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ance, he gave validity to this judgment, waived any exception to the jurisdiction of the court, so that everything adjudicated by the court became conclusive as to him, and yet it would not be a personal judgment against him for the recovery of money, upon which an execution might issue, nor would it constitute evidence of an indebtedness as to be in itself a cause of action, as the note was in the first instance. If we are right in this, it follows necessarily that the court erred in admitting it as evidence to sustain the defendant Kreager's second cause of action, set up in his answer, and erred in its action in refusing to withdraw the consideration thereof from the jury, and erred in its instruction to the jury that the record was conclusive evidence of such indebtedness against Smith.

In the course of the trial, the plaintiff offered to prove that there had been no failure of crops during the term of the lease by the defendant Kreager. This was objected to by the defendant, and the court sustained the objection, upon the grounds that there was nothing in the petition that gave the defendant notice that such proof would be offered. The petition charges a conveyance of the farm to the defendant by deed, absolute upon its face, but intended as a mortgage; that there was a written contract between the plaintiff

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1. A case-made may be withdrawn from the files, for authentication, more than one year after the rendition of the judgment appealed from. McLaughlin v. Darlington (Kan. App.) 50 Pac. 507.

2. A judgment entered by a justice of the peace, which states: "The plaintiff submitted his proofs, and demanded judgment.

I find that the defendants are indebted to the plaintiff in the sum of $300, as debt,"-is not impeached by the failure of the justice of the peace to enter upon his docket the names of witnesses sworn, and at whose request.

3. The bill of particulars set out a cause of action for damages for the wrongful taking and conversion of personal property. The summons stated, "To answer to the action of Peter Forslund upon an account." Held, the summons does not describe the cause of action in such general terms as to apprise the defendants of the nature of the claim sued on. (Syllabus by the Court.)

Error from district court, Dickinson county; O. L. Moore, Judge.

Action by Peter Forslund against C. Hoffman and C. B. Hoffman, co-partners as C. Hoffman & Son, for. damages. Plaintiff had

and defendant at the time the deed was made, judgment. From a judgment of the district

by which the defendant undertook to rent the farm, collect the rents, and apply the proceeds according to the terms of the contract; that he had received, on account of this lease made to the defendant's tenant, three years' rent, at $300 per annum. By the terms of the lease which was offered in evidence, the defendant was to pay Kreager $300 per annum in certain installments. There was a condition, however, in the lease, to the effect that, if there should be a failure of both wheat and corn crops during any year in the term, the rent should be but $150 per year; if there was a partial failure of either wheat or corn, that the rent should be apportioned, not to be, however, less than $150 per annum. It appeared by the evidence that the defendant had paid but $250 for the first year, and $150 for each of the succeeding years for two years. It was upon this lease that the petition charged the defendant with the receipt of the money. It was for this rent specified in the lease that the plaintiff brought the suit. The defendant made the lease. The petition attempted to charge the defendant with the $300 per annum, and nothing less. It was competent, to support this contention, for the plaintiff to show that, if the defendant did not receive, he ought to have received, $300 per annum, instead of $150. The petition was sufficient to notify the defendant that the plaintiff intended to charge him under the $300 provision of the lease, and not under the condition for a less rate of rent. The judgment is reversed, and the case remanded, with directions to grant to the plaintiff a new trial. All the judges concurring.

court dismissing their appeal from justice's court, defendants bring error. Reversed.

Stambaugh & Hurd and John H. Mahan, for plaintiffs in error. C. S. Crawford, for defendant in error.

WELLS, J. The defendant in error filed his bill of particulars before a justice of the peace in Dickinson county, and alleged that he had a mortgage lien upon certain wheat. and that plaintiffs in error wrongfully took possession of 750 bushels thereof, and converted the same to their own use, to the damage of Forslund in the sum of $300. The justice of the peace issued a summons noti fying the defendants to appear on the 21st day of March, 1895, to answer the action of Peter Forslund "upon an account for the sum of $300." The defendants failed to ap pear, and judgment was rendered against them for $300 and costs. The plaintiffs in error filed their appeal bond on the 3d day of April, 1895. The appeal bond having been filed more than 10 days after the rendition of the judgment, the appeal was dismissed by the district court. Thereafter, on the 31st day of November, 1895, the plaintiffs in error filed their petition in error and transcript of the record in the district court of Dickinson county, for the purpose of reversing the judgment of the justice of the peace, and alleged as error: First, because the summons was not sufficient to notify them of the nature of the action; second, that the justice of the peace had no jurisdiction to render judgment; and, third, that no witnesses were sworn and no evidence introduced before the

