John King, for appellant. John Truax, for all of the conversation in which the declarathe State. PARKER, J. This defendant, Antonio Moretti, and three others, all Italians, were jointly charged by information filed in the superior court for Adams county with the crime of murder in the first degree, committed by shooting one Antonio Colucci on De cember 18, 1910, near Lind in Adams county. The defendants were all charged as principals without any distinction. Moretti was awarded a separate trial which resulted in his conviction as charged, upon which he was sentenced to be hanged. From this conviction and sentence he has appealed. case. tion is claimed to have been made. The juror and this witness also state in their affidavits that the conversation in which the alleged declaration occurred had no relation whatever to these defendants; but that there was mention made there of a homicide trial which occurred some time before, and about which opinions were expressed as to the justness of the verdict therein. It is apparent that there is nothing here involved except a question of fact. We think the learned trial court was fully warranted in believing that the charge against the juror was mistakenly or wrongfully made. This case is much like that of State v. Underwood, 35 Wash. 558, 573, 77 Pac. 863, and we think presents no better reasons for a reversal upon the ground of this juror's misconduct than appeared in that case. This view finds support in the following decisions: Gilleland v. State, 44 Tex. 356; Smith v. State, 5 Okl. Cr. 282, 114 Pac. 350. [1] It is first contended by counsel for appellant that the trial court erred in refusing to grant a new trial upon the ground of misconduct of one of the jurors. The motion was based upon the alleged declaration of the juror made after he had been summoned to serve for the term at which the case was to be tried, and a short time before he was [2] It is next contended in behalf of apcalled to serve as a juror in the trial of the pellant that the trial court erred in excludThe declaration alleged to have been ing from the consideration of the jury appelmade by the juror was, in substance, that, lant's claim that he participated in the robif he were on the jury, he would hang the bery resulting in Colucci's death because of defendants, referring to them as "dagoes." duress. The court's ruling upon this quesThe different witnesses whose affidavits are tion is contained in certain instructions to relied upon in the appellant's behalf gave the jury stating, in substance, that there slightly different versions of the language of was no question in the case of justifiable or the alleged declaration. Thereafter the ju- excusable homicide within the legal definiror qualified as such, and clearly indicated by tion of those terms. Appellant's claim of answers to questions put to him upon his duress is based upon the testimony of himvoir dire examination that he had no preju- self and another witness to the effect that dice against appellant. He was thereupon a day or two before the killing of Colucci sworn as a juror in the case, and thereafter one of the defendants at Spokane threatened joined in the verdict against appellant. to kill appellant if he did not go along and There were four affidavits of different per- help to rob Colucci. Appellant's own testisons filed in support of this motion. Three mony renders it plain that he did go from of these persons claimed to have heard the Spokane to Lind on Saturday night, Decemdeclaration made by the juror. The other, ber 17th, with the other defendants for the being the attorney for appellant, stated in express purpose of robbing Colucci on Sunhis affidavit upon information and belief that day morning, December 18th, at a place on another person, naming him, heard the dec- the track of the Northern Pacific Railway laration of the juror; that he would not Company some distance west of Lind where make an affidavit to that effect when request- they knew he would pass while on duty as ed to do so, but told affiant that, if he was a track walker for that company; that the subpoenaed, he would so testify. Affiant then robbery was committed at that place as concludes his affidavit by asking that a sub-planned by appellant and the others; that pœna issue for this witness. Whether or one of the other defendants shot and killed not such subpoena was issued, and what action the court took upon this request, the record does not show. In any event, the testimony of the witness does not appear in this record. However, for argument sake, we will assume that we have here the affidavits of four witnesses, stating, in substance, that they all heard the alleged declaration of the juror. This will be giving the appellant all the benefits he would have if the affidavit of the fourth witness were here stating in substance the same as the other three. The making of any such declaration is positively denied by the affidavit of the juror, and also by the affidavit of another witness Colucci while in the act of robbing him; that a considerable sum of money was then taken from the person of Colucci, and very soon thereafter divided among the four, while they were fleeing from the place, appellant receiving $55 as his share. The evidence shows that appellant did not actually do the shooting of Colucci nor assist in actually taking the money from his person, but that he laid in wait and watched for the coming of Colucci a short distance away from the others. He contends that he only assisted in the robbing of Colucci, that he was not responsible for the killing of Colucci, and therefore had a right to have the question of ing as he is for the robbery. By the very terms of section 2256 above quoted this excludes the defense of duress. It might well be argued that, even if the duress mentioned in section 2256 were available to appellant in this case, he has not offered any evidence of reasonable apprehension of his liability to “instant death," such as is contemplated by that section, in view of the fact that all of the evidence of threats claimed as duress relates to threats made at least one whole day before the commission of the robbery, and