one fact to the exclusion of all others proper to be considered in determining the issue of negligence.</p>

<p>1. Municipal Corporations — In Action por Collision Between Automobiles, That Plaintiff was Running at Illegal Rate no Defense Unless It was Proximate Cause of Injury. — In an action for injuries received in a collision between automobiles, tbe defense that plaintiff’s automobile was running at an unlawful rate, to be available, must have been the proximate cause of the injury.</p> <p>2, Municipal Corporations — Case Properly Submitted to the Jury on Defense That Plaintiff was Illegally Speeding. — In a suit for injuries' from a collision between automobiles, defended on the ground that plaintiff was negligent in driving at an unlawful speed, where there was evidence that defendant had been negligent in not giving the right of way to plaintiff’s ear as required by a city ordinance and in driving at an unlawful speed, the case was properly sent to the jury.</p> <p>1. Liability for collision between automobiles or automobile and another vehicle at or near corner of street or highway, note, L. R. A. 1916A, 745.</p> <p>Rights and duties of persons driving automobiles in highways, note, Ann. Cas. 1916E, 661.</p>

<p>1. Master and Servant — Eight of Member of Employees’ Benefit Association to Name Beneficiary Defined. — A member of an employees’ benefit association that is a private concern, and is not included in any legal or- statutory classification of insurance companies of any character provided by the laws of Arizona, has the right to name any person as his beneficiary provided there is no restriction by, statute or constitution or by-law of the association, except where the insurance is taken out under such circumstances that it comes within the rule requiring the beneficiary to have an insurable interest in the life of the member.</p> <p>2. Insurance — Association Only can Question Eligibility of Beneficiary Designated in Certificate. — The general rule is that, even where the insured is limited by statute, by the common law, or by the charter or laws of the society in his right to designate a beneficiary, no one but the association or insurer can question the eligibility of the person named.</p> <p>1. Who is a dependent within statute or rules defining beneficiaries of mutual benefit societies, notes, 7 Ann. Cas. 358; 17 Ann. Cas. 867; 2 L. R. A. (N. S.) 653; 36 L. R. A. (N. S.) 208.</p> <p>3. Master and Servant — Designation of Beneficiary by Member of Employees’ Benefit Association Held Valid. — In a certificate in an employees’ benefit association the insured had a right to designate a beneficiary other than his wife, he having taken out the insurance voluntarily and paid the premiums himself, the insurable interest rule not being applicable.</p> <p>4. Insurance — Contracts Ascertained from Laws of Association, Subject to Law of State Creating, and, if not Restricted, Insured may Name any Beneficiary. — A contract entered into by a mutual benefit society with a member is executory, and its terms will be ascertained from the certificate in connection with the society’s rules, subject to the laws of the state creating, and, if nothing exists to limit the appointment of a beneficiary, the member may name any person.</p> <p>5. Husband and Wife — Husband may Dispose of Personalty of Community if not in Fraud of Wife. — In view of Civil Code of 1913, section 3850, the husband has a right to dispose of the personalty belonging to the community as he sees fit, provided lie does not, by his disposal of same, thereby defraud the wife.</p> <p>4. Right to designate as beneficiary in insurance policy or benefit certificate one without insurable interest as affected by considerations of public policy, notes, 15 Ann. Oas. 236; Ann. Cas. 1916C, 587; 25 L. R. A. 627; 16 L. R. A. (N. S.) 555.</p>

G. W. Shute, Judge. STATEMENT OF FACTS. “This cause comes on appeal from Graham county; the contention being over the waters of Post Greek, the bed of which has water only intermittently, and the facts being: That as early as 1872 military forces of our nation were camped at a place now called Fort Grant, the same now being the home of the State Industrial School of this state, and for a period of thirty years there was maintained hy the United States government a military…

R. C. Stanford, Judge. STATEMENT OF FACTS. Jennie W. Knhn brought this action against Frank W. Skelsey, alleging that she was the owner of lot Twenty (20) in block Thirteen (13) of Grand Avenue addition to the city of Phoenix, which said lot is commonly known as No. 1712 West Olive Street, and that defendant claimed an estate and interest therein adverse to plaintiff, and prayed that her title might he quieted as against said defendant.