justice of the peace, and the justice, in the absence of the plaintiffs in error, without any evidence, rendered judgment in the action for an alleged tort. On the hearing in the district court, plaintiffs in error offered evidence for the purpose of showing that there was in fact no evidence introduced before such justice, and that judgment was rendered by the justice as upon default. This evidence was excluded by the district court. The plaintiffs in error then requested time to apply for a writ to require the justice to correct the entry on his docket to show the truth regarding the rendition of judgment without evidence, which application was denied, and thereupon the court rendered a judgment affirming the judgment of the justice. The plaintiffs in error objected and excepted. The plaintiffs in error filed a motion for a new trial, and present the case to this court for review.

The first question presented for the consideration of the court is a motion to dismiss the petition in error for the reasons-First, that the certificate of the trial judge to the case-made is not attested by the signature of the clerk and the seal of the district court; and, second, that the case-made has not been filed with the clerk of the district court. The case-made presented was properly signed by the judge who tried the case, but it was not attested by the clerk and seal of the court, nor had the case-made been filed in the trial court. After the motion was argued and submitted to the court, the record was, on application, withdrawn, and filed and attested by the clerk, more than one year after the judgment was rendered. The principal authentication of the record is the attestation of the clerk, evidenced by the seal of the court, with the fact that the record has been filed with the papers in the case. Within the authority of McLaughlin v. Darlington (Kan. App.) 50 Pac. 507, the motion to dismiss will be overruled.

1. Complaint is made that the district court erred in ruling out the evidence offered to show that no evidence was introduced before the justice of the peace, and that judgment was rendered by the justice of the peace upon default, without evidence. From the record it appears that the plaintiff submitted evidence, sufficient to satisfy the court, upon which the court could and did base its findings and judgment. The transcript of the justice reads: "March 21, 1895, at 11 o'clock a. m., this cause comes on for hearing; the plaintiff in person and by his attorney, C. S. Crawford. The defendants not appearing at the hour set for trial, nor one hour thereafter, the plaintiff submitted his proofs, and demanded judgment against the defendants as prayed for. * * I find that the defendants are indebted to the plaintiff in the sum of $300, as debt."

2. That the court erred in refusing the request of the plaintiffs in error for time to apply for a writ to require the justice to cor51 P.-52

rect the entries on his docket to show the truth regarding the judgment having been entered by the justice, as upon default, without evidence. The petition was filed in the district court on the 21st day of November, 1895. The case was not called for trial until March 4, 1896. It does not appear that the trial court abused its discretion, in refusing time for plaintiffs in error to make an application for a writ to require the justice to correct his docket entries. Plaintiffs in error had ample time to make this application, if they were not satisfied with the record, long prior to the time the case was called for trial. 3. That the trial court erred in rendering judgment against the plaintiffs in error, and in affirming the judgment of the justice of the peace. Does the transcript attached to the petition in error show a variance between the bill of particulars and the summons? Section 11, Code Civ. Proc., Before Justices, requires, among other things, that the summons "must describe the plaintiff's cause of action in such general terms as will apprise the defendant of the nature of the claim against him." The cause of action set forth in the bill of particulars was one for damages for the wrongful and unlawful taking and conversion of personal property. The summons served on the plaintiffs in error stated, "to answer to the action of Peter Forslund upon an account in the sum of $300." Did this summons describe the plaintiff's cause of action in such general terms as to apprise the defendants of the nature of the claim against them? This is the serious question in this case. The summons must describe the plaintiff's cause of action in such general terms as to apprise the defendants of the nature of the claim against them. Bradenburger v. Easley, 78 Mo. 659; City of Kansas v. Johnson, 78 Mo. 661; Murfree, Just. Prac. p. 290; Jeffery v. Underwood, 1 Pike, 108. "Claim." A demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing, as a matter of duty. Every account upon which any sum of money or other thing is, or is claimed to be, due, to the person presenting it, is a claim or demand; but every claim or demand is not an account. The case of Haas v. Lees, 18 Kan. 449, cited by defendant in error upon the question of waiver of the irregularity in the summons, is not applicable. That case was actually appealed to the district court, and the supreme court held that the appeal was effectual. In the case at bar there was no appeal. The district court held the appeal bond void, and the appeal was void. In the case at bar no bond was approved within the time allowed for appeal, and no appeal was taken. We do not think that the filing of a void appeal bond was a waiver of the jurisdictional question. It seems that there is a variance. The bill of particulars set out a cause of action for damages for the wrongful taking and conversion of personal property.

