Hoitt. Hester v. Stine, 46 Wash. 469, 90 Pac. ¡ of separate funds going into it amounted ap- into it after the creation of the community [2] The rule is that the rents, issues, and profits of separate property are separate property. Section 5915, Rem. Code; Hester v. Stine, above. The complication arises in this case from the fact that the separate property did not produce in and of itself all of the profits which accrued to the business. These profits were increased by the labor and effort of the husband and wife, whose earnings after their marriage of course constituted community property. The difficulty here is to apportion those profits [5, 6] Respondents make some argument between the original separate property and that by agreement between Hoitt and his the subsequent community earnings. The ap-wife what may have been his separate proppellant contends that the work and efforts of erty was converted into property of the comthe community should not be said to be munity, and relies upon the case of Volz v. worth more than $12,000 for the three years, Zang, 113 Wash. 378, 194 Pac. 409, which refor the reason that the husband had never views the many previous decisions of this earned more than $3,000 a year prior to un- court on the subject. There is no question dertaking this business, and that the bal- that community may be changed into sepaance of all of the profits should be held to rate property, and separate into community have been the result of the separate invest-property, but we find nothing in the evidence ment, and points to the fact that it was real-to show that any agreement was ever made ly the possession of an exclusive right to between the husband and wife as to the stause a new system of baking that resulted tus of the bakery business. Furthermore, in the profit from the undertaking, as was this argument could hardly be effective to demonstrated by the fact that when competi- deprive the appellant, who was an existing tion arose the profits were materially de- creditor at the time, of the right to collect creased, although the labor and effort of the that debt from what was then separate propmembers of the community were the same erty. Marsh v. Fisher, 69 Wash. 570, 125 as they had been when the profits were larg- Pac. 951; Lanigan v. Miles, 102 Wash. 82, This argument does not strike us, how- 172 Pac. 894. The presumption is that propever, as being convincing, and we do not be-erty which was once separate maintains that lieve that the profits can be separated on that basis. It would seem to us that it is not only equitable, but is supported by the facts to hold that so much of the profits, at least as they were represented by the amount which Hoitt repaid to his mother, were profits from the original investment, which would confirm the original investment as community property, although the decisions would seem to indicate that the paying off of separate obligations by community funds would not change the status of the property ac-gument is sound. The court there held that quired by the creation of the obligation from separate to community property. er. [3] In regard to the money in the bank, it is impossible to segregate that as to its sources. Its separate and community natures have become so confused that the court cannot apportion them, and the favor with which community property is regarded and the presumptions in favor of it are such that we must agree with the trial court that these funds in bank are the property of the community and not subject to the appellant's judgment. [4] Regarding the plant and its equipment, the testimony is that the original investment character until there is positive testimony The respondents cite the case of In re what were contended to have been the prof- "But where a small original investment of (205 P.) property can be determined other than by tak-12. Criminal law 223-Prosecution for felony ing into account the relative contributing force not barred by lack of preliminary hearing. of the original investment and the personal efforts of a member of the community. The authorities do not furnish us much light upon this question, in so far as decisions directly in point are concerned." As we read it, that decision merely holds that in the case before the court it was impossible to say with any degree of certainty what proportion of the income of the community had been contributed by the original separate property. In the case before us, although the exact ratio between the return from the separate property investment and the return from the community efforts is not subject to mathematical determination, yet we are satisfied that at least the amount which we have found was used in paying off the separate indebtedness was the earning from the separate property, and the division between the separate and community nature of the present business is subject to what appears to us a mathematical determination. In the Buchanan case the original separate investment was so insignificant a contribution to the then value of the property that it could be ignored. Here we have a substantial capital investment which was separate property. While in the Buchanan Case there was a commingling of separate and community property which made it impossible to segregate them, here there is no such commingling of the plant and business as to render segregation impossible. The judgment below must be reversed in so far as it attempts to relieve the franchise, equipment, and bakery business from subjection to appellant's judgment by declaring it community property. In a prosecution for grand larceny, the failure to give defendant a preliminary hearing before a committing magistrate prior to filing the information was not a bar to prosecution. 3. Larceny 52-Refusal to admit evidence of offer to reimburse owner of property held not error. In a prosecution for larceny committed by falsifying copies of reports to an insurance company of which defendant was agent, and exclusion of evidence that defendant's relaappropriating money paid him upon premiums, tives had offered to reimburse the company for its losses, and that a special agent of the company investigating the affairs of the office would not state the amount due, was not error. 