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vor upon the grounds we have discussed. f appealed from the order granting a new trial Therefore they do not call for further notice. as to Mrs. Kane.

We find no error.

The judgment is affirmed.

[1] The defendants rely upon the case of Brotton v. Langert, 1 Wash. 73, 23 Pac. 688, where it was held that "community real es

DUNBAR, C. J., and FULLERTON, GOSE, tate is exempt from execution on a judgment and MOUNT, JJ., concur.

(64 Wash. 254)

MILNE v. KANE et ux.

(Supreme Court of Washington. July 24, 1911.) 1. HUSBAND AND WIFE (§ 268*)-COMMUNITY PROPERTY-LIABILITY.

Community property is liable for a debt created by the husband for the benefit of the community, but is not liable for a debt created by a tort of either spouse, or one which is not | for the benefit of the community.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 966; Dec. Dig. § 268.*] 2. HUSBAND AND WIFE (§ 268*)-COMMUNITY PROPERTY COMMUNITY AND SEPARATE DEBTS-TORTS.

Plaintiff was injured while a passenger for hire in an automobile operated for the benefit of the community, consisting of defendants, husband and wife, and driven by the husband, and the jury found against both defendants, but judgment was entered only against the husband, and a motion for new trial was granted as to the wife. Held, that the tort was that of the community, because the husband was acting for the benefit of the community, and that his negligence was the negligence of both himself and wife, and that the community property was liable, and judgment should be entered against

both defendants.

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rendered against the husband, who, as con-
stable, wrongfully sold mortgaged personal
property under execution." The logic of that
case no doubt supports the contention of the
defendants here; but we do not desire to ex-
tend that doctrine, so that it will cover cases
where the community as such is the wrong-
doer, as well as to cases where an individual
member is a wrongdoer, as was the case
there. In the case of Floding v. Denholm,
40 Wash. 463, 82 Pac. 738, we held that com-
munity property was liable upon a surety ob-
ligation entered into by the husband alone
for the benefit of the community. We there
that the liability of the husband in that case
distinguished the Brotton Case, by saying

arose on account of a transaction which was
not for the benefit of the community. In that
case we said:
The rule now is

66 * *

that community property is liable for a debt created by the husband for the benefit of the community. But such property is not liable for a debt created by a tort of either spouse, or one which is not for the benefit of the community." See, also, McGregor v. Johnson, 58 Wash. 78, 107 Pac. 1049, 27 L. R. A. (N. S.) 1022.

[2] In this case, if the negligence of the husband's causing the injury may be held to be a tort, it was the tort of the community, because the husband was acting for the community. It is clear, we think, that if the community, consisting of the two defendants, and the negligence of this employé had caushad employed a man to drive the automobile, ed the injury, the community would be liable. This would follow because the employé would

be the agent of the community, and for his

Trimble & Swasey, for appellant. M. Fran- negligence in the line of his duty the comcis Kane, for respondents.

MOUNT, J. The plaintiff brought this action to recover a judgment against the defendants on account of personal injuries received by him while being carried as a passenger for hire in an automobile. The automobile was operated for the benefit of the community, consisting of Mr. Kane and his wife.

munity would be liable. The fact that Mr. Kane was himself the driver, and was negligent, does not change the liability. He was one of the community, acting in the line of the business for the benefit of the community, and was as much an agent for both as an employé doing that work would have been. If the community joined in the tort, the community was liable. We are satisfied, therefore, that the negligence here, though actually committed by the husband, was the negligence of both himself and wife, because it was committed by him as agent of the community, in the line of his duty, in a business in which the community was engaged.

It was being driven by the defendant M. Francis Kane at a high rate of speed, and ran against a street car and injured the plaintiff. The case was tried to the court and a jury. The jury found a verdict, in favor of the plaintiff and against both the defendants, for $900. The defendants moved for a new trial. This motion was denied as to Mr. Kane, and a judgment was thereupon entered against him, but was granted as to Mrs. Kane, upon the ground that the com- DUNBAR, C. J., and PARKER, FULLERmunity was not liable. The plaintiff hasTON, and GOSE, JJ., concur.

The trial court, therefore, erred in not entering a judgment against both defendants. The case will be remanded for that purpose.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

(64 Wash. 122)

STATE v. BLANE. (Supreme Court of Washington. July 13, 1911.)

