ment entered on a verdict finding the defendant guilty of the lesser crime of an assault with a deadly weapon with intent to do bodily harm. In State v. Young, 22 Wash. 274, 60 Pac. 650, the defendant was prosecuted upon an information charging him with the crime of making an assault upon the prosecuting witness with a deadly weapon with intent to kill and murder said prosecuting witness. But an examination of the information, which appears in the opinion, will show that by reason of the use of the words "with the intent aforesaid, no considerable provocation appearing therefor," it was suf ficient to sustain a conviction of the lesser crime of assault with intent to do bodily harm. The trial court, however, refused to instruct the jury that they could find the defendant guilty of such lesser crime, and this court, speaking through Dunbar, J., held such refusal to be prejudicial error, saying: "The refusal of the court to give this instruction is alleged here as error. We think it was error, and prejudicial to the defendant. It is true that in State v. Ackles, 8 Wash. 462, 36 Pac. 597, we held that under the information in that case it was not com-. petent for the jury to return a verdict of guilty of assault with a deadly weapon with intent to do bodily harm, but for the reason that the lesser crime was not described in the information; there being no allegation that the assault was without considerable provocation, or that it was the impulse of a willful, abandoned, or malignant heart. Under our statute (Ballinger's Ann. Codes & St. § 7058) an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a willful, malignant, and abandoned heart; and, when an act is punishable in a particular manner under certain conditions, these conditions must be set forth so as to show that the act is punishable. But the information in this case meets all the objections urged by the court in the case cited. It is alleged that the assault was made in the manner and form stated, no considerable provocation appearing therefor, and as the statute is in the alternative, so far as the conditions mentioned (viz., no considerable provocation appearing, or that it was the impulse of a willful, abandoned, and malignant heart) are concerned, the statement of the existence of either was sufficient." By these decisions the law of this state is well settled to the effect that, where an information charging a defendant with making an assault with a deadly weapon with intent to commit the crime of murder is not so drawn as to include the lesser crime of assault with intent to do bodily harm, a conviction of the latter crime cannot be permitted; but, where it is so drawn,

it would be error for the trial court to refuse to instruct the jury that the defendant might be convicted of such lesser crime. The information in State v. Dolan, supra, which we find in the record, was not so drawn as to authorize a conviction of the lesser crime of assault with intent to do bodily harm, but corresponds to the information in State v. Ackles, supra. It therefore followed that the only crime as to which the court was authorized to instruct the jury was the one therein charged, to wit, assault with intent to commit murder.

In this case the information, omitting formal parts, is in the following language: "Matteo Romano is hereby accused by W. T. Scott, the prosecuting attorney in and for the county of King, state of Washington, in the name of and by the authority of said state of Washington, and on oath by this informa; tion, of the crime of assault with intent to commit the crime of murder, committed as follows, to wit: He, the said Matteo Romano, in the county of King, state of Washington, on the 19th day of March, 1904, will. fully, unlawfully, feloniously, purposely, ma liciously, and with intent to kill and murder one Sebastian Ucci, an assault did make in and upon the person of the said Sebastian Ucci with a deadly weapon, to wit, a razor, then and there had and held in the bands of the said Matteo Romano, with which he then and there willfully, unlawfully, feloniously, purposely, and maliciously struck at, cut, and wounded the person of the said Sebastian Ucci, with the intent aforesaid. no considerable provocation appearing therefor." It will be seen that this information is almost identical with that in the case of State v. Young, supra, hence it here became the duty of the trial court to charge the jury, not only as to all necessary facts which must be proven to authorize a conviction of the crime of assault with intent to commit murder, but also as to all facts necessary to be proven to warrant a conviction of the crime of assault with intent to do great bodily harm. The trial court first charged the jury as follows: "Under this information it is possible, should the evidence under my instructions justify it, that the defendant be convicted of any of three separate offenses. They are: (1) Assault with a deadly weapon with intent to commit the crime of murder. (2) Assault with a deadly weapon with intent to do bodily harm. (3) Assault and battery." After giving this charge, the court proceeded to define the different grades of crime above mentioned, and also to state the facts necessary to be proven to authorize a conviction in each instance. Thereafter the following instructions, which we will number for the convenience of reference, were given: "(1) The defendant in this case being charged with cutting and wounding one Sebastian Ucci with intent to kill and murder the said Sebastian Ucci, before the defendant can be convicted as charged in the information, it is