4. Larceny 26 - Reparation or return of stolen property is no defense. In a prosecution for larceny, return of the stolen property or reparation is no defense. 5. Criminal law 1169(12)-Evidence of larceny from two corporations held not prejudicial. In a prosecution for larceny by an insurance agent through taking money of insurance companies for which he was transacting business, where it was alleged and shown that defendant's agency was on behalf of two companies doing business under one name, the admission of evidence covering transactions on behalf of the two insurance companies was not prejudicial to defendant. Department 1. Appeal from Superior Court, King County; A. W. Frater, Judge. Allen H. Shears was convicted of grand larceny, and he appeals. Affirmed. Vinee H. Faben and F. W. Crary, both of PARKER, C. J., and HOLCOMB, MAIN, Seattle, for appellant. and HOVEY, JJ., concur. (119 Wash. 275) STATE v. SHEARS. (No. 16860.) (Supreme Court of Washington. March 23, 1922.) 1. Habeas corpus 117(2) - Release of defendant held not a bar to prosecution on mer its. Malcolm Douglas, T. H. Patterson, and Chester A. Batchelor, all of Seattle, for the State. MITCHELL, J. [1] The appellant was convicted of grand larceny. It was charged against him that in King county on December 1, 1917, and at divers times thereafter continuously until September 22, 1918, he being the agent of the Fire Association of Philadelphia, and the Insurance Company of North America, corporations of Philadelphia, Pa., doing business under the name In prosecution for larceny where defendant of the Philadelphia Underwriters, did then had been extradited from another jurisdiction and there have intrusted to him, and have and had been discharged on habeas corpus be- in his possession, custody and control as fore the filing of the complaint in the present such agent $3,500, the property of his prinprosecution, in view of Rem. Code 1915, $cipals, and that he did then and there un2109, providing that on arraignment a plea of former conviction or acquittal may be inter- lawfully, fraudulently, and feloniously with posed, the judgment in the habeas corpus pro- hold and appropriate the same to his own ceedings releasing defendant from custody was use, with intent to deprive and defraud the not a discharge from the penalty of the crime owners thereof. and did not operate as an acquittal. He refused to plead when called upon so For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to do, and the plea of not guilty was enter- as to bar a prosecution and trial on the ed for him by direction of the trial court. merits. It shows on its face there was no At the time of his arraignment and there-investigation into the guilt or innocence of after on several occasions down until the the accused. 16 C. J. p. 255, § 411, and cases commencement of the trial, the appellant, cited; 16 C. J. p. 257, § 423; In re Milburn, by special appearances, interposed and in- 9 Pet. 704, 9 L. Ed. 280; Benson v. Palmer. sisted upon what he terms special pleas in 31 App. D. C. 561, 17 L. R. A. (N. S.) 1247, abatement, and to the jurisdiction of the 1252. The criminal procedure under which court. The refusal of the court to allow the he has now been tried and convicted, though special pleas has induced the appellant to for the same crime, is a different procedure make three assignments of error, which may and upon different process from that which be considered together. resulted in his first arrest and subsequent dismissal on habeas corpus. He is charged with having committed a felony, and the. rule in this state is that a preliminary hearing before a committing magistrate prior to the filing of an information is neither required nor essential. State v. McGilvery, 20 Wash. 240, 55 Pac. 115. Originally the appellant was charged with this same offense by a complaint filed in the justice of the peace court in Seattle. Not being in this state at that time, he was brought here by extradition proceedings. Prior to any preliminary examination by the justice of the peace and while the appellant was in the custody of the sheriff of King [3] Another assignment is that the court county, he instituted habeas corpus proceed- erred in refusing to permit the appellant to ings in the superior court of that county. show good faith and an attempt to comproIn his petition therein it was alleged in sub-mise before the commencement of the crimstance that the complaint upon which the inal proceedings. It is necessary to somegovernor of this state issued his requisition what notice the manner in which he conwas unfounded in fact and law; that no ducted his business for his principals. Polcrime had been committed; that the proceed-icies issued by him were to be made out ings had been instituted for the collection as follows: Policy, daily report, and his own of a debt; and that all proceedings before agent's daily record, at one time; the two latthe Governor of this state and the Governor ter ones being carbon copies. In scores of of the asylum state were irregular, illegal, cases his copies were false. He reported the and entirely without jurisdiction. Upon the fictitious records to the company and failed return made by the sheriff it was ordered to report the policies actually issued. Those by the court that the exceptions of the peti-reported called for small premiums, while tioner to the return be granted and sustain- those actually issued called for large preed, and it was "further ordered and adjudg-miums that were collected by the appellant. ed that the writ of habeas corpus be issued Probably the most of the policies issued by and sustained and that the defendant be dis-him were for short periods of time. Finally, charged from custody by virtue of said writ and this decree." With those proceedings including the judgment we are in no wise concerned other than to determine if they are available to the appellant in the present case. It appears that at the conclusion of the habeas corpus case the prosecuting attorney filed the information upon which the appellant was brought