1. STATUTES (§ 118*)-TITLE-SUFFICIENCY. The title of Cr. Code 1909 (Laws 1909, c. 249), entitled "an act relating to crimes and punishments and the rights and custody of persons accused or convicted of crime, and repealing certain acts," is broad enough to include Rem. & Bal. Code, § 2290, providing that the fact that a witness has been convicted of crime may be shown by his cross-examination, though it changes the rule of decision that a former conviction can be shown only by the record of a judgment of a court of competent jurisdiction. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 158-160; Dec. Dig. § 118.*] 2. WITNESSES (§ 301*) - CROSS-EXAMINATION OF ACCUSED-CONSTITUTIONAL PRIVILEGE. Where the court compelled accused to disclose on his cross-examination that he had been convicted of a felony, and then charged that the evidence of his conviction could only be considered to determine his credibility, the constitutional rights of accused were not invaded.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1043-1046; Dec. Dig. § 301.*] 3. HOMICIDE (§ 340*)-HARMLESS ERROR-IN

STRUCTIONS.

Where decedent, after learning that accused had given to decedent's son liquor out of a bottle, undertook to and succeeded in taking the bottle from accused just before the firing by accused of the fatal shot, and accused testified that decedent attacked him with the bottle, and that the shot was fired in self-defense, under the belief of danger of great bodily harm, and the state proved that decedent did not assault accused with the bottle, or at all, and the court charged that resistance of an assault to the extent of taking human life was not justifiable, unless the assault was made with a criminal intent, and that, if accused killed decedent in the actual resistance of an attempt on decedent's part to take from the possession of accused a bottle of liquor by force and violence, accused was not guilty, a further charge that the rule was different when the attack was not felonious, and that a person assailed had no right to take the life of his assailant when the assault was without a weapon, and when there was no reasonable ground for the belief by the person attacked that he was in imminent danger of death or great bodily harm, etc., though not applicable to the facts, was not prejudicial to accused.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.*] 4. HOMICIDE (§ 110*)-SELF-DEFENSE-REPULSION OF ROBBERY BY FORCE.

Rem. & Bal. Code, § 2416, declaring that the use of force shall not be unlawful when used by one to prevent an offense against his person, or a malicious interference with his property, etc., warrants the repulsion of a robbery by force to the extent of killing assailant, but the act of assailant must bear the earmarks of that crime, and a mere impulsive demonstration on the part of decedent seeking to destroy a bottle of whisky, after he had learned that accused had given whisky to decedent's son, did not show a robbery by force, and accused could not rely on self-defense.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. $§ 140-142; Dec. Dig. § 110.*]

5. HOMICIDE ($ 14*)-MURDER IN THE FIRST DEGREE PREMEDITATION."

after deliberation once forms a design to kill, after ample time for deliberate thought, he is guilty of murder in the first degree, no matter how soon the felonious killing follows the formation of the settled purpose.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 19, 20; Dec. Dig. § 14.*

For other definitions, see Words and Phrases, vol. 6, pp. 5503-5507; vol. 8, p. 7760.]

6. HOMICIDE (§ 340*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS.

One convicted of murder in the second degree may not complain of an error in instructions defining the premeditation required for murder in the first degree.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.*] 7. CRIMINAL LAW (§ 1137*)—APPEAL-INVITED ERROR. One on trial for murder in the first degree, who requests the submission to the jury of the crimes of assault in the first and second degrees, may not complain of the submission of such crimes, on the ground that they are not included in murder in the first degree.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*]

8. HOMICIDE (§ 340*)-HARMLESS ERROR-ERRONEOUS SUBMISSION OF ISSUES.

One convicted of murder in the second degree under a charge of murder in the first degree may not complain of the submission to the jury of the crimes of assault in the first and second degrees, on the ground that they are not included in the crime charged.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.*] 9. INDICTMENT AND INFORMATION (§ 189*)

OFFENSES INCLUDED IN INDICTMENT-MURDER IN THE FIRST DEGREE-ASSAULT IN THE FIRST AND SECOND DEGREES.

Under Rem. & Bal. Code, § 2395, providing that a killing, not murder in the first or second degrees, nor excusable or justifiable, is manslaughter, one committing a homicide which is neither excusable nor justifiable, nor murder in the first or second degrees, is guilty of manslaughter, and under a charge of murder one may not be convicted of assault in the first or second degrees.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 582-595; Dec. Dig. § 189.*]

10. WITNESSES (§ 267*)-Cross-EXAMINATION -DISCRETION OF COURT.

Where a cross-examination has attained the object sought by the cross-examiner, it is not an abuse of the trial court's discretion to refuse a repetition of the examination.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 923-930; Dec. Dig. § 267.*]

Department 2. Appeal from Superior Court, Whitman County; E. N. Pickrell, Judge.

