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right is exercised; as, for instance, when ap- who were formerly paid ixed salaries out of plied to the raising of a special fund to de funds raised by general taxation; and then fray the expense of a public local improve proceeds by saying: "If these services of ment. But the long and well-established judge, of sheriff, or of clerk should be commeaning of the terms, as ordinarily used in pensated, not by contributions laid upon the the constitution and statutes, and as gener- public generally, but by specific contributions ally understood, imports a burden imposed for laid upon a particular class, it would seem to general revenue for the ordinary expenses of be a surprising result that money raised by the state, county, or township government. the same power, and which performs preciseKing v. City of Portland, 2 Or. 146; Meier v. ly the same office, should in one case be levied Kelly, 20 Or. 86, 25 Pac. 73. And especially under the power of taxation, and be a tax, is this true of the word “taxation.” “The and the other be outside of the taxing power." term 'taxation,' both in common parlance and And the act was held to be a law for the asin the laws of the several states," says Mr. sessment and collection of taxes for county Justice Sawyer in Emery v. Gas Co., 28 Cal. purposes, because, as indicated in the quota345, 356, “has been ordinarily used, not to tion above, the fees were exacted from a parexpress the idea of sovereign power which is ticular class for the purpose of raising a fund exercised, but the exercise of that power for with which to compensate the officers named. a particular purpose, viz. to raise a revenue Now, the act of 1899 makes no provision, eifor the general and ordinary expenses of the ther directly or by implication, as to the disgovernment, whether it be the state, county, position of the fees required to be paid by town, or city government.” And it is in this litigants for the services of the county offisense the word is used in the section of the cers, except that they shall be paid into the constitution now under consideration. AS- county fund, and, as a consequence, become sessment and taxation in themselves imply a part of the general assets of the county, an exaction by the sovereign from the citizen, subject to the disposition of the proper county without his consent, and a tax is a charge or authorities. It can in no sense be said to be pecuniary burden imposed upon an individual a fund raised for the purpose of paying the or his property for the support of the general salaries of the county officers, as the court government, or for some special purpose au- construed the act of 1880 to be. And, as said thorized by it, for which the state may make by Mr. Justice Wolverton in Northern Counrequisition in a particular mode. Burroughs, ties Trust v. Sears, supra; “A law which reTax'n, $ 4; Cooley, Tax'n, § 1. It operates in quires a fee to be paid to an officer, and fiinvitum, without the consent of the taxpayer, nally covered into the treasury of a county, for and without reference to any special benefit which the party paying the fee received some to him, as contradistinguished from the rest equivalent in return other than the benefit of of the community or class of persons taxed. good government, which is enjoyed by the It is an exaction from all the community or whole community, and which the party may class alike, according to some uniform rate or pay, and obtain the benefits under the law, or mode of assessment or other just rule of ap- it alone, as he chooses, does not come portionment, and it would be giving to the within the category of an act for raising rev. section of the constitution under considera- enue." tion an unnatural and unwarranted construc- The next objection is that the act in ques tion to hold that the language "assessment tion is a law granting to certain citizens privand collection of taxes for state, county, town- ileges and immunities not belonging to all ship, or road purposes" was intended to refer citizens, and therefore violates section 20, art. to anything other than to general or public 1, of the constitution, which provides that "no taxes to be levied and collected for the benefit law shall be passed granting to any citizen or of the state, county, township, or road dis- class of citizens, privileges or immunities trict. It is claimed, however, that the case which upon the same terms shall not equally of Manning v. Klippel, 9 Or. 367, is decisive apply to all citizens.” But it was held in Re of this point. The authority of that case is Oberg, 21 Or. 406, 28 Pac. 130, 14 L. R. A. very much impaired by the subsequent cases 577, that legislation which affects alike all of Northern Counties Trust v. Sears, 30 Or. persons under the same circumstances and 388, 41 Pac. 931, 35 L. R. A. 188, and Landis conditions is not such class legislation as is v. Lincoln Co., 31 Or. 424, 50 Pac. 530; but, prohibited by this section of the constitution. however that may be, its doctrine can, we Within this doctrine the act in question is think, be distinguished from the case in hand. valid. It does not grant privileges and imThe law there under consideration was an act munities to one citizen, which, upon the same providing a salary for the sheriffs and clerks terms, do not belong to all others similarly of certain counties, and fees to be paid to the situated. It provides the fees which shall be county by litigants for the services of such paid by litigants in counties of the designated officers, and the court proceeds in the opinion class, but it applies to all litigants who may on the assumption that it contemplated that have occasion to invoke the aid of the courts the tees to be paid by litigants were to con- in such counties, and therefore is not obnox. stitute a fund for the payment of the officers' ious to the section of the constitution referred salaries. The opinion begins by stating that to. It follows that the judgment of the court Judges, sheriffs, and clerks are public officers, ' below must be affirmed, and it is so ordered.

