in such proceedings. But this court has held that our statute is not declaratory of the common-law rule; that there are other interests not only affecting society at large, but also peculiarly affecting the marital relations, which are as sacred to be protected as prosecutions involving the elements of violence. Therefore this court held in the case of Heacock v. State, 4 Okl. Cr. 606, 112 Pac. 949, that in a prosecution for adultery the husband or wife is a competent witness to prove the offense. Also in the case of Hunter v. State, 10 Okl. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, it was held:

zen is interested-in punishing and preventing the crime of perjury; but the perjury in this case was calculated to inflict upon the wife of defendant a direct private injury to her individual rights and interests. That the crime was against her, in the sense in which every cannot be doubted. In the first place, the percrime is an injury to a particular individual, jury was liable to deprive her of the right of making defense; if deprived of that right, she might be wrongfully deprived of her husband, and of her right to support from his estate or from his labor; besides, if divorced, she would be subjected to the stigma of having been false A decree of divorce, in the to her marital vows. estimation of all good people, causes ignominy and disgrace to fall, more or less heavily, according to the nature of the case, upon the party adjudged to be in the wrong. The rule of the "In a prosecution against a father for will-her husband in a case where he is charged with common law that a wife may testify against fully failing to supply his children with necessary food, clothing, shelter, or medical attendance, his wife is a competent witness against him."

In that case the court, speaking through Furman, J., said:

In the case of Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254, the exact question here involved was under consideration by the Supreme Court of Colorado, and that court in a very able and exhaustive opinion by Elliott, J., held:

is said, upon the principle of affording her the a crime of violence against her person rests, it means of self-protection. In the ruder period in which the common law took its rise life and limb were principally regarded. Property was also esteemed worthy of protection. But the property rights of the wife were greatly restricted, and her personal status was almost entirely merged in that of her husband. In the present age there have been great changes; other than tangible things are more highly esteemed. Should it, therefore, be deemed strange that modern legislation should give the wife the means of protecting that which is often dearer to her than life, liberty, or property?"

"In reason and in justice we believe that, whenever a husband or wife is guilty of conduct which constitutes a public offense, and which also constitutes a direct violation of the legal rights of the other, the crime is against such other, as well as against the public, and that such husband or wife should be permitted to testify in all such cases. Suppose a husband should publish a libel or slander upon his wife, would it not be a prostitution of reason, and a The reasons given and the argument supmockery upon justice to exclude her evidence upon the ground that it would impair the sanc-porting those reasons that the wife is a comtity of the home and destroy the confidence, petent witness against her husband in a peace, and harmony of the marital relations to prosecution such as this meet the entire appermit her to testify? Many other illustrations could be offered. What we are after is the prin- proval of this court. The doctrine is firmly ciple involved, the ground upon which the tes- established in this state, and we do not protimony of the wife is excluded. Considering the pose at this time to take a backward step. substance rather than the form of things, we This crime was peculiarly injurious to the are of the opinion that the idea that the wife wife. It was a crime committed against her can only testify against her husband for an assault committed upon her person is a relic to her particular injury. It tended to deof barbarism. We decline to perpetuate any prive her of certain legal and property such idea in Oklahoma.' rights protected by the laws of this state. In our opinion, it would be absurd to say that the false making of such an affidavit in a divorce proceeding was not a crime against her. It is also immaterial whether or not by reason of such affidavit a divorce was obtained. It was through no fault of this appellant that discovery was made of his attempt to obtain a divorce through perjury and fraud upon the court, and had not this been discovered and prosecution commenced two days before the case was set for trial we doubt not that by such means this appellaut would have procured his divorce. is also immaterial, as we view the matter, whether or not had such divorce been obtained this prosecuting witness could have by law set it aside. Such corrupt practices must be put to an end, and under our criminal procedure it is the duty of this court to so construe the law that the purposes for which it was enacted may be fully carried into effect. We are required under our statutes to give a liberal construction to the law in order to effectuate its purposes. We admit that in the case of People v. Carpenter, 9 Barb. (N. y.) 580, it was held that in a proceeding of this kind the wife was not a competent wit

"Where a husband is indicted for willful and corrupt perjury in making a false affidavit in a suit for divorce against his wife, the wife is a competent witness for the state on the trial of such indictment."