necessary that you be satisfied by the evidence beyond a reasonable doubt, not only that the defendant did cut and wound said Sebastian Geci, but that in so doing he intended to kill and murder said Ucci. This intent is as essential an element of the crime as is the act itself, and must be found by the jury as a matter of fact before a conviction can be had of the crime charged in the information. (2) If you find from the evidence that the defendant cut and wounded said Sebastian Ucci, and intended to cut and wound him, but are not satisfied that in so doing he intended to kill the said Ucci, you cannot find the defendant guilty as charged in the information. An intent to wound is not sufficient. (3) I charge you that, in order to prove the crime of assault with intent to commit the crime of murder in this case, it is necessary for the state to prove beyond a reasonable doubt that the defendant, at the time and place, and in the manner and form charged in the information, cut Sebastian Ucci with a razor or other sharp instrument purposely and maliciously, intending to take his life; and that, in order to prove the crime of assault with a deadly weapon with intent to inflict bodily injury in this case, it is necessary for the state to prove beyond a reasonable doubt that at the time and place mentioned in the information the defendant purposely and unlawfully cut Sebastian Ucci with a knife or other sharp instrument, without any considerable provocation, with the intention of inflicting great bodily injury upon the person of said Sebastian Ucci. But I charge you that such intent need not be proved by direct and positive testimony, but may be inferred by the jury from the facts and circumstances presented as evidence in this case, provided they are sufficient to satisfy you beyond a reasonable doubt of the existence of such intent; and I further charge you that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act." In the above quotation we have italicized the language to which the appellant has taken exception, and upon which he assigns his first error.

It is contended by respondent that the exceptions taken by appellant are not sufficient to justify any consideration of said assignment by this court. We have some doubt as to their sufficiency, but will nevertheless consider the assignment on its merits. If the only crime of which the appellant could be convicted, under the information herein, was that of assault with intent to murder, the language objected to would have no place in the instruction, and under the authority of State v. Dolan, supra, might possibly be prejudicial error. It is conceded by the appellant that this language or instruction on the question of intent is not erroneous or prejudicial when applied to the crime of assault with intent to do great bodily harm, but as to that crime states the law. Our view of the entire body of the instructions is that upon the different

degrees of crime involved in the information the several instructions given were proper. It will be noticed that instructions 1 and 2 above quoted are almost identical with the first and third instructions which were asked of, and refused by, the trial court in State v. Dolan, supra, shown at pages 510, 511, of the opinion, and which were approved by this court as proper under an information charging only the crime of assault with intent to commit murder. These instructions were given by the trial court at the request of appellant, and correctly stated the law of inteat as applied to the crime of assault with intent to murder. In addition to giving this charge, it also became the duty of the trial court to instruct the jury, under the information here, on the law of intent as applied to the crime of assault with intent to do bodily harm, and our understanding of the language. excepted to by the appellant is that it refers to the latter crime only. Appellant, however, contends that because the court gave the instructions 1 and 2, as requested by him, and also gave that to which he has excepted, the entire body of instructions as given became inconsistent and necessarily tended to mislead and confuse the jury. We cannot agree with this contention, as to do so would be to hold that under an information such as the one at bar the trial court could instruct only on the question of intent as applied to the charge of assault with intent to murder. But, if this was done, and no proper instruction was given on the lesser crime, the action of the court would be error under the authority of the State v. Young, supra. Considering all the instructions in the light of the information upon which the appellant was prosecuted, we are unable to find any prejudicial error.

By his second assignment of error the appellant in substance contends that, as he was not charged with shooting the prosecuting witness, the court erred in admitting in evidence the shotgun which was found in his room two days after his arrest. In view of statements made by appellant to the various witnesses, as above narrated, and the evidence of the physician who attended the prosecuting witness, showing and identifying the shot and other articles taken from the wound, and as the prosecuting witness was actually shot by the person who cut his throat, we think this evidence was proper.

The last contention made by appellant is that the court committed prejudicial error in refusing to set aside the verdict for insufficiency of evidence to identify appellant as the person who committed the crime. An examination of the statement or facts shows this assignment to be absolutely without merit. The verdict is sustained by the evidence. The judgment is affirmed.

