subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." Const. Or., art. 4, § 20. The act under consideration, so far as deemed material, is as follows: "Section 1. That section two (2) of the said act incorporating the said city of Salem, Oregon, be amended so as to read as follows: Sec. 2. The limits of the said city shall be as follows' "--setting out the boundaries of the city as given in the act of February 17, 1899 (Sp. Laws Or. 1899, p. 921). "Provided, that on and after the first day of October, 1903, the limits of said city shall be as follows"-particularly describing the boundaries so as to include, with other premises, plaintiff's land. A It is stated in the brief of plaintiff's counsel that the framers of the Constitution, in the clause thereof herein before quoted, having selected the word "subjects," which must be expressed in the title of an act, the plural form thus adopted necessitated a declaration in the title in question that the act, incorporating the city of Salem, was not only to be amended, but that the boundaries of the municipality were also to be enlarged. very ingenious argument, founded on the use of the word "subjects" was rendered ineffectual at the trial by an examination of the enrolled copy of the Constitution which discloses that the singular form only of that word is there used, and that a mistake has been made in publishing this clause of the organic law. It will be remembered that the author of the act now under consideration in framing the bill set out in section 2 thereof the entire section of the same number as it then existed (Sp. Laws Or. 1899, p. 921), and also displayed the section as it was to be amended. The degree of care n.anifested in thus presenting the original section and the proposed amendment in the bill evinces an abundance of caution that is not usually exercised in preparing measures for enactment. In Montgomery v. State, 107 Ala. 372, 18 South. 157, in construing clauses of a Constitution which provided that "each law shall contain but one subject which shall be clearly expressed in the title," and also required an amended law to be "re-enacted and published at length," it was held that setting out in an act as altered, without reciting the old law as it stood before the amendment was a sufficient compliance with the requirements of the fundamental law. The manner of stating the amendment of the boundaries, set out in the act of February 7, 1903, is not material to a decision herein, and is mentioned only because of a criticism thereof in plaintiff's briefs. Unusual care seems to have been exercised in this respect, and as the organic law declares that "no act shall ever be revised or amended by mere reference to its title, but the act revised or section amend ed shall be set forth and published at full length" (Const. Or. art. 4, § 22), the amendment strictly complies with this requirement. The title of an amendatory act is sufficient if it refers to the particular section it is intended to alter and is not violative of article 4, section 20, of the fundamental law of the state, unless the provisions of the amendment are such as could not have been included in the original act as matters properly connected therewith. David v. Portland Water Committee, 14 Or. 98, 12 Pac. 174; State 7. Phenline, 16 Or. 107, 17 Pac. 572; Ex parte Howe, 26 Or. 181, 37 Pac. 536; State v. Robinson, 32 Or. 43, 48 Pac. 357. Any amendment that introduces new subject-matter into an act is not germane thereto, and could not have been included in the original statute. 14 Am. & Eng. Enc. Law (2d Ed.) 1004, note 4; 20 Cyc. 1187, note 97. Thus, under a Constitution which provided that "each law shall contain but one subject which shall be clearly expressed in the title," an act regulating the trial of misdemeanors cannot, by a mere reference to the title, be amended so as to provide for the trial of felonies. Harper v. State, 109 Ala. 28, 19 South. 857. So, too, an act regulating the taking and catching of fish in inland lakes, cannot be amended, unless the title is disclosed, so as to include other waters than such lakes. Fish v. Stockdale, 111 Mich. 46, 69 N. W. 92. Before resorting to this rule, to determine whether or not the amendment complained of in section 2 of the act of February 17, 1903, introduces new subjectmatter into the original act, it becomes necessary to consider the title of the amendatory statute. The title of the act attempted to be amended is as follows: "An act to incorporate the city of Salem, and to repeal an act entitled 'An act to incorporate the city of Salem,' approved October, 1862, and an act entitled 'An act to incorporate the city of Salem,' approved February 15, 1893, and to repeal all acts and parts of acts in conflict herewith." Sp. Laws Or. 1899, p. 921. A comparison of this title with that of the amendatory act (Sp. Laws Or. 1903, p. 337), as hereinbefore set out, will show that the latter title, in purporting to detail the former, introduces the number "15" in the space between the word "October," and the number "1862," and also changes the last word quoted from "herewith" to "therewith." It is contended by plaintiff's counsel in argument that the substitution of the latter word for the former was such an error as to defeat the amendment. Statutes, like all other writings, are not to be overthrown on account of errors, mistakes, or omissions therein, if the intention of the legislative assembly can be collected from the entire language used. Endlich, Int. of Statutes, § 302; Sutherland, Statutory Construction, § 260; State v. Robinson, 32 Or. 43, 48 Pac. 357; School Directors v. School Directors, 73 III. 249. We think the very slight error in the title of the amendatory act is