(9 Okl. 109)

ant filed a motion in arrest of judgment. PARKER v. TERRITORY.

This motion was overruled, to which defend(Supreme Court of Oklahoma. June 15, 1899.)

ant takes and preserves an exception. There

upon the court sentenced the defendant to RAPE-INDICTMENT.

the penitentiary for the term of 15 years, to 1. An indictment for the crime of rape, under

which defendant duly excepted. All of the Statutes of Oklahoma, must contain the averment that the female on whom the crime

which actions of the court and the jury the was committed was not the wife of the person defendant excepts to, and assigns the same accused of the crime.

as error, and brings the matter here for re2. An indictment charging a felony must aver

view. all the essential elements constituting the particular felony charged. 3. Where the statute defining a felony con

W. W. S. Snoddy and T. J. Womack, for tains a negative averment which is a material plaintiff in error. Harper S. Cunningham, and essential part of the definition of the offense, Atty. Gen., and Jesse J. Dunn, Co. Atty., for such negative averment must be charged in the

the Territory. indictment. (Syllabus by the Court.)

IRWIN, J. (after stating the facts). SevError from district court, Woods county;

eral assignments of error are urged by the before Justice John L. McAtee.

plaintiff in error for å reversal of this case, Roy Parker was convicted of rape, and

but we think it only necessay to refer to one, brings error. Reversed.