Lester T. Blane was convicted of murder in the second degree, and he appeals. Af

firmed.

J. T. Brown, for appellant. Paul Pattison and F. L. Stotler, for the State.

CHADWICK, J. Defendant was charged with murder in the first degree, and con"Premeditation" in murder in the first devicted of murder in the second degree. The gree means "thought over beforehand," for any defense was that the killing was justifiable, length of time, however short, and when one and the first error assigned is that the court

erred in overruling a motion for a directed | Legislature can thus, by a name sufficiently verdict at the close of the state's case. This comprehensive, embrace all the subjects propassignment will need no discussion other than that which follows. The testimony of the state was ample to carry the case to the jury.

[1] It is next insisted that the court erred in compelling defendant to admit, when on the stand as a witness in his own behalf, that he had been convicted of a crime and had been an inmate of the penitentiary in the state of Kentucky. It is contended that the defendant was thus deprived of a fair trial, in violation of the guaranty of the state Constitution, and, further, that the act of 1909 (Rem. & Bal. Code, § 2290) is unconstitutional and void. This contention is based upon the former statute (section 2722, Rem. & Bal. Code), as construed by this court; it being insisted that we had declared a rule of evidence, in that a former conviction of a felony could be shown only by the record of a judgment of a court of competent jurisdiction, and that the title of the Criminal Code of 1909, "An act relating to crimes and punishments and the rights and custody of persons accused or convicted of crime, and repealing certain acts," is not broad enough to include section 2290, being the section of the Criminal Code which governed the lower court. This section is as follows: "Every person convicted of a crime shall be a competent witness in any criminal or civil | proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining him shall not be concluded by his answer thereto."

We think the title is sufficient. It was the evident intention of the Legislature, manifested not only by the title of the act, but by the comprehensiveness of the act itself, to which were added general and specific repealing clauses, that the Criminal Code should stand in the place of all previous enactments, as well as the former procedure, whether defined by the statutes or declared by the courts. As was said in Marston v. Humes, 3 Wash, 267, 28 Pac. 520, where the title, "An act relating to pleadings in civil actions and amending sections 76, 77 and 109 of the Code of Washington of 1881," was under consideration: "Again, it would hardly be contended that it is not competent under the provision in question for the Legislature to enact as a single law a code of civil procedure, and that an act entitled 'An act to provide a code of civil procedure' would be invalid, yet under this subject innumerable subheads, and subjects can easily be carved out. Such title is good because the Legislature has seen fit to take a comprehensive subject which can properly cover all of such subjects. If the

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erly relating to civil procedure, it must follow that by adopting a subject sufficiently general, it can embrace in one act all the statute law of the state. In other words, the Legislature may adopt just as compre hensive a title as it sees fit, and if such title when taken by itself relates to a unified subject or object it is good, however much such unified subject is capable of division." See, also, State v. Tieman, 32 Wash. 294, 73 Pac. 375, 98 Am. St. Rep. 854.

In the absence of a statute, most courts have held that a former conviction can be shown only by a written copy of the judgment, and that oral evidence, either independent or by cross-examination of the defendant, will not be received. But this rule has almost everywhere been altered, either by statute, such as the one now complained of, or by the changing viewpoint of the judges. Lord Chief Justice Ellenborough, in Rex v. Castell Careinion, 8 East, 77, said: "It cannot seriously be argued that a record can be proved by the admission of any witness. He may have mistaken what passed in court, and may have been ordered on his knees, for a misdemeanor. This can only be known by the record." This is criticised by Mr. Wigmore as a refinement of apprehension bordering on the ridiculous. 2 Wigmore's Evidence, § 1270. Judge Cooley, in Clemens v. Conrad, 19 Mich. 175, states the rule to be as follows: "We think the reasons for requiring record evidence of conviction have very little application to a case where the party convicted is himself upon the stand and is questioned concerning it with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight that it may almost be looked upon as purely imaginary; while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent."

