(C) Alteration, Vacation, or Abandonment.

(E) Liabilities Enforceable Against Homestead.

§ 72. On writ of review to the county court to review proceedings to alter a highway, where it appears that a defect in the proceedings below was fatal to the jurisdiction, held, that it was error to dismiss the writ on the ground that the petition for the writ did not specify the particular defect.-Jensen v. Curry County (Or.) 96. § 72. Proper road notices by petitioners to alter a highway were conditions precedent to giving the county court jurisdiction to alter the highway, and the court has no jurisdiction to do so where it did not find that the subscribers-Olson v. Goodsell (Wash.) 463. to the notice resided in the road district where the road was to be laid out, as required by Laws 1903, p. 263, § 7.-Jensen v. Curry County (Or.)

95. Under Ballinger's Ann. Codes & St. §§ 5215, 5243, 5246 (Pierce's Code, 88 5457, 5485, 5488), a homestead declaration filed after the execution of a mortgage on land held ineffective as against the mortgage.-Hookway v. Thompson (Wash.) 153.

96.

$72. The notice of the application to alter a highway must be signed by the petitioners for the alteration, and hence a finding of the county court that petitioners for the alteration of a highway were freeholders residing in the vicinity of the alteration was equivalent to a finding that the persons who signed the road notice were such.-Jensen v. Curry County (Or.) 96.

V. REGULATION AND USE FOR

TRAVEL.

A) Obstructions and Encroachments. § 154. Though Rev. Codes, § 3656, declares that any obstruction to a highway is a nuisance, an irrigation ditch constructed under the statute cannot be deemed a nuisance.-MacCammelly v. Pioneer Irr. Dist. (Idaho) 1076.

§ 155. Under Ballinger's Ann. Codes & St. $3093, 5660, 5661 (Pierce's Code, §§ 1867, 1265, 1266), a contract mail carrier held specially damaged by the obstruction of a highway bridge by defendant's logging operations, and entitled to recover damages.-Sholin v. Skamania Boom Co. (Wash.) 632.

(B) Use of Highway and Law of the Road.

§ 184. Evidence held to justify a finding that one injured by the runaway team of another was not guilty of contributory negligence.Paine v. Ward (Cal. App.) 132.

§ 184. Evidence held to support a finding that defendant negligently permitted his team to run away, and thereby injure plaintiff.-Paine v. Ward (Cal. App.) 132.

HOLOGRAPHIC WILLS.

See Wills, §§ 130, 132.

HOMESTEAD.

Action by wife to quiet title, necessity of join-
der of husband, see Husband and Wife, S
221.
Entry on public lands, see Public Lands, § 35.

I. NATURE, ACQUISITION, AND
EXTENT.

(C) Acquisition and Establishment.
§ 38. Under Civ. Code, §§ 1260, 1262, 1263,
where the husband has not selected a home-
stead, the wife may make such selection as he
could have made, and hence could select prop-
erty of the value of $5,000.-MacLeod v. Mor-
an (Cal. App.) 932.

§ 42. Under Ballinger's Ann. Codes & St. & 5243 (Pierce's Code, § 5485), mere occupancy of property as a homestead, without filing a declaration of homestead, held insufficient to create a homestead exemption.-Hookway v. Thompson (Wash.) 153.

$95. The filing of a declaration of homestead under Ballinger's Ann. Codes & St. § 5243 et seq. (Pierce's Code, § 5485), subsequent to the time a mechanic's lien was filed and notice of lien recorded, held not to destroy the lien.

II. TRANSFER OR INCUMBRANCE. Transfer or incumbrance of by granting rights to gas company as affecting right to restrain destruction of pipe line, see Injunction, § 54.

to enjoin a forcible destruction of its pipe line 117. Where, in an action by a gas company across a homestead, it appears that both the husband and wife consented that the line be laid, whether such consent was jointly given is immaterial.-Ralston v. Wichita Natural Gas Co. (Kan.) 430.

III. RIGHTS OF SURVIVING HUS-
BAND, WIFE, CHILDREN,
OR HEIRS.

150. Under Probate Act, § 281 (Laws 1897, p. 164, c. 106; Comp. Laws, § 3067), a motion for new trial preliminary to appeal is proper proceedings to set aside a homestead to the widow.-State v. Langan (Nev.) 568.