viz, that the court committed error in overThis case originated in the district court ruling the demurrer to the indictment. By in and for Woods county at the May term, the laws of this territory, as amended by the 1897. On the 25th day of May, 1897, the act of 1895, p. 104, rape is defined as follows: grand jury in and for said county returned "Rape is an act of sexual intercourse accominto court an indictment against the plaintiff plished with a female, not the wife of the in error, charging: "Roy Parker on the 1st perpetrator, under either of the following day of May, 1897, in the said county of circumstances: First. Where the female is Woods, and territory of Oklahoma, did will- under the age of 16 years, of previous chaste fully, violently, unlawfully, and feloniously, and virtuous character. Second. Where she in and upon one Flossie M. Sleeper, did make is incapable through lunacy, or any other unan assault, and her, the said Flossie M. soundness of mind, whether temporary or Sleeper, then and there, forcibly, unlawfully, permanent, of giving legal consent. Third. and against her will, did ravish and carnally Where she resists, but her resistance is overknow, and commit a rape upon her, the said come by force or violence. Fourth. Where Flossie M. Sleeper; that the said Flossie M. she is prevented from resisting by threats Sleeper resisted; and that her resistance was of immediate and great bodily harm, accomovercome by force and violence used upon panied by apparent power of execution. and exercised against her, the said Flossie M. Fifth. Where she is prevented from resisting Sleeper, by the said Roy Parker, in com- by any intoxicating, narcotic or anæsthetic mitting said rape.” To which indictment de- agent, administered by or with the privity of fendant filed a motion to set aside, which the accused. Sixth. Where she is at the time motion was overruled by the court. Defend- unconscious of the nature of the act, and ant then filed a general demurrer to said in- this is known to the accused. Seventh. dictment, which demurrer was overruled by Where she submits under a belief that the the court, which overruling of the said mo- person committing the act is her husband, tion to set aside said indictment, and the and this belief is induced by artifice, predemurrer to said indictment, was at the time tense, or concealment practiced by the acexcepted to by the defendant. Afterwards, cused with intent to induce such belief." on the 18th of October, 1897, a challenge was The indictment in this case is no doubt frammade to the array of jurors by the defend- ed under the third clause of this definition ant, which was by the court overruled, and of rape as contained in our statute, and its exceptions saved. Defendant then objected sufficiency must be measured and tested by to any evidence being admitted in support the statute. The question presented by this of the indictment, for the reason that it did demurrer is, was the language, “not the wife not state a public offense, and did not charge of the said Roy Parker,” a necessary and any crime under the laws of the territory material allegation in said indictment, and of Oklahoma, which objection was overruled is the omission of this statement a fatal deby the court, to which ruling defendant ex- fect in said indictment? We think it only cepted. Case was tried by the jury, and, necessary, in deciding this question, to refer after hearing the evidence and being in- to the case of Young v. Territory (decided at structed by the court, the jury retired, and this present term of court) 58 Pac. 724, and afterwards returned into court a verdict of to repeat the reasoning contained in said guilty. On the 23d day of October, 1897, case, which decision and reasoning we fully within three days after the verdict had been concur in; said case, and the reasoning therereturned, defendant filed his motion for a in contained, being applicable to and decisive new trial. This motion was overruled, and of the question involved in the case at bar. exceptions saved. On the same day, defend- In the case above cited this court says: “It is contended that the indictment should con- legation that the accused is not within an tain the averment that the prosecutrix was exception contained in the statute defining not the wife of the accused. In order to an the offense, it is clear that no indictment intelligent discussion and determination of founded upon the statute can be a good one this question, we should go back and exam- which does not contain such an allegation, ine some of the well-settled and general rules as it is universally true that no indictment of criminal pleading. At common law ‘rape is sufficient if it does not accurately and was the carnal knowledge of a woman by clearly allege all the ingredients of which a man, forcibly and against her will,' and the offense is composed. With rare excepmany of the states still adhere to this defini- tions, offenses consist of more than one intion. In this definition there is nothing said gredient, and in some cases of many; and as to whether the woman is the wife of the the rule is universal that every ingredient person charged. Also, at common law a hus- of which the offense is composed must be band might be guilty of rape on his wife, by accurately and clearly alleged in the indictassisting, aiding, or procuring another to ment, or the indictment will be bad, and may commit the act. Com. v. Fogerty, 8 Gray, be quashed on motion, or the judgment may 489. Hence, under the old definition of the be arrested or be reversed on error.” The crime of rape, and under old forms of plead- supreme court of Dakota, in the case of Tering, the fact of whether or not the prose- ritory v. Scott, 2 Dak. 212, 6 N. W. 435, states cutrix was the wife of the accused did not the rule thus: “When the exception or pronecessarily enter into the case. But it will viso is so introduced as to constitute a part be observed that our statute has introduced of the definition or description of the ofa new element into the definition of the fense, it must be negatived.” In the case of crime of rape, and such element constitutes State v. Abbey, 29 Vt. 60, it is said: “If an one of the essential ingredients of the offense. exception is so incorporated with and beThe definition of rape, as contained in our comes part of a penal enactment as to constistatute, cannot be read, and eliminate the tute a part of the definition or description clause, 'not the wife of the perpetrator.' of the offense, an indictment for the violaThis new element introduced into the crime tion of such statute must negative such exis not a matter of excuse for the defendant, ception. It is the nature of the exception, to be pleaded and proved by him, but is a and not its location, which determines the necessary and essential element of the crime question." itself, which must be established by the We are aware that some of the states prosecution in order to make the crime com- (notably, the state of Kansas) have held that plete, and, if material to prove, then is re- this averment is not a necessary part of the quired to be charged.” It will be seen by an charge in the indictment. But it will be examination of this statute that the lan- found, on an examination of the statutes of guage, “not the wife of the accused," is made Kansas, that this statement, “not the wife a part of the definition of the crime itself; of the perpetrator," is not a material part of and, while this statement is negative in its the definition of the crime of rape, as defined character, it is nevertheless a negative aver- in that statute. Hence, under an indictment ment necessary to charge the crime of rape. for the crime of rape in the state of Kansas, It is a well-recognized principle of common this averment might not be necessary, and, law that, in order to convict any person of as the indictment in the cases under considany crime, every material element and neces- eration by the Kansas court were practically sary ingredient to constitute the crime must in the language of the statute of that state, be proven to the satisfaction of the jury, we can readily see that the indictment might beyond a reasonable doubt, and every ma- have been held good by the court without terial element and necessary ingredient in- this statement; and we think it will be cumbent upon the commonwealth to prove found, on an examination of the statutes of must be charged in the indictment. Hence, the various states in which it has been held in this case, as the allegation that the prose- that this averment is unnecessary, that the cutrix was not the wife of the accused was indictment was under statutes defining the a material and necessary part of the defini- crime of rape in other and different language tion of the offense, and the omission of from our own. which would render it impossible to make It is urged by defendant in error that this the charge of rape against the accused under objection is purely technical, and hence the laws of this territory, we think there is should not be considered by the court. While no doubt that the failure to charge this fact it partakes somewhat of the nature of a in the indictment was fatal to the indictment, technical objection, it is nevertheless the asand that the demurrer should have been serting of a real, substantial, statutory right sustained by the court below. Mr. Justice of the defendant, and it is a well-recognized Clifford, in the case of U. S. v. Cook, 17 Wall. principle of law that the depriving of any 168, 21 L. Ed. 538, in pronouncing the opin- defendant in a criminal case of any material ion of the court, says: "Offenses created by statutory right implies a material injury to statute at common law must be accurately his interests; and so carefully and conscienand clearly described in an indictment, and tiously does the law guard and protect the if they cannot be, in any case, without an al-rights of any defendant, and the life and lib. erty of any citizen is held so sacred under the statement to that effect should be inserted in the laws of this land, that no man can be con

