right is exercised; as, for instance, when applied to the raising of a special fund to defray the expense of a public local improvement. But the long and well-established meaning of the terms, as ordinarily used in the constitution and statutes, and as generally understood, imports a burden imposed for general revenue for the ordinary expenses of the state, county, or township government. King v. City of Portland, 2 Or. 146; Meier v. Kelly, 20 Or. 86, 25 Pac. 73. And especially is this true of the word "taxation." "The term 'taxation,' both in common parlance and in the laws of the several states," says Mr. Justice Sawyer in Emery v. Gas Co., 28 Cal. 345, 356, "has been ordinarily used, not to express the idea of sovereign power which is exercised, but the exercise of that power for a particular purpose, viz. to raise a revenue for the general and ordinary expenses of the government, whether it be the state, county, town, or city government." And it is in this sense the word is used in the section of the constitution now under consideration. Assessment and taxation in themselves imply an exaction by the sovereign from the citizen, without his consent, and a tax is a charge or pecuniary burden imposed upon an individual or his property for the support of the general government, or for some special purpose authorized by it, for which the state may make requisition in a particular mode. Burroughs, Tax'n, 4; Cooley, Tax'n, § 1. It operates in invitum, without the consent of the taxpayer, and without reference to any special benefit to him, as contradistinguished from the rest of the community or class of persons taxed. It is an exaction from all the community or class alike, according to some uniform rate or mode of assessment or other just rule of apportionment, and it would be giving to the section of the constitution under consideration an unnatural and unwarranted construction to hold that the language "assessment and collection of taxes for state, county, township, or road purposes" was intended to refer to anything other than to general or public taxes to be levied and collected for the benefit of the state, county, township, or road district. It is claimed, however, that the case of Manning v. Klippel, 9 Or. 367, is decisive of this point. The authority of that case is very much impaired by the subsequent cases of Northern Counties Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R. A. 188, and Landis v. Lincoln Co., 31 Or. 424, 50 Pac. 530; but, however that may be, its doctrine can, we think, be distinguished from the case in hand. The law there under consideration was an act providing a salary for the sheriffs and clerks of certain counties, and fees to be paid to the county by litigants for the services of such officers, and the court proceeds in the opinion on the assumption that it contemplated that the fees to be paid by litigants were to constitute a fund for the payment of the officers' salaries. The opinion begins by stating that Judges, sheriffs, and clerks are public officers,

who were formerly paid fixed salaries out of funds raised by general taxation; and then proceeds by saying: "If these services of judge, of sheriff, or of clerk should be compensated, not by contributions laid upon the public generally, but by specific contributions laid upon a particular class, it would seem to be a surprising result that money raised by the same power, and which performs precisely the same office, should in one case be levied under the power of taxation, and be a tax, and the other be outside of the taxing power." And the act was held to be a law for the assessment and collection of taxes for county purposes, because, as indicated in the quotation above, the fees were exacted from a particular class for the purpose of raising a fund with which to compensate the officers named. Now, the act of 1899 makes no provision, either directly or by implication, as to the disposition of the fees required to be paid by litigants for the services of the county officers, except that they shall be paid into the county fund, and, as a consequence, become a part of the general assets of the county, subject to the disposition of the proper county authorities. It can in no sense be said to be a fund raised for the purpose of paying the salaries of the county officers, as the court construed the act of 1880 to be. And, as said by Mr. Justice Wolverton in Northern Counties Trust v. Sears, supra: "A law which requires a fee to be paid to an officer, and finally covered into the treasury of a county, for which the party paying the fee received some equivalent in return other than the benefit of good government, which is enjoyed by the whole community, and which the party may pay, and obtain the benefits under the law, or let it alone, as he chooses, does not come within the category of an act for raising revenue."

The next objection is that the act in question is a law granting to certain citizens privileges and immunities not belonging to all citizens, and therefore violates section 20, art. 1, of the constitution, which provides that "no law shall be passed granting to any citizen or class of citizens, privileges or immunities which upon the same terms shall not equally apply to all citizens." But it was held in Re Oberg, 21 Or. 406, 28 Pac. 130, 14 L. R. A. 577, that legislation which affects alike all persons under the same circumstances and conditions is not such class legislation as is prohibited by this section of the constitution. Within this doctrine the act in question is valid. It does not grant privileges and immunities to one citizen, which, upon the same terms, do not belong to all others similarly situated. It provides the fees which shall be paid by litigants in counties of the designated class, but it applies to all litigants who may have occasion to invoke the aid of the courts in such counties, and therefore is not obnoxious to the section of the constitution referred to. It follows that the judgment of the court below must be affirmed, and it is so ordered.

