out of the line and scope of his usual employment. A woman will sometimes, with skill, nurse her neighbor who is sick, or her neighbor's child, with the mutual understanding that she shall be well paid for what she does. In such a case, the usual wages of a trained nurse ought not to be the measure of her pay, for various obvious reasons, one of which is that the parties did not contract with reference to any such standard of wages."

But evidence of the customary charges of brokers is admissible to prove what is a fair and reasonable charge in the particular instance. Elting v. Sturtevant, 41 Conn. 176; Ruckman v. Bergholz, 38 N. J. L. 531. In Ruckman v. Bergholz, supra, the court said: "The charge instructed them that they were not, if they found that Bergholz had been employed, but at no fixed rate of compensation, and had rendered the service, to assume that he was, of course, entitled to the rate of compensation usually accorded to professional land brokers or real estate agents, but that they were to consider and determine the value of his services in the premises from the work done, and in fixing the amount, the amount usually paid to professional land brokers for such services might be taken into consideration." The status of such evidence was described in Elting v. Sturtevant, supra, wherein it was said: "1. Was the testimony of Mr. Hooker admissible? The point to be proved was the value of the plaintiff's services in purchasing a mill for the defendant. The testimony of Mr. Hooker, who was a real estate broker, proved what his charges would have been for the same services. It was not offered as fixing the rule of damages, but as tending to prove the point in issue, and for that purpose we think it was properly received. The price ordinarily charged for such services by persons engaged in that business might well be considered by the court in determining what the plaintiff's services were reasonably worth."

If the services of the plaintiff, however, do not accord with those of a broker, evidence of the charges of a professional broker should not be admitted. Thus, where the services rendered only bring the parties together, and do not affect the negotiations of the parties, the plaintiff may recover for his actual services. Lyon v. Valentine, 33 Barb. (N. Y.) 271. And if the parties, acting independently of the plaintiff, alter the contract, the latter's commission is based on the actual consideration of the sale. Baikie v. Latourelle, 24 Quebec K. B. 171; Robertson v. Carstens, 18 Manitoba 227.

In Louisiana a different rule prevails. The amount usually paid to a broker is the amount of compensation. Stewart v. Soubral, 119 La. 211, 43 So. 1009.

[372] REED, J.-Junius Brown, a boy about thirteen years old, was charged with unlawfully carrying concealed "a certain deadly weapon, to wit, a razor." Upon the trial of the case in the circuit court on appeal from the justice of the peace court, where the charge was made, a demurrer to the affidavit was filed, on the ground that "a razor is not such a deadly weapon as is contemplated by section 1103, Code of 1906." This demurrer was overruled. For the same reason, the appellant moved the court to exclude the evidence and give peremptory instruction for the defendant, after the testimony was all introduced. From conviction, appellant appeals, and assigns as error the action of the trial court in refusing to sustain the demurrer and to grant the peremp tory instruction.

Section 1103 of the Code of 1906 provides that "any person who carries concealed, in whole or in part, any bowie knife, dirk knife, butcher knife, pistol, brass or metallic knuckles, slungshot, sword or other deadly weapon of like kind or description, shall be guilty of a misdemeanor."

Is a razor a deadly weapon, in the meaning of the statute? It will be noted that the

statute names certain weapons, and then includes "other deadly weapons of like kind or description."

A razor is defined in the Century Dictionary to be "a sharp-edged instrument used for shaving the face." In 23 Am. & Eng. Enc. of Law (2d ed.) 891, this definition is given: "A razor is a sharp instrument or tool used for shaving purposes." We take the following definition from 33 Cyc. 1537: "A razor is a sharp instrument or implement pertaining to the toilet or shop, having a well-known and specific use, to which it is ordinarily applied." In State v. Nelson, 38 La. Ann. 942, 58 Am. Rep. 202, it is said: "A razor is an instrument or implement appertaining to the toilet or shop. It has a well-known and specific use, to which it is ordinarily applied. [373] It is not known or usually sold in the market as a weapon."

It was settled in State v. Nelson, supra, that a razor is not a "dangerous" weapon within the statute in Louisiana, which declares that "whoever shall carry any weapon or weapons concealed in or about his person, such as bowie knives, pistols, dirks or any other dangerous weapons, shall, on conviction," etc. It will be noted that the Louisiana statute is similar to that in this state. We think it is broader in its inclusions. The statute in this state, after naming certain weapons, says "other deadly weapons of like kind or description." In Louisiana the statute says "or any other dangerous weapons." Referring to the razor as such a weapon, Watkins, J., delivering the opinion of the court, said: "It may be quite as easily and conveniently carried in the pocket as a penknife, and when thus carried is effectually concealed from public open view. Under such circumstances the concealment of one would be just as pernicious as the other." Defining the difference between a razor as a dangerous weapon when used in a combat or assault, and instruments which are made to be used in fights, and which are ordinarily called arms or weapons, Judge Watkins said: "The lawmaker, in our view, . . only denounced as a crime the carrying concealed dangerous weapons eo nomine, and not such articles or instruments as might be used in an assault,"

It was decided in the case of State v. Iannucci, 4 Penn. (Del.) 193, 55 Atl. 336, that a razor is a deadly weapon within the meaning and conception of the statute of Delaware on the subject. We find, however, that the Delaware statute is quite different from that in this state. It provides that, "if any person shall carry concealed a deadly weapon upon or about his person other than an ordinary pocket knife, shall upon conviction," etc. It will be seen that no weapons are specifically named in this statute, and

that there is no limitation [374] whatever as to the kind of instruments which are included as deadly weapons.

In deciding the case of State v. Larkin, 24 Mo. App. 410, the court indicates that, if a razor is carried as a weapon of offense, it might be termed a deadly weapon concealed. On the other hand, the court clearly states that it is not to be ordinarily denominated such weapon. In delivering the opinion of the court, Rombauer, J., said: "A razor is an article of common domestic use, and while no one could be held guilty of the offense of carrying a dangerous and deadly weapon concealed about his person, simply because he so carried a razor, yet, if surrounding circumstances would tend to show that he carried it as a weapon of offense, he might become liable to the charge, because a razor, when thus used, is notoriously a weapon dangerous to life."

The only testimony in the present case showing why appellant had the razor concealed on his person when the officer found it is his own statement, as follows: "My aunt give me that razor to have sharpened. She uses it to cut her corns with. I had it in my pocket." Though a razor is an article of ordinary domestic use, still it is well known that it can be used with deadly effect. This can also be said of an ordinary pocket knife, or other articles or instruments which are not classed as weapons. In some sections of the land it may be the habit or custom of a certain class of persons to carry a razor concealed for the purpose of using it in combat. The time may come when it will be so generally used as an instrument in combat as to cause the legislature to include it in the names of deadly weapons, which shall not be carried concealed. But we cannot decide that it is so included now.

note presents the recent cases on the same subject.

A deadly weapon has been defined recently as "one likely to produce death or great bodily harm by the use made of it," the court saying that "a weapon capable of producing death is not necessarily a weapon likely to produce death." Clemons v. State, 8 Okla. Crim. 452, 128 Pac. 739.

It is the peculiar and exclusive province of the jury to say whether an ordinary pocket knife is a "deadly weapon," or merely a "sharp and dangerous" one; for a pocket knife is not necessarily a deadly weapon. Clemons v. State, 8 Okla. Crim. 452, 128 Pac. 739, wherein the court said: "In many cases the court may declare as a matter of law that the particular weapon was or was not a deadly weapon, but where the weapon used may be a deadly weapon or not, according to the manner in which it was used or the part of the body struck, the question must be submitted to the jury." In Territory v. Gomez, 14 Ariz. 139, 125 Pac. 702, 42 L.R.A. (N.S.) 975, it was held that whether a pistol was loaded so as to make the accused guilty of an "assault with a deadly weapon" was a question of fact for the jury.

In Schwarz v. Poehlmann, 178 Ill. App. 235, it was held that a rubber hose, plugged at both ends with pieces of wood and about 21 inches in length and 1 inches thick was per se a deadly weapon of like character to a slung shot and within the scope of a statute providing that "whoever shall have in his possession any slung shot or metallic knuckles, or other deadly weapon of like character, or any person in whose possession such weapons shall be found, shall be guilty of a misdemeanor."

It was held in Papella v. State (Del.) 96 Atl. 198, that a revolver, containing cartridges, even though so defective that it could not be fired, was within the scope of the statute. See also State v. Quail (Del.) 92 Atl. 859, wherein it was said that a revolver, unloaded, and one in such a defective condition that it could not be fired, were within the purview of the statute of Delaware (ch. 548, vol. 16 [Rev. Code 1852, amended to 1893, p. 987] Del. Laws, c. 252): That "if any person shall carry concealed a deadly weapon," etc. But in Territory v. Gomez, 14 Ariz. 139, 125 Pac. 702, 42 L.R.A. (N.S.) 975, it was held that an unloaded pistol is a deadly weapon only if used within striking distance.

A pocket knife is not necessarily a deadly weapon, though it may be a sharp and dangerous one. Clemons v. State, 8 Okla. Crim. 452, 128 Pac. 739. It is not to be inferred that all knives are deadly weapons; and in McGill v. State, 60 Tex. Crim. 614, 132 S. W. 941, it was held to be error on the part of the trial

judge not to instruct, defining a deadly

weapon.

In the reported case it is held that a razor does not come within the meaning of a statute providing that "any person who carries concealed, in whole or in part, any bowie knife, dirk, butcher knife, pistol, brass or metallic knuckles, slung shot, sword or other deadly weapon of like kind or description, shall be guilty of a misdemeanor." In People v. Cricuoli, 157 App. Div. 201, 141 N. Y. S. 855, it was said that an ordinary razor, with a nicked or serrated edge, was not a deadly weapon within the meaning of a statute forbidding the carrying of concealed weapons with intent to use them unlawfully against the person of another, and specifying only "a dagger, dirk or dangerous knife;" and that it was not prohibited when not shown to have been prepared for a "dangerous" weapon for such a use. But the court said in People v. Cricuoli, 164 App. Div. 119, 149 N. Y. S. 819, in a second review of the case, that it could be found on the people's evidence that the nicked or serrated razor was a dangerous knife under the statute.

STATE

V.

SOLOMON.

Wisconsin Supreme Court-May 21, 1914.

158 Wis. 146; 147 N. W. 640; 148 N. W. 1095.

Criminal Law Examination. The right to a preliminary examination is entirely statutory; the proceeding being unknown at common law.

Right to Preliminary

[See note at end of this case.] Same.

St. 1911, § 4781 et seq. giving to persons, charged with offenses not triable before a jus tice of the peace, the right to a preliminary examination, do not give such right to one charged with an offense, the exclusive jurisdiction to try which was given to the district court by Laws 1899, c. 218, § 5, and the exclusive jurisdiction to hold a preliminary examination for which was given to the same court by Laws 1905, c. 63, since the statutory scheme for preliminary examinations contemplates that they be held in a separate court from the one which has jurisdiction to try the case.

[See note at end of this case.]

Sufficiency of Com

False Pretenses plaint. A complaint for obtaining money by false pretenses, which alleged that the defendant falsely represented that a certain ring was of solid gold, and that the complaining witness, relying on such pretense, was induced thereby to deliver to the defendant a certain sum of money, is not objectionable as failing to show what was the deception practiced or as failing to show the connection between the pretenses alleged and the obtaining of the money. [See generally 25 Am. St. Rep. 384.] Criminal Law Right to Preliminary

Examination.

Notwithstanding Laws 1905, c. 63, amending Laws of 1899, c. 218, so as to give the district court concurrent jurisdiction with the municipal court of offenses arising within the county of Milwaukee the punishment of which does not exceed one year's imprisonment of a fine of $500, or both, no preliminary examination is required for minor offenses, where the examining magistrate has jurisdiction to try defendant for the offense charged. [See note at end of this case.]

Reported from Municipal Court, Milwaukee County: BACKUS, Judge.

Criminal action. Albert Solomon convicted in district court of obtaining money by false pretenses. On appeal to municipal court of Milwaukee county, that court reported four questions to Supreme Court. QUESTIONS

ANSWERED.

[147] On October 31, 1912, on a warrant issued by the district court of Milwaukee county on a complaint charging him with obtaining in Milwaukee county $4.50 from one Andrew Jurgensen by means of false pretenses, the defendant was arrested and was brought before the district court of said county for trial. Sec. 4423, Stats. 1911, provides a punishment for such offense of "imprisonment in the state prison or county jail not more than one year, or by a fine not exceeding two hundred dollars." Sec. 5 of ch. 218 of the Laws of 1899 provides that the district court of Milwaukee county shall "have exclusive jurisdiction to hear, try and determine all charges for offenses arising within said county of Milwaukee, the punishment whereof does not exceed one year's imprisonment in the state prison or county jail or a fine of five hundred dollars, or both such fine and imprisonment." And, as amended by ch. 63, Laws of 1905, it also provides that "said court shall also have authority and jurisdiction to issue warrants for the apprehension of persons charged with the commission of offenses in said county of Milwaukee and not triable before a justice of the peace of said county; and exclusive jurisdiction to examine said alleged offenders and commit or hold them to bail, the same as a

justice of the peace might otherwise do." Before trial in the district court defendant demanded a preliminary hearing, which was denied. He then objected to the jurisdiction of the court to try him on the ground that he had not had a preliminary [148] examination, and the objection was overruled, whereupon he filed a plea in abatement setting forth that he had not had a preliminary examination; that he was entitled to one, had not waived it, and was not a fugitive from justice. The district attorney demurred to the plea and the demurrer was sustained. Defendant was then tried, found guilty, and sentenced to pay a fine of $25 and costs. He appealed to the municipal court of Milwaukee county. That court sustained the demurrer to the plea in abatement. Defendant demurred to the complaint and the demurrer was overruled, whereupon, with the permis sion of the court, he entered a plea of nolo contendere, and moved in arrest of judgment. Upon the request and motion of the defendant the court, under the provisions of sec4721, stayed all further proceedings, and reported the following questions to this court:

1. Is the defendant entitled to a preliminary examination before being placed on trial for the offense, if any, set forth in the complaint?

2. Does the complaint filed in this case state an offense under the laws of the state of Wisconsin?

3. Ought the court to grant a motion in arrest of judgment duly made?

4. Can the court lawfully, upon the complaint and record here certified, proceed to sentence the defendant?

Attorney General, Edward Yockey and Henry S. Sloan for plaintiff. Michael Levin and Lenicheck, Robinson, Fairchild & Boesel for defendant.

VINJE, J.-The determination of what is a correct answer to question 1 is involved in some difficulty and doubt. The [149] right to a preliminary examination is one given by statute. The proceeding was unknown to the common law. State v. Huegin, 110 Wis. 189, 239, 85 N. W. 1046, 62 L.R.A. 700; 1 Bishop, New Crim. Proc. (2d ed.) sec. 239a. The statutory scheme or statutory declarations, therefore, must govern. Under the provisions of secs. 4781 et seq, the defendant, before the establishment of the district court of Milwaukee county, would unquestionably have been entitled to a preliminary examination, since the offense was one not triable before a justice of the peace. Ch. 218, Laws of 1899, created the district court, giving it a jurisdiction, somewhat more enlarged than that of a justice's court. It has exclusive jurisdiction to try and sentence all offenders

against the ordinances of the city of Milwaukee, and to hear, try, and determine all charges for offenses arising within said county of Milwaukee the punishment whereof does not exceed one year's imprisonment in the state prison or county jail or a fine of $500, or both such fine and imprisonment, as well as to hear, try, and determine all charges for misdemeanors arising within said county otherwise triable before a justice of the peace. By ch. 63, Laws of 1905, it was given exclusive jurisdiction to examine offenders charged with the commission of offenses in Milwaukee county not triable before a justice of the peace therein and commit or hold them to bail, the same as a justice of the peace might otherwise do.

