-"DELINQUENT CHILD." provisions for payment by stumpage is fur- 3. INFANTS (8 20*)-EVIDENCE-SUFFICIENCY ther emphasized by the fourth paragraph of the contract, providing for the forfeiture of 2004, providing that where any child shall be In a prosecution under Rem. & Bal. Code, the contract at the election of the defend- a delinquent child, as defined by statute, any ants on failure of such payment. The two person encouraging, causing, or contributing to intervening paragraphs relating to the time her delinquency shall be punished as therein for cutting and removing logs and the time provided, it was incumbent on the state to establish such delinquency, but under Sess. Laws of use of the water have no relation either to 1909, c. 190, § 1, defining the term "delinquent the time of payment or manner of payment. child" as meaning any child knowingly associThey only applied after payment in any ating or living with thieves, vicious, immoral, event. The provision for payment by stump-showing that she was a lewd and dissolute peror disreputable persons, etc., this was done by age did not abrogate the definite stipulation son who associated with immoral and disrepufor full payment on or before six months, table persons. nor operate as a waiver of the right of lien after that period. Full payment not having been made nor alleged, the defendants committed no breach of the contract by filing the lien nor by giving the plaintiff notice at that time and a warning against eloignment. The complaint stated no breach of the contract, hence no cause of action. The demurrer was properly sustained on both the second and third grounds. The judgment is affirmed. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 20, 282; Dec. Dig. § 20.* For other definitions, see Words and Phrases, vol. 2, p. 1956.] Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Arthur Williams was convicted of a crime, and he appeals. Affirmed. Albert D. Martin and Buck, Benson & Lane, all of Seattle, for appellant. John F. Murphy and Thos. J. L. Kennedy, both CROW, C. J., and FULLERTON, MAIN, of Seattle, for the State. and MORRIS, JJ., concur. An information alleging that M. was a delinquent child under the age of 18 years, that she was a lewd and dissolute person and associated with vicious, immoral, and disreputable persons, that accused willfully and unlawfully enticed and encouraged her to drink intoxicating liquors and to consort and associate with immoral and disreputable persons, and that he resorted to a room with her for the purpose of committing, and did commit, sexual intercourse with her, by which acts he willfully and unlawfully encouraged, caused, and contributed to her delinquency, charged an offense under Rem. & Bal. Code, 2004, providing that any person by any act encouraging, causing, or contributing to the delinquency of any child shall be punished as therein provided, since it charged a statutory offense in the language of the statute, and in words of similar import. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.*] 2. INFANTS ( 18*)- PROTECTION - PROSECUTION-JURISDICTION. Under Sess. Laws 1909, c. 153, § 1, prescribing the punishment for persons encouraging, causing, or contributing to the delinquency of any child, an adult was properly prosecuted for such an offense in the criminal department, instead of the juvenile department, of the superior court, since the provisions of that chapter are separate and distinct from those of Sess. Laws 1909, c. 190, providing for the custody, control, etc., of neglected and delinquent children, and creating a special session of the superior court, known as the "juvenile court,' to hear cases thereunder, although the two acts are grouped together in Rem. & Bal. Code, § 1987 et seq. [Ed. Note.-For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. § 18.*] CROW, C. J. This is a criminal action. The defendant was convicted and has appealed from the judgment and sentence entered upon the verdict. [1] The information charges that: "One Annie Meese, in the county of King, state of Washington, on the 18th day of August. 1912, was then and there a delinquent child in that she was then and there under the age of 18 years, and was then and there a lewd and dissolute person, and did then and there knowingly associate with vicious, immoral, and disreputable persons, and said Arthur Williams did then and there willfully and unlawfully entice and encourage said Annie Meese to drink intoxicating liquors and to consort and associate with immoral and disreputable persons, and did then and there resort to a room with said Annie Meese for the purpose of committing, and did then and there commit, an act of sexual intercourse with said Annie Meese, by which said acts said Arthur Williams did then and there willfully and unlawfully encourage, cause, and contribute to the delinquency of said Annie Meese." Appellant contends that the trial court was without jurisdiction, and that the information did not state a crime. This prosecution was commenced under section 1 of chapter 153, Session Laws of 1909, p. 595 (section 2004, Rem. & Bal.), which provides that: "In all cases where any child shall be a delinquent or neglected child, as defined by the statutes of this state, the parent or parents or person having custody of such child, or any other person, responsible for, or by any act encouraging, causing or