(9 Okl. 109)

PARKER v. TERRITORY. (Supreme Court of Oklahoma. June 15, 1899.)

RAPE-INDICTMENT.

1. An indictment for the crime of rape, under the Statutes of Oklahoma, must contain the averment that the female on whom the crime was committed was not the wife of the person accused of the crime.

2. An indictment charging a felony must aver all the essential elements constituting the particular felony charged.

3. Where the statute defining a felony contains a negative averment which is a material and essential part of the definition of the offense, such negative averment must be charged in the indictment.

(Syllabus by the Court.)

Error from district court, Woods county; before Justice John L. McAtee.

Roy Parker was convicted of rape, and brings error. Reversed.

This case originated in the district court in and for Woods county at the May term, 1897. On the 25th day of May, 1897, the grand jury in and for said county returned into court an indictment against the plaintiff in error, charging: "Roy Parker on the 1st day of May, 1897, in the said county of Woods, and territory of Oklahoma, did willfully, violently, unlawfully, and feloniously, in and upon one Flossie M. Sleeper, did make an assault, and her, the said Flossie M. Sleeper, then and there, forcibly, unlawfully, and against her will, did ravish and carnally know, and commit a rape upon her, the said Flossie M. Sleeper; that the said Flossie M. Sleeper resisted; and that her resistance was overcome by force and violence used upon and exercised against her, the said Flossie M. Sleeper, by the said Roy Parker, in committing said rape." To which indictment defendant filed a motion to set aside, which motion was overruled by the court. Defendant then filed a general demurrer to said indictment, which demurrer was overruled by the court, which overruling of the said motion to set aside said indictment, and the demurrer to said indictment, was at the time excepted to by the defendant. Afterwards, on the 18th of October, 1897, a challenge was made to the array of jurors by the defendant, which was by the court overruled, and exceptions saved. Defendant then objected to any evidence being admitted in support of the indictment, for the reason that it did not state a public offense, and did not charge any crime under the laws of the territory of Oklahoma, which objection was overruled by the court, to which ruling defendant excepted. Case was tried by the jury, and, after hearing the evidence and being instructed by the court, the jury retired, and afterwards returned into court a verdict of guilty. On the 23d day of October, 1897. within three days after the verdict had been returned, defendant filed his motion for a new trial. This motion was overruled, and exceptions saved. On the same day, defend

ant filed a motion in arrest of judgment. This motion was overruled, to which defendant takes and preserves an exception. Thereupon the court sentenced the defendant to the penitentiary for the term of 15 years, to which defendant duly excepted. All of which actions of the court and the jury the defendant excepts to, and assigns the same as error, and brings the matter here for review.

W. W. S. Snoddy and T. J. Womack, for plaintiff in error. Harper S. Cunningham, Atty. Gen., and Jesse J. Dunn, Co. Atty., for the Territory.

IRWIN, J. (after stating the facts). Several assignments of error are urged by the plaintiff in error for à reversal of this case, but we think it only necessay to refer to one, viz. that the court committed error in overruling the demurrer to the indictment. By the laws of this territory, as amended by the act of 1895, p. 104, rape is defined as follows: "Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First. Where the female is under the age of 16 years, of previous chaste and virtuous character. Second. Where she is incapable through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. Third. Where she resists, but her resistance is overcome by force or violence. Fourth. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution. Fifth. Where she is prevented from resisting by any intoxicating, narcotic or anæsthetic agent, administered by or with the privity of the accused. Sixth. Where she is at the time unconscious of the nature of the act, and this is known to the accused. Seventh. Where she submits under a belief that the person committing the act is her husband, and this belief is induced by artifice, pretense, or concealment practiced by the accused with intent to induce such belief." The indictment in this case is no doubt framed under the third clause of this definition of rape as contained in our statute, and its sufficiency must be measured and tested by the statute. The question presented by this demurrer is, was the language, "not the wife of the said Roy Parker," a necessary and material allegation in said indictment, and is the omission of this statement a fatal defect in said indictment? We think it only necessary, in deciding this question, to refer to the case of Young v. Territory (decided at this present term of court) 58 Pac. 724, and to repeat the reasoning contained in said case, which decision and reasoning we fully concur in; said case, and the reasoning therein contained, being applicable to and decisive of the question involved in the case at bar. In the case above cited this court says: "It