In the body of the opinion it was said: "In the case at bar, defendant was charged with committing the crime of perjury in an action for divorce against his wife. The purpose of the affidavit was to aid him in his suit against her; it was to give the court jurisdiction of the cause without personal service of process upon his wife; and the object of that portion of the affidavit of which perjury is predicated was to enable him to give the court jurisdiction without mailing a copy of the summons to his wife. If in making such affidavit defendant committed perjury, the effect of his crime was to diminish the wife's chances of obtaining notice of the divorce suit, and thus deprive her of the privilege of making any defense. It is clear, therefore, that she was the particular individual whose private rights and interests would be affected by the crime. It is true the crime of perjury committed in such a case was a crime against the public administration of justice; the public are deeply interested-every good citi

It

ness against her husband, but the New York of not more than $1,000, or that the jury court followed the common-law rule, which this court has already seen fit to discard. We therefore hold that in a prosecution for perjury based upon the making of a false affidavit in a divorce proceeding in order to procure constructive service upon his wife such crime under our statutes is a crime against the wife, and that she is competent to testify for the state.

[2] It is also contended that the court erred in giving the following instruction: "The punishment prescribed by the law of the state of Oklahoma for the crime charged in the information is imprisonment in the state penitentiary for a period not exceeding five years. If you find the defendant guilty of said offense, you will, in addition thereto, assess his punishment therefor."

might find the defendant guilty and assess both a fine and imprisonment. In other words, in the Colbert Case the court failed to instruct the jury fully as to the punishment provided for the offense by failing to give the alternative punishment that might have been imposed, and for that reason, as indicated in the opinion, the judgment was reversed. Not so in this case. Here the court instructed as to the punishment provided by the statute. If counsel for the appellant had desired a more definite and certain instruction than that given, he should have requested it at the time. This was not done. Also it is our opinion that the jury was not misled by the instruction given.

In the case of State v. Rose, 178 Mo. 25, 76 S. W. 1003, it was held:

"An instruction that the jury, on finding defendant guilty, should assess his punishment at imprisonment in the penitentiary for a term of years, or by imprisonment in the county jail not not less than two years or more than seven exceeding three months, was not misleading for failing to designate the minimum punishment by imprisonment in the county jail."

Under the statutes of this state the crime of perjury is punishable by imprisonment in the state penitentiary for various terms of years according to the circumstances under which the false oath was taken. If taken upon a trial for a felony, the punishment is by imprisonment for a period of not less than ten nor more than twenty years. If taken upon any other trial or proceeding in a court In the body of the opinion it is said: of justice punishment is for a term of not less than five nor more than ten years. In "The first contention of appellant is that the all other cases punishment is by such impris- failure of the court to designate by express terms in instruction No. 1 the minimum punonment not to exceed five years. This of-ishment as to the imprisonment in the county fense comes within the punishment prescrib-jail was unfair to defendant, and constitutes ed in the last provision of the statute, and it is contended on behalf of the appellant that the instruction is erroneous and prejudicial in that it fails to define the exact minimum term of imprisonment. It will be noted that the court told the jury, that, if they found the defendant guilty, they should assess his punishment at imprisonment in the penitentiary for a period not exceeding five years. The instruction therefore was practically identical with the statute, except that the court told the jury that in assessing the punishment the jury must fix a definite period of time. In our opinion, this instruction was equivalent to saying that the jury might fix any period of time not to exceed five years' imprisonment. But it is contended that in the case of Colbert v. State, 4 Okl. Cr. 487, 113 Pac. 561, it was held that an instruction which only states the maximum term of imprisonment and omits to state the We hold, therefore, that where the statminimum or alternative punishment that ute fixes the maximum punishment for an may be imposed is reversible error. The Col-offense, but fails to provide a definite minibert Case is easily distinguishable from this. In that case the punishment prescribed by statute was "by fine of not more than one Thousand ($1,000.00) dollars, or by imprisoninent for not more than fifteen years, or by both such fine and imprisonment." The court in instructing the jury only instructed that, "If they should find the defendant guilty, they should assess his punishment which is not over 15 years in the state penitentiary."

error. That part of instruction No. 1 of which complaint is made, after requiring, in usual form, the jury to find a certain state of facts, concludes as follows: "Then you will find the defendant guilty as charged in the information in this case, and assess his punishment at imnot less than two years nor more than seven prisonment in the penitentiary for a term of years, or by imprisonment in the county jail not exceeding three months.' It will be observed that in this instruction the jury are told in express terms what is the maximum punishment by imprisonment in the county jail-not to exceed three months in the county jail. This is the usual form of an instruction intended to guide the jury in fixing the punishment, and we are of the opinion that it is not misleading; and it requires but very ordinary intelligence to understand, from the use of the terms 'or by imprisonment in the county jail not exceeding three months,' that any length of time of imprisonment may be fixed, so that it does not exceed the time expressly designated. There is no merit in this contention, and it must be ruled against the appellant."

mum punishment therefor, and the court instructs the jury as to the punishment practically in the language of the statute, and no more definite instruction is requested by counsel for the defendant, the giving of such instruction in the absence of such a request is not prejudicial error.

