the witness as to whether Beeson was on board the launch at the time. That was a conclusion for the jury to determine from facts detailed, and the witness could not properly testify as to his opinion upon that subject. We think the question did not involve any skillful knowledge in the way of expert testimony. The jury could answer

the question themselves, from the facts before them. State v. Coella, 8 Wash. 512, 36 Pac. 474. The objection was properly sustained.

It is assigned as error that the court admitted evidence, over objection, of threats made by appellant against Beeson a year or more before his death, and also threats of a general character, without naming any one in particular, as to what he would do if any one should run into his fish net. Threats against a deceased made by the accused prior to the commission of the alleged offense are

Error is further predicated upon the following: Certain questions were asked by the state of a witness about an alleged conversation with appellant three or four days after the death of Beeson, in which appellant expressed a desire to leave this country, and go to Chili. On objection by appellant, the court refused to permit the questions to be answered. Appellant's counsel then sought to crossexamine the witness on the same line, which was refused by the court. Thereupon appellant's counsel asked the court to instruct the jury to draw no inferences from the questions asked by the state's counsel, which instruction the court did not give. We see no error in this. The court refused to permit the examination when objected to, which was in effect saying to the jury that they should draw no inferences. It must be assumed that the jury are able to distinguish between evidence in fact and the mere interrogatories of counsel.

1108-1110. They are admissible as bearing upon the condition of the accused's mind, in the way of showing malice or a motive for the act charged. "It is immaterial how long before the homicide the threats were made, as the remoteness of their utterance goes to their weight, and not to their competency." 9 Am. & Eng. Enc. Law (1st Ed.) p. 688. See, also, State v. Hoyt, 46 Conn. 330; Everett v. State, 62 Ga. 65; Redd v. State, 68 Ala. 492. Threats are admissible though not directed toward any particular person. 9 Am. & Eng. Enc. Law (1st Ed.) 686, 687; Moore v. People (Colo. Sup.) 57 Pac. 857; Hopkins v. Com., 50 Pa. 9, 88 Am. Dec. 518; Anderson v. State, 79 Ala. 5; Brooks v. Com. (Ky.) 37 S. W. 1043; State v. Harlan, 130 Mo. 381, 32 S. W. 997.

In Dixon v. State, 13 Fla. 636, it was held that, the person killed being a policeman, it was competent to give in evidence on a trial for murder threats made by the accused against policemen, though not particularly against the individual killed. In that case the court says, at page 645: "Testimony of this character is admissible to show the animus of the accused at the time of the commission of the crime, and sometimes tends to identify the accused person, and is always allowed to go to the jury. Its weight is for their consideration. Murder in the first degree is defined by the statute to be the killing of a human being without authority of law, 'with a premeditated design to effect the death of the person killed, or of any human being.' In determining the nature and degree of the crime, the intent of the accused is to be ascertained, and this is often found in the character and language of threats made, and the circumstances under which they are made." We think no error was committed in admitting evidence of threats made by the accused in this case. It was for the jury to determine their weight, when considered with all other facts and circumstances in evidence.

ed appellant permission to ask his own witness the following question: "Suppose you would see a fisherman standing on the stern deck of his fish boat with a lantern in his hand; what course would you pursue with regard to that man if you were close to him?" This was not error. It would have been improper to permit the witness to state what he would have done under given circumstances. The essential inquiry is as to the facts which occurred, and not as to what another would have done under like circumstances.

Error is assigned upon the refusal of the court to permit certain witnesses for appellant to testify as to what appellant had said relative to finding the body of the deceased, Beeson, Witnesses for the state had testified as to remarks made by appellant upon that subject. This testimony was given at a time when it was not known that appellant would become a witness in his own behalf, and was not offered for purposes of impeachment, but as a part of the state's case bearing upon appellant's connection with the crime. The court offered to permit the witness to be examined concerning all conversations about which the state's witnesses had testified, but refused to permit cross-examination as to what appellant had said to his own witness at other times. This, we think, was right. Such statements would be in the nature of self-serving ones, and their admission was properly denied.

While appellant was upon the witness stand, he was telling his story in a narrative form, when one of his counsel interrupted him. A juror then asked the court if appellant could not be allowed to tell his story in his own way, without interruption by counsel. It is urged as error that the court did not reprimand the juror; it being contended that the juror thus protested against an examination of appellant by his counsel. Appellant's counsel continued the examina

tion. The court said nothing, and was not requested to say anything. No objection or exception was noted. The question of the juror was simply asked, and it remained unanswered by the court except for the fact that counsel were permitted to continue the examination. The silence of the court, taken in connection with what followed, was probably a more effective reprimand than would have been a lecture to the juror. The court's conduct was at least not prejudicial error.

