to make a payment; of his giving the note for the balance; and the controversy about the suggestion of putting it in her name; and testifies: "She said she wanted the property in her name, and we had some dispute. I did not want her to have it so. She told me the property was all mine, anyhow." And after explaining that she was quick of temper, and inclined to be of a jealous disposition, and his disbelief that she ever intended to defraud him out of this property, he was asked: "Question. So you consented it should remain in her name? Answer. I didn't consent at all. I don't call that consent. Q. Why did you do so? A. I couldn't help it; I couldn't live with her unless I let her have her own way in these matters. There is the long and short of it." And he also says: “The object seemed to be on her part, that she was afraid that I would go away and leave her some time, and wanted to hold it in her name for these reasons,-stated it, time and time again." It is not possible, without incumbering the record, to cite more of the testimony; but when looked at as a whole, in regard to this transaction, nothing is plainer than that it was not understood nor intended that his wife should take the title to this property absolutely or otherwise than his property. The idea of an advancement arising from the presumption that the deed was in her name is wholly rebutted when the true nature of the transaction is disclosed, and how that circumstance happened. His wife, inclined to be jealous and distrustful, which was perhaps quickened by her sense of seniority, seems to have thought that with the deed to the property in her name she would have a stronger hold upon him, or security against a loss of his affection, and perhaps, also, that the property itself in such case would be more safe against financial accidents; and he, to avoid irritating her, and coming in conflict with a temper somewhat ungovernable and robust when opposed, in the interests of domestic peace and happiness, under the circumstances consented that the deed might be put in her name. But, in view of the facts, it is clear that neither party-husband or wife-understood that the deed was intended as a settlement or provision for her. The transaction itself shows conclusively that it was a trust. In respects to lots 1, 2, 3, 4, 5, and 6, in block 103, the plaintiff testifies that he and his wife "talked over the matter of buying these lots, but that he had not made up his mind fully to buy them, when one night, after he came home, she told him that she had bargained with Ailen for the lots, and had paid $100 upon them; that the price was $600, and that she had taken a bond for a deed in her own name; that he objected to it, and did not consent that it should be so; that after the bargain was made he permitted her to go and make the payments, and that, without his knowledge or consent, she had the deed put in her name. Mr. Allen substantially corroborates his testimony, and testifies that she remarked to him, when she paid him a portion of the money, that Mr. Parker was getting $5 a day at work, and that the money is his. It is not my money; it is his money that is pay. ing for the property." There is no pretense on her part to disguise the true nature of the transaction. To her neighbors she says the same thing. To Mrs. Pilger she said: "He takes it all; it all goes back to Mr. Parker again." This referred to all the property, and shows how she understood these transactions; and this is in accord with the nature of such transactions as they occurred, and the intention to be derived therefrom. As to lots 5 and 6, in block 118, he had a bond for a deed. This he had bought before the marriage, but had not made all of the payments. And as he was busy at his work during the day he told her to make the payments as they fell due, and when she made the last one she had the deed put in her name, without his knowledge or consent; that he did not know she had a deed until after it was made out in her name. Advancements are usually voluntary, and are grounded upon the consent of the donor. When a deed is taken in the name of a wife, and the money of the husband pays the consideration, the law presumes, in the absence of rebutting circumstances, that was intended by the husband as an advancement; that he so made it, or authorized it, because he so intended or consented. But when the owner of the fund denies the consent or authorization, and the transactions themselves disclose that it was done without his knowl edge or consent, no presumption of advancement or provision for the wife can be indulged. Here the case of Peer v. Peer, 11 N. J. Eq. 435, is in point, in which the chancellor says: "It is evident that this defense has its foundation in the fact that the deed was made to Tunis Peer