BARTCH, J. This is an action to recover damages from the defendant for injury to a flume constructed and used to convey water to a power plant for the purpose of generating power to run the plaintiff's quartz mill, and to obtain relief by injunction. It was charged in the complaint that the defendant, while constructing a tunnel, wrongfully, unlawfully, and negligently rolled rocks and débris across the flume, thereby breaking it so that it would not carry water, and that such acts would be continued unless enjoined. The answer averred, among other things, that the plaintiff, while the defendant was the owner and in the possession of a certain mining claim, called "Ross Mine No. 2," without the consent of the defendant, and without any right, title, or authority of law, and as a trespasser, entered upon said mining claim, and constructed the flume in question across the claim; that in order to develop that claim, with others, for the purpose of extracting ore, it was necessary to construct tunnels and drifts and make excavations; that, in doing such development work, large quantities of earth and rock were removed and deposited upon the surface of the claims; and that such rock and material, on account of the steepness of the mountain side upon which the mining claims and flume were located, rolled down upon the flume, and caused the damage to it of which complaint is made. At the trial the main issue was as to whether or not the defendant's mining claims embraced the land upon which the flume was constructed. As to this issue the evidence is conflicting, some being to the effect that the flume was constructed upon and across the Ross mine No. 2, below the tunnel, and some to the effect that such flume is located upon the public lands of the United States, without the limits of the mining claims. The court entered a decree in favor of the plaintiff, and the defendant appealed.

The appellant relies on two points for a reversal, and these relate to the eighth and ninth findings of fact, which read: "(8) That on the 16th day of July, 1898, the defendant's grantors located the Ross group of mining claims, composed of Ross No. 1, Ross No. 2, Ross No. 3, and Ross No. 4; that said Ross No. 2, as staked off by the locators, is 775 feet wide at the south end, and more than 600 feet wide at the north end; that from the discovery point of Ross mine No. 2, which discovery point is in the south end line of said Ross mine No. 2, the distance is 475 feet to the southwest corner stake on said Ross mine No. 2, which corner stake was, until after the commencement of this action, marked the southwest corner stake of Ross mine No. 1; that the distance from the north end center stake of said Ross mine No. 2 is more than 300 feet, and that by taking the external boundaries of said Ross mine No. 2, as shown by the stakes of the defendant, the said flume falls within the exterior boundary lines of said Ross mine No. 2, but by allow

ing the defendant only 300 feet on each side of the vein (that is, 300 feet on each side of the straight line connecting the north and center stake and the point of discovery), as required by law, and the calls of the location certificate thereof, no portion of said flume crosses or touches said Ross mine No. 2. (9) That said flume, or any part, is not within 300 feet from the center of the vein, or Ross mine No. 2, but is more than 350 feet from the center of the vein, and would be entirely outside of the boundaries and limits of said mine, were the boundaries limited to 300 feet on each side from the center of the vein, as required by law." It is insisted that these findings are neither warranted nor supported by the evidence. This contention does not appear to be sustained by the record. There is evidence showing that the claims mentioned in the findings were located in the form of a parallelogram, 3,000 feet long. north and south, and 1,200 feet wide; that Ross No. 2 and No. 4 claims formed the west half of the group; that the north end line of the Ross No. 4 is identical with the south end line of No. 2; that the discovery monuments of claims Nos. 2 and 4 were placed within 10 or 15 feet of each other, on the lode or center line of the claims, the one on No. 2 being placed at the south end center of the claim, and the one on No. 4 at the north end center; that the discovery on No. 2. was washed away, but the one on No. 4 still remains; that on No. 2 is located the tunnel, during the excavation of which the flume in question was injured; and that no part of the flume is within 300 feet of the lode or center line of that claim. There is also other testimony in the record tending to show that the flume is without the limits of the mining claims, and then there is considerable evidence to the effect that the flume was constructed within the limits of Ross No. 2 claim; but we think the preponderance of the proof is to the contrary, and in support of the findings. Under such circumstances, this court will not disturb the findings of fact, and the judgment must be affirmed, with costs. It is so ordered.

BASKIN, J., and HART, District Judge,

concur.

(11 Wyo. 1) STATE ex rel. SAMMON V. CHATTERTON, Secretary of State. (Supreme Court of Wyoming. Oct. 13, 1902.) ELECTIONS-CERTIFICATE OF NOMINATION

FILING-MANDAMUS-PETITION-
SCOPE OF PROCEEDING.