case itself. Otherwise, the evidence will not be

80 certified here as to justify its examination for victed of any crime, unless upon a clear, con

alleged error. cise, and intelligent statement, and a well- 4. A case-made for the supreme court candefined charge made against him in the man- not be amended or supplemented in the supreme ner and form provided by law, and when the

court by inserting anything therein or attach

ing anything thereto which did not belong to the proof is so clear and convincing as to re

case-made, and constitute a part thereof, when move from the mind of the jurors every rea- it was originally settled and signed by the sonable doubt of his guilt. It is one of the judge and attested by the clerk below. The statutory rights guarantied to every defend

decision of the trial judge as to the truthfulness

of the case-made is conclusive and final,-at ant, that the indictment brought against him least, until the certified record is shown to be shall charge every necessary and material intentionally false and to have been fraudulentingredient essential to constitute the crime

ly prepared, or that there was a want of juris

diction in the court. Ryland v. Coyle, 54 Pac. charged; and to put a defendant on trial un

456, 7 Okl. 226, affirmed. der an indictment charging less than this,

(Syllabus by the Court.) over bis objection, is the denial of a statu

Error from district court, Kingfisher countory and constitutional right. And in this case we think the error of the court in over-ty; before Justice John C. Tarsney. ruling the demurrer to the indictment was an

Action by Edward F. Gould against Richerror which materially affected the statu

ard H. Wade. Judgment for plaintiff. De

fendant brings error. Affirmed. tory rights of the defendant.