at the request, or, at least, with the consent, of his mother; for, if he procured the deed to be made to himself without the complainant's consent, there can be no pretense that it can be made to assume the shape of an advancement from the mother to her son. To assert that a title made to the son was an advancement by a parent to his child, when the deed was made without the knowledge or consent of his parent, is an absurdity." See, also, Darrier v. Darrier, 58 Mo. 227; 1 Perry, Trusts, § 148; and so in the case before us. After the property was thus in her name, as his money had paid for it, the plaintiff testifies that he frequently requested and ́urged that the property be properly transferred to him; and while the evidence discloses that she acknowledged his right, and refused to do it, and when pressed would become angry, and a quarrel would ensue, always ending in his submission; the reason of her refusal was a fear that seemed to haunt her that his fidelity depended upon holding the property in her name; and also that there was less liability to lose it in such case. But there can be no doubt that she did not understand that the property belonge to her in her own right, but recognized that it belonged to him, and expected "it would all go back to Mr. Parker;" while the transactions themselves, in which the purchase and conveyances originated, utterly preclude the idea of an advancement, and render such a conclusion impossible and absurb. Nor does this result work any injustice. This property represents the accumulated earnings of the plaintiff's best manhood, and he should not be stripped of it, and it passed into alien hands, unless he has done so by his own voluntary act. Nor is it irrelevant to say that the record discloses that he has always borne a generous part towards the defendant and her children, which has been extended beyond any claim that either she or her children had upon his kindness or bounty. The evidence shows that, after his marriage to the mother of the defendant, the defendant herself was a widow, residing in the city of New York, in rereduced circumstances, with three little children, of ages varying from three to eight years of age; that the plaintiff sent $490 to her to pay the expenses of herself and children to Oregon; and that shortly after her arrival here she took employment as cook, and that the wife of the plaintiff took these little children to his home, and kept them there about five years, during all of which time they were fed and clothed, doctor's bills paid, and sent to school, at his expense. We think the decree must be aflirmed, and it is so ordered. A petition for rehearing was denied in this case on March 4, 1890. (18 Or. 367) SMALLMAN v. Powell. (Supreme Court of Oregon. Jan. 20, 1890.) DESCENT-NEXT OF KIN-GRANDFATHER-UNCLE. 1. The grandfather is one degree nearer of kin than the uncle, as computed by the civil law. 2. Where an intestate has no issue, nor wife, nor father, mother, brother, nor sister, held, that his grandfather took the estate in preference to his uncle, as next of kin. (Syllabus by the Court.) Appeal from circuit court, Linn county; R. P. BOISE, Judge. It is hereby stipulated and agreed by and between the parties herein to submit this cause to the court for trial upon the following statements of the facts herein, to-wit: First. That Sampson Smallman and Margaret Smallman, now both deceased, were, at and prior to their death, seised in fee-simple of the following-described real estate, to-wit: The donation land claim of Sampson Smallman and Margaret Smallman, his wife; the same being notification No. 1118, and claim No. 6, being part of section 35, in township 9 S., range 2 W., and claim No. 53, being parts of sections 1, 2, 3, and 11 in township 10 S., range 2 W., in Linn county, Or. Second. That said Sampson Smallman and Margaret Smallman died intestate, leaving John Smallman, the plaintiff herein, and Elizabeth Smallman, their only children, surviving them, and their only heirs. Third. That afterwards said Elizabeth Smallman was lawfully married to Wiley Powell, a son of Peter Powell, the defendant herein. Fourth. That afterwards said donation land claim was duly partitioned and divided between the plaintiff and said Elizabeth Powell, and the east half of said donation land claim was allotted and set apart to the said Elizabeth Powell, in her own right, in fee-simple, as for her share of said land claim, and the west half of said land claim was allotted and set apart to the plaintiff as and for his share of said land claim, in his own right, in feesimple. Fifth. That afterwards said Elizabeth Powell and said Wiley Powell, her husband, died int state, leaving one child, Sampson T. Powell, their only heir, surviving them. Sixth. That afterwards said Sampson