§ 150. A petition held to raise the issue as to whether property sought to be set aside to a widow as a homestead was separate or community property.-State v. Langan (Nev.) 568. HOMICIDE.

Conviction of manslaughter under indictment for murder, see Indictment and Information, $ 189.

Laws governing prosecution and punishment of murder committed in territory on admission of territory as state, see States, § 9.

II. MURDER.

§ 7. While, in one sense, murder and manslaughter are separate crimes, yet, in a broader sense, they involve but one crime and are only degrees of felonious homicide.-Rhea v. Territory (Okl. Cr. App.) 314.

14. The words "deliberation" and "premeditation" defined.-State v. Arata (Wash.) 227. $28. Drunkenness held insufficient to constitute a defense to homicide.-State v. Rumble (Kan.) 1.

III. MANSLAUGHTER.

slaughter are separate crimes, yet, in a broad§ 31. While, in one sense, murder and maner sense, they involve but one crime and are only degrees of felonious homicide.-Rhea v. Territory (Okl. Cr. App.) 314.

§ 31. The word "willfully," as used in Rev. St. U. S. § 5341 (U. S. Comp. St. 1901, p. 3628), defining manslaughter, is synonymous with "intentionally" or "designedly"; without lawful excuse, not accidental.-O'Barr v. United States (Okl. Cr. App.) 988.

§ 81. Drunkenness held insufficient to constitute a defense to homicide.-State v. Rumble (Kan.) 1.

§ 81. Drunkenness may reduce a homicide from murder to manslaughter, if so extreme as to prevent the existence of an intent to kill.State v. Rumble (Kan.) 1.

IV. ASSAULT WITH INTENT TO KILL. | 1901, p. 3628), omitting the word "willfully," $99. In a prosecution for assault with in-held erroneous.-O'Barr v. United States (Okl. Cr. App.) 988. tent to murder a police officer, held, that such officer was entitled to enter a pool hall and remain as long as was necessary to enable him to ascertain whether or not intoxicating liquors were unlawfully sold therein.-People v. McKeehan (Cal. App.) 273.

$309. A charge on manslaughter in the language of the statute held sufficient.-State v. Quinn (Wash.) 818.

§ 309. Where accused was guilty of murder in the first degree, or second degree, or was not guilty, a charge on manslaughter was improper. -State v. Quinn (Wash.) 818.

X. APPEAL AND ERROR.

§ 338. On a trial for assault with intent to murder, the admission of certain evidence held not prejudicial to accused.-People v. McKeehan (Cal. App.) 273.

murder in the first or second degree, or was not § 340. Where accused was either guilty of guilty, an instruction on manslaughter being favorable to him, he could not complain thereof.State v. Quinn (Wash.) 818.

HORSE RACES.

Pleading performance of conditions by plaintiff in action to recover premium offered by State Board of Agriculture, see Contracts, § 335.

HOSPITALS:

Liability of master for medical attendance, on employé, see Master and Servant, § 92.

HOUSEBREAKING.

§ 158. In a prosecution for homicide, evi- See Burglary. dence of previous threats held admissible only when also shown to refer to deceased.-State v. McGreevey (Idaho) 1047.

§ 163. In a prosecution for homicide, evidence of defendant's good character held admissible to rebut evidence of malice and criminal intent.-State v. McGreevey (Idaho) 1047.

HUNTING.

Liability for injuries from negligent use of weapon, see Weapons, § 18.

HUSBAND AND WIFE.

See Divorce; Dower; Marriage.
Adultery, see Adultery.

§ 167. In a murder case, evidence held admissible that, between two and three years before, accused had in witness' presence threat-Rights of survivor, see Homestead, $150. ened to shoot decedent.-State v. Quinn (Wash.) Selection of homestead by wife, see Homestead,

818.

§ 167. The time when a threat was made held immaterial on the question of its competency as evidence, but to affect only its weight as evidence.-State v. Quinn (Wash.) 818.

(C) Dying Declarations.