immaterial, and that the members of the Legislature could not possibly have been misled or deceived in any manner thereby. Section 2 of the original act treats only of the boundaries of Salem, and the amendment, though enlarging the municipal territory, relates exclusively to the limits of the city, and is therefore germane to the original act, and does not introduce any new matter therein. State v. Shaw, 22 Or. 287, 29 Pac. 1028; State v. Linn County, 25 Or. 503, 36 Pac. 297; Simon v. Northup, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171. The amendment does not, in our opinion, violate the spirit or letter of sections 20 or 22 of article 4 of the state Constitution. It is insisted by plaintiff's counsel that sec'tion 23 and subdivision 6 of section 6 of the amended act trench upon the following clause of the fundamental law of the state: "Acts of legislative assembly incorporating towns and cities shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit." Const. Or., art. 11, 5. The provisions of the amendatory act thus challenged are, so far as deemed necessary to a decision herein, as follows: "Sec. 23. The common council shall not in any manner create any debt or liability: Provided, that at the end of each year an estimate shall be made of the actual revenues to be derived from all sources, and from the total of that estimate the total of fixed charges shall be deducted, and the disbursements of the city council shall be restricted to the balance. No debt shall be contracted in excess of the estimated revenue, except in the case of an emergency or unforeseen calamity, or except as otherwise provided therein; the council may call an election to determine whether the city shall incur an indebtedness to meet such an emergency or calamity or the acquisition of a public utility: and upon two-thirds of those persons who are qualified voters of, and who pay taxes on property within, said city voting at said election being in favor of authorizing the council to incur the proposed indebtedness, they may then contract the same; but said indebtedness shall not exceed the sum of $20,000, except as provided in subdivision six (6) of section six (6) of this charter. ** * The material parts of the clause of the section thus referred to are as follows: "6. The common council may have power to contract for water and light for city purposes, or to lease, purchase, or construct a plant or plants for water or light, or both, for city purposes, in or outside the city limits. The council of the city of Salem shall, at all times, under the limitations herein set out, have power to provide, by ordinance, for lighting the streets, and all public and private places in the city, and furnishing water to the inhabitants thereof; to provide for the acquisition, ownership, construction, * and maintenance of waterworks, gas works, electric light works, steam, water, or electric power works, heating works, telephone lines, street railways, bridges, and ferries, and such other public utilities as the council may designate, and to issue bonds therefor: Provided, however, no contract, or agreement for the purchase, condemnation, ownership, construction, or operation by the city of any public utility shall be entered into, nor bonds be issued therefor, by the council without first submitting such proposed contract or agreement to the qualified voters of the city. In case the vote shall be in favor of acquiring such public utility, then the proposition submitted receiving a majority of the votes cast upon the alternative propositions submitted shall be adopted. The council, in submitting propositions to the electors for the acquisition thereof, shall specify therein the amount of the proposed bonded indebtedness, the rate of interest thereon, and whether such bonded indebtedness shall be incurred. At least two-thirds of the electors voting thereon at such election shall be necessary to secure such acquisition, and to warrant the issuance of municipal bonds therefor. * A perusal of these provisions will show an intent on the part of the legislative assembly to restrict the taxing power of the city and as the limitation prescribed was a matter within the discretion of the Legislature with which the courts will not ordinarily interfere, the section and clause inveighed against do not contravene the fundamental law invoked to annul them. Lent v. Portland, 42 Or. 488, 71 Pac. 645; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. Other questions are discussed in the brief of plaintiff's counsel, but deeming them unimportant or not involved herein, the decree is affirmed. (48 Or. 378) STATE v. WARNER VALLEY STOCK CO. (Supreme Court of Oregon. Nov. 21, 1906.) APPEAL-AFFIRMANCE-DISPOSITION OF CAUSE -REMAND. Plaintiff brought suit for himself and others not connected with his interest, and, after the sustaining of a demurrer to his amended complaint, refused to plead further, whereupon the cause was dismissed. Held, that the decree haying been affirmed on appeal, the cause would not be remanded to permit plaintiff to apply for leave to amend to substitute a cause of action in his own favor only. On motion to remand. Denied. HAILEY, J. The demurrer to the amended complaint having been sustained on appeal. and the decree of the lower court dismissing this case affirmed, plaintiff filed a motion to have the cause remanded, with leave to apply to the court below to amend its complaint, so as to show its interest in certain of the lands mentioned therein and its right to equitable relief in the cancellation of deeds therefor to the defendant. In support of this motion plaintiff cites Powell v. D., S. & G. R. R. Co., 14 Or. 22, 12 Pac. 83, in which the overruling of a demurrer