T. Powell died, and at the time of his decease he left neither wife, nor father, mother, brother, nor sister, nor the representatives of either, living. Seventh. That said Sampson T. Powell, at the time of his death, was seised in fee-simple of the east half of said land claim, as the sole heir at law of said Elizabeth Powell, his mother. Eighth. That Peter Powell, the defendant herein, is the paternal grandfather, and only surviving grandparent, of the said Sampson T. Powell. Ninth. That John Smallman, the plaintiff herein, is the uncle of the said Sampson T. Powell, on the part of his mother, and the only surviving child of the maternal grandparents, now deceased, of said Sampson T. Powell, on his mother's side. If the court shall be of the opinion, upon the above statements of the facts in this case, that the plaintiff is entitled to the east half of said donation land claim, as the sole heir and next of kin of the said Sampson T. Powell, then the plaintiff is to have judgment herein for the possession of the said east half of said land claim; but if the court shall be of opinion that the defendant, in his own right, as next of kin, on the part of the father of said Sampson T. Powell, is entitled to said east half of said land claim, then the court is to find and render judgment herein in favor of the defendant, as shall be deemed advisable and just on the above statement of facts in this cause. After argument by counsel, the court, having fully considered the aliegations of the parties, and the facts as agreed upon by the parties in their stipulation to file herein, finds the facts as stipulated, and adopts the statement of facts so stipulated as the findings of fact by the court, and as conclusions of law; and the court finds, first, that Peter Powell is the nearest of kin surviving the said Sampson T. Powell, and is the heir at law of said Sampson T. Powell, and takes by descent the east half of the land claim described in said stipulations as the sole heir at law of said Sampson T. Powell, and is the lawful owner, and entitled to the possession, thereof. The court found a decree in accordance there with, and from which this appeal is taken. J. K. Weatherford, for appellant. J. C. Powell, for respondent. most remote of them, but from the person a quo upward to the common stock, and then downward to the other party related. "The difference is manifest; the canon and common law starting from the common ancestor, and the civil law starting from the intestate himself, as the terminus a quo the several degrees are numbered. Thus, by the civil law, from the intestate to his father, in lineal ascent, is one degree, and thence to the grandfather is another, or the second, degree. Again, from the intestate to his mother is, lineally, one degree; thence to her father or mother is the second degree; and thence downward to the aunt is the third degree. The paternal grandfather being in the second, and the maternal aunt in the third, degree, by this mode of computation, he is therefore the nearest of kin. The spiritual courts have adopted the rule of the civilians in reckoning propinquity of degree, and in so doing have necessarily placed grandfathers a degree nearer the intestate than uncles and aunts." Sweezey v. Willis, 1 Bradf. Sur. 498; 2 Bl. Comm. 224; 2 Kent, Comm. 407. Under the civil law, then, the grandparents are one degree nearer than uncles and aunts, and so speak all the authorities, without a dissentient voice. Cables v. Prescott, 67 Me. 582; Kelsey v. Hardy, 20 N. H. 479; Ryan v. Andrews, 21 Mich. 229; Phillips v. Peteet, 35 Ala. 696; Barger v. Hobbs, 67 Ill. 592; Estate of Kirkendall, 43 Wis. 167; Bassil v. Loffer, 38 Iowa, 451; Cole v. Batley, 2 Curt. 562; 2 Dom. Civil Law, §§ 2832, 2834. Peter Powell, therefore, as the grandfather of the intestate, Sampson T. Powell, is one degree nearer than John Smallman, his uncle, the plaintiff, and is next of kin upon the facts, to which the estate ascends, unless there is some exception which affects that result. LORD, J., (after stating the facts as above.) This case presents the single question whether the real property already described passes to the defendant as next of kin, or to the plaintiff; the former being the grandfather, and the latter the uncle, of the intestate. The whole matter depends upon the meaning to be given to subdivision 5, § 3098, Code Or. "If the intestate shall leave no lineal descendants, neither wife, nor father, mother, brother, nor sister, such real property shall descend to his next of kin in equal degree," etc. And section 3103 provides that "the degree of kindred shall be computed according to the rules of the civil law." It is somewhat difficult to catch the point in the contention for the plaintiff. While the rule for computing kindred as