MOUNT, C. J., and DUNBAR, FULLERTON, and HADLEY, JJ., concur.

RUDKIN, J. (concurring). By the same information the appellant was charged with the commission of two felonies: First, an assault with intent to murder; and, second, an assault with a deadly weapon with intent to inflict a bodily injury, where no considerable provocation appeared. The court charged the jury in general terms that the intent was an essential element of the crime charged, and must be proved as a fact, that it might be proved by circumstantial, as well as by direct evidence, and that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act. The majority holds that the italicized portion of the charge referred only to the charge of an assault with intent to inflict a bodily injury, and that the charge is correct as applied to that crime; thus distinguishing this case from the case of State v. Dolan, cited in the majority opinion. I confess I am at a loss to know how the jury could understand that the above general statement of an abstract proposition of law applied to the question of intent involved in the commission of one felony, but not in the other. I am at a still greater loss to know why the charge is correct as applied to one felony, but not as to the other. If a sane man does not intend the natural and probable consequences of his voluntary act, when charged with an assault with intent to murder, because murder does not ensue, it would seem inevitably to follow that a person charged with an assault with intent to inflict a bodily injury does not intend the natural and probable consequences of his voluntary act, unless bodily injury ensues, and it would be manifest error for the court to assume in its charge to the jury that bodily injury did, in fact, ensue. I concur in the judgment of affirmance because I think the portion of the charge excepted to is a correct statement of a familiar proposition of law, and is applicable in every case where the question of intent is involved. In charging the jury in Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711, Shaw, C. J., said: "This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and willfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own acts." The Supreme Court of the United States, in commenting on an instruction in Allen v. United States, 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528, says: "This is nothing more than a statement of the familiar proposition that every man is presumed to intend the natural and probable consequences of his own act. 1 Greenleaf on Evidence, § 18; Regina v. Jones, 9 C. & P.

25; Regina v. Hill, 8 C. & P. 274; Regina v. Beard, 8 C. & P. 143; People v. Herrick, 13 Wend. 87, 91." Greenleaf says, in the sec tion cited: "Thus, also, a sane man is conclusively presumed to contemplate the natural and probable consequences of his own act; and therefore the intent to murder is conclusively inferred from the deliberate use of a deadly weapon."

Why should the application of this familiar principle depend on something that transpires long after the commission of the crime? I cast two men overboard in midocean. The one succumbs; the other is rescued. I am prosecuted for the murder of the one, and intend the natural consequences of my act; but in the prosecution for an assault with intent to murder the other I do not intend the natural and probable consequences of my act, because, forsooth, he was rescued through no agency of mine. I shoot recklessly into a crowd, and, by the same act, kill one person and dangerously wound another. I intend the natural consequences of my act as to the one, but not as to the other. Let us suppose in this case that the majority found that the court below did, in fact, charge the jury that the appellant intended the natural charge of an assault with intent to murder, and probable consequences of his act on the and reversed the judgment for that error; and let us further suppose that the prosecuting witness has died in the meantime from the effect of his wounds, and that the charge against the appellant is changed from assault with intent to murder to a charge of murder. On the trial of the latter charge the court instructs the jury that a sane man intends the natural and probable consequences of his voluntary act, and this court affirms the judgment. It is thus established by two solemn judgments of this court that a man intends the natural and probable consequences of a certain act, and that he does not intend the natural and probable consequences of the same act, and in the opinion of the majority both judgments are founded on correct legal principles. In fact, the judgment in this case is affirmed solely because the majority conIcludes that the court below in one breath told the jury that the appellant was presumed to intend the natural and probable consequences of certain acts, and in the next breath told them exactly the contrary. I do not care to indulge in any such refinements, but vote for affirmance on the broad ground that the instruction excepted to embodies a correct statement of the law as to any or all of the crimes charged.

ROOT, J., concurs.

(41 Wash. 77) GRITMAN V. UNITED STATES FIDELITY & GUARANTY CO. et al. (Supreme Court of Washington. Dec. 20, 1905.) 1. PLEADING AMENDMENT TO CONFORM TO PROOFS.

