(221 P.)

the statement outlined above. There was, of pleading in civil and criminal cases are no allegation that the statement was made practically the same. in the Russian language, or any Russian dialect, and from the reading of the information, without the aid of other parts of the record, it would appear that the slanderous words used were spoken in English. The defendant urges in this appeal that there was a variance between the allegations and the proof, and that the information was insufficient, because it did not state the slanderous words in the Russian language or dialect as spoken, with a true translation of the foreign words in the English, together with an allegation that the translation was correct.

It has been held by a long line of authorities, ancient and modern, that where the slanderous words spoken are uttered in a foreign language the words must be set out in the information in the language in which they were spoken, with a translation thereof in English added. Romano v. De Vito, 191 Mass. 457, 78 N. E. 105, 6 Ann. Cas. 731; Wormouth v. Cramer, 3 Wend. (N. Y.) 395, 20 Am. Dec. 706; Pelzer v. Benish, 67 Wis. 291, 30 N. W. 366; Kerschbaugher v. Slusser, 12 Ind. 453; Simonsen v. Herold Co., 61 Wis. 626, 21 N. W. 799. Other cases to the same effect may be found in the notes to the Romano Case in 6 Ann. Cas. 731. The cases cited are for the most part civil cases, but it has been held that the same rule would apply in a criminal case. Stichtd v. State, 25 Tex. App. 424, 8 S. W. 477, 8 Am. St. Rep. 444; 17 R. C. L. "Libel and Slander," §§ 142 and 228; section 1115, Newell on Slander and Libel, 3d Ed.

[1] Giving effect to the statutory enactments just cited, we hold that an information charging slanderous words in a foreign language need not recite the foreign words spoken, but that the English equivalent is sufficient, provided the information contains an allegation that they were spoken in a foreign tongue, naming it, and that the English equivalent used is a true and correct translation thereof, following the decisions in California, Missouri, and Iowa, cited above. By this test we find from the record here that the claim of the plaintiff in error that there was a variance between the allegations and the proof is well founded. There was no allegation in the information that the words were spoken in the Russian language, "high" or "low," or in any Russian dialect, while the proof conclusively shows that the slanderous words spoken were uttered in some Russian dialect. There was no sufficient showing in the proceedings that the words spoken were truly and correctly translated into English, and here lies the danger in framing an information, so that it appears that the slanderous words were spoken in English, and supporting it by proof that they were uttered in some foreign language or dialect.

The words as charged in the information were exceedingly obscene and repulsive in their nature, some of the words being vulgar expressions difficult to define in any language. The rule should therefore be invoked that the pleadings should state that It has been held in a number of cases, the expressions were uttered in a foreign where the rules of practice have changed the language, coupled with an allegation as to common-law rule, that where foreign words the true translation in English, in order are alleged as slanderous it is sufficient in that the accused might prepare to meet the pleading to recite the English meaning with- issues by the use of interpreters and witout quoting the foreign words, with appro- nesses familiar with both languages. The priate averments, however, that the words accused claims further that the testimony were spoken in a foreign tongue. Bower v. was insufficient to support the verdict. It is Deideker, 38 Iowa, 418; Butts v. Long, 94 difficult to conceive how a priest officiating Mo. App. 687, 68 S. W. 754; Elfrank v. Seil- over a religious body at a public meeting er, 54 Mo. 134; Stevens v. Kobayshi, 20 Cal. would so debase himself as to use the obscene App. 153, 128 Pac. 419. While there is no and scurrilous language attributed to him. provision in our Constitution or statutes re- The evidence upon this point being conflictquiring that pleadings be couched in the Eng-ing, the question of whether the defendant lish language, the practice is so universally used the language alleged was for the jury. established in this state that it would seem The annals of criminal cases often disclose that there would be no occasion for such a that persons of high standing and position provision. Even before statehood, pleadings and supposedly high character are sometimes and court records in the Five Civilized Tribes guilty of disgraceful conduct. were recorded in the English language. Under our practice, both civil and criminal, it is provided that a pleading should contain a statement of facts constituting the cause of action in ordinary and concise language, disregarding any error or defect which does not affect the substantial rights of any of the parties. Sections 265, 318, 2563, and 2564, Comp. St. 1921, in which the statutory rules

[2] Because the information contained no averment that the words uttered were in a foreign language, and the consequent variance between the information and the proof, the judgment of the trial court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

MATSON, P. J., and DOYLE, J., concur.