contributing to, the delinquency or neglect of such child, shall be fined in any sum not exceeding one thousand dollars ($1,000), or imprisoned in the county jail for a period not exceeding one (1) year, or punished by both such fine and imprisonment." The facts constituting acts of delinquency on the part of the prosecuting witness, Annie Meese, are alleged in the language of the statute. The offense charged is statutory and unknown to the common law. The information which charges a statutory offense in the language of the statute, and in words of similar import, is sufficient. [2] Appellant contends that the trial judge erred in assuming jurisdiction and in failing to assign the cause to the juvenile department of the superior court of King county. This prosecution, as above stated, is under chapter 153, Session Laws of 1909, p. 595, but appellant's contention seems to be that it is a prosecution under chapter 190, Session Laws of 1909, p. 668. These chapters are separate and distinct, although grouped under the title "Delinquent children and juvenile courts" in Rem. & Bal. Code, §§ 19872004. At the trial appellant challenged the jurisdiction of the judge of the criminal department. Responding thereto, the trial judge expressed a willingness to transfer the case to the juvenile department, but the appellant objected, presumably insisting upon a dismissal. There is nothing before us to show that appellant is a juvenile. The record indicates that he is of mature years. The cause was properly tried in the criminal department. [3] Appellant's remaining contention is that the trial court erred in denying his motion for an instructed verdict. Presenting this contention, he does not assail the sufficiency of the evidence to show his own improper conduct and immoral acts, nor does he contend that the complainant, Annie Meese, was not a child under 18 years of age. His argument appears to be that the state failed to prove Annie Meese was a delinquent child at any time prior to the commission of the acts charged in the information, and that by reason of such failure he cannot be adjudged guilty of contributing to her delinquency. The definition of a delinquent child is found in section 1, c. 190, Session Laws of 1909, p. 668. There was un disputed evidence that the prosecuting witness, Annie Meese, had been guilty of immoral acts on several occasions prior to the act alleged in the information. It was also shown that the parties with whom she was associating were immoral. It was incumbent upon the state to establish delinquency on the part of the prosecuting witness, Annie Meese. This was done by showing that she was a lewd and dissolute person, and that she had associated with, and was associating with, immoral and disreputable persons. A discussion of the evidence would serve no good purpose. It was sufficient to sus tain a finding that Annie Meese was a delinquent child, and a further finding that the appellant contributed to her delinquency. No question is raised upon the evidence or instructions. Appellant was awarded a fair trial, and we fail to see how any other verdict than one of guilty could have been returned. The judgment is affirmed. MOUNT, CHADWICK, GOSE, and PARKER, JJ., concur. (73 Wash. 652) STATE v. HOLCOMB. (Supreme Court of Washington. June 2, 1913.) 1. RAPE ($ 54*)-EVIDENCE-CORROBORATION -SUFFICIENCY. Proof that prosecutrix made complaint to a girl friend immediately after they separated from accused and a third person after the althe morning following the latter's return home leged offense and made complaint to her mother late in the evening following the alleged offense, and that immediately after the alleged offense been crying and that she had something to cry the prosecutrix told a girl friend that she had for, is sufficient evidence of corroboration within Rem. & Bal. Code, § 2443, requiring corroboration of the evidence of prosecutrix to support a conviction. [Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 83, 84; Dec. Dig. § 54.*] 2. CRIMINAL LAW (§ 829*)-TRIAL-INSTRUCTIONS REFUSAL TO GIVE INSTRUCTIONS COVERED BY CHARGE GIVEN. It is not error to refuse a requested instruction correctly stating the law but covered by the instructions given. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 3. WITNESSES (§ 344*)—EVIDENCE-IMPEACHMENT OF PROSECUTRIX. prosecutrix with third persons cannot be shown on her cross-examination or by the evidence of third persons to affect her credibility. Prior acts of intercourse on the part of [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.*] Department 2. Appeal from Superior Court, Lincoln County; F. K. P. Baske, Judge. L. R. Holcomb was convicted of crime, and he appeals. Affirmed. R. M. Dye and Martin & Wilson, all of Davenport, for appellant. James S. Freece and C. A. Pettijohn, both of Davenport, for the State. MAIN, J. The defendant was charged by information with having committed the crime of rape by means of force. To the information a plea of not guilty was entered. The case was tried before the court and a jury and resulted in a verdict of guilty. Motion for a new trial being made and overruled, sentence was imposed. The defendant appeals. From the evidence it appears that on April 4, 1912, and for some time prior thereto, the de the Turpin girl remained for a few minutes and then returned to her home. The mother and the stepfather of the