§ 200. A certain statement of decedent held admissible as a dying declaration.-State v. Quinn (Wash.) 818.

VIII. TRIAL.
(C) Instructions.

§ 286. An instruction on the subject of deliberation and premeditation held erroneous.-State v. Arata (Wash.) 227.

$ 300. Where there is substantial evidence that accused acted in self-defense, that he denies having committed the act is not a ground for refusing to submit the question of justification. -State v. Jackett (Kan.) 689.

§ 304. In a prosecution for homicide, an instruction on the use of dangerous weapons held erroneous for failure to define the degree of caution required in the handling thereof or gross neglect.-O'Barr v. United States (Okl. Or. App.) 988.

§ 307. Certain instructions on murder trial held properly given.-Atchison v. State (Okl. Cr. App.) 387.

§ 309. An instruction defining manslaughter under Rev. St. U. S. § 5341 (U. S. Comp. St.

§ 38.

IV. DISABILITIES AND PRIVILEGES
OF COVERTURE.

(A) In General.

§ 55. Under the common law, the legal existence of the wife at the date of the marriage merged in the husband.-Hall v. Johns (Idaho) 71.

(C) Contracts.

79. Rev. Codes, tit. 2, c. 3 (sections 26742693), held an extension of the common-law rights of a married woman to contract.-Hall v. Johns (Idaho) 71.

§ 79. At common law the rights of a married woman to contract are merged in the husband at marriage.-Hall v. Johns (Idaho) 71.

V. WIFE'S SEPARATE ESTATE. (A) What Constitutes.

§ 131. The phrase "incumbrancers in good faith and for a valuable consideration," used in Civ. Code, § 164, defined.-Fulkerson v. Stiles (Cal.) 966.

$131. Where debtors did not release or third persons, the recovery of judgment thereon transfer their debts nor acquire them from held not to prejudice them, nor to give them the status of "purchasers or incumbrancers in good faith," within the meaning of Civ. Code, § 164.-Fulkerson v. Stiles (Cal.) 966.

(C) Liabilities and Charges.

§ 151. A wife is under no obligation to sup

IMPEACHMENT.

port the family out of her separate property, Of witness, see Witnesses, §§ 318-388.
except as provided by Rev. Codes, § 2688.-
Hall v. Johns (Idaho) 71.

VI. ACTIONS.

Mode of making objection to non-joinder, see
Parties, 80.

IMPLIED CONTRACTS.

See Work and Labor.

Suit on implied promise for reasonable value of lands appropriated for railroad right of way, see Eminent Domain, § 266.

IMPLIED REPEAL.

§ 221. Under Code Civ. Proc. § 370, a wife could sue alone in an action to quiet title to property claimed as a homestead, and she need not establish a valid homestead right before Of statutes, see Statutes, § 164. suing.-MacLeod v. Moran (Cal. App.) 932.

VII. COMMUNITY PROPERTY. Testimony as to intent in making purchase, see Evidence, § 151.

§ 248. Under Rev. Codes, tit. 2, c. 3 (sections 2674-2693), regulating the rights and property of husband and wife, such property is divided into two classes, to wit, the separate property of each of the spouses and the community property.-Hall v. Johns (Idaho) 71.

§ 254. Property acquired after marriage with community funds is community property, the ownership of which the law places in the husband.-Fulkerson v. Stiles (Ĉal.) 966.

§ 254. Where property is purchased with community funds, and the conveyance made to the wife, where there was no intention that it was a gift to the wife, the conveyance to her would not invest it with that character.-Fulkerson v. Stiles (Cal.) 966.

IMPRISONMENT.

Construction of statutory provision for relief from default caused by, see Action, § 66.

INCOMPETENT PERSONS.

§ 254. Husband and wife held not to acquire community property by mere occupancy, so that, See Insane Persons. on divorce, the land was not subject to partition. -Wingard v. Wingard (Wash.) 834.

INCORPORATION.

§ 265. The wife's interest in community See Corporations, § 16. property is a mere expectancy; the title being

in the husband.-Hall v. Johns (Idaho) 71.