to trial.ed, the appellant being absent, it appears It is claimed by the appellant that the judgment in the habeas corpus case is a bar to the present action, and it is also claimed that, as the justice of the peace before whom complaint was first made never held a hearing or gave a trial, therefore the superior court could not entertain jurisdiction. [2] Section 2109, Rem. Code, provides for the pleas that may be interposed upon arraignment. They are: (1) A plea of guilty; (2) a plea of not guilty; and (3) a plea of former conviction or acquittal. In the case of a plea of acquittal the statute requires that it designate the court and date of the judgment relied upon. The judgment in the habeas corpus case relied on here was not an acquittal on the merits, but only a discharge from the custody of the sheriff. It was not a discharge from the penalty of the crime and did not operate as an acquittal so he issued a policy to a mill company that was not reported until after the insured sustained a loss, 17 days after the policy was issued. A special agent of the Philadelphia Underwriters came to defendant's office about that time and found him missing. The defendant was not seen at his office thereafter. During the investigation that follow that relatives of his stated to the special agent of the insurance companies that they were able and willing to pay as high as $6,000 to reimburse the company if such an amount should actually be found due to the companies. Proof of that fact, coupled with the claim that at no time could the parties making the offer get from the special agent a statement of the amount due, constituted, in effect, the offer of proof made by the ap pellant at the trial, the rejection of which is assigned as error. The offer was as if he had said: "I admit I have taken your money, but my relatives offered to give it back if you would tell them how much I had taken. Of course, you have no record of the policies I have issued, except such as I have reported, and I have not correctly reported the most of them, and some of them not at all." (205 P.) There was no question of good faith in his tended about 25 feet into the center of the dealings that was suggested by the offer. street and were about 4 feet above the surface, Indeed, the record shows that the argument with a red light in the center of the street for him in the trial court was that his rela- about 20 feet beyond the end of the poles, it tives having "attempted to effect an adjust-could not be said, as a matter of law, that one ment and entered into negotiations for the purpose of making an adjustment, all of the criminal intent which would attach to the original taking of the money was absolutely obliterated." [4] The law is to the contrary. Reparation, or simply the return of property stolen when one finds his crime has been discov ered, is no defense to a prosecution for the larceny. State v. Craddick, 61 Wash. 425, 112 Pac. 491. driving an auto, in proper place and manner, into the poles was negligent. Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by William Crooks against W. R. Rust and others. From judgment of nonsuit, plaintiff appeals. Reversed, with directions to grant new trial. P. L. Pendleton, of Tacoma, for appellant. Shorett, McLaren & Shorett, Jas. B. Murphy, and Ward C. Kumm, all of Seattle, for The refusal of the court to give appellant's requested instructions numbered 1 to 5 has caused an assignment of error. They respondents. have received scant attention in the brief and oral argument on behalf of the appellant. They relate mostly to his erroneous theory of the law concerning the offer to compromise, and in other respects are incorrect expositions of the law applicable to the case. [5] There is no merit in the contention that a multiplicity of crimes is charged in the information. State v. Boone, 65 Wash. 331, | 118 Pac. 46. Nor is there any merit in the contention that the rights of the appellant were prejudiced because the proof covered transactions on behalf of two insurance companies. It was alleged and shown that his agency was on behalf of two companies doing business in the name of Philadelphia Underwriters. MITCHELL, J. Appellant sued a number of defendants to recover for personal injuries. The case has taken such a course that the only defendant who took part in the trial and that now remains in the controversy is the Georgetown Transfer Company, a corporation, respondent here. The case was tried before a jury, and, at the conclusion of appellant's proof, a nonsuit was granted upon the motion of the transfer company that there was a failure of proof of any negligence on its part, and that it affirmatively appeared that the proximate cause of the injuries was the negligence of the plaintiff. Some of the important facts were understood in slightly different ways by the witnesses who testified, but, taking the proof tending most strongly to support the judgment, the facts are substantially as follows: Work had been commenced in the construction of the Rust building, at the northwest corner of Pacific avenue and Eleventh street, in Tacoma. The avenue, the principal thor The motions to discharge the defendant upon the state's evidence and for a directed verdict were properly denied. There was sufficient evidence under the rule as to the burden of proof in criminal cases to justify the verdict. Also, the motion for a new trial and in arrest of judgment were prop-oughfare of the city, runs north and south, erly denied, neither being supported by any argument distinct from other views of the case already discussed. Judgment affirmed. PARKER, C. J., and TOLMAN, FULLERTON, and BRIDGES, JJ., concur. and Eleventh street traverses it at right angles. The avenue is 68 feet wide between curbs and has on it 2 street car tracks, one on each side of, and near the center of, the avenue. The excavation for the building had been completed. About 3 o'clock in the morning, while it was yet dark, though a clear, dry night, 2 derrick poles were being unloaded by the respondent into the excavation to be used in construction work. The poles were about 80 or 90 feet long and had been