to a complaint was sustained, and this court refused to grant leave to answer over, but remanded the cause for further proceedings, and announced as a rule of practice in such cases "that when this court does not make a final disposition of a cause, but remands the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not." This rule, however, is not applicable to the case at bar where the appellant seeks to have the cause remanded, with leave to apply to amend, and by so doing substitute a cause of suit in its own favor only for the original cause of suit, which was for the benefit of others not connected with plaintiff's interest. Fowle v. House, 30 Or. 305, 47 Pac. 787, is also cited, in which a decree sustaining a demurrer to a complaint was affirmed, and the cause remanded "for such further proceedings as may be deemed proper, not inconsistent with the opinion herein," and a motion was denied to recall the mandate and amend the decree, so as to allow the plaintiff to amend his complaint. The court in that case held that it is for the lower court to determine in the first instance whether a plaintiff shall be allowed to amend his complaint, and that this court should not interfere with the exercise of its discretion by directing what course it should pursue in the matter. It is suggested in the motion that every objection to the sufficiency of the complaint can be obviated by the amendment, and the delay and expense of bringing a new suit thereby avoided. This, however, is not a matter which this court can consider, and should have been acted on by the plaintiff in the lower court, as the interest of the plaintiff in the lands in controversy was one of the questions raised by the demurrer. Plaintiff, however, refused to plead further, and stood upon its amended complaint, and it is now too late to complain of its own action in that respect. The motion to remand, with leave to apply to amend, will therefore be denied. (49 Or. 86) STATE v. BRANTON. (Supreme Court of Oregon. Nov. 21, 1906.) 1. INDICTMENT AND INFORMATION-DUPLICITY -DIFFERENT DEGREES CHARGING GREATER. It is provided in Const. art. 1, § 11, that the accused shall have the right to demand the nature and cause of the accusation; in B. & C. Comp. §§ 1259, 1306, that an information must be certain as regards the crime charged and the necessary circumstances thereof; in section 1308, that the information must charge but one crime, and in one form only; in section 1417, that one accused of a crime consisting of different degrees may be found not guilty as charged and convicted of an inferior degree; and in section 1394, that this shall be done in case of reasonable doubt as between the degrees. Section 1767 makes it a crime to "assault another with intent to kill," and section 1771 to "assault another with such (dangerous) weapon." An information charged an assault with a revolver by shooting and wounding "with intent * * to kill." Held that, assuming that the information charged the violation of section 1771, as well as section 1767, it was not subject to demurrer therefor, since, under accusation of assault with intent to kill, defendant could have been convicted of assault with a dangerous weapon. [Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 376.] 2. CRIMINAL LAW-EVIDENCE-OPINION EVICOMPARISON OF HANDWRITING STANDARD OF COMPARISON. DENCE B. & C. Comp. § 776, provides that handwriting may be proved by one who has seen the person write or seen writing purporting to be his, upon which he has acted or been charged. Section 777 provides that evidence may be given by a comparison by a skilled witness or the jury with writings "admitted or treated as genuine" by the party against whom offered. Section 1399 provides that the law of evidence shall be the same in criminal as in civil cases. Held, that only writings admitted and treated as his genuine handwriting by one accused of crime can be used as a basis of comparison, under section 777, and not such documents as might be valid, though written by another at defendant's request. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1080.] 3. SAME-APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE-CUMULATIVE EVIDENCE. In a prosecution for assault with intent to kill, a poorly spelled letter, purporting to have been written by defendant and relating to his prospective marriage, was admitted in evidence after testimony by the recipient that she discussed its contents with defendant after she had received it. No expert based his opinion as to the genuineness of another incriminating letter purporting to have been signed by defendant, on a comparison with the first letter, and the attention of the jury, who had before them numerous genuine samples of defendant's handwriting, was not particularly called to such letter. Held that, even if defendant's acknowledgment of the contents of the letter was not a sufficient admission of the genuineness of the penmanship to permit its use as a standard of comparison by an expert, yet its admission before the jury could have caused no appreciable injury to defendant. 