a person can be the victim of a homicide but once. That is, the victim cannot be killed the second time. I think a better and more apt illustration would be to suggest a case in which the defendant is charged with an assault with intent to commit murder and at the trial evidence is received tending to show that the defendant "at divers times and occasions" committed other assaults on the party mentioned in the information similar to the one therein charged. In such case I take it that it would not be seriously contended that the defendant would not be entitled to have the state elect on which assault it would rely for a conviction and to have the jury properly instructed thereon,

In the opinion denying the petition for a rehearing, it is further said: "The state offered no evidence and made no attempt to prove several offenses of adultery or different adulterous acts or transactions committed by the defendant with Madge Morey. The evidence was directed to but one transaction, the one alleged in the information." I am unable to reconcile what is here said with the position taken by this court in the original opinion respecting the application there made of the affidavit as evidence in the case. Notwithstanding anything that this court may have said in either of the opinions the fact remains that the purported affidavit was admitted in evidence, and that it contained statements purporting to have been made under oath by Madge Morey that she had sexual intercourse with the defendant "on divers times and occasions" other than the occasion alleged in the information. I shall, however, for the sake of argument, assume that there was but one adulterous act or transaction in the case, namely, the transaction alleged in the information. Now, the transaction alleged, and the one for which the defendant was placed on trial, was the act of adulterous intercourse by which the child of Madge Morey was conceived. This was the only act of sexual intercourse that the defendant was legally called upon to deny or to defend against. And I respectfully submit that the evidence is wholly insufficient to support a finding by the jury that the defendant is guilty of the act charged, and for which he was tried.

When shown the affidavit, the defendant said, as I have heretofore pointed out, "Well, I didn't think Madge would do that. I don't think that child is mine." Then Larsen said, "You don't deny having sexual intercourse with her?" The defendant replied, "No, sir; I don't." While this was an admission or confession on the part of Greene that he had sexual intercourse with Madge Morey, it was not an admission or confession that he was guilty of the act charged in the information, because he in terms denied that particular act. In other words, he denied the act charged, but admitted that he was guilty of other adulterous acts with Madge Morey. In fact, no claim is made that he admitted the act for which he was placed on trial. This court in the original opinion affirming the judgment, referring to Greene's statement, says that he "vaguely denied the paternity of the child." Therefore I take it that it is established that Greene did not admit or confess that he committed the offense charged in the information, but, on the contrary, denied (even though vaguely) that he was guilty of that particular offense. True, in that same conversation Greene expressed a willingness to plead guilty to fornication, but that cannot, even by the utmost stretch of the imagination, be construed as an admission that he committed the act for which he was tried. At the time the conversation mentioned took place no complaint had been filed against defendant charging him with having had adulterous relations with Madge Morey; hence it cannot be said that, when he stated that he was willing to plead guilty to fornication, he had in mind the particular act which he had just denied. The only fair inference that can be drawn from what was said is that Greene, when he offered to plead guilty, had in mind the act or acts of sexual intercourse which he admitted having had with Madge Morey.

I do not think it will be seriously contended that the other evidence introduced at the trial standing alone is sufficient to create a well-founded suspicion that Greene is guilty of the crime for which he was tried. We therefore have a case, as I read the record, where the defendant is tried for one offense and convicted of another.

For the reasons stated, I am forced to the conclusion that a rehearing should be granted.

PAGE v. COMMERCIAL NATIONAL BANK OF SALT LAKE CITY et al.

No. 2182. Decided January 5, 1911. Rehearing denied January 23, 1911 (112 Pac. 816).

1. APPEARANCE-GENERAL APPEARANCE-FILING OF GENERAL DEMURRER TO COMPLAINT. Under the express provisions of Comp. Laws 1907, section 3334, the filing of a general demurrer to a complaint constitutes a general appearance, sufficient to confer jurisdiction over the person.1 (Page 446.)

2. CERTIORARI-GROUNDS. Under Comp. Laws 1907, section 3630, providing that when an inferior tribunal, or an officer, exercising judicial functions, has exceeded its jurisdiction, and there is no appeal, nor in the judgment of the court or judge a plain, speedy, and adequate remedy, certiorari may be granted to review the proceedings, the writ will be granted by the Supreme Court only to correct the usurpation or abuse of authority, and when there is neither an appeal nor other speedy and adequate remedy, by which such usurpation can be corrected.2 (Page 447.)