placed on either side of a truck belonging to the respondent, extending about 35 feet both to the rear and in front of the truck. The truck had been backed up to the Municipal corporations 821 (25)-One driv-westerly curb of the avenue, some 40 or 50 ing at 3 a. m. into poles suspended from feet north of Eleventh street, and headed end of truck into street not negligent as matter of law. (119 Wash. 154) CROOKS v. RUST et al. (No. 16822.) (Supreme Court of Washington. March 16, 1922.) Where derrick poles were being unloaded at 3 a. m., into a cellar excavation, with the truck backed to the curb, and the poles ex in a northeasterly direction, so that the forward ends of the poles extended out to the center of the avenue and were about 4 feet above the surface of the avenue. Appellant came into collision with one of the poles. At For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Reversed, with directions to grant a new trial. PARKER, C. J., and FULLERTON, TOL MAN, and BRIDGES, JJ., concur. (119 Wash. 316) STATE ex rel. LEHMAN v. PARTLOW et al., Directors of School Dist. No. 1, Thurston County. (No. 17090.) March 28, the time of the accident it appears that the the avenue was unsafe for travel. As testitruck had been at that place about an hour, |fied to by a policeman, the appellant was the during which time one of the poles had been only one traveling on the street at that time, raised clear of vehicular traffic, and the and that he was driving in a proper place workmen engaged in unloading were all on and in a proper manner. the south side of the truck. There was no one representing the respondent, nor any barrier, situated on the north side of the truck. There was a red light on the surface at the center of the avenue, about 20 feet north of the ends of the poles, and another red light on the surface of the avenue 5 or 6 feet from the curb, and about due west from the light in the center of the avenue. There was no light or flag upon the poles, and there was a single Presto light in use on the front of the truck, as it faced diagonally across the ave nue. The cluster street lights were burning. The appellant, driving a Detroit "bug," trav-(Supreme Court of Washington. eled south, near the center of, but on the right hand or westerly side of, the avenue, at, 1. Health 25-State board of health regua speed estimated by the different witnesses' of 10 to 25 miles an hour. He was familiar Where the state board of health under auwith the avenue, and testified that he was thority of Rem. Code 1915, § 5406, has adoptobservant as he approached the place at ed a regulation requiring vaccination of teachwhich the accident occurred. He testified ers and pupils if smallpox existed in the comthat he noticed the red light out in the cen- munity, and such regulation was enforced by ter of the avenue, also the one near the a director of health under section 5410, held curb, which he took to be the same as a red that such regulation was within Const. art. light he had, on former recent occasions, ob-20, § 1, providing for the establishment of a state board of health with such powers as the served at that point on the corner or north Legislature might direct, and the action of the end of a temporary wooden structure in board not subject to review. front of the Rust building, erected to protect pedestrians using the sidewalk. Both of his front lights were in use and in good condition, showing the surface of the street for 100 to 150 feet. He testified he did not see the pole until just the moment he ran into it. The top of his car, including the wind shield and steering wheel were entirely de stroyed, and he was severely injured. In our opinion the questions in the case were questions for the jury. The appellant ran into an object which, in all reasonable considerations for his safety, might as well have been suspended in the air, as it had, for its support, a truck situated entirely out of the reach of the lights of his car. The obstruction was situated on the most heavily traveled street of a large city and must necessarily continue as an obstruction for a considerable period of time before the unloading was completed. Nor is there anything very unusual in a single red light on the ground in the center of a street. The street was a broad one, and the space of about 30 feet between the two red lights was equal to that of an ordinary street. There was nothing in the situation to warrant the conclusion, as a matter of law, that the appellant, who was already familiar with the red light at or near the location of the one near the curb, should, in the exercise of ordinary and reasonable caution and prudence, have considered the 2 red lights as a warning that the whole of the west side of 1922.) lation as to vaccination held valid. 2. Schools and school districts 158(2)— Notice by school directors requiring vaccination held valid. Where school directors pursuant to an or der of the state director of public health under Rem. Code 1915, § 5410, gave notice to teachers and pupils of a district in which smallpox existed that vaccination was required before attendance would be allowed, the notice was valid, though section 5406 does not specifically name school directors as among the officers whose duty it was to enforce the regulations of the state board. 3. Appeal and error 843 (2)-Validity of health regulation held moot. re In proceedings for a writ of mandate to compel a school board to allow a pupil to attend school without being vaccinated as quired by an order of the director of health, under Rem. Code 1915, § 5410, where it was claimed that the order of the school directors was invalid as requiring isolation of pupils not complying with the regulations for 18 days, held that the question was moot; the 18 days for vaccination having expired before hearing. En Banc. Appeal from Superior Court, Thurston County; John M. Wilson, Judge. Proceedings for a writ of mandate by the State, on the relation of C. H. Lehman, against Kenneth L. Partlow and others, directors of School District No. 1, Thurston County. On demurrer, the alternative writ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |