Ex parte TURNER.

REFUSAL-RES JUDICATA.

(92 Vt. 210)

Rutland. Jan.

etc., Ry. Co. v. Starbird, 243 U. S. 592, 37 | is annexed; or it may operate merely as a Sup. Ct. 462, 61 L. Ed. 917. The only evi- limitation upon the remedy. In the former dence of a compliance with this requirement case, its performance constitutes an escame into the case by way of the admission sential element of the cause of action; in the of a question and answer in the deposition latter it does not prevent the accrual of of the station agent of the delivering car- the right of action, but merely stalls the rier, to which the defendant excepted. It remedy thereon. The written claim required appears that this deposition was taken at by the bills of lading is a mere matter of Waseca by agreement of counsel. It is stated contract. It is essential to a recovery, but in the bill of exceptions that the plaintiff only affects the plaintiff's remedy, and intertook this deposition, and that the defendant est was properly allowed from the time of did not cross-examine the witness, but made delivery. Robinson Bros. v. Merchants' Deshim its own witness, and asked him when patch Trans. Co., 45 Iowa, 470. the claims for damages were first presented Judgment affirmed. to the delivering carrier. He answered that it was in the first part of January, 1911, which would be within the time limited in the bills of lading. In support of its ex-(Supreme Court of Vermont. ception to the admission of this evidence, the 4, 1918.) defendant argues that that part of the dep-1. HABEAS CORPUS 117(1)—ALLOWANCE OR osition was its own, and it alone could say whether it should be used in evidence or not -citing Lord v. Bishop, 16 Vt. 110, Wait v. Brewster, 31 Vt. 516, and Wing v. Hall, 47 Vt. 182. If it were necessary to pass upon the soundness of these cases as applied to present-day conditions, we should proceed with some caution. There is much good sense in the opinion in Taylor v. Thomas, 77 N. H. 410, 92 Atl. 740, wherein a previous decision of that court in harmony with our cases above was overruled and the rule established that either party could use a deposition taken for use in a case pending in court. But the deposition before us does not stand like the ordinary deposition taken on notice. It was taken by agreement, and such a deposition may be used by either party. Western Union Telegraph Co. v. Hanley, 85 Ark. 263, 107 S. W. 1168. The agreement under which this deposition was taken indicates that it was contemplated at that time that the instrument should be used by either party. The exception is not sustained. The argument of plaintiff's counsel to the effect that the defendant had notice of the claims for damages prior to the filing of the written notices was unwarranted, but harmless. The court charged correctly on that subject, and prejudice does not appear.

A decision in the county court adverse to a relator in habeas corpus proceedings to be released from prison, where he was serving a sentence for nonsupport of his wife, is not res judicata, so as to bar a subsequent application based upon the same grounds in the Supreme Court. 2. HABEAS CORPUS 113(3)-EXCEPTIONS— DECISIONS REVIEWABLE.

The general provisions of the statute relating to exceptions do not extend to the orders of a justice of the Supreme Court, or those of a superior judge in matters relating to the allowance or refusal of petition in habeas corpus. 3. HABEAS CORPUS 92(1)—JURISDICTION— EXTENT.

While proceedings by writ of habeas corpus and do not reach the charges and proceedings challenge alone the jurisdiction of the court, anterior to the judgment, the inquiry is not confined to the jurisdiction over the subject-matter, and the person but extends to the jurisdiction to render the particular judgment. 4. STATUTES 159 - REPEAL IMPLIED RE

PEAL.

A statute will not be construed as repealing a former act on the same subject, in the absence of express words to that effect, unless there is such an inconsistency between them that they cannot stand together, or unless the latter act is evidently intended to supersede the former in respect to the matter in hand, and to comprise in itself the sole and complete system of legislation on that subject. 5. HUSBAND AND WIFE

-STATUTES.

303-NONSUPPORT

[8] The plaintiff was allowed to recover as P. S. 5726, providing that a person who, damages a sum equal to simple interest at being of sufficient ability, neglects or refuses to the lawful rate from the time of the arrival provide necessary food and clothing for his wife and child, shall be imprisoned for not more than of the goods at their destination to the time six months, or fined not more than $20, or both, of the sitting of the trial court. To this, the is superseded by Laws 1915, No. 101, relating defendant excepted on the ground that inter- to desertion or nonsupport of wife and child, est would not begin to run until the written mote uniformity between the states in reference and providing punishment therefor, and to pronotice was filed. But for the requirement of thereto; the latter statute, while not inconsistnotice, the rule applied by the court was un-ent with the former, being clearly intended to doubtedly correct. Blumenthal v. Brainerd, supra. It is true that any condition precedent must be performed, whether it be prescribed by statute, by agreement, or by implication from circumstances. It may operate on the right itself, as when a statute creates a new right to which a condition

supersede it.