[2] But aside from the statute, we do not conceive the reception of such evidence, when limited as it was by the court, who said that "such evidence of his conviction in Kentucky can only be considered by you for the purpose of determining the weight to be given to the testimony of the defendant, and for no other purpose, and should not be used or considered by you for any other purpose or in any other manner whatever in arriving at your verdict," is a violation of any constitutional guaranty. Wharton, Cr. Ev. § 489; 8 Ency. Pl. & Pr. 117.

[3] The evidence tended to show that defendant had given a son of the deceased liquor out of a bottle which he then had; that this coming to the notice of the deceased, he undertook to, and did, take the

bottle away from defendant just before the | bodily harm to the assailed," is a `proper fatal shot was fired. The defendant testified qualification to be made in submitting the that the deceased attacked him with the bot- defense here set up. The court had defined tle, and that he shot in self-defense, believ- the term "felonious," as well as the word ing himself to be in danger of great bodily "assault," and from these definitions the harm. The evidence introduced by the state jury must have understood that resistance of tended to show that deceased did not assault an assault to the extent of taking human life defendant with the bottle, or at all. Accord- would not be justifiable, unless the assault ingly the defendant submitted a further de- was made with evil or criminal intent, for fense grounded on sections 2406, 2414, 2418, it is not every assault or a taking of properRem. & Bal. Code. It is contended that, if a ty from the person that will justify the tak person kill another in defense of his person, ing of human life. The instructions comor one who is in the act of committing a rob- plained of were evidently taken from the bery from the person, it is justifiable. It is case of State v. Churchill, 52 Wash. 210, 100 upon this latter defense defendant believed Pac. 309, they having passed the objections his motion for an instructed verdict should there made; and, while we agree with counhave been granted. The court instructed the sel for defendant that the parts quoted are law of self-defense, and unnecessarily, as we not applicable to the facts of the case at believe, went further and said: "But the bar, yet they cannot be held to be prejudirule is different when the attack is not felo- cial, for the court very clearly defined the nious in character; that is, when from the at-right of defendant as to the extent to which tack there is no real or reasonable apparent he could defend, not only his person, but also danger of death or great bodily harm to the assailed. A person assailed has no right to take the life of his assailant, even if he believes his own life in danger, when the assault is without a weapon of any kind, and when there is no reasonable ground for the belief by the person attacked that his person is in imminent danger of death or great bodily harm, but that an ordinary battery is all that is intended, and all that he has reasonable ground to fear from the acts of his assailant. While a person is not bound to retreat, and may lawfully repel a threatened assault, and to that end may use force enough to repel the assailant, yet he has no right to repel a threatened assault with naked hands by the use of a deadly weapon in a deadly manner, unless he honestly believes and has reasonable grounds to believe that he is in imminent danger of death or great bodily harm. However, an assault with the naked fist is sufficient to justify killing in self-defense, if there is at the time a reasonable apparent purpose by the assailant to inflict death or great bodily harm upon assailed, and if the latter at the time believes and has reasonable grounds to believe that he is in imminent danger of death or great bodily harm at the hands of the assailant, supposing that the person assailed acts reasonably and as a reasonable man under the circumstances, as such circumstances at the time in good faith appear to him."

It is complained that the instruction is a comment on the evidence; that it, in effect, tells the jury that deceased was without a weapon of any kind, whereas defendant had testified that, after the deceased had taken the bottle from him, he had assaulted him with it; and that it is contradictory of the former and admittedly correct instructions of the court. We are of the opinion that the statement "that the rule is different when the attack is not felonious in character; that is, when from the attack there is no real or

his property, against a robbery. Upon this point, the court said: "You are instructed that, if you find from the evidence that the defendant did shoot and mortally wound James O. Silvey in the actual resistance of an attempt on the part of the deceased to take from the possession of the defendant a bottle of whisky, the property of defendant. by force and violence, then you should find the defendant not guilty"-thus going, as we believe, beyond the law, at the request of and in behalf of defendant.

[4] It is not every chance altercation over property, as this affair was, that comes within the intent and design of the statute. Section 2416, Rem. & Bal. Code, warrants the repulsion of a robbery by force, even to killing; but the act must bear the earmarks of that crime. We find no such intent on the part of the deceased. His act was a trespass-an impulsive demonstration on the part of a father who sought to destroy, rather than asport, that which had been used, as he believed, to debauch his son.