3. CERTIORARI-GROUNDS. When service of summons is assailed as insufficient to confer on the district court jurisdiction over the person, the question as to the sufficiency of service must be submitted to the court in which the action is commenced for decision, it having jurisdiction for such purpose, and as mere errors or irregularities of such court, where jurisdiction exists, cannot be reviewed except on appeal, if the court erred in holding that the service conferred jurisdiction, or in holding that certain conduct or statements of the person served or his counsel in open court constituted a general appearance whereby the court acquired jurisdiction over such person, such errors cannot be reviewed by certiorari. (Page 448.)

1 Farnsworth v. U. P. Coal Co., 32 Utah, 112, 89 Pac. 74; Stone v. U. P. Ry. Co., 32 Utah, 185, 89 Pac. 715.

20. S. L. R. Co. v. District Court, 30 Utah, 374, 85 Pac. 362; Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167.

AP

4. CERTIORARI-GROUNDS-REVIEW OF JURISDICTION-GENERAL PEARANCE. While a special appearance may be sufficient to preserve the right to a review on appeal, though a general appearance has also been made, the special appearance cannot operate to prevent the court from acquiring jurisdiction over the person thus to preclude a review of the question of jurisdiction by certiorari. (Page 449.)

5. CERTIORARI-GROUNDS-REVIEW OF INTERLOCUTORY RULING. Certiorari cannot be employed to review merely interlocutory orders or rulings, nor to prevent threatened wrongs, but under statutes similar to Comp. Laws 1907, section 3630, allowing the writ when an inferior tribunal or officer exercising judicial functions has exceeded its or his jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the judgment of the court or judge, the office of the writ is merely to annul acts which are clearly without or in excess of jurisdiction. (Page 451.)

Certiorari by H. D. Page against the Commercial National Bank of Salt Lake City, and others.

WRIT QUASHED.

M. E. Wilson and E. A. Walton for plaintiff.

Henderson, Pierce, Critchlow & Barrette for defendants.

FRICK, C. J.

The plaintiff made an original application to this court for a writ of certiorari directed to the above-named defendants. The writ was issued as prayed for, and the defendants have duly complied with the commands thereof by certifying to this court a transcript of all the proceeding had in a certain action pending in the District Court of Salt Lake County.

The controlling facts, in substance, are: That on the 21st day of July, 1909, the defendants Commercial National Bank and H. P. Clark, as trustee, commenced an action in the District Court of Salt Lake County against a certain copartnership and a corporation. In the language of the complaint in that action the defendants therein are sued as "Page & Brinton, a copartnership, and Utah Savings

& Trust Company, a corporation." On the same day the action was commenced the district court, upon application duly made, also issued an order directed to said firm of Page & Brinton requiring it to show cause by a day fixed why a receiver should not be appointed "pending the trial of the cause for all the assets and property of the said Page & Brinton, a partnership with power to take, receive and collect all the moneys due or to become due to said defendant partnership from any and every source whatever." On the same day the complaint was filed and the order to show cause as aforesaid was issued, the sheriff of Salt Lake County made return that he served the summons issued in the action and said order to show cause "upon Page & Brinton, a copartnership, defendant, by delivering to and leaving with David B. Brinton, one of the copartners," a copy of the summons and also a certified copy of the order to show cause. On the 2d day of August, 1909, the record shows that both the plaintiffs and the defendant Page & Brinton appeared in court by their respective attorneys, and the hearing on the order to show cause was continued to the following day. The record shows, further, that on that day the parties aforesaid again appeared in court by their counsel and that after hearing evidence on behalf of plaintiffs the court appointed a receiver as prayed for. Following this, on the 9th day of August, and before the time to answer in the action had expired, the defendant Page & Brinton appeared specially by filing a motion in which it assailed the jurisdiction of the court over the person of said Page & Brinton upon the grounds that there has been no service upon said partnership or any member thereof;" that neither when the action was commenced nor when the pretended service of summons was made was there any "partnership known as Page & Brinton composed of H. D. Page and D. B. Brinton as alleged in plaintiff's complaint;" that the only service of summons that was made in the action was upon D. B. Brinton, who, at the commencement of the action or at the time the pretended service was made was not and is not now a member of the firm of Page & Brinton, and