6. EVIDENCE 29-JUDICIAL NOTICE-STAT

UTES.

The court will take judicial notice that Laws 1915, No. 101, relating to desertion and nonsupport, was one prepared and recommended by the national conference of commissioners on uniform state laws, and that when adopted, it had already been adopted by several other states.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. HABEAS CORPUS
GROUNDS FOR RELIEF.
In proceedings on habeas corpus for the re-
lease of a person charged with crime, the writ
will be dismissed, where the complaint under
which relator is held is not void, although inar-
tificially drawn.

Petition for writ of habeas corpus by Frank A. Turner. Petition dismissed, and relator remanded.

30(2)—JURISDICTION- jurisdictions, and an examination of the reported cases discloses a marked want of uniformity, both in reasoning and result. Some courts make a distinction between cases in which the imprisonment or restraint grows out of a civil action and those where the question is between the individual seeking his liberty and the people, or the state, seeking his restraint. In the latter class of cases the prevailing rule is that an order in one proceeding does not bar another or further proceeding for the same cause. 1 Bailey on Hab. Cor. 206. See Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256. The diversity of decision is apparently affected to some extent by local statutes.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

Lindley S. Squires, of Rutland, for relator. C. V. Poulin, State's Atty., of Rutland, for

the State.

TAYLOR, J. The relator pleaded guilty September 27, 1916, in the Rutland city court [2] The Constitution of this state makes to a complaint charging that he, being of the writ of habeas corpus a writ issuable of sufficient pecuniary ability, at the time and right. Const. c. 2, § 33. We have no statplace named neglected and refused to pro- ute regulating successive applications for the vide necessary food and maintenance for his writ. The beneficent purpose of the writ is wife, Louise Turner, and four minor chil- to provide a summary proceeding to deterdren, contrary to the form of the statute, etc. mine the lawfulness of one's imprisonment Thereupon the court sentenced him to be or restraint. Except when imprisoned for confined at hard labor in the House of Cor- contempt, when the writ must be returnable rection for a term of not less than eighteen to the Supreme Court (P. S. 1965), applicamonths nor more than two years from the date tion for relief may be made to the Supreme of commitment. The same day he was com- Court during its sittings, or to any justice mitted to said place of imprisonment, where thereof during vacation, or to any superior he is still held in execution. He has been judge, or to the county court in the county brought before this court on a writ of ha- where the applicant is imprisoned, if in sesbeas corpus issued on a complaint alleging sion. P. S. 1939. The court or other authorthat he is unlawfully imprisoned and praying ity to whom the complaint is made is requirthat he may be relieved therefrom. The spe-ed to award the writ and without delay excific cause alleged why he should be dis- amine the causes of imprisonment or recharged is that the complaint on which he straint. P. S. 1912, 1954. Each is given was convicted and sentenced was brought full power to make final disposition of the under P. S. 5726, which provides a penalty application. P. S. 1958, 1960. No provision of not more than six months' imprisonment is made for review of questions of law arisor a fine of not more than $20, or both, and ing in such proceedings. The general prothat therefore his confinement after March visions of the statute relating to exceptions 27, 1917, is unlawful. do not extend to the orders of a justice of the Supreme Court, or those of a superior judge, in matters of this kind. When the application is made to the county court, the relator may have its judgment reviewed on exceptions. In re Cooper, 32 Vt. 253. But that right is merely incidental, and does not flow from any special jurisdiction conferred on the county court in such cases.

[1] The state's attorney challenges the relator's right to a hearing on the merits of the complaint on the ground that the proceedings are barred by a decision of the Rutland county court adverse to the relator from which no exception was taken. It is conceded that the relator was before said court at its September term, 1917, on a writ of habeas corpus issued on an application At common law the rule is that a final addressed to said court; that he then sought judgment remanding the prisoner in proceeda discharge from his imprisonment upon ings on habeas corpus does not bar a subsetwo grounds, one of which is the same as quent application for another writ. Ex parthat upon which the present complaint is te Partington, 13 M. & W. 679. We do not based; that upon hearing the county court think that the rule is affected when the apadjudged that he was not illegally impris- plication chances to be to the county court. oned and dismissed his complaint; and that Manifestly an order by a justice of this court from this judgment no exception was taken. in vacation, or by a superior judge, would The question whether a decision adverse not bar a subsequent application to this to the relator in habeas corpus proceedings court for review. But their jurisdiction in is res judicata, and so bars a subsequent ap- such proceedings is concurrent with that of plication for the same cause, is now for the the county court; and if their orders are not first time before this court for decision. res judicata, how can it be said that those The question has frequently arisen in other of the county court in such matters are?