declared by the statute is admitted, the argument indicates that if so computed, and the grandfather be found to be one degree nearer than the uncle, he would not be entitled to the inheritance, because he is not of the blood of the ancestor from whom the estate originally descended. The argument proceeds upon the theory that there is an exception when the estate comes by descent, which, by the law of some of the states, when the intestate leaves no children, reverts to the heir or kindred of the person through whom it is acquired. The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family; and the statutes of descent in some of the states, in certain cases, have provisions to that effect. But, generally, in the United States, the English common law of descents, in its essential features, has been rejected, and each state has established a law for itself. 4 Kent, Comm. 374. In fact, by enactment, the common-law rule prevails, that the right of succession is entirely statu-mon-law rule prevails for ascertaining who tory. The reason is obvious. At common law the canons of descent grew out of the feudal system of tenures, and the policy of the state to establish and maintain a wealthy landed aristocracy, which co-operated to prevent the distribution of real property, and to promote its accumulation in the hands of the few. An important factor in working out this result was the common-law mode of computing kindred, which, being alien in spirit to our political institutions, has been generally rejected, and in this state abrogated, and the rules of the civil law adopted. In the mode of computing degrees of kindred, the civil law did not begin as at common law, and reckon from the common ancestor downward to each of the persons related, or to the A glance at the statute will satisfy any one that, in the absence of those specified, the estate goes to the next of kin as computed by' the civil law. The course is prescribed by the statute without reference to the course from which the property was acquired. While it may be admitted that whenever a statute does not prescribe, in a given case, to whom an estate shall descend, the com is the person or heir entitled to take, no such inquiry can arise here; for the statute provides, in direct terms, that "if the intestate shall leave no lineal descendants, neither wife, nor father, mother, brother, nor sister, such real property shall descend to his next of kin in equal degree." Code, § 3098, subd. 5. And as Sampson T. Powell, the intestate, had no issue, nor wife, nor father, mother, brother, nor sister, his grandfather, the de. fendant, would take the estate in preference to the plaintiff, his uncie. The statute makes no distinction founded upon the source from which the property has been derived, but assigns it to the next of kin, who is the defendant and grandfather, upon the facts, as reckoned by the civil law, and to whom it must ascend. It follows there was no error, and that the judgment of the court below must be affirmed. (18 Or. 360) STATE v. JARVIS. (Supreme Court of Oregon. Jan. 20, 1890.) CRIMINAL LAW - TRIAL-OBJECTIONS TO INDICTMENT-ACCOMPLICES-DESCRIPTION OF OFFENSE. 1. A wrong name given to the crime in the preliminary part of an indictment is an irregularity only, and not fatal. The charging part of the indictment must be looked to, to determine the character of the offense. 2. An indictment which charges more than one crime under our Code is bad, and, if the objection be taken by demurrer at the proper time, it must prevail, but if the objection be not thus taken it is waived. 3. In a trial for the crime of incest, the party to the crime not on trial is an accomplice, and the other party cannot be convicted on her evidence, unless she be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission. 4. The declarations contained in an impeaching question, when contradicted, only tend to impeach the character of the witness attacked for truth and veracity, and are not evidence of the facts recited in such declarations. 5. Correct practice in preparing a case for this court suggested. (Syllabus by the Court.) Appeal from circuit court, Multnomah county; L. B. STEARNS, Judge. The defendant was convicted of the crime of incest, under an indictment the charging part of which is as follows: "The said Frank Jarvis, on the 1st day of April, A. D. 1889, in the county of Multnomah and state of Oregon, was the father of one Josephine Ross; and so being and knowing himself to be the father of the said Josephine Ross as aforesaid, and for that reason, and on account of that relationship, prohibited by law to intermarry with her, the said Josephine Ross, he, the said Frank Jarvis, did, then and there, unlawfully, feloniously, forcibly, incestiously, and violently, in and upon her, the