[5, 6] It is also complained that the following instruction: "Premeditated means thought over beforehand, for any length of time, however short. When a person after deliberation once forms a design to take human life, after ample time and opportunity for deliberate thought, then no matter how soon the felonious killing may follow the formation of the settled purpose, it will be murder in the first degree. Premeditated malice exists when the intention unlawfully to kill is deliberately formed in the mind and the determination thought over and reflected upon before the fatal blow is struck (no particular space of time, however, need intervene, between the formation of the intent to kill and the killing)"—is vicious within the rule of State v. Rutten, 13 Wash. 203, 43 Pac. 30. But we do not so read the cases. The court did not, as in the Rutten Case, tell the jury that the thought and act

that premeditation means "thought over beforehand," and if they found that there was previous thought that the execution of the design might follow immediately thereafter. The instruction complained of is the general rule of law, and has been expressly sanctioned by this court in the case of State v. Bridgham, 51 Wash. 18, 97 Pac. 1096. But in any event the error, if it could be held to be an error, would not avail defendant, as the verdict of the jury indicates that it found that there was no premeditation. Ross v. State, 8 Wyo. 351, 57 Pac. 924; Downing v. State, 11 Wyo. 86, 70 Pac. 833.

not be too carefully prepared with reference to the present Code.

[10] It is also complained that the court erred in refusing to permit defendant's counsel to further cross-examine a witness for the prosecution. It is said: "The defense had a right on cross-examination to ask any question which would tend to test the accuracy or veracity of the witness, and crossexamination is as important to test the accuracy of testimony as its truthfulness or credibility, and prejudice will be presumed when this right is denied, and, where a man is being tried for his life, certainly the right [7, 8] The court defined assault in the first to determine through the medium of crossdegree and assault in the second degree as examination the exact knowledge of the witincluded crimes, and submitted to the juryness or the accuracy of his statements should verdicts covering these crimes. It is assign- not be denied him." State v. Rutten, supra. ed as error that these crimes are not includ- All rules of evidence must be measured by ed in the charge of murder in the first de- reference to the particular case. When the gree, and that defendant is therefore enti- subject of examination has been fairly intled to a new trial. This assignment is not quired into and rehearsed upon cross-examiwell taken, for, although the crime of as- nation, to a length sufficient to attain the sault in the first degree and assault in the object sought, and elucidate the fact so far second degree may not, under sections 140, as the witness is able to detail it, it will 141, and 143 of the so-called Criminal Code not be held to be an abuse of discretion on (Laws 1909, c. 249), and under the facts as the part of the trial court to refuse the right developed at the trial, be included in the of unlimited repetition on the part of councrime charged (State v. Pepoon, 114 Pac. sel or the witness. When stopped by the 449), and had the court of its own motion court, counsel was interrogating the witness submitted these verdicts, a conviction of ei- upon a subject which had been fully inquirther of the offenses-assault in the first or ed into. In the Rutten Case inquiry had assault in the second degree-would have been denied. In the case at bar, the ruling resulted in an arrest of judgment (State v. of the court is sustained by State v. Coates, Kruger, 60 Wash. 542, 111 Pac. 769), the er- 22 Wash. 601, 61 Pac. 726; Nunn v. Jordan, ror was harmless (1) because we find from 31 Wash. 506, 72 Pac. 124; State v. Roller, the record that defendant requested that the 30 Wash. 692, 71 Pac. 718; Fleischner v. crimes of assault be defined, and that such Beaver, 21 Wash. 6, 56 Pac. 840. Other erverdicts be submitted to the jury, and (2) the rors are assigned, but are fully covered by jury did not find the defendant guilty of ei- what we have said in this opinion. ther degree of assault, but of the crime of Judgment affirmed. murder in the second degree, thus indicating that it did not find the killing to be justified, so as to permit a verdict for anything else than manslaughter.

[9] We believe it will not be out of place to say in this opinion that the evident design of the so-called Criminal Code was to change the former rule and practice of the courts in submitting, as crimes included in the charge of homicide, all the varying degrees of statutory and common-law crimes against the person, down to and including simple assault. It may have been that it was the intention of the framers of that document to compel convictions for the crime charged and proven, and to avoid compromise verdicts. At any rate, as the law now is, if a homicide is neither excusable nor justifiable (in which event defendant is entitled to an acquittal), it is manslaughter. Rem. & Bal. Code, § 2395. It is not our province to deal with the policy of these statutes. It is enough that they have been written by the Legislature, and the instructions of trial courts in criminal cases can

DUNBAR, C. J., and ELLIS, MORRIS. and CROW, JJ., concur.

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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