We hold that No. 101, Acts of 1915, repealed P. S. 5726, and was the only statute on the subject in force at the times to which the inquiry relates.

5726, was originally enacted under the title, | act of 1915 was one prepared and recom"An act to compel certain persons to main-mended by the national conference of comtain their families" (No. 35, Acts of 1890). missioners on uniform state laws, and that As subsequently amended, the act provided at the time of its adoption by the Legislature that a person who, being of sufficient ability, of this state it had already been adopted by neglects or refuses to provide necessary food several of the other states. State v. Rutland and maintenance for his wife or minor chil- R. R. Co., 81 Vt. 508, 511, 71 Atl. 197. It dren, shall be imprisoned not more than six would do violence to the expressed intention months or fined not more than $20, or both. of the Legislature to promote uniformity of No. 101, Acts of 1915, is entitled "An act re- law on the subject to presume that they inlating to desertion and nonsupport of wife or tended to defeat that purpose by retaining a child and providing punishment therefor, and statute which would create dissimilarity. to promote uniformity between the states in reference thereto." It contains eight sections. Section 1 provides that a husband who shall, without just cause, desert or willfully neglect or refuse to provide for the support and maintenance of his wife in destitute circumstances, or any parent who shall, without lawful excuse, desert or willfully neglect or refuse to provide for the support and maintenance of his child under the age of sixteen years, in destitute circumstances, shall be imprisoned at hard labor not more than two years or fined not more than $300, or both. Sections 2 and 6 relate to procedure. Sections 3 to 5, inclusive, provide ways by which the necessities of the wife and children can be relieved under the court's orders. Section 7 makes it the duty of the officer in charge of the institution where the husband is confined under sentence to pay over a stated sum monthly for the support of the wife or child. Section 8 provides that the act shall be so interpreted "as to effect its general purpose to make uniform the law of

those states which enact it."

We are not unmindful of the fact that both statutes appear in the revision of 1917. It is urged that this indicates the legislative intention to continue P. S. 5726, in force. It is not now necessary to consider what the status of what was formerly P. S. 5726, will be after February 1, 1918, the date when the General Laws take effect. Whatever the intention of the Legislature of 1917 was in bringing P. S. 5726, forward into the General Laws, it would not relate back to effect the evident intention with which No. 101, Acts of 1915, was originally enacted.

[7] The relator insists that the complaint on which he was convicted is wholly insufficient to charge an offense under No. 101, Acts of 1915. However, the question is not as to the sufficiency of the complaint as a matter of pleading, but whether it is void in that it describes no offense. The inquiry in such case is not whether the complaint contains such specific allegations as would make it good on demurrer or motion in arrest, but whether it describes a class of offenses of which the court has jurisdiction and alleges the respondent to be guilty. In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274. If there is a manifest want of criminality in the matter charged, such as in effect to render the proceedings void, doubtless relief could be granted on the writ of habeas corpus. Note 26 Am. Dec. 48. But where the complaint, though inartificially drawn, shows an evident attempt to state the essential facts which constitute the crime sought to be charged, a defect in statement will not warrant a discharge. To hold otherwise would be to substitute the writ for the regular proceedings in error and would result in intol erable interference with the ordinary process of criminal prosecutions. 12 R. C. L. 1202. The complaint satisfies the requirements of a charge under the statute sufficient to withstand the attack of this writ.

Comparison of the statutes discloses no such inconsistency as forbids their standing together. It remains to consider whether the later act so covers the subject of the former as clearly to indicate that it was intended that the later should supersede the former. We are satisfied that this is the necessary inference. Section 1 of the act covers the whole subject embraced in P. S. 5726, except that the former includes only minor children under the age of sixteen, while the latter extends to all minor children. But this fact is not sufficient to throw serious doubt on the question. The increased penalty and the additional provisions better calculated to accomplish the purpose expressed in the title of the original act indicates clearly enough that the later act was intended as a substitute. See note 88 Am. St. Rep. 278. But the strongest indication of this intention is found in the title and the last section of the act, which bear evidence of the fact that an important object sought to be accomplished was uniformity of statutes It is adjudged that the relator is not unon the subject throughout the states of the lawfully imprisoned, and he is remanded to union. the House of Correction, whence he was [6] We may take judicial notice that the taken, and his complaint is dismissed.

(259 Pa. 249)

COMMONWEALTH v. WOOLEY.