The remaining assignments of error, like those already discussed, are based upon alleged errors of the court pertaining to the introduction of evidence. We are satisfied that no material error was committed. No error is assigned upon the court's instructions. The jury having found the appellant guilty, we see no reason for disturbing the verdict, and the judgment is affirmed.

REAVIS, C. J., and FULLERTON, ANDERS, WHITE, MOUNT, and DUNBAR, JJ., concur.

(29 Wash. 61)

STATE v. RHOADES.1 (Supreme Court of Washington. July 5, 1902.) DIVORCE-JURISDICTION-CUSTODY OF CHILDREN-DOMICILE OF CHILDREN-KIDNAPPING-CONSENT OF CHILD.

1. When a wife commenced a suit for divorce in California, her husband resided in Colorado, and their children had been, prior to the suit, taken by the wife from the husband's domicile in Colorado without his knowledge. Divorce was granted, and the wife given custody of the children. Held, that as the defendant appeared in the suit, thereby giving the court jurisdiction of the parties and status constituted by the relation between the parents and children, the court had jurisdiction to fix their custody.

2. Where in divorce the court has jurisdiction of the parties and subject-matter, departure of the children of the parties from the territorial jurisdiction prior to the decree does not deprive the court of jurisdiction to fix the custody of the children.

3. Ballinger's Ann. Codes & St. § 7050, defining "kidnapping," provides that if any person forcibly or fraudulently takes, decoys, or entices away any child under the age of 12 years, with intent to detain or conceal such child from its parent or a person having the lawful charge of such child, he shall be punished, etc. Held, that where one procures possession of a child under 12 years by false representation as to his purpose, and takes the child with intent to conceal him from the one having lawful custody, the offense is complete, though the child consents to go.

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Samuel Armstrong Rhoades was convicted of kidnapping, and he appeals. Affirmed.

Leo & Cass and Marshall K. Snell, for appellant. Fremont Campbell, Charles O. Bates, and Walter M. Harvey, for the State.

HADLEY, J. Appellant was charged with the crime of kidnapping. The information alleges that on or about the 28th day of Au

1 Rehearing denied.

2. See Divorce, vol. 17, Cent. Dig. § 774

gust, 1901, in Pierce county, state of WashIngton, the appellant "unlawfully, felonious. ly, maliciously, forcibly, and fraudulently did lead, take, decoy, and entice away Clair Millmore Rhoades, a child under the age of twelve years, to wit, of the age of ten years, with the intent then and there to detain and conceal the said Clair Millmore Rhoades from Emma Rhoades, the mother of said Clair Millmore Rhoades, and the person who then and there had the lawful charge of said Clair Millmore Rhoades, and the said defendant Samuel Armstrong Rhoades did so as aforesaid then and there unlawfully, feloniously, maliciously, forcibly, and fraudulently lead, take, decoy, and entice away the said Clair Millmore Rhoades against the will and without the consent of the said Emma Rhoades." A trial was had before a jury, which resulted in a verdict of guilty. Motions for new trial and in arrest of judgment were denied, and judgment was entered upon the verdict of the jury, by which appellant was sentenced to serve a term of 14 months' imprisonment in the state penitentiary. From said judgment this appeal was taken.

The appellant and Emma Rhoades, mentioned in the above quotation from the information, were formerly husband and wife, and the child, Clair Millmore Rhoades, is their son. On the 26th day of March, 1898, said Emma Rhoades procured a decree of divorce from appellant in the superior court of the city and county of San Francisco, state of California. By the terms of that decree the custody of the minor children of the said marriage was awarded to the mother, said Emma Rhoades. There were two children,the boy above named, and a sister about two years older. Appellant appeared in the divorce suit and filed an answer to the complaint. If he was not personally present in the court room at the time of the trial, he was represented by counsel at the trial, and was personally in the court house where the trial was held, and while it was going on. A few days before the decree of divorce was rendered, but pending the progress of that case, the mother sent the little children to friends who resided in Alaska. Soon after the decree was entered the mother joined the children in Alaska, and from that time took personal care and charge of them, supporting them by her own labor and exertions. Thereafter she came with the children to Seattle to reside, and engaged in the business of keeping a small store for the sale of Indian curios gathered from Alaska and elsewhere. Prior to the 28th day of August, 1901, she sent the boy, Clair Millmore Rhoades, to board for a time with a Mrs. Derville, who resided at Steilacoom, in said Pierce county. The children had each been sent there on occasions before for their vacations. On the date above named the appellant went to Steiiacoom, and, through the assistance of a boy whom he paid to discover for him the whereabouts of the child, learned that he was play