1. Where certificates of nomination for an officer to be elected at a general election by the electors of a district greater than a county are required to be filed not less than 40 days before the day of election, a petition for mandamus to compel the secretary of state to receive and file a certificate of nomination for the election held November 4, 1902, reciting that the certificate was presented "on the

day of September, 1902," was insufficient, since, if it was presented after September 25th, it was not filed in time.

2. The date of expiration of the term of office of district judge cannot be determined on an application for mandamus, by a candidate for that office, to compel the secretary of state to file a certificate of nomination therefor.

3. A controversy existed as to the expiration of the term of office of a district judge, and the secretary of state, under the advice of the attorney general that it did not expire until January, 1905, made no proclamation for the election of a judge to fill his office at the election held in November, 1902, and no candidates were nominated by the various political parties for that office. Held that, under such circumstances, mandamus would not be granted to compel the secretary of state to accept the certificate of an independent nominee for that office at such election.

Application by the state, on relation of John W. Sammon, for an alternative writ of mandamus against Fenimore Chatterton, secretary of state. Application denied.

J. H. Ryckman, for relator. J. A. Van Orsdel, Atty. Gen., for defendant.

PER CURIAM. In this proceeding the relator seeks a writ of mandamus requiring the secretary of state to file certain certificates purporting to nominate the relator for the office of district judge for the Third judicial district, and a hearing was had upon the application for the allowance of an alternative writ. It appears by the petition that three certificates, purporting to nominate the relator as an independent candidate for the office aforesaid, were presented to the secretary of state for filing, and that said official refused to file them. The petition fails to disclose the date when they were so presented, other than by an allegation that they were presented "on the day of September, 1902." As certificates of original nomination for offices to be filled at the forthcoming general election by the electors of a district greater than a county are required to be filed not less than 40 days before the day of election, it is apparent that, if they were presented after September 25th, they would not have been filed in time. The petition is therefore insufficient, failing to show that the certificates were offered at the proper office within the time prescribed by law.

It is insisted by the attorney general that two of the certificates were insufficient, for the reason that they were sworn to before the relator, who was alone the interested party, and that the oath and jurat attached to the nomination papers fail to disclose the official character of the officer certifying thereto. Without the two certificates that are sworn to before Mr. Sammon himself, he would have no standing, since the third certificate does not contain the names of a sufficient number of persons to make an independent nomination of a candidate for district judge. The statute requires that one of the signers to each separate certificate

the

of nomination shall swear that the statements contained therein are true, to the best of his knowledge and belief, and that a certificate shall be annexed to each oath. Rev. St. § 230. This is an important regulation. Only electors can make a nomination of an independent candidate for office, and the oath required certifies to the fact, among others, that the parties making the nomination are electors. We think it unnecessary to decide whether or not the fact that the oath was administered by the person nominated renders the certificates invalid, if timely objection be made. It is said to be a general rule, referring to notaries public, that if the officer is substantially interested in transaction, or is a party to it, he is incapable of acting in that particular case. 21 Am. & Eng. Enc. Law (2d Ed.) p. 568. And in Illinois the court said: "The propriety of the rule that oaths and affidavits should be taken before officers who are disinterested and unbiased is too manifest to require discussion." But in the case then before the court the officer was held to have been disinterested. Peck v. People, 153 Ill. 454, 39 N. E. 117. We have not been cited to any case, however, holding ineffective a paper like the one in question, or kindred in character, sworn to before a party interested in it. Such a practice is, to say the least, of doubtful propriety. But we do not care to rest our conclusions upon that ground, nor upon the further ground that upon the face of the petition the official character of the one before whom the papers were verified is not disclosed either by a recital of the title of his office in the body of the affidavit or jurat, or following the signature.