An examination of the evidence in the case This was an action in replevin begun in does not fully satisfy us that the proof in the probate court of Kingfisher county for this case was sufficient to show the crime the recovery of the possession of four cows, of rape. The rule adopted by the courts in valued at $55. The petition upon which the cases of rape is that there must be the ut- case was tried averred that the plaintif had most of force and the utmost of resistance; tendered all charges and dues claimed by the and we are not prepared to say, on an ex- defendant upon the cattle for pasturage, and amination of this testimony, that such fact made a tender of the same into court, subwas made to appear as clearly and conclu- ject, to its order. The value of the cattle was sively as it should have been. The proof on claimed, together with $25 damages. The de this subject is not entirely satisfactory, but, fendant answered generally, and, the matter as the case must be reversed for the error having been presented to the probate court, first above referred to, it is unnecessary to it was appealed to the district court, where discuss the evidence, or the weight of evi- the plaintiff filed a supplemental • petition, dence. For the error committed by the trial averring that there had been born to, and court in overruling the demurrer to the in

was

an increase of, the stock originally dictment, this case will be reversed, and the claimed in the plaintiff's petition, since the cause remanded to the district court, with filing thereof, six calves, two of which were instructions to sustain the demurrer to the yearlings, and that all of them were a part Indictment. It is ordered by the court that of the original stock set forth in the petition, the defendant be remanded from the territorial and that the increase was of the value of prison to the county jail of Woods county, to $60, together with $25 damages. The defend. await the further action of the district court. ant demurred to the supplemental petition All the justices concurring, except McATEE, upon the grounds that (1) there were several J., who, having presided at the trial in the causes of action improperly joined in the pe court below, took no part in this decision. tition; and (2) that there was another action

pending between the same parties in this (8 Okl. 690)

court for the same cause, and that said acWADE v. GOULD.

tion had been duly tried and determined; and

(3) because the petition did not state facts (Supreme Court of Oklahoma. Nov. 27, 1899.)

sufficient to constitute a cause of action. The REPLEVIN – JUDGMENT - PLEADING-APPEAL -CASE-MADE-AMENDMENT.

demurrer was overruled, and thereupon the 1. One suing in replevin to recover a cow taken

defendant answered, averring (1) a general by the defendant, but which is, and always was, denial; and (2) that there was a cause of the property of the plaintiff, is entitled to the cow and the increase since conversion, and, in

action pending in this court on appeal from the alternative, to the value of the cow and in

the probate court between the same parties, crease at the time of judgment.

involving the same subject matter, and that 2. It is the function of a supplemental peti- the said cause had been since that time duly tion to supply the facts which may be necessary to a complete determination of the rights of

tried and determined. The case was tried the plaintiff and defendant touching the sub

to the judge of the district court, without a ject-matter of the suit, upon the facts existing jury, and special findings of fact requested, at the time of the rendition of the judgment, and

which were made, as follows: “That on or which would vary the relief to which the plaintiff would have been entitled at the commence

about the 1st day of April, 1896, the plainment of the action; and it is in the sound discre- tifr placed in the defendant's pasture, for tion of the court to allow such an amendment.

keeping, four head of cattle, mentioned in 3. Where the case is made and settled for the supreme court, and the party desires that it

the supplemental petition, to be kept by the sball be shown that the case contains all the defendant and pastured for a consideration evidence that was introduced at the trial, a of twenty cents per head per month; that in