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

G. W. Shute, Judge. STATEMENT oe eaots. The appellant (hereinafter referred to as plaintiff) on February 6, 1919, commenced an action against the appellees (hereinafter referred to as the defendants) and in his third amended complaint alleged as follows: Plaintiff is the administrator of William Henderson, who died in December, 1915.

<p>1. Frauds, Statute of — Assumption of Debt not Within Statute.— An assumption of a debt in consideration of transfer of property does not fall within Civil Code of 1913, paragraph 3272, requiring a writing to-charge one to answer for the debt of another.</p> <p>2. Contracts — Creditor mat Enforce Assumption of Debt. — Where a debt is assumed in consideration of transfer of property, the creditor may enforce the debt against the one assuming it.</p>

R. C. Stanford, Judge. STATEMENT OF FACTS. For many years prior to November 9, 1914, the Valley Bank of Phoenix was a banking corporation carrying on a large business at Phoenix, Arizona. On that day the state auditor and bank comptroller took possession of its assets and property and closed its doors, and shortly thereafter reported his action to the Attorney General of the state.

the Superior Court of the County of Yuma. Fred L; Ingraham, Judge. STATEMENT OE EAOTS. On March 6, 1920, one Frank Varela, aged nineteen years, was in the employment of appellee, and engaged in driving a span of mules, hitched by means of a chain to the beam or sweep of a stump-pulling ma-chine. The chain broke, and the beam flew back and struck Varela, inflicting injuries upon him which resulted in his death two days later.

<p>1. Divorce — Finding on Conflicting Evidence That Jewelry was Wife’s Separate Property not Disturbed. — The Supreme Court cannot disturb the trial court’s holding on conflicting testimony in a divorce suit that jewelry in the wife’s possession was her separate property.</p> <p>2. Husband and Wife — No Presumption That Proceeds of Property Owned at Marriage Went into Property Acquired Thereafter. There is no presumption that money realized from the sale of property owned by a husband at the time of his marriage was applied on the purchase of property acquired during coverture.</p> <p>3. Husband and Wife — Money from Business Purchased During Coverture is Common Property. — Money made by a husband, after the purchase of his partner’s interest in a business subsequent to his marriage, and used in paying for a lot purchased during coverture, was common property, unless the business or that part of it acquired after marriage was paid for with the husband’s separate funds, and not with those made out of' the business itself</p> <p>4. Husband and Wife^ — Property Acquired During Coverture Presumed Common Unless Purchased With Separate Funds.— Under Civil Code of 1913, paragraphs 3848, 3850, the presumption is that a lot acquired and a building erected thereon during coverture were community property, in the absence of evidence that the former was purchased or the latter built with separate funds; all property found in the name or possession of either spouse during marriage being prima facie common.</p> <p>5. Husband and Wife — Property Purchased on Credit Belongs to Community Unless Acquired on Pledge or Mortgage of Separate Property. — Property purchased on credit belongs to the community unless acquired on a pledge or mortgage of separate property; the consideration being merely the purchaser’s obligation or promise to pay.</p> <p>6. Husband and Wife — Property Acquired in Exchange for Husband’s Personal Obligation is Prima Facie Common. — Since a personal obligation, or debt created by the husband during marriage is primia facie common, property acquired in exchange therefor necessarily assumes a like character.</p> <p>4. Profits accruing during marriage in connection with property belonging to separate estate of either spouse as community property, notes, 126 Am. St. Kep. 112; 31 L. R. A. (IT. S.) 1092.</p> <p>7. Divorce — Discretion as to Division of Property not Interfered With Unless Clearly Abused. — The Supreme Court will not interfere with the trial court’s discretion under Civil Code of 1913, paragraph 3862, to order a division of the estate of the parties to a divorce suit unless it clearly appears that such discretion has been abused.</p> <p>8. Divorce — Division of Property Held not Abuse of Discretion.— Where, by the joint efforts of the parties to a divorce suit who lived together seventeen years, the value of the husband’s property at the time of the marriage was tripled, the trial court did not abuse its discretion in awarding to the wife as community property a certain building in addition to four lots with two houses thereon, one the residence, together with the furniture and jewelry in the wife’s possession, all of which was of the value of $17,500, as compared to property awarded'the husband of the value of at least $25,272.</p> <p>7.^ Division, of community property upon annulment of marriage, note^ 36 L. E. A. (N. S.) 845.</p> <p>Effect of divorce on community property in absence of adjudication, note, 11 Xi. E. A. (N. S.) 103.</p>