For much broader reasons, we think the writ must be denied. It is alleged in the petition that the term of office of the present judge of the Third district will expire on the 1st day of January, 1903. No other fact is alleged that would furnish a basis for the right claimed to make a nomination for that office. The petition does not disclose when or how the present incumbent of that office was chosen, nor for what term he was elected or commissioned. The general allegation above mentioned may, however, be sufficient. We understand, indeed, that Judge Craig was in 1897 appointed to the office to fill the vacancy caused by the resignation of Judge Knight, and at the succeeding general election in 1898 was elected to the office, and that as the term of Judge Knight would have expired in January, 1903, a question arose whether the election of Judge Craig was for the balance of the unexpired term, or for the full term of six years. On the hearing it was suggested that the secretary of state had not issued any notice for an election of judge of the Third district, and that there had been no proclamation for an election of one to fill that office at the ensuing general election; that the secretary of state had acted upon the

opinion of the attorney general that the term of Judge Craig, the present incumbent, did not expire for two years, and that the people generally of the district had acted upon the belief that no election for district judge therein was to occur in November; and that, under the same belief, no nomination had been made by either of the political parties, and the time for making nominations had expired. Although the petition is silent in these respects, we understand it to be conceded that no notice has been given, and that no other nominations have been made; and it is apparent that it cannot be alleged, even if we should allow time for an amendment, that notice has been given and proclamation made. This state has adopted what is known as the "Australian Ballot" system of elections. It is now too late to make original nominations for the office of district judge, to be voted for at the next general election. The fact that neither political party has nominated a candidate for the office is strongly conclusive of a general understanding that an election to that office was not to occur, and it is evident that, should one now be held, a large proportion of the electors of the district would be practically disfranchised, so far as that office is concerned. It is true, every voter is accorded the privilege of writing the name of a person he wishes to vote for upon the ballot. But in the carrying out of the system adopted in this state, a method is provided for having names of candidates printed upon the ballot. That is an important privilege. The statute recognizes political parties, and the candidates of each party having cast a certain proportion of the vote at either of the last two preceding general elections are placed in a separate column, and they may all be voted for by marking a cross in a square at the head of the column. We think it clear that if an election for judge of the Third district should be held at the November election, under existing conditions, a very large portion of the voters of the district would be prevented from freely and fully expressing their choice. We are not prepared to hold that a previous proclamation that a particular office is to be voted for at a general election is in all cases a condition precedent to a valid election, and we do not so hold. Where, although such a proclamation has not been given, the election proceeds, and the electors generally know that it is to occur, and the people have not been misled by the failure to give the required notice, it might be held, upon good grounds, that the election was a valid one. Manifestly, the people have been generally misled in this instance, if, indeed, there ought to occur an election for the office in question. Whether such an election should have been proclaimed and held, we do not decide. The time of the expiration of the term of office of the present incumbent has not been considered, nor do we think it can

properly be considered in this proceeding. We hold that, assuming the allegation to be true that the term expires in January, 1903, a valid election to the office cannot be had at the general election this year. A consideration of our election laws has convinced us that it would be a practical impossibility to hold a fair and legal election for said office under the conditions that would be created by requiring an election to said office to be held at this time.

These views are sustained, we think, by ample authority. People v. Weller, 11 Cal. 77; Foster v. Scarff, 15 Ohio St. 532; Adsit v. Osmun, 84 Mich. 420, 48 N. W. 31, 11 L. R. A. 534; Cook v. Mock, 40 Kan. 472, 20 Pac. 259; McCrary, Elect. § 147.

(137 Cal. 534)

PEOPLE v. CURIALE. (Cr. 905.) (Supreme Court of California. Oct. 27, 1902.)

WITNESSES-COMPETENCY-HUSBAND AND WIFE-CRIMINAL VIOLENCE.

* * *

* * *

1. Violence before marriage is not within the exception in Pen. Code, § 1322, providing: "Except in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness against the other in a criminal action." 2. Intercourse with a female under the age of 16 years, with her consent, is not criminal violence, within Pen. Code, § 1322, providing that, except in case of criminal violence, husband or wife is not a competent witness against the other in a criminal action.

Commissioners' decision. Department 1. Appeal from superior court, San Bernardino county; Benjamin F. Bledsoe, Judge.

Bartolo Curiale was convicted of rape, and appeals. Reversed.

Henry W. Nisbet, for appellant. Tirey L. Ford, Atty. Gen., A. A. Moore, Jr., Dep. Atty. Gen., and J. W. Curtis, Dist. Atty., for the People.

COOPER, C. Defendant was convicted of the crime of rape, and sentenced to 10 years in the state prison at Folsom. He appeals from the judgment and order denying his motion for a new trial.