prosecutrix were on this day away from home and did not return until the following evening about 9 o'clock. A Mrs. Mell was staying at their home during their absence. No complaint was made to Mrs. Mell by the prosecutrix of the treatment she claims to have received, but she complained to her mother on the morning following the latter's return. The state claims that the prosecutrix is corroborated by Dr. Adams, who testified that he made an examination of her on April 6, 1912, two days after the alleged crime, and found that the hymen had been ruptured, and on the torn parts blood was present which had not undergone the process of turning black in color. The vagina was in an inflamed condition and indicated that there had been some penetration within a few days preceding. fendant and one Ellis Weddell were partners | went to the home of the prosecutrix, where in the barber business in the town of Harrington, Wash. The former was 29 years of age and married, the latter 22. On the afternoon of the day mentioned, the prosecutrix, who was then just past 15 years of age, was at the home in Harrington of one Edith Turpin, a girl 17 years old. At that time, by telephone, it was arranged that the two men should meet the girls and the four of them should go up the railroad track for the purpose of taking pictures with a kodak. In accordance with this arrangement, the defend. ant taking along his kodak, the four met on the railroad track of the Great Northern Railway Company a short distance north of Harrington and proceeded north along the track; the defendant walking with the prosecutrix and Weddell with the Turpin girl. After going a distance of about one mile, they passed through a cut just beyond which on the right of way near the track were some piles of ties. Here the party sat down, the defendant and the prosecutrix at one end of the pile of ties and Weddell and Edith Turpin at the other. The prosecutrix claims that at this time the defendant began to take indecent liberties with her and make improper proposals which she resented and refused. While this was taking place, a passenger train was seen approaching. Thereupon the defendant desisted. Prior to the coming of the passenger train, Weddell and the Turpin girl had arisen and gone some distance from the pile of ties where they had been sitting. After the train had passed by the defendant and the prosecutrix walked over to where the other two were. Here the defendant asked the prosecutrix to go with him down where the wind would not blow; it being a windy day. Thereupon he put his arms around her waist, pulled her away from a telephone pole which she attempted to take hold of, and caused her to go down a steep bank or grade. He then led her around behind a bush at the bottom of the embankment. There he sat down, removed his camera, and taking hold of her dress pulled her over upon the ground and against her remonstrances and efforts to prevent him, and while she was crying and screaming, held her hands and ravished her. After rising, they went back to where the other two were, and then proceeded homeward along the railroad track. On the way back the defendant took several pictures which were introduced in evidence which are not suggestive of rectitude of conduct, one of which was of the Turpin girl lying on her back on the railroad track with Weddell kneeling beside her apparently holding her from rising and with her skirts so arranged as to show a portion of her person from the shoe tops to the knees. Before reaching town it was agreed among them that the men and the girls should not be seen returning together. Thereupon from the outskirts of the town they took different routes. The girls Two witnesses testified that on April 6th they went over the ground where the crime was alleged to have been committed and found many shoe tracks which corresponded in size to the shoe that the prosecutrix wore upon the day in question; that the rye grass at the bush was mashed and tramped down. One of these witnesses testified that the Turpin girl at her home on April 6th, in the presence of the stepfather of the prosecutrix, admitted to him that when the prosecutrix and the defendant returned from behind the bush that she looked at her and noticed that she had been crying, that her hair ribbons had been distorted, and that she called her attention to them. On the witness stand the Turpin girl denied having made this admission, but on cross-examination the following appears in her testimony: "Q. What did she (the prosecutrix) say? A. She says 'Did you hear me crying, kid?' and I says, 'No, I did not hear you crying; you haven't been crying;' and she says, 'Yes;' and I says, 'What have you been crying for?' and she says, 'Oh, something.'' This conversation occurred shortly after the defendant and Weddell had separated from the girls to go into town and while the girls were walking homeward alone. The defendant as a witness in his own behalf positively denied any wrongdoing. Edith Turpin and Weddell as witnesses were adverse to the state. While the prosecutrix was on the witness stand, the defense sought to inquire of her whether she had had previous intercourse with other men, and it was stated to the court that the defense proposed to prove such acts by third persons. Objection to the cross-examination and to the other testimony offered was interposed and sustained by