It is also contended that the court erred in giving the following instruction:

In that case the court entirely overlooked "The defendant is not required by law to prove his innocence, but the burden is upon the the fact that the jury might find the defend-state to prove his guilt. He is, in law, presumiant guilty and assess only a fine against him ed to be innocent of the offense charged against

him, and of each and every necessary ingredient | tract giving him the right of sale, and that deof that offense; and unless his guilt is estab- fendant refused to perform, held to sufficiently lished upon the trial of the case to your satis- state a cause of action for cancellation of the faction beyond a reasonable doubt, or if, after contract. a careful consideration of such evidence, facts, and circumstances, you have a reasonable doubt as to his guilt, you must acquit him."

render one a successful agent in selling the vacuum washing machines, and particularly in selling the contracts, from which latter the profits were to be derived, required that the agent or purchaser be "posted, informed, and educated"; so the contract provided that an agent making a sale of "family rights," or to persons to whom he might sell "said articles at wholesale," or those "appointed as subagents," should "post, inform, and educate" them. Whether or not defendant was the holder of one of these valuable contracts is immaterial; at all events, it appears that he was authorized to sell the same, and selected Riverside as a fertile field for operation, and where it seems his labor was rewarded by the discovery of plaintiff, who was recognized as a "likely prospect." Defendant, it seems, was what is known as a "live wire" in the business, and without much effort convinced plaintiff that he, too, upon being "posted, informed and educated," could, with like success, find unsophisticated individuals whom he could induce to buy the privilege of making like sales in this endlesschain scheme.

fendant Crawford to put on said lectures as hereinbefore alleged, and to educate, post. and inform said Shull in the use of said washers and in the methods to be pursued in securing other agents and subagents for the said company was the sole and only consideration which induced the said plaintiff Shull to enter into said agreement with said defendant Crawford, or to accept an appointment as agent of said corporation, or to execute said contract as agent with said corporation, or give said note for $3,333 secured as hereinabove alleged; that said plaintiff, Shull, has, by reason of the failure of said defendant, Crawford, to put on said lectures and instruct and inform and post him in the use of said washers, been unable to sell said washers or to interest the public therein, or to secure other agents or subagents for said company"; that had plaintiff known that said Crawford would not fulfill his said agreement, plaintiff would not have purchased said contract, and would not have given the mortgage to secure to defendant the payment from him of said sum of $3.333; all of which allegations the court, in effect, found to be true. It is also alleged that said deed so given as a mortgage, if left outstanding, would constitute a cloud upon plaintiff's title to the real property therein described.

[1] The theory of the complaint, and that upon which the action was tried, was that the mortgage was given to defendant, which in fact it was, and not to the utilities company, which received from plaintiff all that was due to it; that the consideration for the mortgage so made to defendant was his agreement to perform certain services, without which promise plaintiff would not have bought the contract so made by the utilities company, sale of which was made to him by defendant; that defendant refused to perform the services constituting the consideration for the sale so made by defendant to plaintiff, and upon the ground of a failure of consideration moving to plaintiff from de. fendant, there remains nothing upon which to found plaintiff's promise to pay to defendant the $3,333 for which the mortgage was given; and likewise for a failure of con

On September 22, 1911, defendant consummated the sale of a contract to plaintiff, under which the latter was appointed the duly authorized agent of the company in the territory embracing the city of San Diego, and received the 1,667 vacuum clothes washers, with the power to sell like contracts of agency, for which washers he paid defendant as the agent of the company the sum of $1,667, and at the same time executed to defendant the mortgage as security to him for the payment of his commission of $3,333, which plaintiff knew he was to receive. In his complaint plaintiff alleges, and the evidence shows, that, in consideration of his purchase of said contract, the defendant orally promised and agreed that he would "post, inform, and educate" plaintiff with reference to said clothes washer, so that he would fully understand how to operate and demonstrate the same to the best possible advantage, and enable him to secure the appointment of other agents and subagents, and further agreed "that upon said plaintiff's selecting the territory in which he desired to have the exclusive right to sell said washers, that said defendant, Crawford, would accompany said plaintiff to said territory, and would put on lectures for a period of two months, said lec-ing to rescind the written contract made tures to be delivered daily during said period with the exception of Sundays"; that plaintiff selected the city of San Diego as territory, where he opened offices for the transaction of said business, and demanded that defendant put on lectures for the purpose of demonstrating and assisting him in the sale of said washers, but that defendant at all times refused to comply with said demand and deliver said lectures, or to post, inform, and educate plaintiff in the use of the same or demonstration thereof; "that the said agreement on the part of the said de

sideration defendant is not entitled to a fore

closure of the mortgage, which he sought by a cross-complaint. Plaintiff was not seek

with the utilities company under and by virtue of which he obtained the 1,667 washing machines, but sought to rescind the oral agreement made with defendant whereby he was induced to enter into the written contract, for failure to perform the services in consideration of which plaintiff purchased the contract, and to have the mortgage constituting a cloud upon his real estate set aside and annulled. Section 1689 of the Civil Code provides that a party to a contract may rescind the same if the consideration therefor becomes entirely void from any cause.