is contended that the indictment should contain the averment that the prosecutrix was not the wife of the accused. In order to an intelligent discussion and determination of this question, we should go back and examine some of the well-settled and general rules of criminal pleading. At common law ‘rape was the carnal knowledge of a woman by a man, forcibly and against her will,' and many of the states still adhere to this definition. In this definition there is nothing said as to whether the woman is the wife of the person charged. Also, at common law a husband might be guilty of rape on his wife, by assisting, aiding, or procuring another to commit the act. Com. v. Fogerty, 8 Gray, 489. Hence, under the old definition of the crime of rape, and under old forms of pleading, the fact of whether or not the prosecutrix was the wife of the accused did not necessarily enter into the case. But it will be observed that our statute has introduced a new element into the definition of the crime of rape, and such element constitutes one of the essential ingredients of the offense. The definition of rape, as contained in our statute, cannot be read, and eliminate the clause, 'not the wife of the perpetrator.' This new element introduced into the crime is not a matter of excuse for the defendant, to be pleaded and proved by him, but is a necessary and essential element of the crime itself, which must be established by the prosecution in order to make the crime complete, and, if material to prove, then is required to be charged." It will be seen by an examination of this statute that the language, "not the wife of the accused," is made a part of the definition of the crime itself; and, while this statement is negative in its character, it is nevertheless a negative averment necessary to charge the crime of rape. It is a well-recognized principle of common law that, in order to convict any person of any crime, every material element and necessary ingredient to constitute the crime must be proven to the satisfaction of the jury, beyond a reasonable doubt, and every material element and necessary ingredient incumbent upon the commonwealth to prove must be charged in the indictment. Hence, in this case, as the allegation that the prosecutrix was not the wife of the accused was a material and necessary part of the definition of the offense, and the omission of which would render it impossible to make the charge of rape against the accused under the laws of this territory, we think there is no doubt that the failure to charge this fact in the indictment was fatal to the indictment, and that the demurrer should have been sustained by the court below. Mr. Justice Clifford, in the case of U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 538, in pronouncing the opinion of the court, says: "Offenses created by statute at common law must be accurately and clearly described in an indictment, and if they cannot be, in any case, without an al

legation that the accused is not within an exception contained in the statute defining the offense, it is clear that no indictment founded upon the statute can be a good one which does not contain such an allegation, as it is universally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed. With rare exceptions, offenses consist of more than one ingredient, and in some cases of many; and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested or be reversed on error." The supreme court of Dakota, in the case of Territory v. Scott, 2 Dak. 212, 6 N. W. 435, states the rule thus: "When the exception or proviso is so introduced as to constitute a part of the definition or description of the offense, it must be negatived." In the case of State v. Abbey, 29 Vt. 60, it is said: "If an exception is so incorporated with and becomes part of a penal enactment as to constitute a part of the definition or description of the offense, an indictment for the violation of such statute must negative such exception. It is the nature of the exception, and not its location, which determines the question."

We are aware that some of the states (notably, the state of Kansas) have held that this averment is not a necessary part of the charge in the indictment. But it will be found, on an examination of the statutes of Kansas, that this statement, "not the wife of the perpetrator," is not a material part of the definition of the crime of rape, as defined in that statute. Hence, under an indictment for the crime of rape in the state of Kansas, this averment might not be necessary, and, as the indictment in the cases under consideration by the Kansas court were practically in the language of the statute of that state, we can readily see that the indictment might have been held good by the court without this statement; and we think it will be found, on an examination of the statutes of the various states in which it has been held that this averment is unnecessary, that the indictment was under statutes defining the crime of rape in other and different language from our own.

It is urged by defendant in error that this objection is purely technical, and hence should not be considered by the court. While it partakes somewhat of the nature of a technical objection, it is nevertheless the asserting of a real, substantial, statutory right of the defendant, and it is a well-recognized principle of law that the depriving of any defendant in a criminal case of any material statutory right implies a material injury to his interests; and so carefully and conscientiously does the law guard and protect the rights of any defendant, and the life and lib

erty of any citizen is held so sacred under the laws of this land, that no man can be convicted of any crime, unless upon a clear, concise, and intelligent statement, and a welldefined charge made against him in the manner and form provided by law, and when the proof is so clear and convincing as to remove from the mind of the jurors every reasonable doubt of his guilt. It is one of the statutory rights guarantied to every defendant, that the indictment brought against him shall charge every necessary and material ingredient essential to constitute the crime charged; and to put a defendant on trial under an indictment charging less than this, over his objection, is the denial of a statutory and constitutional right. And in this case we think the error of the court in overruling the demurrer to the indictment was an error which materially affected the statutory rights of the defendant.