"At the time you fired this shot will you state to the court and jury whether or not you

(Supreme Court of Pennsylvania. Jan. 7, 1918.) thought you were in peril of your life, or of

1. HOMICIDE 194 - EVIDENCE SELF-DEFENSE.

In a prosecution for murder, wherein defendant alleged that he was acting in self-defense under circumstances making him believe that his life was in danger or that he was about to suffer great bodily harm, and that to save his life or avoid such harm he shot deceased, the disallowance of a question to defendant, testifying in his own behalf, as to whether when he fired the shot he thought he was in peril of life or great bodily harm, was error.

great bodily harm?"

This was disallowed, and its disallowance is the subject of the first assignment of error.

The appellant was a competent witness for himself and the question which he was not permitted to answer bore directly upon the defense he was making. He alone, of all the witnesses called by him, could testify as to whether he really thought he was in peril

2. HOMICIDE 339-SELF-DEFENSE-EXCLU- of his life or of great bodily harm, and no tes

SION OF EVIDENCE-CURE.

Such error was not cured by defendant's mere admission that he was scared and in fear, as that was not the equivalent of his unqualified declaration that he had acted in self-defense because he thought he was in peril of his life or in great bodily harm. 3. HOMICIDE 309(1)

GRADES OF MANSLAUGHTER.

INSTRUCTION

In a prosecution for murder, where defendant testified that when he took the gun in his hands he thought it was not loaded and intended to use it to frighten the deceased away, an instruction that, if defendant had such intention, he would be guilty of "voluntary" instead of "involuntary" manslaughter, in view of a conviction of voluntary manslaughter, was error for which a new trial will be awarded. 4. CRIMINAL LAW 823(17) ERRONEOUS CHARGE-CURE.

Such erroneous charge was not cured by the fact that the court in a previous part of the charge had carefully distinguished between the two grades of manslaughter.

5. CRIMINAL LAW 1144(16) ERRONEOUS INSTRUCTIONS-PRESUMPTION.

Where correct and erroneous instructions are given in a charge, it is not to be conjectured, especially in a capital case, which the jury followed; it being enough to know that they may have followed the erroneous charge on a point vital to defendant.

Appeal from Court of Oyer and Terminer,

Bradford County.

George Mitchell Wooley was convicted of voluntary manslaughter, upon which sentence was passed, and he appeals. Reversed,

with a venire facias de novo.

Argued before BROWN, C. J., and POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ.

William G. Schrier and Charles E. Mills, both of Athens, for appellant. David J. Fanning, Dist. Atty., of Troy, for the Commonwealth.

timony could have been more competent than his own as to his belief that he was in such danger. What credit was to be given to him was for the jury under all the circumstances surrounding the homicide, and it is to be remembered that they might fairly have inferred to his prejudice that he had not been in fear of bodily harm if he had failed to so testify. The refusal to permit him to do so was clear error. Commonwealth v. Garanchoskie, 251 Pa. 247, 96 Atl. 513; Wallace v. United States, 162 U. S. 466, 16 Sup. Ct. 859, 40 L. Ed. 1039; Commonwealth v. Woodward, 102 Mass. 155; Batten v. State, 80 Ind. 394; Taylor v. People, 21 Colo. 426, 42 Pac. 652; Elliott on Evidence, vol. 4, § 3041. In his opinion refusing a new trial the judge admitted this error, but refused to correct it, because, in his judgment, there had been developed on the cross-examination of the defendant what would have been an affirmative answer to the disallowed question. This was not so. In no one of his answers to the questions put to him by the district attorney does he say that, when he of his life or of great bodily harm, and it shot the deceased, he thought he was in peril was not judicially frank or fair to hold that his mere admission that he was scared and

in fear was the equivalent of his unqualified

declaration that he had acted in self-defense

because he thought he was in peril of his life
The first assign-
or of great bodily harm.
ment of error is sustained.

[3, 4] The defendant testified that, when he took the gun in his hands, he was under the impression it was not loaded, and that his intention was to use it to frighten the deceased away. In commenting upon this testimony the following instruction was given to the jury and is the basis of the second assignment:

BROWN, C. J. [1, 2] The appellant was convicted in the court below of voluntary manslaughter on an indictment charging him "Now, we will say right here, for fear we with murder. His plea was that he was act- may forget it, if, under all the circumstances of ing in self-defense, under circumstances this case, if you find in the testimony that this which made him believe that his life was in defendant honestly and in good faith believed danger, or that he was about to suffer great this gun was empty, and he took it out there simply for the purpose of frightening this man bodily harm, and that to save his life or away by its appearance, and had no intention avoid such harm he shot the deceased. While in his mind at the time of shooting him, and he he was being examined as a witness in his drew up the gun in the manner in which he described, for the purpose of frightening him, not own behalf, he was asked the following ques-knowing it was loaded, and he shot and killed

tion:

this man, we think that he would be guilty of

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