§ 268. Under Rev. Codes, tit. 2, c. 3 (sec

INCUMBRANCES.

tions 2674-2693), a wife held entitled to bind On homestead, see Homestead, § 117.
her separate property by her separate contracts
for her own benefit, and not to bind the com-
munity property therewith.-Hall v. Johns
(Idaho) 71.

§ 268. Community property is not bound for the payment of postnuptial debts contracted by the wife for the benefit of her separate property. Hall v. Johns (Idaho) 71.

§ 270. An allegation in the complaint, in an action to quiet title, held to negative the presumption raised by Civ. Code § 164.-Fulkerson v. Stiles (Cal.) 966.

§ 272. Where a husband abandons his family, the wife is authorized to contract with reference to the community property, especially for the support of herself and family.-Hall v. Johns (Idaho) 71.

§ 274. Land acquired by a husband as a homestead during existence of community held subject to laws of the state relative to community property.-Krieg v. Lewis (Wash.) 483.

HYPOTHETICAL QUESTIONS.

To expert witness, see Evidence, § 553.

ICE.

On sidewalks, see Municipal Corporations, §
771.

IMPAIRING OBLIGATION OF CON-
TRACT.

See Constitutional Law, §§ 121, 154.

INDEMNITY.

See Principal and Surety.

INDIANS.

15. Where Indian allottee conveys land inalienable under Act Cong. March 1, 1901, c. 676, 87, 31 Stat. 863, with agreement to repay price if dissatisfied, and he exercises the option, the grantee has a right of action to recover the price and for improvements.-Tate v. Gaines (Okl.) 193.

INDICTMENT AND INFORMATION. Defects in indictment as ground for new trial, see Criminal Law, § 915.

Review as dependent on presentation in lower court of grounds of review, see Criminal Law, § 1032.

For particular offenses. See Adultery, § 7; Conspiracy, § 43; Embezzlement, §§ 28, 34: False Pretenses, §§ 26-38; Gaming, §§ 85-94; Homicide, § 128. Violations of liquor laws, see Intoxicating Liquors, 224.

II. FINDING AND FILING OF INDICT-
MENT OR PRESENTMENT.

16. Wilson's Rev. & Ann. St. 1903, § 5351, forbidding a resubmission of a charge to the grand jury as to which no bill has been returned, unless directed by the court, held with

out application to an offense prosecuted by in- | charge accused with both the crimes of burglary formation.-Rea v. State (Okl. Cr. App.) 381. and grand larceny.-People v. Piner (Cal. App.) 780.

III. FORMAL REQUISITES OF IN-
DICTMENT.

§ 28. The omission of the word "the" before the words "State of Oklahoma" in the caption of an indictment is not a fatal error.-Caple v. State (Okl. Cr. App.) 681.

§ 32. An indictment returned after statehood for an offense prior thereto should conclude "against the peace and dignity of the state."Baker v. State (Okl. Cr. App.) 379.

IV. FILING AND FORMAL REQUI-
SITES OF INFORMATION OR

COMPLAINT.

§ 132. In a prosecution for embezzlement by a public officer, held not error not to require the prosecuting attorney to elect under which statute he would proceed.-State v. Leonard (Wash.) 163.

VII. MOTION TO QUASH OR DISMISS,
AND DEMURRER.

§ 133. An objection to a criminal complaint for duplicity should be raised by demurrer as provided by 2 Ballinger's Ann. Codes & St. § 6896 (Pierce's Code, § 2149).-State v. McCormick (Wash.) 1037.

VIII. AMENDMENT.

§ 161. Under Comp. Laws 1909, § 6645 (Wilson's Rev. & Ann. St. 1903, § 5307), the information may be amended after trial, where it can be done without material prejudice to defendant.-Chandler v. State (Oki. Čr. App.)

41. Rev. Codes, § 7662, prohibiting the filing of an information until after commitment by a magistrate, held only declaratory of Const. art. 1, § 8.-State v. McGreevey (Idaho) 1047. $ 41. Under Const. art. 1, § 8, a public prosecutor has no authority to file his information against accused until after his commitment, 375. and then only for the offense for which he was committed.-State v. McGreevey (Idaho) 1047. § 41. Under Const. art. 1, § 8, a hearing before a committing magistrate is a condition precedent to the filing of an information by the public prosecutor.-State v. McGreevey (Idaho) 1047.