J. E. Jones, Judge. STATEMENT OF FACTS. The appellant, as plaintiff, sued the appellees, as defendants, for damages for breach of contract.

<p>1. Officers — Constitutional Provision Fixing Term Applies Only to Officers Regularly Elected. — Constitution, article 22, section 13, providing that the term of every officer to he elected or appointed shall extend until his successor shall be elected and shall qualify, has to do exclusively with elective offices, that is to say, offices which are regularly filled by election, and only occasionally by (appointment, as on their creation, or on the occurrence of vacancies therein, so that it is unnecessary to construe the provision as though reading, “until their successors shall be elected or appointed,” to avoid giving officers who are regularly appointed an indefinite term.</p> <p>2. Officers — Vacancy can be Created During Hold-o.ver Term Only in Same Ways as During Regular Term. — Under Constitution, article 6, sections 1, 9, article 22, section 13, article 7, section 11, and Civil Code of 1913, paragraph 381, providing for the election and appointment of officers, including justices of the peace, fixing their terms, and providing for the filling of vacancies, the term of an officer who holds over after the expiration of the time for which he was elected or appointed, until his successor shall be elected and shall qualify, is, while it lasts, as much a part of his term as the regular term, and a vacancy can occur during sueh term ohly in one of the ways in which it can oecur during the regular term.</p> <p>2. Death of officer-elect before commencement of term as creating vacancy in office, note, 17 Ann. Cas. 86.</p> <p>3. Justices of the Peace — Appointee for an Unexpired Term Succeeds to Hold-over Term as Original Incumbent Would.— Under Civil Code of 1913, paragraphs 179, 221(1), 225, a justice of the peace, appointed to fill a vacancy for the unexpired term, is as much entitled to hold over until the successor is elected and qualified as the original incumbent would have been.</p> <p>4. Officers — Incumbent Elected to Succeed Himself cannot Hold Over After Refusing to Qualify. — Under Civil Code of 1913, paragraph 221, subdivision 9, making a vacancy when the duly elected officer refuses or neglects to file his official bond within the time prescribed by law, the incumbent of an office who was elected to succeed himself cannot refuse to qualify as his own successor and retain the office under his hold-over term.</p> <p>5. Officers — Statute Declaring Vacancy in Constitutional Office on Failure of Successor to Qualify is Unconstitutional.— Civil Code of 1913, paragraph 221, subdivision 9, declaring a vacancy in an office on the failure of one duly elected thereto to qualify, when applied to an officer not elected to. succeed himself, is contrary to Constitution, article 22, section 13, providing that the term shall extend until the successor shall be elected and shall qualify, and is invalid to that extent.</p> <p>6. Justices of the Peace — Appointee to Fill Vacancy After Reelection and Death of Incumbent can Hold Over for New Term. — Where a justice of the peace was elected to succeed himself, but died before the expiration of his former term, so that he could not qualify for the new term, an appointee for his unexpired term became entitled to hold over until his successor should be elected and qualified, which, under the circumstances, would be at the expiration of the next full term.</p> <p>7. Justices of the Peace — Appointee to Fill Vacancy Need not Qualify Again to Hold Over. — Under Civil Code of 1913, paragraph 225, an appointee to fill an unexpired term as justice of the peace, who had given bond and taken the oath on his appointment, is not required to give a new bond, or take the oath again, to entitle him to hold over after the expiration of the term until his successor is elected and qualified.</p> <p>6. Term of person elected or appointed to fill vacancy in absence of express statutory or constitutional provision, notes, 12 Ann. Cas. 572; Ann. Cas. 1913D, 619.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. S. L. Pattee, Judge.</p>