An examination of the evidence in the case does not fully satisfy us that the proof in this case was sufficient to show the crime of rape. The rule adopted by the courts in cases of rape is that there must be the utmost of force and the utmost of resistance; and we are not prepared to say,. on an examination of this testimony, that such fact was made to appear as clearly and conclusively as it should have been. The proof on this subject is not entirely satisfactory, but, as the case must be reversed for the error first above referred to, it is unnecessary to discuss the evidence, or the weight of evidence. For the error committed by the trial court in overruling the demurrer to the indictment, this case will be reversed, and the cause remanded to the district court, with instructions to sustain the demurrer to the indictment. It is ordered by the court that the defendant be remanded from the territorial prison to the county jail of Woods county, to await the further action of the district court. All the justices concurring, except McATEE, J., who, having presided at the trial in the court below, took no part in this decision.

1. One suing in replevin to recover a cow taken by the defendant, but which is, and always was, the property of the plaintiff, is entitled to the cow and the increase since conversion, and, in the alternative, to the value of the cow and increase at the time of judgment.

2. It is the function of a supplemental petition to supply the facts which may be necessary to a complete determination of the rights of the plaintiff and defendant touching the subject-matter of the suit, upon the facts existing at the time of the rendition of the judgment, and which would vary the relief to which the plaintiff would have been entitled at the commencement of the action; and it is in the sound discretion of the court to allow such an amendment.

3. Where the case is made and settled for the supreme court, and the party desires that it shall be shown that the case contains all the evidence that was introduced at the trial, a

statement to that effect should be inserted in the case itself. Otherwise, the evidence will not be so certified here as to justify its examination for alleged error.

4. A case-made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein or attaching anything thereto which did not belong to the case-made, and constitute a part thereof, when it was originally settled and signed by the judge and attested by the clerk below. The decision of the trial judge as to the truthfulness of the case-made is conclusive and final,-at least, until the certified record is shown to be intentionally false and to have been fraudulently prepared, or that there was a want of jurisdiction in the court. Ryland v. Coyle, 54 Pac. 456, 7 Okl. 226, affirmed.

(Syllabus by the Court.)

Error from district court, Kingfisher county; before Justice John C. Tarsney.

Action by Edward F. Gould against Richard H. Wade. Judgment for plaintiff. Defendant brings error. Affirmed.

This was an action in replevin begun in the probate court of Kingfisher county for the recovery of the possession of four cows, valued at $55. The petition upon which the case was tried averred that the plaintiff had tendered all charges and dues claimed by the defendant upon the cattle for pasturage, and made a tender of the same into court, subject to its order. The value of the cattle was claimed, together with $25 damages. The defendant answered generally, and, the matter having been presented to the probate court, it was appealed to the district court, where the plaintiff filed a supplemental petition, averring that there had been born to, and was an increase of, the stock originally claimed in the plaintiff's petition, since the filing thereof, six calves, two of which were yearlings, and that all of them were a part of the original stock set forth in the petition, and that the increase was of the value of $60, together with $25 damages. The defendant demurred to the supplemental petition upon the grounds that (1) there were several causes of action improperly joined in the petition; and (2) that there was another action pending between the same parties in this court for the same cause, and that said action had been duly tried and determined; and (3) because the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and thereupon the defendant answered, averring (1) a general denial; and (2) that there was a cause of action pending in this court on appeal from the probate court between the same parties, involving the same subject-matter, and that the said cause had been since that time duly tried and determined. The case was tried to the judge of the district court, without a jury, and special findings of fact requested, which were made, as follows: "That on or about the 1st day of April, 1896, the plaintiff placed in the defendant's pasture, for keeping, four head of cattle, mentioned in the supplemental petition, to be kept by the defendant and pastured for a consideration of twenty cents per head per month; that in