The summons stated, "to answer to the action of Peter Forslund upon an account." This summons did not describe the cause of action sued upon in such general terms as to apprise the defendants of the nature of the claim against them. The judgment of the district court will be reversed, and the case remanded, with directions that the court reverse the judgment of the justice of the peace, and set the case for trial.

MAHAN, P. J., having been of counsel, not sitting.

(16 Utah, 170)

STATE v. McCUNE.

(Supreme Court of Utah. Jan. 26, 1898.) ASSAULT WITH INTENT TO COMMIT RAPE-FORCEQUESTION FOR THE JURY-INTENTREASONABLE Doubt.

1. When the essential elements constituting the crime of an assault with intent to commit rape are made out and established, the question is for the jury; and it is not within the legal power of the supreme court, under section 9, art. 8, of the constitution, to substitute its judgment for that of the jury, even if so inclined.

The

2. Rape is not committed upon the person of a woman over the age of 13 years when no circumstances of force or violence accompany the carnal knowledge. Force or violence, or threats of immediate and great bodily harm, accompanied by an apparent power of execution, are essential elements in the crime of rape. general rule requires that there should be shown, not only force, violence, or fraud, but the utmost reluctance and the utmost resistance on the woman's part. The essence of the offense charged is not in the fact of the intercourse, but the injury and outrage to the feelings of the woman by means of the forcible carnal knowledge.

3. In cases of assault with intent to commit rape, the intent with which the assault is made is of the essence of the offense; and, in order to convict, the jury must be satisfied, beyond a reasonable doubt, not only that the defendant had the ability and intended to gratify his passions on the person of the woman assaulted, but that he intended to do so at all events, and notwithstanding any resistance on her part.

4. When the intent is the gist of the offense, that intent should be shown by such evidence as, uncontradicted, will fairly authorize it to be presumed beyond a reasonable doubt.

5. A reasonable doubt is not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing out of the testimony in the case. It is such a doubt as will leave the juror's mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant's guilt.

6. In the absence of threats, no act of the defendant constituted an assault, if such acts were consented to by the woman, provided it appears that she had the capacity to consent.

7. It is no excuse to the defendant that the person assaulted was a woman of bad reputation for chastity, if she was forced against her will. If the woman be of bad reputation for chastity, that fact is a proper matter for the consideration of the jury, as affecting her credibility as a witness, and as to whether she would be more unlikely to resist an assault of that character upon her person.

8. No more resistance, in any case, is required by law, than the condition of the woman will permit her to make.

(Syllabus by the Court.)

Appeal from district court, Sixth district; W. M. McCarty, Judge.

David McCune was convicted of assault with intent to commit rape, and appeals. Affirmed

E. B. Critchlow, for appellant. A. C. Bishop, Atty. Gen. Benner X. Smith, and John F. Chidester, for the State.

MINER, J. The defendant in this case was charged with having on the 22d day of September, 1896, in Garfield county, committed an assault on one Louie Talbot, with an intent to commit rape. The jury found the defendant guilty, and he was sentenced to imprisonment in the state penitentiary at Salt Lake City for a period of 18 months. The defendant appealed from the judgment. and alleges that the evidence was insufficient to sustain the verdict and judgment.

The prosecutrix testified, among other things, that she had known the defendant but a few days; that she understood he was a married man, traveling as an agent; that she had attended a party and been with him on several occasions; that on the night in question they had returned to her father's gate at about midnight, and that they both sat down on a pole and talked; that defendant had his arm around her shoulder about 15 minutes; that the place where they sat down was about 10 feet from the door of the house, where her father and sister were asleep; that defendant attempted to place his hands under her clothes, and she said she would halloo if he did not stop; that he replied, "You won't;" that she made no further remark; that he continued to try to get his hand under her clothes; that he placed one hand over her mouth; that she struggled to get free, but did not scream; that she did not think that there was any need of screaming; that she thought that he would behave himself; that she breathed through her nose, and could only make a "smuggled" noise, that could not be heard any distance. She says: "He slipped me over backwards, and put his left leg over my throat, and put my limbs over his right leg, and pressed me in the ground so that I could not breathe. Then he put both hands under my clothes. His hands went down to my naked person that time. I remained in that way until father came out,-probably five minutes. I got my breath through my nose. I could not halloo or scream. Father then came up, and said: 'You son of a b-! I'll kill you, if it is the last thing I do.' McCune then threw me sprawling, and jumped up and ran away, leaving his bat, and father ran after him. It was a bright moonlight night. I resisted all I could. from the first. I was angry with McCune