the court. The questions which are chiefly material are: First, was the corroborating evidence presented sufficient to carry the case to the jury; second, did the court err in giving the instructions or in refusing requests; and, | course is amply corroborated. On the other third, did the defendant have the right to element of the offense, that of force and inquire either upon cross-examination of without consent, the evidence is not so conthe prosecutrix or of other persons whether vincing, but is sufficient to carry the case she had previously been guilty of intercourse to the jury.' with other men? [1] I. The appellant's first contention is that there is an absence of corroboration of the prosecutrix, and therefore insufficient evidence to carry the case to the jury under section 2443, Rem. & Bal. Code, which provides that the evidence of the female upon or against whom the crime was committed must be corroborated by other evidence. As appears from the facts stated, the prosecutrix made complaint to her girl friend on the afternoon of the occurrence immediately after they were separated from the men, and also to her mother the morning following the latter's return. Complaint of the injured party, if made within a reasonable time after the occurrence, may, if believed by the jury, be sufficient corroborative evidence. In the text of Cyc. vol. 33, p. 1463, the law on this subject is stated in these words: "It is admissible to show by the testimony of the prosecutrix or other witnesses, in corroboration of her testimony, that complaint was made shortly after the commission of the alleged offense, and when, where, and to whom it was made, but by the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony unless the statement is part of the res gestæ. The particulars of the complaint are competent, however, by way of corroboration of the prosecutrix when her testimony has been impeached, or they may be brought out by defendant on cross-examination; and if defendant, on cross-examination, brings out a portion of the particulars, the rest may be brought out by the state. So also if the statements are made immediately after the commission of the crime, they are admissible as part of the res gestæ." In the case of State v. Myrberg, 56 Wash. 384, 105 Pac. 622, it is said: "Instruction No. 12 is conceded to be correct, if evidence of two women to whom the girl made complaint was properly received. It is proper to prove that the injured female made complaint, when such complaint is seasonably made. The testimony of one of these women as to complaints was stricken by the court. The other testified to a complaint about the first or middle of March.' The time of the act was fixed by the state as the last of February or first of March. The evidence was properly received, and was within the rule as to time, and the instruction based upon such evidence was proper." There can be no question but what the evidence of the prosecutrix as to the inter The appellant relies on the case of State v. Raymond, 69 Wash. 98, 124 Pac. 495, as supporting his contention that as a matter of law there was no corroborative evidence. The distinction between that case and this is that, there, the court held that there was an entire absence of corroborative evidence, while in the present case there was sufficient corroborative evidence to make the question one of fact for the jury. To hold that the Raymond Case is controlling here would be to extend the doctrine there announced. This we think should not be done, as that case went quite far enough in holding as a matter of law that the evidence presented was not corroborative. [2] II. The appellant also assigns error as to the instructions given and the refusal to give requested instructions. Without reviewing in detail these assignments, it is sufficient to say that the instructions given properly cover the law of the case, and, under such circumstances, it was not error to refuse to give requested instructions even though such requests contained correct statements of the law. All that the law requires is that the jury be correctly instructed upon the issues of the case, and in doing this the trial court may choose its own language and phraseology. [3] III. It is urged that the court erred in sustaining the objection to the cross-examination of the prosecutrix as to prior acts of intercourse with other men, and also in refusing to allow such acts, if any, to be shown by third persons. Prior acts of intercourse on the part of the prosecuting witness with persons other than the defendant cannot be shown either upon cross-examination of her as a witness, or by evidence of third persons for the purpose of affecting her credibility; the reason being that, when she offers herself as a witness in an action for rape alleged to have been committed upon her, she should not be required to anticipate charges of specific acts of illicit intercourse which may be made by men suborned to testify against her, and thereby damage her credibility. State v. Ogden, 39 Or. 195, 65 Pac. 449; State v. Harsted, 66 Wash. 158, 119 Pac. 24. There are other assignments of error, but they are not of sufficient moment to justify or require a discussion of them seriatim. They have all been considered and, in our opinion, are without merit. The judgment will be affirmed. CROW, C. J., and FULLERTON, ELLIS, and MORRIS, JJ., concur. (47 Mont. 314) KALLIO v. NORTHWESTERN IMP. CO. et al. (Supreme Court of Montana. May 3, 1913.) 