ing with some other children on the beach, not far away. This boy whose assistance he sought testified that appellant told him he would like to get the child away without saying anything about it to the people with whom he boarded; that appellant gave this boy $1, and told him to buy some candy and give to the child, and tell him his papa was there and wanted to see him; that he bought 10 cents' worth of candy, and went in search of the child, and found him upon the beach with other children, but concluded not to give him the candy or make any attempt to get him away, and simply returned and told appellant where the child was, at the same time offering to return the 30 cents of the $1 remaining, which appellant declined to accept. Appellant then went to the beach and found the child. Mrs. Derville testified as follows: "A. The children were bathing on the beach, and my little girl ran up and said that Clair's papa had come and wished to take him away, and I thought the child was mistaken, but she said 'No,' so Mr. Rhoades came up and introduced himself, with the children. Q. That was the defendant here, Mr. Rhoades,-this gentleman sitting over there? A. Yes; and I asked Clair if that was his father, and the answer the boy made was, 'Yes; that is my papa.' Mr. Rhoades said he had seen Mrs. Rhoades a few days previous in Tacoma, and she said he could go to Seattle to visit the children, which he done, and he only found the girl, but not the boy; that the boy, she said, was in Alaska, with his uncle, but would be down in a few days, and he says, 'Here I find him in Steilacoom.' I told Mr. Rhoades that the boy was well cared for, and if he would leave him a few days I knew nothing of the case. But, no, he would like to take him then, at once. I told him there was a board bill. That didn't matter, he said. He paid me the board bill and took the boy. I asked him, as a gentleman, before he left me, if he would take that boy to his mother, and he said, 'I give you my word I will take that boy to his mother, in Seattle, to prove to her that she has deceived me.' Q. That was the promise he gave you at the time? A. That was the promise that he gave me. Q. Did Clair leave at that time? A. Yes; I dressed the little fellow, and I packed up his things, and he left with his father." Appellant had arranged for a horse and buggy and driver, and immediately left Steilacoom with the child. They were driven to Tacoma, where they remained for about an hour, when the driver proceeded with them to Orting. Appellant afterwards took the child aboard a train going east. They proceeded to Pendleton, Or., where they were joined by the present wife of appellant. They then traveled with a team to Boise, Idaho, and afterwards went to Salt Lake, Utah, thence to Pueblo, Colo., and from there to Lamar, from which place the child was brought back by an officer. The child himself testified: "Q. Clair,

when your father stated he would take you to Seattle, who did he say he was going to take you to? A. To my mother. Q. You thought you were going to your mother? A. Yes, sir." The record of the testimony is voluminous as to the history and relations of appellant and his former wife, but other facts necessary to the determination of this case will be referred to in the discussion hereafter.

The statute defining the crime with which appellant is charged is found in section 7050, 2 Ballinger's Ann. Codes & St., and is as follows: "If any person maliciously, forcibly, or fraudulently lead, take, decoy, or entice away any child under the age of twelve years, with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, he shall be punishd by imprisonment in the penitentiary not more than ten years, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment." As we have seen, the custody of this child was awarded the mother by the court in California, and, if that decree was effective, she was at the time he was taken by ppellant, in the language of the statute, the person having the lawful charge of such child." It is assigned as error that the court instructed the jury that the California court which granted the decree of divorce had jurisdiction to fix therein or thereby the custody of the boy, Clair Millmore Rhoades. In order that this claim of error may be more clear, it is necessary to refer to more of the facts shown by the record: Appellant, during his life, has engaged in the several occupations of barber, harness maker, and veterinary surgeon. In the prosecution of these several lines of business, and particularly the latter, he has traveled much over the country, going from state to state. He first met his former wife in San Francisco, where they were then both residing, and were both acquainted with the city and people. After their marriage they resided at times in different places in other states. They, however, returned to San Francisco, and were living together there when appellant learned that his father, who resided in an Eastern state, was ill. He took the little boy and went East. leaving his wife and the little girl in San Francisco, with no money or means of support. He was gone for a number of months, and meantime sent the little boy back to his mother, as she desired. During his absence he contributed practically nothing for the support of the mother and children, and the mother supported them and herself by working as cashier in a restaurant. After a long absence he returned, with but a few dollars of money, and besought his wife to quit her employment in the restaurant and live with him. She declined to quit the place and sacrifice her small earnings while he was without both money and employment. Being dis

