testimony she produced the child in evidence in court on the trial, and testified that defendant was its father, and that it was the result of these acts of sexual intercourse. At the close of the People's evidence, defendant's counsel moved that the prosecution be required to elect upon which transaction it would ask for a conviction. The request was refused, which made it incumbent on Reil to defend against and introduce evidence on all the transactions. At the close of all the evidence, the People elected to rely for a conviction upon the transaction testified to by her as having occurred on August 16, and the jury returned a verdict of acquittal upon the merits. She afterwards caused the arrest and trial of the defendant in the same court upon a charge of non-support of the same child and herself, upon the ground that he was its father, which under the statute, is a crime punishable by imprisonment in the penitentiary, and on this trial the jury returned a verdict of guilty. The demurrer to the plea of autrefois acquit, which was sustained, admitted all these facts, and the question is whether the first prosecution is a bar to the second.

2. The two alleged crimes are so clearly allied and dependent upon the same evidence, that an acquittal in the former bars the subsequent prosecution. Proof of the charge of being the father of the child depended upon the identical facts charged in the former case, and acquittal upon the merits was a bar to this prosecution. charging him with being the father of the child which it is alleged he neglected to support. The same ingredient is the basis of both charges. The crime of nonsupport is grounded upon the fact of its being his illegitimate child. To prove this, it would be necessary to prove on the trial at least one of the identical acts and facts of sexual intercourse of which he had at the previous trial been placed in jeopardy. The issue upon acquittal was upon the merits as to the main acts, and

not upon the allegation of the female being over the age of 18 years. If the acquittal was upon the latter ground, so that he might still have been the father of the child, that should have been set up by an answer. To acquit on the former trial it was as necessary for the jury to find that he was not the father of the child as it would be necessary in the latter case to convict, for them to find that he was the father of the child.

But it is said that while the facts are the same, the crimes are not, therefore defendant has not been in jeopardy of the crime charged. True, they are not the same in name, but in character and identity of evidence they are closely associated. When accused was tried and acquitted upon the merits of the charge of having sexual intercourse with the prosecutrix, he was placed in jeopardy upon all acts of sexual intercourse concerning which evidence was given at that trial, and he could not subsequently be convicted upon a charge of not supporting the child claimed to have been begotten at such time. The jury could not carve out of the evidence that he was the father of the child without proof of some identical act of sexual intercourse upon which he had been acquitted.

In 12 Cyc. 288, it is said:

"Doubtless an acquittal upon the charge of assault and battery would be a bar to a subsequent indictment for rape, where both charges are based on the same transaction."

The point is made that the title of the Act: "To compel men to support their wives and children," (Laws 1911, p. 257), refers to legitimate children, and is not broad enough to include a criminal prosecution under it for the non-support of an illegitimate child and its moth

er. Upon this contention the court expresses no opinion. The judgment is reversed and the cause remanded.

Decision en banc.

Reversed and remanded.

Mr. JUSTICE TELLER specially concurring.

Mr. JUSTICE SCOTT dissents.

INDEX.

ACCORD AND SATISFACTION.

Payment of a Less Sum in Satisfaction of a Greater, which is not
liquidated, is not a satisfaction of what remains unpaid; but the rule
is confined strictly to cases within it, and departed from upon slight
distinctions. Acceptance of the less sum, with full knowledge that it
is tendered as full payment, without protest or objection, bars an action
for the balance, where the claim is unliquidated or disputed,-there
being no fraud or mistake.-New York Co. v. McDonald, 67.

ACTIONS.

Legal or Equitable-Plaintiff alleged that she had deposited with
defendant money to be loaned for her account upon safe real estate
securities, that defendant in fact appropriated the money, and turned
over to plaintiff a promissory note which was his own property. De-
fendant admitted the employment but denied the deceit. The jury hav-
ing found that defendant was acting as the agent of plaintiff, held,
that though plaintiff had accepted the note with the indorsement of
defendant, "Without recourse," the action was not an action in equity
to set aside a completed written contract; that it was the violation of
defendant's duty, not the fraud, which was the basis of the action.-
Boyle v. Poor, 337.

Defenses-Failure of Consideration-Where to an action on a
promissory note defendant pleads total failure of consideration evi-
dence of partial failure is inadmissible.-Vreeland v. Murray, 322.

AFFIDAVIT. See OATH.

APPEAL AND ERROR.

Where Error Lies-No objection having been made to the entry of
judgment, and no motion for a new trial filed, (Rules of Practice 19),
the judgment was affirmed. The relation of remedies to rights is
fundamental, and cannot be disregarded at will.-Denver Co. v. Farrell,

491.

What May Be Assigned for Error-An order commiting the hus-
band for contempt in the nonpayment of decreed alimony, will not be
reviewed on suggestion of the want of jurisdiction in the court below,
of the original cause.-Long v. Long, 191.

APPEAL AND ERROR-Continued.

Motion for a New Trial, is a condition precedent to the mainten
ance of error to review the judgment. Rules of Practice 19.-Snider
v. Ostrander, 99.

Limitation-It is generally held that statutes which limit the time
for an appeal or writ of error are mandatory and jurisdictional. Where
the statute is not observed, in point of time, the proceeding will be
dismissed-Federal Gas Co. v. Colorado Tax Commission, 533.

A writ of error sued out after the lapse of one year from the rendi-
tion of the judgment dismissed.-Snider v. Ostrander, 99.

Practice-Tender of Record-Extension of Rule-Where the period
allowed by the Rules of Practice (Rule 20, Sub. C.), for the tender of
the record in error has elapsed, there can be no extension thereof.
The record having been tendered only after such default, and improper
extension, the writ of error was dismissed.-Morford v. Colorado Home
Co., 310.

Harmless Error-Action for a balance of wages. The plaintiff
had been receiving a salary of $200.00 per month. A "cut" had been
announced, but plaintiff and one of the officers of defendant testified
that the officer in question had promised plaintiff that he would later
receive the deferred salary. There was also evidence that the same
officer had stated at the time of the "cut" that the sole purpose thereof
was to get rid of another employee named. In view of this, the admis-
sion of testimony that other employees of the company whose salaries
were reduced by the cut, were afterwards paid in full, was held harm-
less. Supersedeas denied and judgment affirmed.-Neef Bros. Co. v.
Krotter, 102.

Interlocutory Order, not occasioning any injury to defeated party
is harmless, even though erroneous.-Mulford v. Farmers' Co., 167.
Finding on Conflicting Evidence, will not be disturbed.-Hotter
v. Kimsey, 326.

Verdict on Conflicting Evidence, under proper instructions, will
not be disturbed.-Thomas v. Green, 112.

So as to a decree in equity.-Borah v. Kempf, 201.

Judgment Against the Weight of Evidence, will be reversed. The
opinion is not to be taken as the finding of any fact. Any succeeding
trial will be de novo.-Archuleta Co. v. Archuleta, 512.

Record-Writings not set out in the record, are not considered.
So of questions not presented by the motion of a new trial.-Expan-
sion Co. v. Campbell. 410.

Abstract-Questions not presented by the printed abstract are not
considered.-Duncan v. Guillett, 220.