[5] Nor was defendant prejudiced by reason of the court permitting plaintiff to file an amended complaint after notice. Even should we concede such error, it could not be said that it resulted in a miscarriage of justice. Section 42, art. 6, Const.

We concur: CONREY, P. J.; JAMES, J.

The consideration for the purchase of the (oral contract made between plaintiff and de contract was defendant's promise of 60 days' | fendant, which plaintiff sought to have anservices in posting and educating plaintiff nulled for want of consideration. Considerin the operation and' demonstration of said ed upon this theory, we find no prejudicial machines and assisting him in the making error in the rulings of the court. of sales of $5,000 agency contracts at a profit of $3,333, as well as washing machines, which promise defendant refused to perforin. Nevertheless, appellant contends that he is entitled to foreclose the said mortgage anl leave plaintiff to an action for damages. To our minds, such a course, under the circum- In our opinion, the judgment and order stances of this case, would be highly in-appealed from should be affirmed; and it is equitable. In support of this contention so ordered. counsel for appellant cites the cases of Lawrence v. Gayetty, 78 Cal. 132, 20 Pac. 382, 12 Am. St. Rep. 29, and Schott v. Schott, 168 Cal. 342, 143 Pac. 595, in which the plaintiffs sought to have deeds, which had been made and delivered upon the promise of the grantees to support the plaintiffs during their lives, set aside. Such relief was denied upon the ground that the transaction constituted a fully executed contract. Such, however, is not the case here. It is an unexecuted contract like that involved in Howlin v. Castro, 136 Cal. 605, 69 Pac. 299. Plaintiff has not parted with his property, but has merely given a mortgage thereon to secure his promise to pay defendant $3,333, which the defendant by a cross-complaint is seeking to enforce.

[2] To our minds, plaintiff, as a defense to the foreclosure action, is entitled to show a failure of the consideration for which the mortgage was given; and, if this be true, it must follow that he has the right to maintain an action to remove the cloud from the title to his property.

[3] There was a total failure of consideration for plaintiff's promise to defendant, and hence it was not necessary to give notice of rescission before bringing suit to cancel the mortgage. Glass v. Glass, 4 Cal. App. 604, 88 Pac. 734: Richter v. Union Land, etc., Co., 129 Cal. 367, 62 Pac. 39.

[4] In our opinion, not only did the complaint state a cause of action, but the findings to the effect that the allegations of the complaint were true support the judgment, and they in turn are supported by the evidence. The action is not based upon fraud, either constructive or actual, of the utilities company, nor that of defendant, but solely upon the ground that since defendant failed to perform the promise in consideration of which the mortgage was given, it would be inequitable to enforce it.

Numerous complaints are made as to rulings of the court in admitting evidence. These alleged errors are based upon appellant's contention that the action was one to rescind the contract between plaintiff and the utilities company, instead of which the rulings were based upon the theory of the court that the subject of the litigation was the

(33 Cal. App. 42) MARVIN v. ENG-SKELL CO. (Civ. 1886.) (District Court of Appeal, First District, California. Feb. 19, 1917. Rehearing Denied March 21, 1917. Denied by Supreme Court April 19, 1917.)

1. SALES 417 REMEDIES OF BUYER FRAUD OF BUYER-SUFFICIENCY OF EVIDENCE.

In an action for damages for breach of a written contract to sell and deliver block tin pipe, evidence held insufficient to show that the contract was procured by plaintiff's fraud and misrepresentations.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1173.]

FAILURE TO ATTACH
2. DEPOSITIONS 81
SEAL OF COURT-ADMISSION IN EVIDENCE-
STATUTE.

Where a deposition of a witness, taken out of the state on a commission, did not have attached to it the seal of the court, as required by Code Civ. Proc. § 2024, so that the court granted motion to suppress it, but later, on learning that the witness was not in New York, where he was when the deposition was taken, but somewhere in South America, and that to have the deposition taken again would cause an indefinite delay, the court properly granted motion to amend the process of the court by affixing its seal, permitting the deposition to be read in evidence, since the court has control over its process, and it should permit an amendment in the interest of justice, especially when the party complaining can show no resulting injury.

[Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 213-217.]

Appeal from Superior Court, Oity and County of San Francisco; Daniel C. Deasy, Judge.

Action by M. E. Marvin against the EngSkell Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. J. Hayes, of Oakland, for appellant. Louis H. Brownstone, of San Francisco, for respondent.

PER CURIAM. This is an appeal by the defendant from a judgment in favor of plaintiff for $194.80 with interest and costs.

The action was brought for the recovery of damages for the breach of a written con