We thus see that the district court had exclusive jurisdiction to hold the preliminary examination for the offense charged against the defendant, and also exclusive jurisdiction to try him for the offense. The question arises, Does the statute contemplate that there shall be a preliminary examination by & magistrate or court that also has jurisdiction to try the offense? A literal construction of sec. 4782, Stats. 1911, would lead to an affirmative answer. But when we consider the statutory scheme, which has not provided for a preliminary examination for offenses triable before justices [150] of the peace because the persons charged therewith could have a speedy and summary trial by a court always ready to hear the case itself, and that the chief object of a preliminary examination is to prevent innocent persons from being incarcerated for a considerable length of time awaiting trial, it is not so apparent that it was the legislative intent to provide for a preliminary examination under the circumstances here presented. It is hardly probable that it was contemplated that a person charged with an offense exclusively triable by the district court should first be given a preliminary examination by the court, and then if it was found that the offense had been committed and that there was probable cause to believe the prisoner guilty he should be bound over to the same court for trial. Such procedure does not fit into the statutory scheme at all. The statute contemplates that the examining magistrate is some one else than the court trying the offense. Sec. 4801 provides that the examination must be returned to the court before which the prisoner is bound to appear, and the same idea of difference in identity between the examining magistrate and court vested with jurisdiction to try the offense permeates the whole scheme of preliminary examinations. The chief reason for a preliminary examination disappears when the examining magistrate and the court having jurisdiction to try the offense are identical. The defendant can be given a

speedy trial, for the district court is always in session. Hence no appreciable length of time need elapse awaiting trial. If upon the hearing the evidence should fail to show the guilt of the defendant, the court would at once discharge him. So it must be held that when the legislature gave the district court jurisdiction in excess of that of justices of the peace and also exclusive jurisdiction to bind over offenders, it was not contemplated that the court should bind over to itself prisoners charged with offenses that it had exclusive jurisdiction to hear. Under somewhat similar statutes the supreme court of Michigan held that a justice of the [151] peace had no jurisdiction to hold a preliminary examination for an offense which was triable before him. Byrnes v. People, 37 Mich. 515. The first question reported is answered in the negative.

Does the complaint state an offense under sec. 4423, Stats. 1911, which provides that "any person who shall designedly by any false pretenses or by any privy or false token and with intent to defraud, obtain from any other person any money, goods, wares, merchandise, or other property, shall be

punished," etc.? The complaint, in addition to the requisite formal allegations, charges that the defendant Albert Solomon "did unlawfully and designedly, falsely pretend to one Andrew Jurgensen that a certain ladies' wedding ring was solid gold and of the reasonable value of four dollars and fifty cents, and the said Andrew Jurgensen then and there believing said false pretenses so made as aforesaid by the said Albert Solomon, to be true, and relying thereon, being misled therein and deceived thereby, was induced, by reason of the false pretenses so made as aforesaid, to deliver, and did then and there deliver to the said Albert Solomon four dollars and fifty cents of the value of four dollars and fifty cents of the money, goods, chattels and property of the said Andrew Jurgensen, and the said Albert Solomon did there and then obtain the said money, goods, chattels and property of the said Andrew Jurgensen, by means of false pretenses aforesaid, and with intent to defraud."

It then appropriately charges the falsity of the pretenses used and defendant's knowledge of such falsity. The defendant claims the complaint is defective because "it fails to show what, if any, deception was practiced-fails to show that such deception was the efficient operative cause of the injury sustained; because it fails to show the connection between the pretenses alleged and the obtaining of the money. The complaint does not inform us that any bargain of any kind was consummated between the complainant and the defendant, [152] nor does it show us why or for what the money, if any, was