The facts are substantially as follows: Francesco Petruccelli is the father of Isabella, and the husband of Mrs. Petruccelli, who is the stepmother of Isabella. In December, 1900, and for some time prior thereto, the family lived in San Bernardino. The defendant had been boarding with the family, and living in the same house, for about three months. The daughter, Isabella, was then under 15 years of age, but had been receiving attentions from defendant, going buggy riding with him, and to different places, apparently with the approbation of the parents. He had asked Isabella to marry him, but it is not clear that she had promised to do so. Isabella had, prior to December 15, 1900, promised to go with defendant to Redlands, for the purpose of hav

ing him buy her some shoes and clothing. On the afternoon of said day, Isabella, with the consent of her parents, went to Redlands for the purpose of meeting the defendant. He met her at the depot, and they then went to a restaurant and had "supper." After that they went to the shoe store, where defendant bought the girl a pair of shoes, and to a dry goods store, where he bought cloth for a dress, and gave it to her. They then went to defendant's room in the hotel or lodging house, where they slept in the same bed, and had sexual intercourse. They had breakfast together next morning, and returned on the train together to San Bernardino, and together went to the house of the girl's father. The girl told her stepmother and her father of what had occurred, and it does not seem that defendant made any attempt to conceal it. He told the stepmother on Sunday, the 16th of December, that he intended to marry the girl; and on Monday, the 17th, they were married, with the consent of the girl's father and stepmother. The father went with defendant to the county clerk's office to get the marriage license, and made an affidavit stating that he was the father and guardian of the girl, and that he consented to the marriage. After the marriage the defendant and Isabella lived together as husband and wife until the latter part of June, 1901. The information was filed on the 7th day of September, 1901, charging the defendant with the crime of rape on the 16th day of December, 1900, in having sexual intercourse with Isabella Petruccelli, then and there under the age of 16 years. Defendant's wife, Isabella, was allowed, under his objection, to testify against him as to the facts occurring at the hotel at Redlands, and which facts are here claimed to constitute the crime of rape. It is claimed that the admission of this testimony was error, and this is the controlling question in the case.

It is provided in the Penal Code (section 1322): "Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties." The defendant was a party, and his wife was called and testified against him without his consent. The crime charged was not an act or crime committed by defendant upon his wife. The crime charged was upon the person of Isabella Petruccelli, and committed before she became the wife of defendant. "Criminal violence upon one by the other" means what it says,-criminal violence upon the wife by the husband, or criminal violence upon the husband by the wife. The statute is founded upon public policy. It prohibits, in general terms, the examination of one spouse against the other, without his or her consent. For the purpose of protecting one against the criminal violence of the other,

the statute provides further that the prohibition shall not apply to cases of criminal violence by one upon the other; that is, by one spouse upon the other spouse. The exception does not extend to acts committed before the marriage. This has been the uniform interpretation of similar statutes in other states, so far as we are advised. In State v. Evans, 138 Mo. 116, 39 S. W. 462, CO Am. St. Rep. 549, the defendant was charged with rape upon a female child of the age of 13 years. Defendant and the girl were afterwards, and before the finding of the indictment, lawfully married. The court held that the wife was not a competent witness as to the act that took place before the marriage. In the opinion it is said: "It is urged by the attorney general that this case falls within the exceptions to the general rule; that it is a criminal injury to the wife. This contention ignores the limitations of the exception itself. Ex vi termini, a wife is only admitted to testify concerning criminal injuries to herself, a wife; not to a woman who was not, at the time of the injury, the wife of the defendant." Minnesota has a statute similar to ours, which provides: "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, but

a

this exception does not apply to criminal action or proceeding for a crime committed by one against the other." Gen. St. 1894, § 5662. In State v. Frey, 76 Minn. 527, 79 N. W. 518, 77 Am. St. Rep. 660, it was held, upon an indictment for rape by the husband upon the wife prior to marriage, and when she was of the age of 14 years, that she was incompetent to testify. It was said in the opinion, "The statute deals with the parties in the marriage relation, and not as to acts committed before the marriage." In Texas the statute is similar to ours, and the exception is, "except in a criminal prosecution for an offense committed by one against the other." Code Cr. Proc. 1895, art. 775. It was held that the wife, under the above statute, could not be permitted to testify to an abortion produced by the husband upon her prior to her marriage. Miller v. State, 37 Tex. Cr. R. 576, 40 S. W. 313. In People v. Schoonmaker, 117 Mich. 191, 75 N. W. 439, 72 Am. St. Rep. 560, the defendant was prosecuted for rape alleged to have been committed by having intercourse with his wife before marriage, and while she was under the age of consent. The court held the evidence of the wife incompetent, and reversed the case. And the rule here stated, and adopted in the cases cited, is in accord with the common law. In 1 Hale, P. C. p. 301, it is stated that upon an indictment for taking away and forcibly marrying a woman the woman so married may be sworn against her husband, if the force were continuing upon her till the marriage, for the reason that, though a marriage