said Josephine Ross, his said daughter as aforesaid, make an assault, then and there unlawfully, feloniously, forcibly, incestionsly, and violently, against the will of her, the said Josephine Ross, did ravish and carnally know her, the said Josephine Ross; the said Josephine Ross then and there was a woman of the age of twenty years." Having been sentenced to the penitentiary for the term of three years under this conviction, the defendant has appealed to this court. Alfred F. Sears, Jr., for appellant. Henry E. McGinn, Dist. Atty., for respondent. STRAHAN, J., (after stating the facts as above.) The name given to the crime with which the pleader sought to charge the defendant in the indictment is "rape," but it seems a mistake in this particular is an irregularity, and is not fatal. The charging part of the indictment must be looked to, to determine the character of the offense. People v. Cuddihi, 54 Cal. 53. 2. This indictment seems to embrace the main elements mentioned in three sections of the Criminal Code. Section 1733 defines the crime of "rape" as follows: "If any person shall carnally know any female child under the age of fourteen years, or shall forcibly ravish any woman of the age of fourteen years or upwards, such person shall be deemed guilty of rape, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than three, nor more than twenty, years." Section 1734 punishes the offense with imprisonment not less than 20 years in the penitentiary, or during life, if the outraged female was the sister of the whole or half blood, or the daughter of the defendant, or of his wife. Section 1873 defines and punishes incest as follows: "If any persons, being within the degree of consanguinity within which marriages are prohibited by law, shall intermarry with each other, or shall commit adultery or fornication with each other, such persons, or either of them, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year, nor more than three years, or by imprisonment in the county jail not less than three months, nor more than one year, or by a fine not less than two hundred, nor more than one thousand, dollars." The facts alleged in this indictment evidently constitute two separate and distinct offenses, namely, rape and incest, and this is contrary to section 1273, Hill's Code, which says that the indictment must charge but one crime, and in but one form only. This objection is ground of demurrer. (Id. § 1322,) and it is an objection that, if not so taken, is waived, (Id. § 1330.) No objection was taken in the court below to the indictment on this ground, and none can be raised here. The rulings of the court on the defendant's request to give one instruction presents the only matter necessary for us to consider. 3. At the conclusion of the evidence, counsel for the defendant requested the court to charge the jury, in effect, that there was not suflicient evidence before them to authorize a conviction of the defendant, and that he must be acquitted, both on the charge of rape and incest, and that the evidence was not sufficient to sustain a conviction for either crime; but the court refused to give this charge, to which ruling the defendant excepted. Hill's Code, § 1371, provides: “A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely shows the commission of the crime, or the circumstances of the commission." This section of the Code and the request present two questions-First, was Josephine Ross an accomplice in the commission of the crime of which the defendant stands convicted? and, second, was she corroborated? And, first, was Josephine Ross an accom plice? If the rule announced by this court in State v. Roberts, 15 Or. 187, 13 Pac. Rep. 896, is applied to this case, the question must be answered in the affirmative. The definitions there given apply generally to every crime, and it is not perceived on what ground the one under consideration could be excepted. The case of State v. Dana, 10 Atl. Rep. 727, was a prosecution for incest committed by parties within the prohibited degrees, in which the court advised the jury very fully that they ought not to convict upon the uncorroborated evidence of an accomplice, unless the testimony of the accomplice obtain full credit with the jury, and they were fully convinced of its truth; in which event they should give the same effect to his testimony as should be allowed to an unimpeached witness, who is in no way implicated in the offense. In passing upon an exception to this charge, the court said: "There is no rule of common law, nor of the statute law of this state, that a person shall not be convicted on the testimony of an accomplice, unless corroborated by other evidence. In some states, such rule may exist either from a code or statute law." Because there was no such law in that