1. MASTER AND Servant (§§ 101, 102, 219*)— LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK. At common law a master is bound to exercise ordinary care and diligence to provide his employé with a reasonably safe place in which to work, and the employé may assume that he has performed this duty, and, although bound to observe and protect himself against open and obvious dangers, is not required to examine and experiment for himself to see if the place is safe. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 135, 171, 174, 178-184, 192, 610-624; Dec. Dig. §§ 101, 102, 219.*] 2. MASTER AND SERVANT (§ 107*)-LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK. The common-law rule requiring the master to furnish his employés a safe place to work does not apply where the employés are creating the place to work, where it is constantly being changed in character by their work, or where it only becomes dangerous by their carelessness or negligence; but does apply where the place is a completed one as the part of a mine tunnel behind a miner engaged in driving it. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*] 3. MASTER AND SERVANT (§ 118*)-LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK. SANNER, J. On July 12, 1911, the appellant was employed by respondent company as a coal miner in what is known as "west 5 entry, No. 2 vein, east side mine," at Red Lodge. While loading coal into a car in the course of his employment, a large piece of coal, which had without his knowledge become loose in the roof or walls of the entry, fell upon and seriously injured him; hence this action. He grounds his right to recover upon the allegations that an inspection and sounding of the roof and walls would have disclosed the presence of the loose coal; that it was the duty of respondents to inspect the roof and walls of the entry, and if any loose rock or coal existed to remove the same and to timber such places along said entry where such timber Under Coal Mining Code (Laws 1911, c. 120) 83, providing that each miner shall examine his working place upon entering it and shall not commence to mine or load until it is made safe, that he shall be very careful to keep it in safe condition at all times, and that should it become dangerous from any cause or condition to such an extent that he is unable to take care of it personally he shall at once cease working was necessary to prevent rock or coal and notify the mine foreman, a miner is bound to keep the place where he is at work safe, and if he finds it unsafe, whether as the result of his own operations or otherwise, to make it safe or report its unsafety, and hence a miner injured by coal falling on him at a place where he was loading coal previously blasted out could not recover whether such coal fell because of the previous blasting or for some other cause, notwithstanding section 70, requiring the mineowner to see that all loose coal, slate, and rock overhead in rib in traveling ways, where miners have to travel to or from their work, are taken out or carefully secured, and section 73, requiring the foreman or his assistant to visit and examine every working place at least each alternate day and see to the security thereof; these not relieving the employé of the duty of inspection, but merely imposing a similar duty on the employer and placing both parties in pari delicto where they fail to observe the statutory duty. from falling, and that such duty the respondents negligently failed to observe. In the answer it is alleged that the coal which the appellant was loading at the time he was injured was coal that shortly before had been blasted and broken from the face of the entry in the usual and customary manner; that he was loading the coal from the place where it had fallen and had been deposited by the force of the blast; and that, under the terms and conditions of his employment as a coal miner, it was his duty, and he was required, to look after and safeguard his own working place and see that it was in a reasonably safe condition; that he was required to provide for his own safety against the danger and risk from the falling of the roof and walls of the entry at his working place; that he failed to take precautions for his own safety and carelessly failed to examine the walls and roof to ascertain whether the same were Coal Mining Code (Laws 1911, c. 120) § 83, safe and free from loose rock and coal liable providing that each miner shall examine his to fall; and that the injuries received were working place and keep it in safe condition at all times and, if it becomes dangerous from any due to his own fault. In the reply it was cause or condition to such an extent that he is admitted that the coal the appellant was unable to take care of it personally, shall at loading at the time he was injured had shortonce cease work and notify the foreman, couldly before been blasted in the usual and cusnot be nullified by a private agreement, rule, or custom that the miners were to examine and tomary manner, and that he was loading keep safe the entry for a distance of 50 feet this coal from the place where it had been [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. 118.*1 4. MASTER AND SERVANT (§ 118*)-LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK. |