pleased at her refusal, he, without her knowledge or consent, secured both the children, and went with them to the state of Colorado. She testified that he wrote her after he left that he now had the children, and she had left all she had when she married him. He concealed the whereabouts of himself and children from her, and she meantime supported herself by her own exertions. After some months she discovered the location of the children in Colorado, and went and secured them without his knowledge, and brought them back to San Francisco. Soon after she returned she began her suit for divorce, and asked for the custody of the children. Appellant was served with summons without the state, but went to San Francisco, and, as heretofore said, appeared in the action. Under these circumstances, it is urged by appellant that as the head of the family he had the right to fix the domicile of the family, and that, as he was in the state of Colorado at the time the divorce suit was begun, the children having been removed from that state without his consent, they were therefore residents of that state, and the California court had not jurisdiction to fix their custody. Passing the question whether the aforesaid facts were sufficient to constitute the state of Colorado the domicile of the children, it, in any event, appears that the effectiveness of the decree of divorce itself is not disputed in so far as it purports to dissolve the bonds of matrimony theretofore existing between appellant and the mother of the children. That appellant regarded it as a valid decree is evidenced by the fact that he has since remarried. The court must therefore have had jurisdiction to render the decree. The appellant actually and personally submitted himself to the jurisdiction. Having jurisdiction of the parents to the extent of being empowered to dissolve the marital ties, did the court have power to determine who should be the lawful custodian of the children? It is manifest that the adjudication of that matter was all-important to the children, by reason of their tender years. They were unable to act or choose for themselves. Their parents were henceforth to be separated, and it became imperative that some one should be lawfully charged with their custody. A divorce suit may be either a proceeding in rem or in personam. Where the defendant is personally served within the state, or appears in a suit commenced by constructive service, it is a proceeding in personam; but if he is a nonresident, constructively served, only, and no appearance has been made, the proceeding is in rem. 9 Am. & Eng. Enc. Law (2d Ed.) p. 745. By the voluntary appearance of the appellant the action in the California court became one in personam. The relation of parent and child, like that of marriage, is a status. Bish. Mar., Div. & Sep. § 1189. The court, having acquired personal jurisdiction of the

That

parties and of the status constituted by the marriage relation, also acquired jurisdiction of the status constituted by the relation between the parents and minor children. status was a part of the subject-matter of the divorce suit, and the court had jurisdiction of both the persons and subject-matter. The children were with their mother, one of their lawful custodians, and within the territorial limits of the California court, when the action was commenced. They remained there until a few days before the decree was entered. The jurisdiction had attached to the persons and to the whole subject-matter of the suit, and a physical departure of the children from the immediate territorial jurisdiction of the court did not prevent the court from retaining jurisdiction to determine the whole subject-matter of the case. Baily v. Schrader, 34 Ind. 260. We therefore conclude that the California court had power to fix the custody of the children with the mother, and that the trial court did not err in so instructing the jury.

It is next assigned that the court erred in giving to the jury the following instruction: "The court further instructs you that if you should find from the evidence that on cr about the date charged in the information the defendant went to Steilacoom, in Pierce county, Washington,--the place where the said child, Clair Millmore Rhoades, then lawfully was, and then and there represented to the said child and to the person then having his lawful custody and control that he desired and that it was his purpose and intent to take the said child from said place and from said custody and convey him to Seattle, to his mother, Emma Rhoades, and that, having so obtained the possession of the person of the said child under such representations, he then took the said child out of the state of Washington with the intent to detain and conceal said child from its guardian or other person having the lawful charge of said child, then he is guilty of the crime charged in the information in this case, and you should find him guilty, notwithstanding the fact that you should further find that after such taking, and after learning the true intent and purpose of the defendant, the said child, Clair Millmore Rhoades, consented thereto, and was willing to go with the defendant." It is urged that, if the child consented to go, the appellant is not guilty of a crime. The instruction is, however, based upon the theory that appellant procured possession of the child from his lawful custodian by false and fraudulent representations as to his purpose, and took him with intent to conceal him from the person lawfully entitled to his custody. The instruction seems to come well within the statute heretofore set out. The consent or want of consent of a child under 12 years of age seems to be immaterial. The offense consists in the taking with intent to conceal from parent or guardian or other

person having lawful charge of the child. The theory of the legislature evidently was that a child under 12 years of age is incapable of giving consent under such circumstances, and that its own welfare and that of society require that the child's consent shall be immaterial in a prosecution of this character. It was so held in Gravett v. State, 74 Ga. 191, where the charge was similar to the one here. The same principle is also declared in State v. Farrar, 41 N. H. 53, and Com. v. Nickerson, 5 Allen, 518.