<p>1. Gaming — Candy is not “Other Representative of Value” Within Statute. — Within Penal Code of 1913, section 319, as amended byLaws of 1919, Appendix, page 12, making it an offense to conduct devices to be played for money, checks, or any other representative of value, the expression “other representative of value” is limited to tokens representing money or value in the form of money, so that playing for candy is not an offense thereunder.</p> <p>2. Habeas Corpus — Discharge Refused Where Complaint States Offense Under a Statute Other Than That Intended. — Discharge from custody under a warrant of arrest will be denied in habeas corpus proceedings, where the complaint, though it did not charge an offense under Penal Code of 1913, section 319, as amended by Laws of 1919, Appendix, page 12, as intended by the pleader, did charge the offense of conducting a lottery under section 325.</p> <p>3. Lotteries — “Lottery” Involves Consideration, Chance, and Prize. A “lottery” within Penal Code of 1913, section 323, is a scheme for the distribution of prizes by chance among persons who have paid or agreed to pay a valuable consideration for the chance to obtain a prize, and involves the three elements of consideration, chance, and prize.</p> <p>4. Lotteries — Candy Punchboard Held a “Lottery.” — A punehboard whereon were collar buttons covering certain numbers which were sold to purchasers, who were given candy in addition to the collar buttons if they uncovered certain specified numbers, is a lottery, the conduct of which is prohibited by Penal Code of 1913, section 323.</p> <p>3. What constitutes a lottery, notes, 16 Am. St. Rep. 42; 1 Ann. Cas. 91; Ann. Cas. 1917D, 144.</p> <p>5. Lotteries — Pact That Every Purchaser Beoeives Something Does not Prevent Scheme erom Being Lottery. — The faet that every purchaser of a chance to obtain a prize receives something of value, or even receives full value for his payment, does not prevent the scheme from being a lottery.</p> <p>5. Whether scheme for accumulating money by payments of number and distributing it in order of number of certificate is a lottery, note, 13 L. K. A'. (N. S.) 1096.</p>

<p>Criminal Law — Supreme Court will Examine Becord por Fundamental Error, Notwithstanding Failure to File Abstract, Brief, or Assignment of Errors. — Under Penal Code of 1913, section 1171, the Supreme Court will carefully examine the entire record for fundamental error, notwithstanding appellant's failure to file an abstract, brief, or assignment of errors.</p>