4. SAME JUDGMENT-FORMAL REQUISITES. A transcript of a criminal trial, after declaring defendant's inability to show cause why his sentence should not be pronounced, concluded: "It is therefore ordered that [defendant] be confined in the penitentiary for a term of ten years." Held a final judgment, though the term "considered" was not used. Appeal from Circuit Court, Lane County; J. W. Hamilton, Judge. John Branton was convicted of assault Affirmed. with intent to kill, and appeals. L. Bilyeu and J. C. Johnson, for appellant. George M. Brown, Dist. Atty., and John M. Williams, for the State. MOORE, J. The defendant, John Branton, was accused by an information of the crime of assault with intent to kill, alleged to have been committed as follows: "The said John Branton on the 9th day of March, A. D. 1905, in the said county of Lane and state of Oregon then and there being, did then and there with a certain revolver gun, loaded with gunpowder and leaden bullets and capable of being discharged, unlawfully and feloniously assault John Fletcher with the aforesaid gun by feloniously shooting and wounding him, the said John Fletcher, with said revolver gun, with intent him, the said John Fletcher, to kill and murder, contrary to the statute in such case made and provided and against the peace and dignity of the state of Oregon." A demurrer to the information, on the ground that it attempted to charge the commission of more than one crime, was overruled, and, the cause being tried, the defendant was found guilty as charged, and appeals from the judgment which followed. It is contended by his counsel that he was charged with the commission of the crime of assault, being armed with a deadly weapon, and also with an assault with intent to kill, and that, having challenged the information for duplicity, an error was committed in overruling the demurrer. The organic law declares that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. Const. art. 1, § 11. Statutes passed in pursuance of this fundamental requirement provide, in effect, that an information, which may take the place of an indictment (B. & C. Comp. § 1259), must be direct and certain as it regards the crime charged and the particular circumstances thereof when they are necessary to constitute a complete offense (Id. § 1306), and the information must charge but one crime and in one form only (Id. § 1308). When a formal criminal charge violates these provisions, and its compound aspect is pointed out by a demurrer, the challenge thus interposed should be sustained. State v. Lee, 33 Or. 506, 56 Pac. 415. The statute which the defendant is accused of violating contains the following provision: "If any person shall assault another with intent to kill, * such person, upon conviction thereof, shall be punished," etc. B. & C. Comp. § 1767. A kindred enactment is as follows: "If any person, being armed with a dangerous weapon, shall assault another with such weapon, such person, upon conviction thereof, shall be punished," etc. Id. § 1771. It may be supposed that a person might intentionally attempt by violence to do another a bodily injury with a deadly weapon, without an intent to take the life of the person so assaulted. So, too, it can readily be seen that a person might assault another with a destructive instrument with intent to take the life of the latter. The design with which a deadly weapon is used in making an assault determines the grade of the offense, and, when a purpose to take the life of another accompanies the overt act, it augments the crime to an assault with intent to kill. A specification of such charge may, therefore, include the accusation of an assault with a deadly weapon. 1 Bishop. New Crim. Law, § 780, subd. 3; 1 McClain, Crim. Law, §§ 271, 272. Upon an accusation of the commission of a crime, consisting of different degrees, the accused may be found not guilty as charged and convicted of any degree inferior thereto (B. & C. Comp. § 1417); and when it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he may be convicted of the lowest of these degrees only (Id. § 1394). The defendant, having been accused of the commission of an assault with intent to kill, could have been found guilty of an assault with a deadly weapon, which is a lesser offense, and as the crime with which he was charged consists of degrees, wherein the greater necessarily includes the less, he could not have been prejudiced by accusing him with the commission of the lesser offense also, if it be assumed that the information contains such a specification. State v. McLennen, 16 Or. 59, 16 Pac. 879; State v. Lavery, 35 Or. 402, 58 Pac. 107; State v. Kelly, 41 Or. 20, 68 Pac. 1. It is maintained by defendant's counsel that the court erred in admitting, over objection and exception, certain immaterial manuscript, claimed by the prosecuting attorney to have been written by the defendant, without proof of such writings having been admitted or treated by him as genuine. The documents so received were introduced in evidence to establish a standard of comparison with the defendant's handwriting for the purpose of proving that he inscribed a letter that came by mail, addressed to the specified officer of the town where it purports to have been written, of which the following is a copy: "Cottage Grove Or Mch 895 Marshel i leave this note to show that i have took my life and you will find me on the road between town and branton ranch i am tired living and leave this to save troubel for my friends and expence to the county. good Bye J. Fletcher." As tending to incriminate the defendant, a fellow prisoner. who was confined with him in the Lane county jail, appearing as a witness for the state, testified that the defendant, referring to Fletcher, the prosecuting witness, said. "I am sorry I left the sof a b without finishing him;" that the defendant offered to pay the fine imposed upon the witness if the latter would persuade Fletcher to accompany him to Astoria, where he was to be shanghaied or disposed of in some manner by persons whose names were stated; that the witness saw the defendant write a letter, which was given to him to be mailed when he had fully executed the commission, which letter is addressed to the then deputy district attorney, and, having been offered in evidence, over objection and exception, the following is a copy thereof, to wit: "As toria, June, 1905. Eugene. Mr. J. W. Williams as i am the gilty one in the Branton case i cant fase him in it so i ask you have him turned loose J fletcher." Mrs. Della M. Wetzel, a sister-in-law of the defendant, testified that she had corresponded with him, and, referring to letters purporting to have been written by him to her, January 24, 1892, and September 3, 1901, she stated that he told her he wrote them; that after she re ceived a similar letter, dated June 28, 1903, she discussed with him the subject-matter and contents thereof; and that, alluding to a like letter of December 20, 1901, he inquired of her if she had told her father what he wrote her therein. These letters. over objection and exception, were received in evidence for the sole purpose of proving the basis of a comparison of handwriting, and are numbered respectively, Exhibits 1, 2, 4, and 5. D. Linebaugh testified that the defendant, in his presence, subscribed his name to a note which stipulated for the payment to him of a sum of money, which written promise. over objection and exception, was received in evidence and numbered Exhibit 6. Several witnesses were thereupon called by the state, each of whom, having testified as to his qualifications, severally expressed, over objection and exception, an opinion that the letters. copies of which are hereinbefore set out, when compared with Exhibits 1, 5, and 6, were written by the defendant. It is argued by defendant's counsel that no manuscript is competent as a basis of comparison of penmanship, by placing it in juxtaposition with other material writings, unless such document has been admitted or treated by the party against whom it is offered as genuine, is relevant to the issue to be tried. and has been received in evidence for some other purpose; that the exhibits mentioned did not tend to establish or disprove the defendant's guilt or innocence, and hence they were immaterial, and their introduction in evidence prejudicial. The question thus presented is whether or not writings which have been proven to be genuine are admissible in evidence for the sole purpose of providing a foundation for the comparison of handwriting. The statute, regulating the manner of proving the style of penmanship is as follows: "The handwriting of a person may be shown, by any one who believes it to be his, and who has seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting." B. & C. Comp. § 776. "Evidence respecting the handwriting may also be given by a comparison, made by a witness skilled in such matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered." Id. § 777. In Munkers v. Farmers' Insurance Co., 30 Or. 211, 46 Pac. 850, Mr. Justice Bean, speaking for the court in construing the section last quoted, settles the question raised by saying: "Under this statute it is clear that any writing which is admitted to be or treated as genuine by the party against whom the evidence is offered may be used for the purpose of comparison with the writing or signature in question, although it may not be admissible in evidence for any other purpose." See, also, 15 Am. & Eng. Enc. Law (2d Ed.) 267, note 3. In Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118, in interpreting the section of the statute last referred to, it was held that, when the genuineness of a paper sued on is put in issue, papers not otherwise competent may be introduced in Oregon for the purpose of enabling the jury to make a comparison of handwriting, the court saying: "We regard the statute as constituting the law of the case, and as warranting the action of the court in the particulars complained of." It was argued at the trial herein that a party against whom writings may be offered in evidence could have admitted or treated them as genuine without ever having written them himself, and as such manuscripts are received as a basis of comparison of penmanship, he might be convicted upon the authorized writing of a person who theretofore had been his clerk, and, this being so, the rule adopted in the cases referred to should not be applicable in the trial of criminal actions, and that the testimony of a witness that she discussed with the defendant the contents of a letter purporting to have been written by him to her is not sufficient evidence in a case of this kind that he wrote the letter, and hence the basis for the comparison necessarily fails, and the error in admitting such letter becomes manifest. The sections of the statute hereinbefore quoted relate to the same subject-matter and should be construed together. Considering these clauses in that manner, it is the genuine handwriting of the person against whom the evidence is offered, that has been admitted or treated by him as such, that must be taken to form the basis of comparison of penmanship, and not such documents as might be valid and binding on him, though written and signed by another at his request. The bill of exceptions discloses that Exhibits numbered 1, 2, and 5 were severally admitted and treated by the defendant as having been written by him, and that he subscribed his name to Exhibit No. 6. Exhibit No. 4 is as follows: "Cottage Grove Or. June 28th-1903. Dear Sister and family and all the rest of the folks. We are all well except Roy he has the measels I hope you are all well I got my hay in the barn before the rain that is all I had cut it is raining now I have about 12 acres reasy to cut now Well I will tell you about me going to get married I shall marry on the evening of the 9 of July at (OClock I will let you no in time so you can make calculation on the 4 if you want to go You peopel can come up to me place and go to town in the evening or if you want to just come to Mrs Dowens and then |