GEIGER v. STATE. (No. 4202.) (Criminal Court of Appeals of Oklahoma. Dec. 29, 1923.)

(Syllabus by the Court.)

1. Homicide 29-Conspirator not responsible for acts of coconspirator in consummating different murder.

If two persons conspire to commit murder and one of them conspires with another to commit a different murder, the one who is involved in the first conspiracy without aiding in the other will not be responsible for the acts of the others in consummating the second.

2. Criminal law 507(1)-Active conspirator is an "accomplice" within corroboration rule.

First. Hester, the deceased, had interfered with the domestic affairs of Rufe Boyett. Second. Geiger, the defendant, maintained adulterous relations with the wife of Ernest White.

Third. White killed Hester, against whom he had no grievance, pursuant to an agree ment that Boyett should kill Geiger (here charged as an accomplice in the killing of Hester), who had broken up White's home.

Fourth. Geiger, the defendant, had an agreement with Boyett that the latter should kill White, in order that Geiger might have white's wife, somewhat as in the biblical story of David and Uriah.

Boyett, the chief witness for the state, participated in both conspiracies (if there were two), without any intention of doing any overt act towards carrying either into actual

An active conspirator in the commission of a felony is an "accomplice" with the coconspir-execution. In other words, Boyett intended ator who actually perpetrated the deed, and the testimony of such accomplice must be corroborated by other evidence as to the commis

sion of the offense and the persons involved.
[Ed. Note. For other definitions, see Words
and Phrases, First and Second Series, Accom-
plice.]

to double-cross his coconspirators in both of these interlocking conspiracies. In several particulars there was no concert of action or meeting of the minds as between Geiger and White, who actually committed the murder. Condensing the story and omitting sordid details, in which the record abounds, there

Appeal from District Court, Kiowa County; are two theories presented by the evidence: Thos. A. Edwards, Judge. First, a conspiracy between White and Boyett for White to kill Hester and in return for Jack Geiger was convicted of murder, and his so doing Boyett was to kill Geiger. Boyhe appeals. Reversed and remanded.

Thos. W. Conner and Rummons & Hughes, all of Hobart, for plaintiff in error. 'The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.

BESSEY, J. Jack Geiger, plaintiff in error, herein referred to as the defendant, was on the 24th day of April, 1921, in the district court of Kiowa county, convicted of the murder of William G. Hester on March 10, 1921. Defendant was sentenced to imprisonment for life in the state penitentiary at McAlester. From the judgment of the court below he appeals to this court.

It appears that Ernest White killed Hester while the latter was plowing in a field near his home, and this conviction rests upon evidence tending to show that this murder was committed pursuant to a conspiracy with Geiger, the defendant, and that the latter was the real instigator of the crime.

ett testifies to this conspiracy. The other conspiracy referred to in Boyett's testimony, and somewhat intermingled with the first, is that Geiger suggested to Boyett that Hester be killed and that he (Geiger) would make arrangements to have Hester killed provided Boyett would kill White. It appears in the record that Geiger knew that Hester had, before the suggestion was made, broken up the home of Boyett, and he had reasons therefore to believe that Boyett would be agreeable to a conspiracy one of the purposes of which was to get rid of Hester. Also there is ample evidence in the record to substantiate Boyett's story that Geiger desired at the same time to get rid of White, and there is some testimony by Boyett, but not corroborated, to the effect that Geiger also desired to get rid of Hester.

[1] If the latter theory, that is, conspiracy No. 2, upon which this conviction must stand or fall, be true, in order to connect Frequently we are called upon to decide Geiger with the killing of Hester, as a cohomicide cases growing out of what is com- conspirator, it was necessary for the state monly called "the eternal triangle." In this to connect him by some overt act or by some case there were two triangles, each intersect- declaration in furtherance of the conspiracy ing the other, involving the moral depravity to kill White. In our opinion the mere showand conflicting agreements of three conspiring of animosity between Geiger and White ators, making it exceedingly difficult to was not a sufficient corroboration in this make a lucid statement of fact. Preliminary to case. Hester was killed by White and White stating the facts in narrative form, the fol- had the same motive for the killing of Geiger lowing outline may be set out in order that that Boyett had for the killing of Hester. the state's theory of the case and the narra- Geiger had broken up the home of White and tive following may be better understood: White's domestic troubles were known to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(221 P.)