<p>1. Criminal Law — Motion for New Trial for Misconduct of County Attorney Addressed to Court’s Discretion. — A motion for a new trial on the ground that the county attorney continued his attempt to introduce incompetent testimony contrary to the court’s order was addressed largely to the court’s discretion.</p> <p>2. Criminad Law — Denial of New Trial for Misconduct of Prosecuting Attorney not Disturbed, in Absence of Showing of Prejudice. — Denial of motion for new trial on the ground that county attorney continued his attempt to introduce incompetent testimony contrary to the court’s order, being a matter of discretion, will not be disturbed, in the absence of clear showing that defendant was prejudiced.</p> <p>S. Criminal Law — Testimony That Dependant had Signed Fictitious Names to Applications por License Plates Admissible , in Prosecution por Automobile Theft. — In prosecution for theft of automobile, in which it was claimed that the defendant was in the business of stealing automobiles, testimony that applications for license plates bearing fictitious names for fictitious cars were signed by defendant held admissible to show defendant’s system, scheme, or plan.</p> <p>4 Criminal Law — Evidence Held not to Require Instruction to Acquit Dependant in Case op a Reasonable Doubt as to Whether Dependant or Some Other Person Committed the Crime. — In prosecution for automobile theft, instruction to acquit if jury had a reasonable doubt as to whether defendant or some other person was guilty was unnecessary, where there was no evidence that any person other than the defendant committed the crime.</p> <p>5. Criminal Law — Prisons'—Sentence op not Less Than Nine nor More Than Ten Years por Grand Larceny Held Valid — Credits are Deducted prom Maximum Sentence, and may Reduce Minimum Sentence. — Under Penal Code of 1913, section 486, making grand larceny punishable by not less than one year nor more than ten years in the state prison, and under section 1127, empowering the court to sentence for an indeterminate term, the court did not err in sentencing defendant, convicted of grand larceny, to not less than nine and not more than ten years, notwithstanding section 1448, providing for a deduction from sentence for good behavior, since credits for good behavior under such statute are deducted from the maximum sentence, and may entitle a defendant to his liberty though he has not served the minimum sentence.</p> <p>6. Pardon — Convict Serving Indeterminate Sentence not Permitted to Apply for Pardon or Absolute Discharge Until After Expiration op Minimum Term. — Under Penal Code of 1913, section 1450, a conviet serving an indeterminate sentence is not permitted to file an application for a pardon nor absolute discharge until his minimum term has expired.</p>

<p>1. Appeal and Error — Transcript op Reporter’s Notes, not Piled Within Sixty Days nor Within Extended Time, Dismissed. — • Where, on appeal from an order approving an executor’s aecount, the transcript of the reporter’s notes was not filed within the sixty days required by Civil Code of 1913, paragraph 603, and there was no additional time stipulated between the parties, nor allowed by an order of the judge, it will be stricken from the files.</p> <p>2. Executors and Administrators — Voucher fob Claim Allowed by Court to Executor as Creditor not Required in His Report.— Where an executor is a creditor of an estate, and his claim had been presented and allowed, the allowance by the judge, under Civil Code of 1913, paragraph 899, was sufficient evidence of its correctness, and no voucher was necessary under paragraph 1006, providing that in rendering aecount the executor must file vouchers.</p> <p>3. Appeal and Error — Judgment Allowing Claim Against Estate not Disturbed Where Reporter’s Notes Stricken prom Record. Where, on appeal from an order allowing a claim against a decedent’s estate, the transcript of the reporter’s notes had been stricken from the files, any Knowledge of what the court acted on in allowing the claim was , not presented, and the judgment will not be disturbed.</p>

<p>1. Criminal Law — Testimony of Accomplice Held not Sufficiently Corroborated to' Sustain Conviction. — Evidence that a witness, who testified he and defendant committed the larceny, had been together the day and evening before it was committed, and that the property was found near the place where the witness said they had hid it, without any evidence except testimony of that witness tending to show that either defendant or the witness participated in the larceny, held insufficient corroboration of the testimony of an accomplice to sustain a conviction.</p> <p>2. Criminal Law- — Corroboration of Accomplice must Tend to Connect Defendant With Crime. — Evidence which is sufficient to corroborate the testimony of an accomplice under Penal Code of 1913, section 1051, must be either direct or circumstantial evidence pointing to accused as a participé t in the crime; it being insufficient that it merely establishes that the crime was committed.</p>