There are two other assignments of error, but each is based upon the court's refusal to give certain instructions requested by appellant. The questions raised by the re quested instructions have, however, already been hereinbefore discussed. The evidence was amply sufficient for the jury to find that the mother of the child was his lawful custodian, and that appellant by fraudulent means procured possession of him with intent to detain and conceal him from such lawful custodian. It was to meet such an offense that the statute was created.

We find no material error, and the judgment is affirmed.

REAVIS, C. J., and FULLERTON, ANDERS. DUNBAR, and MOUNT, JJ., concur.

(29 Wash. 57)

STATE ▼. ARMSTRONG. (Supreme Court of Washington. July 5, 1902.)

CRIMINAL LAW-DISMISSAL OF PROSECUTION -EFFECT AS BAR-EVIDENCE-CROSS-EXAMINATION - COSTS CLERK AND SHERIFFFEES.

1. Under 2 Ballinger's Ann. Codes & St. § 6916, providing that a dismissal of a prosecution for a failure to file the information within 30 days after the preliminary examination shall not be a bar to another prosecution if the offense charged is a felony, a dismissal of a prosecution of assault with intent to kill, which is a felony, was not a bar to a further prosecution under a charge for the same of fense, though it resulted in a conviction of simple assault,-a misdemeanor.

2. Where, in prosecution for assault, defendant was asked on direct examination if he had had any other trouble,-the question being intended to relate to trouble with the same witness, and replied that he always tried to get along with his neighbors, it was not error to allow cross-examination as to quarrels and fights with other neighbors.

3. 1 Ballinger's Ann. Codes & St. § 1629, and 2 Ballinger's Ann. Codes & St. § 6975, declare a person convicted of crime liable for all costs. Const. art. 1, § 22, grants an accused the right to compulsory process for witnesses, without advancing fees. Held, that as 1 Ballinger's Ann. Codes & St. § 1609, granting clerk's fees for issuing subpoenas and docketing a cause, and sheriff's fees for serving subpoenas and mileage, did not limit them to civil causes, such fees might be taxed against a person convicted of crime, though the county is not required to pay such officers for such services.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

A. A. Armstrong was convicted of assault, and appeals. Affirmed.

W. H. Abel and A. M. Abel, for appellant J. A. Hutcheson, for the State.

MOUNT, J. Appellant was convicted of assault, and from a judgment imposing a fine he appeals. On June 12, 1901, after a preliminary examination, appellant was bound over to appear before the superior court of Chehalis county to answer a charge of assault with a deadly weapon. On July 11, 1901, an information was filed charging appellant with that offense. On October 4, 1901, upon motion of appellant, the action was dismissed by the court, and the defendant discharged, for the reason that the cause had not been brought to trial within 60 days after the filing of the information. There after, and on the same day, a new information was filed charging the same offense. Appellant moved to quash this last information upon the ground that the same was filed more than 30 days after the transcript of the preliminary examination was filed. This motion was denied, and a plea of not guilty entered, and a trial and conviction of assault followed. A judgment imposing a fine of $150 and costs was thereupon entered. A cost bill amounting to $159.30 was subsequently filed. Included in the cost bill were the following items: Clerk's costs, $9.45; sheriff's fees, $11.85; Jury fee, $12. Appellant moved to strike these items from the cost bill, and the motion was denied. The errors relied upon are: (1) In denying the motion to quash the information; (2) in admitting cross-examination of defendant as to certain difficulties previously had; and (3) in denying the motion to retax costs.

1. The statute expressly provides, at section 6916, 2 Ballinger's Ann. Codes & St., that the order of dismissal, under the sections by authority of which the appellant was dismissed, shall not be a bar if the offense charged be a felony. The offense charged in the first information was felony. The offense charged in the information upon which appellant was tried was also felony. The prosecuting attorney was authorized to file it at any time within the period of the statute of limitations. The effect of the dismissal in the case was to release the defendant from the costs of the prosecution up to that time, and to discharge him from custody, or release his bail. The filing of the new information was the commencement of a new action for the same offense. The fact that the jury returned a verdict of guilty of a misdemeanor would not affect the offense charged, so as to make the former dismissal a bar to the action. The statute reads: "But it is not a bar if the offense charged be a felony." The offense charged is the guide for the court, and not the verdict rendered upon a trial of the offense charged. It was, therefore, not error to deny the motion to quash, or to overrule the demurrer, or to deny the motion for a directed verdict, or to deny the motion in