V. REQUISITES AND SUFFICIENCY
OF ACCUSATION.

IX. ISSUES, PROOF, AND VARIANCE.
In prosecutions for particular offenses.
See Conspiracy, § 43; False Pretenses, § 38;
Gaming, § 94.

§ 180. Where a person upon whom a crime is committed is referred to by the name he or she is generally known by in the neighborhood where the crime is committed, the use af such name in the information is proper, and the baptismal name or true name is otherwise. there can be no fatal variance upon proof that

$57. Under Ballinger's Ann. Codes & St. § 6840 (Pierce's Code, § 2093), prescribing the contents of informations, it is only required-State v. Myrberg (Wash.) 622. that the statement of facts constituting the of fense be such that a person of common understanding cannot mistake its meaning.-State v. Quinn (Wash.) 818.

§ 63. An indictment should recite the material facts constituting the offense, rather terial facts constituting the offense, rather than charge that defendant has committed a specified crime.-Greenwood v. State (Okl. Cr. App.) 371.

§ 71. In view of Pen. Code, § 4, section 337a, prohibiting pool selling a complaint charging an offense under it. held sufficiently definite. -Ex parte O'Shea (Cal. App.) 776.

$87. The day upon which an offense is committed or charged, in an indictment or information, to be committed, is immaterial, except in those offenses where time is of the essence of the crime or a necessary ingredient in its description.-State v. Myrberg (Wash.) 622.

§ 87. An information charging rape held a sufficient compliance with Ballinger's Ann. Codes & St. §§ 6780, 6845, 6850, 7062 (Pierce's Code, $$ 1538, 2098, 2103, 1581).-State v. Myrberg (Wash.) 622.

§ 119. In an information for abortion, held, that the words "attempting to procure" were surplusage.-Chandler v. State (Okl. Cr. App.)

375.

VI. JOINDER OF PARTIES, OFFENSES,
AND COUNTS, DUPLICITY,
AND ELECTION.

§ 125. An information charging embezzlement by a public officer of funds collected by virtue of Laws 1905, p. 277, c. 147, held not defective as charging more than one offense.State v. Leonard (Wash.) 163.

§ 125. A complaint for illegally selling liquor to certain minors held not objectionable for duplicity.-State v. McCormick (Wash.) 1037.

§ 129. Under Pen. Code, § 954, as amended by St. 1905, p. 772. c. 574, an information may

§ 180. In a prosecution for rape, where the name of the prosecutrix was given as "Frieda" in the information, and the father testified that her name was "Valfreda" in Holland, but that she was known here as "Frieda, held no fatal variance between the information and proof.-State v. Myrberg (Wash.) 622. X. CONVICTION OF OFFENSE INCLUDED IN CHARGE.

§ 189. An indictment for the highest degree of an offense includes all the lower degrees thereof.-Rhea v. Territory (Okl. Cr. App.) 314. § 189. A conviction of manslaughter may be had under an indictment for murder.-Rhea v. Territory (Okl. Cr. App.) 314.

§ 191. Where the information charged a misdemeanor under 2 Ballinger's Ann. Codes & St. § 7260 (Pierce's Code, § 1877), the court could submit the case under that statute, though the information did not charge a felony under Laws 1903, p. 63, c. 51, and a verdict of guilty carried with it a conviction under the former statute.State v. Gaasch (Wash.) 817.

INDORSEMENT.

Of bill of exchange or promissory note, see Bills and Notes, § 372.

INFANTS.

See Guardian and Ward.

Burden of proving parental consent to sale of
liquors to minor, see Intoxicating Liquors, §
224.

Contributory negligence on part of children, see
Negligence, § 141.

Custody and support on divorce of parents, see
Divorce, § 298.

Determination of custody by habeas corpus, see
Habeas Corpus, § 99.

Waiver of objections to capacity to sue, see against an infraction of Enforcing Act (Laws Parties, § 96.

Criminal accusation, see Indictment and Infor- vision of the Constitution, may not be restrain

II. SUBJECTS OF PROTECTION AND sequently canceled.-Silka V. Quinn (Colo.)