<p>1. Intoxicating Liquors — Proof Need not Correspond With Allegation Name of Liquor was Unknown.- — Where the information alleged that the true name of the intoxicating liquor manufactured by defendant was unknown to the county attorney, it was not necessary that the proof should correspond to that allegation.</p> <p>2. Intoxicating Liquors — Evidence Held to Sustain Allegation Name of Liquor was Unknown. — Testimony of various witnesses describing the liquor manufactured as “white mule,” “moonshine,” “hootch,” and “whiskey,” does not show that the true name of the liquor was known to the county attorney contrary to the allegation of the information that it was unknown.</p> <p>3. Criminal Law — Variance from Allegation Name of Liquor was Unknown Held not Reversible Error Under Indictment, Statute, and Constitutional Provision. — A variance between the allegation that name of the liquor was unknown to the county attorney and proof that it was known was not prejudicial, where the liquor was described as “intoxicating liquor,” so that it does not require reversal under Penal Code of 1913, section 944, requiring disregard of immaterial defect in the form of an indictment or information, and Constitution, article 6, section 22, prohibiting reversal for technical error when it appears substantial justice has been done.</p> <p>4. Criminal Law — Corroboration of Accomplice must Tend to Connect Defendant With Offense. — The corroboration of the testimony of an accomplice which is sufficient ttf sustain a conviction must, under Penal Code of 1913, section 1051, tend to connect the defendant with the commission of the offense.</p> <p>5. Criminal Law — Statement of Accused Exculpating Others Held not a Confession and Insufficient to Corroborate Accomplice. — Where the officers arrested defendant and the accomplice who testified against him and threatened to arrest two others who lived near the still at which the whiskey was manufactured, a request by defendant not to arrest those others because they had nothing to do with it was not a confession of guilt by accused and was not sufficient alone to corroborate the testimony of the accomplice.</p> <p>5. Competenoy and sufficiency of evidence to corroborate accomplice, note, 98 Am. St. Kep. 165.</p>

<p>1. Witnesses — Anything Affecting Credibility may be Shown. — A party against whom a witness is produced has a right to show everything which may in the slightest degree affect his credibility, and to inquire upon ciross-examination what influence was used upon the witness ■ for the state.</p> <p>2. Witnesses — Evidence as to Reasons of Prosecutrix for Making Complaint Held Improperly Excluded. — In a prosecution for statutory rape, it was error to exclude answers to questions by the defendant’s attorney propounded to prosecutrix as to whether her aunt in another state urged her to come to this state to make complaint, and as to how she came to go to the county attorney, whether any influence was brought to bear to have defendant arrested, and as to whether her aunt told her to go to the ebunty attorney.</p> <p>3. Criminal Law — Exclusion of Evidence as to Reasons for Making Complaint Held Prejudicial Error. — In a prosecution for rape upon a thirteen, year old negro girl, it was prejudicial error to exclude answers to questions propounded to prosecutrix by defendant’s attorney as to whether her aunt in California urged her to make a complaint, as to how she came to go to the prosecuting attorney, whether influence was brought to bear to have defendant arrested, and whether her aunt told her to go to the county attorney.</p> <p>4. Bape — Witnesses—Specific Acts of Misconduct of Prosecutrix With Others Held Inadmissible in Statutory Bape to Show Consent or Credibility. — In a prosecution for rape upon a prosecutrix under the age of consent, evidence of specific acts of similar unchaste conduct with men other than accused is inadmissible either to show consent or as bearing upon the credibility of her testimony.</p> <p>5. Bape — Evidence as to Paternity of Child Erroneously Excluded in Prosecution for Statutory Bape. — In prosecution for rape On a negro girl under the age of consent, it was error to exclude evidence tending to show that the child alleged to have resulted from defendant’s intercourse with prosecutrix was, in faet, begotten by another man.</p> <p>4. Bight of accused to show unehastity of prosecutrix in statutory rape, note, 48 L. B. A. (N. S.) 269.</p> <p>Evidence of specific instances of unehastity of alleged victim of sexual offense, notes, 14 L. B. A. (3ST. S.) 714; L. B. A. 1916B, 965.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge.</p>