August of that year the defendant requested the plaintiff to remove his cattle and take them out of that pasture, and that the plaintiff failed and neglected at that time so to do; that in January, 1897, the plaintiff tendered in money to the defendant the full amount in which he was indebted to the defendant for the keeping of said cows, and demanded the possession of the cows; that the defendant refused to accept such tender unless the plaintiff would consent to dismiss a certain cause of action then pending, in which the present plaintiff was plaintiff and the present defendant was defendant; that, of these four cows, two had calves in the spring of 1897, and all four produced calves in the spring of 1898; that all of said cattle (cows and calves) were in the possession of the defendant at the time of the filing of the supplemental petition in this case. The court finds that there was no other or further demand made for the possession of any of the stock in controversy, except that made in January, 1897; and on these findings of fact the court concludes, as matter of law, that the plaintiff was entitled to the immediate possession of the four head of cattle originally placed in the pasture of the defendant, at the time of the commencement of this suit, and that pending this action he has become entitled to the possession of the increase and product of these four cows, and is now entitled to the possession of all of said property. The court finds the value of the property now detained by the defendant from the plaintiff to be $163. The court finds that there is evidence establishing the fact that the use of said cows for the purpose of producing milk and butter while they have been detained was of the value of $54 over and above the reasonable cost of their keeping. The court finds, as a matter of law, that the defendant is not entitled to anything for keeping said cattle after his refusing to deliver them up after the tender of all due on them had been made. The judgment in this case will be that the plaintiff have and recover the possession of all the property specified in the petition and supplemental petition, and, if the possession thereof cannot be had, the sum of $163, their assessed value, and, in addition thereto, damages in the sum of $54, and the costs of this suit." To which findings and conclusions the defendant excepted.

W. A. Taylor, for plaintiff in error. W. W. Noffsinger, for defendant in error.

MCATEE, J. (after stating the facts). The assignments of error were (1) in overruling the motion for a new trial and the demurrer to defendant's supplemental petition; and (2) in attempting to assume jurisdiction of the subject-matter set out in the defendant's supplemental petition; and (3) in excluding testimony tending to show another action pending between the same parties, and involving the same subject-matter, at the time the action was commenced; and (4) in excluding

competent, relevant, and material testimony offered by the plaintiff in error; and (5) in the amount of the recovery, because there was no evidence to support the finding.

Touching the assignments of error upon the filing of the supplemental petition, the special findings of fact made by the court show that the calves sued for therein were the offspring of the four head of cows whose recovery was sought for in the original petition, and that this increase had come from the cows after the time they were placed. by the plaintiff in the possession of the defendant for the purpose of pasturage. It was said in Morris v. Coburn (Tex. Sup.) 9 S. W. 345, that "one suing to recover a cow taken by defendant, but which is and always was the property of plaintiff, is entitled to the cow and the increase since the conversion, and, in the alternative, to the value of the cow and increase at the time of judgment." And it was said in Garth v. Everett, 16 Mo. 490, that if one takes and converts a flock of sheep, and during the pendency of a suit to recover their value they should have lambs, the lambs would be the property of the original owner. And in Talbot v. Magee, 59 Mo. App. 347, it was said that the property rights in a colt which had been foaled by the mother after a levy of an execution upon her is as much in possession as the mother is. The issue of animals follows the mother. Newman v. Jackson, 12 Wheat. 570. And it was said in Buckley v. Buckley, 12 Nev. 423, that in an action to recover a herd of ewe sheep, or their value, the increase of the wool subsequently shorn from the herd is a proper subject of litigation in the same action, and that as to the lambs the rights of the parties are precisely the same as to the original flock and as to the wool. The remedy is a judgment for the value of their use, and the court should allow supplemental pleadings to be filed raising these claims. And it was said in White v. Storms, 21 Mo. App. 288, and Stewart v. Ball's Adm'rs, 33 Mo. 156, that the law is well settled that the increase of the female of live stock belongs to the owner of the dam at the time. The only exception to this rule is where the dam may be hired temporarily for a term. The increase during the term belongs to the usufructuary. It is the function of the supplemental petition to supply the facts which may be necessary to a complete determination of the rights of the plaintiff and defendant, touching the subject-matter of the suit, upon the facts existing at the time of the rendition of the judgment, and which would vary the relief to which the plaintiff would have been entitled at the commencement of the action; and it is in the sound discretion of the court to allow such an amendment. Medbury v. Swan, 46 N. Y. 200; Palmer v. Murray, 18 How. Prac. 545. The ruling of the court, therefore, upon the filing of the supplemental petition, and the admission of the facts under it, and the ren