on account of his conduct. I could not get up and leave him, and that was the reason why I remained there with his hands under my clothes. As father came out, I said, 'You son of a b! let me go.'" Other corroborating testimony was given. The defendant admitted taking liberties with the prosecutrix, but claimed that it was done with her consent, and that her statements in other respects were not true. Witnesses were called to impeach and to sustain the general reputation of the prosecutrix for virtue and morality. From all the testimony disclosed by the record, we are of the opinion that the contention on the part of the defendant cannot be maintained. It is true that the assault was made at a time, place, and under circumstances which might tend in some degree to throw discredit upon the testimony of the prosecutrix, and leave a supposition that the defendant might not have intended at the time to consummate the alleged offense by force, and against the will of the prosecutrix, notwithstanding any resistance she might make. But all the surrounding circumstances were shown to the jury, and they found the issues against the defendant. If the jury believed the testimony offered on the part of the prosecutrix, it was clearly sufficient to justify the verdict found. In such cases, and under such circumstances, it is not within the legal power of this court, under the constitution of this state, to substitute its judgment for that of the jury, even if so inclined. This question has been passed upon by this court so frequently that it is unnecessary to give further reasons, or cite authority, in support of the position taken.

Rape, under the statute (section 4217, Rev. St. 1898), is not committed upon the person of a woman over the age of 13 years, when no circumstances of force or violence accompany the carnal knowledge. Force or violence, or threats of immediate and great bodily harm, accompanied by an apparent power of execution, are essential elements in the crime of rape. If the threats are such as to create a real apprehension of dangerous consequences, or of great and immediate bodily harm, accompanied by apparent power of execution, or are such as in any manner to overpower the mind of the woman so that she dare not resist, it is sufficient. The general rule requires that there should not only be force, violence, or fraud, but that the utmost reluctance and the utmost resistance on the part of the woman should appear. If, from the whole circumstances, it should appear that although, when the prosecutrix was first laid hold of by force and violence, it was against her will, yet she did not resist afterwards, because she, in some degree, voluntarily consented to what was afterwards done to her, the defendant should not be convicted of the crime of rape, although he could be con

victed of an assault. The essence of the offense charged is not in the fact of the intercourse, but the injury and outrage to the feelings of the woman by means of the carnal knowledge effectuated by force. 3 Russ. Crimes, 236; Rex v. Lloyd, 7 Car. & P. 318; People v. Morrison, 1 Parker, Cr. Cas. 625; People v. Crosswell, 13 Mich. 427. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. In cases of an assault with intent to commit rape, such as is charged in this case, the intent with which the assault is made is of the essence of the offense; and, in order to justify a conviction, the jury must be satisfied, not only that the prisoner had the ability and intended to gratify his passions on the person of the woman assaulted, but that he intended to do so at all events, and notwithstanding any resistance she might make. Rex v. Lloyd, 7 Car. & P. 318; Strang v. People, 24 Mich. 1; Don Moran v. People, 25 Mich. 356; People v. Crosswell, 13 Mich. 427; Tiff. Cr. Law, 873-875. When the intent is the gist of the offense, that intent should be shown by such evidence as, uncontradicted, will authorize it to be presumed beyond a reasonable doubt. In order to convict, it is incumbent upon the prosecution to prove its case, and establish the defendant guilty, beyond a reasonable doubt. A reasonable doubt is not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing out of the testimony in the case. It is such a doubt as will leave the juror's mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant's guilt.

With reference to this case, in the absence of threats of immediate and great bodily harm, accompanied by the apparent power of execution, no act of the defendant constituted an assault upon the prosecutrix, if such act or acts were consented to by her at any time; and no such acts of the defendant towards or upon the person of the prosecutrix could be regarded as an assault, if by her silence, or failure to object to them as they progressed, she gave the defendant reasonably to understand that seriously she did not object at all. Nor is it an excuse that the person was a woman of bad reputation for chastity, if she was forced against her will. No more resistance, in any case, is required by the law, than the condition of the woman will permit her to make. If the woman be of bad reputation for chastity, that fact is a proper matter for the consideration of the jury, as affecting her credibility as a witness, and as to whether she would be likely or unlikely to resist an assault of that character upon her person.