de facto, yet, if it were effected by a continued act of force, it was not a marriage de jure, unless ratified by a subsequent free cohabitation or consent. The Cases of Lady Fulwood, Cro. Car. 482, and of Brown, 1 Vent. 243, are referred to as authority, but the author, in speaking of the views of the judges, says: "But most were of the opinion that, had she lived with him any considerable time, and consented to the marriage by a free cohabitation, she would not have been admitted as a witness against her husband." In the case at bar, if the girl had never freely consented to the marriage and cohabitation with defendant, the question would be different.

If

Again, the statute prohibits the wife from being a witness against her husband, except in cases of "criminal violence" upon her. the crime charged should be regarded with reference to the person of the wife, regardless of the question as to whether she was the wife at the time of its commission, still we do not think it is a charge of criminal violence under the statute. The act of haying sexual intercourse with a female under the age of 16 with her consent is not an act of criminal violence. It is a crime because made so by statute. People v. Vann, 129 Cal. 118, 61 Pac. 776, and cases cited. Our legislature has seen fit to make the act of sexual intercourse with a female under the age of 16 rape, regardless of the question of consent. The female may be a voluptuous, abandoned woman, and may even solicit the male, but under the statute the party so solicited must resist at his peril. Even then, though he resist like Joseph of old, Potiphar's wife may cry out against him, and hold up his garment as evidence. The act is a crime regardless of the question of violence. In Miller v. State, 37 Tex. Cr. R. 576, 40 S. W. 313, it was held that administering drugs to a female for the purpose of producing an abortion was not personal violence. The court said: "They subsequently married, and the statute, by its terms, excludes the wife from testifying against her husband, except as to acts of personal violence against her. However, the acts constituting and causing the alleged abortion in this case were the administration of certain drugs, no force being used in the determination thereof, and apparently with her consent." The statute of Utah is in the exact language as ours, and in Bassett v. U. S., 137 U. S. 499, 11 Sup. Ct. 165, 34 L. Ed. 762, it was held that the crime of polygamy was not a criminal act of violence by the husband toward the wife, and that the wife was not a competent witness. It is claimed that the rule here adopted will prevent such crimes from being punished. We must construe the law, and not attempt to make it. But it is not apparent to us that it would be any great injustice to forbid the woman who marries a man freely, and lives with him as his wife, from testifying that he had sexual

1. The sufficiency of the complaint, and whether findings of the court sustain the judgment, cannot be considered on appeal from an order denying a motion for a new trial.

2. A specification of error, in a notice of motion for a new trial, that the decision is against law for any reason appearing on the judgment roll, can only be considered on appeal from the judgment.

3. Under Code Civ. Proc. §§ 657, 659, requiring assignments of error to point out the particulars in which the ruling objected to is erroneous, an assignment "that the evidence is insufficient to justify the court in finding," followed by the language of the finding, but containing no specification of any particular wherein the finding is unsupported, is insufficient.

4. Where, in an action against a mining company, the court made a finding of fact, which was not reviewable, that plaintiff acquiesced in and consented to the use of certain oil for fuel, error, if any, in the introduction of evidence of a custom in the community to permit lessees of land for prospecting purposes to burn oil found to run their engines and pumps, was harmless.

Commissioners' decision. Department 1. Appeal from superior court, Santa Barbara county; B. T. Williams, Judge.

Action by C. E. Swift and others against the Occidental Mining & Petroleum Company and another. Judgment for defendants, and from an order denying a new trial plaintiffs appeal. Affirmed.

B. F. Thomas, for appellants. Eugene W. Squier and John J. Squier, for respondents.

CHIPMAN, C. The complaint alleges the ordinary action in ejectment to recover possession of 80 acres of land leased by plaintiff's to the assignors of defendant Occidental Mining, & Petroleum Company for mining purposes. Defendant High was an employé of defendant company, and has no interest in the subject-matter of the action. In the opinion the word "defendant" will have reference to the company. Defendant filed an answer

1. See Appeal and Error, vol. 3, Cent. Dig. §§ 3478, 3480. 'Reversed in banc. See 74 Pac. 700, 141 Cal. 161.