Boyett and Boyett's domestic troubles were, wanted Hester out of there so that he could known to White.

he meant it that way, but he told me that [ on a judgment rendered May 5, 1923, wherewas the way it was to go." On further in he was sentenced to be imprisoned in the cross-examination as to what he had testified penitentiary at McAlester for the term of at the preliminary trial, he was asked if he two years and to pay a fine of $100 and the did not make the following answer in reply costs, alleging that said restraint is illegal to a question as to what Geiger had said to and unauthorized, because the act approved him after the killing: February 5, 1923 (chapter 1, Session Laws 1923), making it a felony to set up a still for the purpose of manufacturing distilled spirits, was determined and held by the decision of this court in the case of In re D. E. Smith,

"That's all he said. He just told me about the frame-up, that Rufe Boyett-that Ernest was to kill Mr. Hester and Mr. Boyett was to kill him."

He said he did not recollect just what he 218 Pac. 708, not yet [officially] reported, to

had said at that time.

[2] A homicide committed pursuant to either of the conspiracies alleged to have existed involves Boyett as an "accomplice," and his testimony must therefore be corroborated. After a most painstaking consideration of the entire record, we conclude that there is not sufficient corroboration of Boyett's story

to sustain the state's theory that Geiger was an accomplice of White in the murder of Hester. In our opinion there is nothing more than a far-fetched suspicion that such was

the case.

The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

MATSON, P. J., and DOYLE, J., concur.

Ex parte BARRETT. (No. A-4975.) (Criminal Court of Appeals of Oklahoma. Dec. 26, 1923.)

(Syllabus by the Court.)

Habeas corpus 32-One imprisoned under unconstitutional law entitled to discharge.

A person who has been convicted of violating an unconstitutional law, and is imprisoned under such judgment of conviction, will be discharged on habeas corpus.

Habeas corpus by James Barrett for release from custody. Writ allowed, and petitioner discharged.

R. C. Searcy, of Tuttle, for petitioner.
The Attorney General and N. W. Gore,
Asst. Atty. Gen., for respondent.

be unconstitutional.

The Attorney General concedes that the writ should issue, and that petitioner is entitled to be discharged.

In the case of Ex parte Smith, supra, the statute upon which this prosecution is based was held unconstitutional and void.

It follows that petitioner is unlawfully imprisoned and restrained of his liberty by the respondent, and that he is entitled to be dis charged from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

MATSON, P. J., and BESSEY, J., concur.

WITTHOFT v. GATHE. (No. 3857.) (Supreme Court of Idaho. Nov. 3, 1923. Rehearing Denied Dec. 27, 1923.)

1. Wills 334- Variance between findings held not to invalidate judgment for contestant if either supported by evidence.

In a will contest, inconsistency between findings of want of testamentary capacity and of undue influence does not invalidate the judgment for contestant if either finding be supported by the evidence.

2. Wills 334-Findings that deceased was of unsound mind and also unduly influenced held not inconsistent.

In a will contest, findings that the deceased was of unsound mind and also unduly influenced at the time of making the will are not inconsistent; the rule being that findings authorizing different judgments are inconsistent, while findings authorizing the same judgment are not inconsistent.

3. Wills 400-Rule that verdict supported by competent conflicting evidence not disturbed applicable to will contest.

The rules that all questions of the weight of evidence and the credibility of the witnesses are for the jury and the trial court, and that where the evidence is conflicting, but there is sufficient competent evidence, if uncontradicted, to support the verdict of the jury, the same will not be disturbed on appeal, are applicable to will contests.

DOYLE, J. This is a petition for writ of habeas corpus for the discharge of James Barrett from the penitentiary at McAlester, wherein it is alleged that he is unlawfully and illegally restrained of his liberty by J. H. Townsend, warden; that the case of said restraint is a commitment issued by the district court of Canadian county, James I. Phelps, judge, on a charge of setting up a distillery for the purpose of manufacturing Appeal from District Court, Bannock corn whisky. Said commitment was issued County; O. R. Baum, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(221 P.)