Where an architects' certificate was introduced in evidence on the first trial of an action, and on rebuttal defendant affirmatively proved the giving of the certificate and attempted to show that it was given without sufficient investigation, it was proper for the court, on a second trial on which the certificate was introduced, to permit the complaint to be amended to conform to the proof by alleging that the architects had audited and certified the claims made as required by the contract, so as to authorize proof of such certificates.

2. PRINCIPAL AS SURETY - EXECUTION BOND-WAIVER OF OBJECTIONS.

OF

Where a contractor's surety delivered the bond to him for the purpose of closing a building contract with plaintiff, the surety thereby constituted the contractor its agent, and in the absence of anything on the face of the bond tending to put plaintiff on inquiry the surety was bound.

3. JUDGMENTS-COLLATERAL ATTACK.

Mechanics' lien judgments are not subject to collateral attack in an action on a building contractor's bond in which they were proved as a part of the damages.

Appeal from Superior Court, Adams County; Henry L. Kennan, Judge.

Action by H. E. Gritman against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant guaranty company appeals. firmed.

Af

Merritt & Merritt and Crow & Williams, for appellant. O. R. Holcomb and Post, Avery & Higgins, for respondent.

DUNBAR, J. This is an action by respondent, who was the owner, against the contractor and appellant surety on the contractor's bond, for damage on account of the default of the contractor. The complaint alleged, the execution of the contract; that the contractor had entered upon the performance of the contract, and had, during the continuance thereof, abandoned the work; that he had paid divers sums upon the estimate of the architects, and was compelled to pay certain judgments upon materialmen's and laborers' liens, and certain other amounts to complete the building; that the contractor was to pay $10 per day for the time after the 1st day of August; that the building was not completed for 36 days thereafter, and that altogether he was damaged in the total sum of $2.787.44. It was not alleged in the complaint that the accounts for expenses incurred by the owner were audited and certified by the architects, as provided by article 5 of the contract. Appellant demurred to the complaint on general grounds. The demurrer was overruled, issues were joined, and an affirmative defense set up that the contract under which the building was erected was not the contract under which the bond was given; that the judgments upon the me

chanics' liens were erroneous and void, etc. The respondent replied, denying the affirma tive answer. The case was tried in October by a jury, resulting in a verdict for respondent. The verdict was afterwards set aside and a new trial granted. The second trial was by the court. During the first trial the respondent offered in evidence a certificate of the architects by which the correctness of the expenses was certified. To this offer appellant objected, on the ground that it was irrelevant, incompetent, and immaterial, and there were no allegations in the complaint to justify it. The certificate was admitted in part and excluded in part; the part excluded being held to be improperly in the certificate. After the new trial was granted, the appellant applied for, and was granted, leave to file an amended answer. Respondent asked, and was granted, leave to amend his complaint in certain immaterial particulars, but no effort was made to amend by alleging that the architects had audited and certified as required by the contract. When the case came on for trial the second time, on the 19th day of February, 1904, it was stipulated that the testimony taken at the former trial should be extended and transcribed, and the parties should offer any additional testimony they desired and interpose additional objections, and the court should consider all testimony taken and objections made at both trials. Again respondent offered the certificate of the architects upon the expenses incurred after the default of the contractor. Objection was again made, upon the same ground as in the former trial, and upon the additional ground that it was not in the manner and form contemplated in the contract. In April the case came on for argument upon the objections to testimony and upon the merits. On the 28th day of October the court signed an order permitting respondent to amend his complaint and, at the same session, signed the findings of fact, conclusions of law, and judgment upon the amended complaint, to all of which appellant objected, and it was allowed an exception. On October 29th, the order granting leave to amend, the amended complaint, the findings, conclusions, and judgment were filed with the clerk.

The appellant's contention is that the court erred in allowing the amendment to the complaint in relation to the architects' certificate at the time it was made. Conceding without deciding that the complaint was not broad enough to admit the certificate of the architects, the trial court did not commit error in granting the motion to make the pleadings conform to the evidence, and, if it had not done so, this court, under the liberal provisions of the statutes and its own uniform decisions, would consider the pleadings amended to conform to the facts proven and necessary to be proven, when such amendment would be in furtherance of justice, and when neither party would be in any wise misled or preju diced thereby. A very earnest appeal has