state, the court refused to sustain the exception. But in this state such rule does prevail, and the court has no discretion in its application in every case where the testimony of an accomplice is relied upon. In California, where a similar statute is in force, speaking of the anomalous fact that the common law did not require that an accomplice be corroborated to authorize a conviction, and yet the court always advised the jury to acquit if he was not corroborated, and said: "The apparent anomaly is done away with by section 1111 of our Penal Code. Under it, although the jurors are the sole determinators of the facts proved by the evidence, yet if there is no evidence, other than the testimony of the accomplice, tending to connect the defendant with the commission of the offense, the judge may direct an acquittal. This, however, simply because the statute prohibits a verdict based upon testimony of an accomplice alone, even although the jury may believe such testimony to be entirely true, and that it establishes the defendant's guilt beyond a reasonable doubt; not because the jurors are prohibited from believing the testimony of the accomplice, in the absence of the corroboration mentioned in the statute. The legislature might have declared an accomplice incompetent to be a witness; but he may be a witness, and the legislature have not said that he shall not be believed if uncorroborated, but that a conviction shall not be had upon his testimony, unless there is other evidence tending to prove the defendant's complicity in the offense charged." People v. Clough, 15 Pac. Rep. 5; People v. Thompson, 50 Cal. 480; People v. Moore, 45 Cal. 19. And such is the ruling of this court. State v. Odell, 8 Or. 31-34; State v. Light, 17 Or. 358, 21 Pac. Rep. 132; Blakely v. State, 24 Tex. App. 616, 7 S. W. Rep. 233; Zollicoffer v. State, 16 Tex. App. 312; Robison v. State, 16 Lea, 146; People v. Courtney, 28 Hun, 589; Marler v. State, 67 Ala. 55; Merritt v. State, 12 Tex. App. 203; Craft v. Com., 80 Ky. 349; Freeman v. State, 11 Tex. App. 92. In this latter case the charge was incest. The court held her to be an accomplice, and reversed a conviction had on her uncorroborated testimony. At common law, and in the absence of any statute governing the subject, it was the practice of judges to tell juries that they might legally convict on the evidence of an accomplice alone, if they thought they could safely rely on his testimony; but, at the same time, to advise them never to act on the evidence of an accomplice unless he be confirmed as to the particular person who was charged with the offense. 1 Whart. Crim. Law, § 785. And Baron PARKE said that it had always been his practice to tell the jury not to convict the prisoner, unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the person of the prisoner. Id. § 787, and authorities there cited. Many authorities on this subject are collated in note 2 to section 381, 1 Greenl. Ev. Speaking of the evidence of an accomplice, it is there said: "But the source of this evidence is so corrupt that it is always looked upon with suspicion and jealousy, and is deemed unsafe to rely upon without confirmation. Hence the court will even consider it their duty to advise a jury to acquit where there is no evidence other than the uncorroborated testimony of an accomplice." And this principle is sustained by numerous common-law citations. In such case the common law practically required an acquittal if the accomplice was not corroborated; our statute has made it imperative. The guilty may sometimes escape punishment under the operation of such a statute, and the innocent might be convicted under the operation of the common-law rule, if juries saw proper to disregard the charge of the court. But the statute has made corroboration of an accomplice necessary, so that the court has no control over the subject except to apply the statute. The court has no discretion, but is bound to apply the statute indiscriminately to all cases wherever an accomplice appears as a witness, and the state's case depends solely upon his uncorroborated testimony. If we were now engaged in making the law, no doubt we would declare a different rule; but the principle is already established and fixed by the authorities, and we would only add to the uncertainty of the law by disregarding them,-a thing which we have no right to do. This point plainly marks the distinction between legislative and judicial power. The binding force of the authorities on this subject is fully recognized by the able editor of the Albany Law Journal, who says: "It might be well to provide for the case of incest as sui generis, but we think accomplices in general should be corroborated as provided for in this section." And now as to the second question above |