August of that year the defendant requested competent, relevant, and material testimony the plaintiff to remove his cattle and take offered by the plaintiff in error; and (5) in them out of that pasture, and that the plain- the amount of the recovery, because there tiff failed and neglected at that time so to was no evidence to support the finding. do; that in January, 1897, the plaintiff ten- Touching the assignments of error upon dered in money to the defendant the full the filing of the supplemental petition, the amount in which he was indebted to the de- special findings of fact made by the court fendant for the keeping of said cows, and show that the calves sued for therein were demanded the possession of the cows; that the offspring of the four head of cows whose the defendant refused to accept such tender recovery was sought for in the original petiunless the plaintiff would consent to dismiss tion, and that this increase had come from a certain cause of action then pending, in the cows after the time they were placed which the present plaintiff was plaintiff and by the plaintiff in the possession of the dethe present defendant was defendant; that, fendant for the purpose of pasturage. It was of these four cows, two had calves in the said in Morris v. Coburn (Tex. Sup.) 9 S. W. spring of 1897, and all four produced calves 345, that "one suing to recover a cow taken in the spring of 1898; that all of said cattle by defendant, but which is and always was (cows and calves) were in the possession of the property of plaintiff, is entitled to the the defendant at the time of the filing of the cow and the increase since the conversion, supplemental petition in this case. The court and, in the alternative, to the value of the finds that there was no other or further de- cow and increase at the time of judgment." mand made for the possession of any of the And it was said in Garth v. Everett, 16 Mo. stock in controversy, except that made in 490, that if one takes and converts a flock January, 1897; and on these finaings of fact of sheep, and during the pendeñcy of a suit the court concludes, as matter of law, that to recover their value they should have the plaintiff was entitled to the immediate lambs, the lambs would be the property of possession of the four head of cattle origi- the original owner. And in Talbot V. Manally placed in the pasture of the defendant, gee, 59 Mo. App. 347, it was said that the at the time of the commencement of this suit, property rights in a colt which had been and that pending this action he has become foaled by the mother after a levy of an exeentitled to the possession of the increase and cution upon her is as much in possession as product of these four cows, and is now enti- the mother is. The issue of animals follows tled to the possession of all of said property. the mother. Newman v. Jackson, 12 Wheat. The court finds the value of the property now 570. And it was said in Buckley v. Buckley, detained by the defendant from the plaintiff 12 Nev. 423, that in an action to recover a to be $163. The court finds that there is herd of ewe sheep, or their value, the inevidence establishing the fact that the use of crease of the wool subsequently shorn from said cows for the purpose of producing milk the herd is a proper subject of litigation in and butter while they have been detained the same action, and that as to the lambs was of the value of $54 over and above the the rights of the parties are precisely the reasonable cost of their keeping. The court same as to the original flock and as to the finds, as a matter of law, that the defendant wool. The remedy is a judgment for the is not entitled to anything for keeping said value of their use, and the court should allow cattle after his refusing to deliver them up supplemental pleadings to be filed raising after the tender of all due on them had been these claims. And it was said in White v. made. The judgment in this case will be Storms, 21 Mo. App. 288, and Stewart v. that the plaintiff have and recover the pos- Ball's Adm'rs, 33 Mo. 156, that the law is session of all the property specified in the well settled that the increase of the female of petition and supplemental petition, and, if live stock belongs to the owner of the dam the possession thereof cannot be had, the sum at the time. The only exception to this rule of $163, their assessed value, and, in addi- is where the dam may be hired temporarily tion thereto, damages in the sum of $54, and for a term. The increase during the term the costs of this suit." To which findings belongs to the usufructuary. It is the funcand conclusions the defendant excepted. tion of the supplemental petition to supply W. A. Taylor, for plaintiff in error. W. W.

the facts which may be necessary to a comNoffsinger, for defendant in error.

plete determination of the rights of the plain

tiff and defendant, touching the subject-matMCATEE, J. (after stating the facts). The ter of the suit, upon the facts existing at the assignments of error were (1) in overruling time of the rendition of the judgment, and the motion for a new trial and the demurrer which would vary the relief to which the to defendant's supplemental petition; and (2) plaintiff would have been entitled at the in attempting to assume jurisdiction of the commencement of the action; and it is in the subject matter set out in the defendant's sup- sound discretion of the court to allow such plemental petition; and (3) in excluding tes- an amendment. Medbury v. Swan, 46 N. Y. timony tending to show another action pend- 200; Palmer v. Murray, 18 How. Prac. 545. ing between the same parties, and involving The ruling of the court, therefore, upon the the same subject-matter, at the time the ac- filing of the supplemental petition, and the tion was commenced; and (4) in excluding admission of the facts under it, and the ren

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