been made by appellant, by both brief and oral argument, on that question, and it is insisted that injustice has been done it by allowing this amendment. Counsel differ widely as to what actually occurred during the trial of the case, tending to show whether or not objection was made to the introduction of the evidence of the architects' certificate for the special reason that it was not pleaded. An examination of the record shows that there is room for contention on this proposition. However, the more material question is, has the appellant been in any way surprised or misled by the action of the court in allowing the amendment? Upon this question, the following excerpt from the language of the court in passing upon the motion to amend has great weight. The court, in making its ruling on the motion to amend, among other things, said: "After the certificate was received in evidence by the court, counsel for defendant offered evidence tending to impeach said certificate, all of which was admitted, considered, and received by the court; that the court is of the opinion that the allegations of the complaint were broad enough to entitle the plaintiff to introduce in evidence said certificate, and inasmuch as defendants were permitted to introduce evidence for the purpose of impeaching or destroying the force and effect of said certificate the same as if an issue had been made thereon by the answer as well as by the complaint, and as the point of insufficiency of the complaint in this respect with other objections was not argued before the court until several weeks after both parties had introduced their evidence and rested, and agreed that the case should be argued after the evidence had been transcribed by the stenographer, and the point as to the sufficiency of the complaint is purely technical, and no improper advantage could be obtained, by the plaintiff, and no harm done to defendant by considering the complaint as amended to accord with the proofs. Now, therefore, it is ordered upon motion of plaintiff, that said complaint be treated as amended with the proofs in the above respect, and, further, that the plaintiff may, if he desires, file amended complaint as of the time of the second trial of this cause, to wit, February 19, 1904; said amended complaint to contain an allegation as to the execution and delivery by the architects of said certificate and estimate, auditing said account above referred to, and also that the answer of the defendant shall likewise be deemed amended to accord with the proofs, so that all testimony and evidence introduced by defendant tending to impeach or destroy the effect of said certificate shall be considered properly in evidence and within the issues in said cause.

Not only was this certificate introduced in evidence on the first trial, so that the appellant cannot plead surprise or want of opportunity to prepare controverting testi

mony, but, upon rebuttal, the appellant affirmatively proved the giving of the certificate, and attempted to show that it was given without sufficient investigation. This would probably not estop the appellant from urging the inadmissibility of the testimony offered by the respondent, but it goes to show lack of surprise or injury by reason of the order of the court allowing the amendment to the complaint. The whole record brings the case squarely within the rule announced by this court in Green v. Tidball, 26 Wash. 338, 67 Pac. 84, 55 L. R. A. 879, where we said: "The statute directs us to disregard any error or defect which does not affect a substantial right of the adverse party (Ballinger's Ann. Codes & St. section 4957), and to determine all causes upon the merits thereof, disregarding all technicalities, and to consider all amendments which could have been made as made (section 6535). When, therefore, a cause has been tried upon its merits, as if upon pleadings sufficient in form and substance, in which the complaining party has not been misled, and has had full opportunity to present his case, some substantial wrong, some failure upon the part of his adversary to aver or prove a material matter necessary on his part to be averred and proven in order to entitle him to recover, must be shown, before this court is warranted in reversing and remanding a cause for a new trial. A mere defect in pleading is not a cause. It must not only be defective, but must have operated to the substantial injury of the complainant, before that result can follow." The same reasoning would prevent this court from dismissing the case after trial, even though the demurrer should have been sustained in the first instance. See, also, Kinkead v. Holmes & Bull Furniture Co., 24 Wash. 216, 64 Pac. 157.

The next contention, that the contract sued on was not the contract upon which the bond was given, cannot be sustained. It is not material that the architect happened to be the scrivener who drew the contract. He had no authority or power whatever over the contract or over the parties to the con. tract, and was in no particular, as shown by the record, representing the respondent. The appellant, the bond company, delivered the bond to Covert, the contractor, for the purpose of closing the transaction with the respondent, and thereby constituted him its agent; and if there was nothing on the face of the bond which would tend to put respondent on inquiry, the appellant is bound. King County v. Ferry, 5 Wash. 536, 38 Pac. 538, 19 L. R. A. 500, 34 Am. St. Rep. 880; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 Pac. 446; Risse v. Planing-Mill Co. (Kan. Sup.) 40 Pac. 904; Sweeney v. Ætna Indemnity Co., 34 Wash. 126, 74 Pac. 1057. We are satisfied that the lien judgments, even as against direct attack, were properly