Action by Sophia Barbara Margareta Witt-, taken to the district court, which resulted in hoft against Theodore H. Gathe. From a the will being again rejected. Prior to the judgment for plaintiff, defendant appeals. entry of the judgment appellant moved the Affirmed. court for judgment non obstante veredicto, which motion was, by the court, overruled, and judgment on the verdict was thereafter entered rejecting the will, from which judgment and from an order denying a motion for a new trial this appeal is prosecuted.

Peterson & Coffin and D. W. Standrod, all of Pocatello, for appellant.

C. O. Benting, D. C. McDougall, and T. D. Jones, all of Pocatello, for respondent.

Appellant specifies and relies upon 23 assignments of error. The first 14 errors assigned involve the action of the court in the giving and refusing to give certain instructions to the jury. These errors cannot be re

BUDGE, C. J. From the record in this case it appears that Theodore H. Gathe and Henry A. M. Witthoft became partners in the year 1901, which partnership continued until 1912, when a corporation was organized which took over the partnership property. The in-viewed by this court for the reason that the terests of the partners were thereafter repre- instructions are not called for by the præsented by stock in the corporation. Prior to cipe, they are not included in the reporter's the formation of the corporation, about 1910, transcript settled and allowed by the trial Witthoft became more or less indisposed and court, and are not included in the clerk's cerhis health began to break. In the same year tificate to the clerk's transcript. C. s. §§ Witthoft and Gathe made wills, each becom-7163, 7166, and 7167; Sweaney & Smith Co. v. ing a beneficiary under the other's will. On St. Paul Ins. Co., 35 Idaho, 303, 206 Pac. 178; May 22, 1913, Witthoft gave to his former Stringer v. Redfield, 34 Idaho, 378, 201 Pac. partner, Gathe, a full and absolute power of attorney, which was never revoked. In the early part of 1914 Witthoft went to Kiel, Germany, and later entered a nerve clinic in that city, where he received medical treatment. Thereafter, about the month of April, 1914, he returned to the United States, and on March 17, 1915, he married respondent, Sophia Barbara Margareta Witthoft, with

whom he lived until the date of his death

714.

[1, 2] The fifteenth assignment of error involves the action of the court in submitting to the jury certain interrogatories, which, with the answers of the jury, are as follows:

"Interrogatory No. 1. At the time of the execution of the will herein in question, was said Henry A. M. Witthoft acting under undue influence, as in these instructions defined? An

swer. Yes.

execution of the will here in question, was "Interrogatory No. 2. At the time of the said Henry A. M. Witthoft of sound mind? Answer. No."

It is the contention of appellant that the above interrogatories submitted to the jury and their answers thereto are inconsistent. antagonistic, and contradictory, and therefore

on March 27, 1917. He left surviving him the respondent and a daughter aged 15 months. In the month of August, 1917, respondent filed her petition for letters of administration, and in September, 1917, she was appointed administratrix of the estate of her deceased husband, and in October, 1917, brought an action, as administratrix, in the district court, against appellant and others a new trial should be granted. In support of for the purpose of obtaining possession of this contention appellant relies upon the case property held by them and to which they of Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295. claimed ownership by reason of a certain let- That case is not in point for the reason that ter, referred to in the record as "the letter the jury in that case found that the deceased, of explanation," which purports to make an at the time of the making of the will, was assignment of stock in the corporation known competent to make it, and also found that as the Commercial Development & Invest- the deceased at the time of making said will ment Company, under the terms of which let-was not of sound and disposing mind. These ter of explanation appellant was to receive two findings are inconsistent and contradic25 shares of the stock in said corporation tory, and the court properly held that a new standing in the name of the deceased, Witt-trial should be granted for that reason. The hoft. The final determination of this par- distinction between the case at bar and the ticular action, under stipulation of counsel, is Gwin Case is that in the latter the special to be governed by the disposition made of findings would authorize different judgments, the instant case. while in the instant case different judgments based upon the special findings would not be authorized.

On the 5th day of December, 1917, approximately nine months after the death of Witthoft, appellant filed for probate a document purporting to be the last will and testament of Henry A. M. Witthoft. In the probate court respondent contested the application of appellant for probate of the alleged will. Upon a hearing had before that court, the will was rejected. Thereafter an appeal was

In a similar case, In re Murphy's Estate, 43 Mont. 353, 116 Pac. 1004, Ann. Cas. 1912C. 380, where the jury found that the testator was not competent to make a will and was also unduly influenced, the court said:

"But counsel say that the two findings are inconsistent, in that the one negatives the ex