The defendant excepted to the refusal of the court to instruct the jury as requested

by him, and to the court's instructions to the jury. Among others, an exception is taken to the use of the word "satisfactorily" in the instructions of the court, wherein the court said, "The law presumes the defendant innocent until the contrary is proven, and, in case you have a reasonable doubt whether his guilt has been satisfactorily shown, then you should acquit him.". We can discover no error in this instruction. It was given in connection with a careful review of the law of the case, covering the question heretofore presented. After considering the evidence in the case, the jury should be convinced and satisfied of the guilt of the accused beyond a reasonable doubt before they should convict him.

Upon a careful examination of the instructions given, we are satisfied that the law of the case was fully, fairly, and correctly given to the jury, by elaborate instructions that covered the material and relevant portions of the requests presented by the defendant, and that the court committed no error in its charge to the jury, or in rejecting the evidence objected to. So far as appears from this record, the defendant was legally convicted of the crime charged. We find no error in the record. The judgment of the court below is affirmed.

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STATE V. JOHNSON. (Supreme Court of Montana. Jan. 17, 1898.) LICENSES-MANUFACTURER-MERCHANT TAILOR. 1. The word "manufacturer," in Pol. Code, § 4082, requiring a manufacturer to pay a license fee, should be construed in its popular sense, under Code Civ. Proc. § 3462, requiring nontechnical words to be construed according to the "approved usage of the language."

2. A merchant tailor, fashioning suits of clothes from purchased cloth, is not a "manufacturer," within Pol. Code, § 4082, requiring a manufacturer to pay a license fee.

3. A merchant tailor must pay a license fee under Pol. Code, § 4064, required of one who "sells any goods, wares, or merchandise."

Appeal from district court, Lewis and Clarke county; S. H. McIntire, Judge.

Action by the state against John B. Johnson. Judgment for defendant, and plaintiff appeals. Reversed.

C. B. Nolan and R. R. Purelle, for the State. Carleton & Haywood, for respondent.

HUNT, J. This was an action by plaintiff and appellant to recover certain sums of money alleged to be due by defendant and respondent as a license fee for carrying on the business of a merchant tailor. The case was submitted on an agreed statement of facts, reciting, briefly, that the defendant is a merchant tailor at Helena, dealing in the selling of suits of clothes which he makes to order

for his customers from cloth, not made or manufactured by him, but which he purchased from others. The contention of the state's counsel is that the defendant is indebted to it for license under the provisions of section 4064 of the Political Code; while the defendant argues that a merchant tailor is a manufacturer, and liable only for the license payable under section 4082 of the Political Code. The district court held that defendant is a manufacturer, and liable for license as such. From a judgment rendered to that effect the state appeals.

The two sections of the statute bearing upon the question for decision are as follows: Section 4064: "Every person who at a fixed place of business sells any goods, wares or merchandise, wines or distilled liquors, drugs or medicines, jewelry or wares of precious metals, whether on commission or otherwise, and all butchers, must obtain from the county treasurer in which the business is transacted, and for each branch of such business, license, and pay quarterly therefor an amount of money to be determined by the class in which such person is placed by the county treasurer; such business to be classified and regulated by the amount of the monthly average sales made, or hiring done, and at the rate following," etc. Section 4082: "Every architect, builder, contractor, or manufacturer, doing a business of more than fifteen thousand dollars per year must pay a license of ten dollars per quarter."

No doubt, speaking in the broadest sense, a "manufacturer" is one who makes or fabricates anything for use, and that within the literal definition of "manufacturer" would come a tailor who works cloths into suits for wear. So, too, a seamstress would be brought within such a definition, for she makes handkerchiefs from linen; and the carpenter, who takes raw lumber and prepares it for building a house; and a milliner, who makes and sells bonnets; and a blacksmith, who makes horseshoes or forges iron; and a cook, who makes bread or other articles to use as food; and many other persons, whose pursuits in life demand the working of some materials into certain forms. But, in our opinion, the proper construction of the statute (section 4082, supra) imposing a license on a "manufacturer" is to give the words their common use, and to take them in their plain, natural, and ordinary signification. People v. New York Floating Dry Dock Co., 63 How. Prac. 451; Suth. St. Const. § 229; Parker v. Railway Co., 88 E. C. L. 75. The statute (section 3462, Code Civ. Proc.) requires that words shall be construed according to the context and the approved usage of the language, unless they are technical or have acquired a peculiar and appropriate meaning in law. We know of no technical meaning to be given to the word "manufacturer," used in the statute, and it is our best judgment that it should be understood in its popular sense. We therefore

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