there was no evidence as to when the threats might be carried into execution. We express no opinion on this question however. These are all of the errors claimed or argued by counsel for appellant. A review of the entire record convinces us that appellant had a fair trial which was free from prejudicial error, and that there was abundant evidence to support his conviction. It is not a pleasant duty to have to write the last word in affirmance of a death sentence; but such is the means provided by the law of the land for the protection of society against crime of this nature. Whether or not it is the wisest and best means available to that The facts shown by the record in this case end is not within our province to decide. and the law applicable thereto compels the affirmance of appellant's conviction. ment of his counsel being that duress is a fact constituting that robbery. It follows defense to the crime of robbery, which is that, since the killing of Colucci was comthe only crime appellant participated in. mitted by one of appellant's confederates This contention is rested upon section 2256, while in the act of committing the robbery, Rem. & Bal. Code, which provides: "When- | appellant is as much responsible for the killever any crime, except murder, is committed or participated in by two or more persons, any one of whom participates only under compulsion by another engaged therein, who by threats creates a reasonable apprehension in the mind of such participator that in case of refusal he is liable to instant death or grievous bodily harm, such threats and apprehension constitute duress, which will excuse such participator from criminal prosecution." We are quite unable to understand how this section gives appellant any right to invoke the defense of duress in this case. He would be guilty of murder under the undisputed facts of this case even though he did not have a specific intent to kill Colucci, since he had the intent to rob Colucci, and the killing occurred by one of his confederates while in the very act of the robbery. Indeed, the evidence is conclusive that the money was taken from the person of Colucci immediately after he had been shot. Rem. & Bal. Code, § 2392, defines murder in the first degree as follows: "The killing of a human being unless it is excusable or justifiable, is murder in the first degree when committed either (1) with a premeditated design to effect the death of the person killed, or of another; or (2) by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to effect the death of any individual; or (3) without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of a robbery, rape, burglary, larceny or arson in the first degree; or (4) by maliciously interfering or tampering with or obstructing any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure or appliance pertaining to or con-1. nected with any railway or any engine, motor or car of such railway. It is clear that under subdivision 3 of this section it is not necessary that there should be a specific intent to kill to constitute murder when there is an intent to commit robbery, and the killing occurs in the commission of such intended robbery, by the person engaged therein. In the case of State v. Brown, 7 Or. 186, the Supreme Court of that state held that in such a case the pur-2. CONTEMPT (§ 66*)-VIOLATION OF INJUNCpose to kill is incontrovertibly implied from the crime in which the person committing the homicide is engaged at the time. That appellant participated in this robbery in the eyes of the law is shown by his own testimony. As to that crime he is in the same situation as if he had physically done every The judgment of the learned trial court is affirmed. DUNBAR, C. J., and MOUNT, FULLERTON, and GOSE, JJ., concur. STATE ex rel. CURTISS v. ERICKSON et al. (Supreme Court of Washington. Jan. 17, 1912.) INJUNCTION (§ 150*)-RESTRAINING ORDER -TIME OF TAKING EFFECT. Where the court, in a suit against the state and its general contractor, announced in open court that on the application of plaintiff a restraining order would issue, the contractor was chargeable with notice thereof, and under Rem. & Bal. Code, § 729, the order was binding from the time of such announcement, though the order was not actually entered until later. [Ed. Note. For other cases, see Injunction, Dec. Dig. § 150.*] TION-REVIEW. The court on appeal in proceedings for contempt for violating an injunction will not disturb the order of the court adjudging accused guilty, unless the evidence convinces the court on appeal beyond a doubt that accused is not guilty. [Ed. Note. For other cases, see Contempt, Dec. Dig. § 66.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes · VIOLA- | ing damage upon the plaintiffs sought to be prevented by the decree in this cause, and it having been suggested to the court that such act was committed by some of the defendants other than state of Washington and county of King, their servants, agents, employés or representatives. Now, therefore," etc. Thereafter these appellants were brought before the court under a rule to show cause why they should not be punished for disobedience of the order of the court. Under Rem. & Bal. Code, § 1050, declaring that, where the right or remedy of a party has not been prejudiced by an act of the adverse party constituting contempt, a fine not exceeding $100 can only be imposed, the court may not imprison, as well as fine, a party guilty of violating an injunctional order not affecting any right or remedy of the adverse party. [Ed. Note.-For other cases, see Injunction, Dec. Dig. § 232.*] 4. CONTEMPT (§ 21*)-VIOLATION OF ORDERVALIDITY OF ORDER. Where the superior court issued orders pendente lite in a case where it had jurisdiction of the parties and of the subject-matter, a violation of the orders was contempt, though the court on appeal determined that the party seeking relief was without remedy. [Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 63-66; Dec. Dig. § 21.*] Department 1. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge. Action by the State, on the relation of Charles P. Curtiss, against C. J. Erickson and another, for contempt of court. From a judgment adjudging defendants guilty, they appeal. Affirmed in part and reversed in part. Shank & Smith, for appellants. Thomas A. Meade and P. C. Sullivan, for respondent. CHADWICK, J. C. J. Erickson, a general contractor, had the contract for excavating a part of the Lake Washington Canal. Carlson was a foreman who had charge of a part of the work. On October 22, 1910, the case of William L. Bilger et al. v. State of Washington and C. J. Erickson, 116 Pac. 19, was pending in the superior court of Thurston county, and upon that day, the matter coming on for hearing upon the application of the plaintiffs for an order enjoining defendants from removing the embankment between the excavated portion of the canal and Lake Washington, the court, being satisfied that such removal might tend to lower the waters of the lake to the detriment and damage of the plaintiffs, announced that a restraining order would issue. On October 28th a formal order reciting the presence of the parties and the oral announcement of the court, made on October 22d, that it would grant unto plaintiffs the relief prayed for, was entered. In this order we find the following: "And it having this day been brought to the attention of the court that since the announcement of the decision of this court in this cause, and on or about 4 o'clock p. m. of October 26, 1910, some person or persons, by the use of dynamite or other explosive, tore the bottom of the ditch of excavation so as to lower the bottom thereof below the surface of the waters of said Lake Washington, and thereby turn the waters of said lake into the ditch or canal, and that such condition will probably result in inflict [1] A review of the evidence offered in support of the case of the appellants would serve no purpose. It is enough to say that appellant Erickson disclaims all responsibility, saying that the contumacious act was done contrary to his advice and without his knowledge, and that it was done under the direction of the United States engineers who had charge of the work for the government, and appellant Carlson claims to have acted under the direction of the same engineers, and further that he had no knowledge of the court's order. Erickson, as well as his agents and servants, was bound to take notice of the announcement made by the court on October 22d, and, having the work in charge, Erickson is to be held to a strict accountability, not only to keep his own conduct within bounds, but to see to it that his servants and agents did not violate any order of If the rule were otherwise, it the court. would be possible, as it may have been in this case, for the party defendant to step aside, and, although seemingly protesting, make his men and means subject to the orders of a stranger to the proceeding, and thus defeat the will of the court. We have not overlooked the contention of appellants that an order of the court is not effective until formally entered by the clerk, citing State ex rel. Jensen v. Bell, 34 Wash. 185, 75 Pac. 641; but that and other cases which might be cited all go to the time when the right of appeal or other right begins or ends, or where it is contended that the court has announced one decision and the judgment as entered by the clerk recites another. The rule has never, so far as we are informed, been entertained as a defense in a contempt case where there is no conflict or question as to the order of the court. An order of injunction is binding from the time the party is informed thereof, and not, as in the case of affirmative orders, from the time of service. Rem. & Bal. Code, § 729; 22 Cyc. 1013-1014. If it were not so, it would be possible always to defeat the order of the court by performing the proscribed act while the formal order of the court was in process of preparation. [2] We are not disposed to question the order of the trial court in cases of this character, and will not do so unless the evidence is such as to convince us beyond doubt that the parties charged are not guilty of contumacious conduct, or it is plain that the law has not been violated. [3] The court imposed a fine of $300 and imprisonment for 60 days upon appellant Erickson, and a fine of $100 upon appellant Carlson. This sentence is erroneous in so far as Erickson is concerned. The testimony shows that the waters of Lake Washington were not appreciably lowered by blasting out the embankment, and it does not appear that any right or remedy of Bilger and his coplaintiffs was defeated or prejudiced. Rem. & Bal. Code, § 1050. Under this section the court had no jurisdiction to assess a fine in excess of the sum of $100. [4] The further point is made that, under the final decision of the Bilger suit, 116 Pac. 19, no right of the plaintiffs in that case was interfered with, and hence the court had no Judgment for plaintiff, and defendant appeals. Reversed, with instructions. William W. Wilshire, for appellant. Craven & Greene, for respondent. in this suit. CHADWICK, J. On November 14, 1907, George W. Morgan began an action for divorce in King county against the plaintiff Summons was placed in the hands of defendant Andrew Williams, who was sheriff of Whatcom county, for service. It is alleged that no service was made, but that a false return showing personal service was filed by the sheriff, upon which a default was entered, resulting in a trial and decree in favor of George W. Morgan. The decree was entered on December 7, 1907, and by its terms Morgan was bound to pay this plaintiff $60 per month. The court found that jurisdiction to punish for contempt. The there was no community property. Plaintiff loss of or interference with a right or rem- did not know of the divorce proceeding or edy is only material, or to be considered, in its termination until some time in February, fixing punishment. It is enough that the 1908. George W. Morgan afterward remarcourt was exercising jurisdiction to hear and ried and, because of the contentions of plaindetermine the case then before it, and de- tiff and the complications resulting from his fendants were guilty of "disobedience of second marriage, he entered into an agree a lawful order * ment with this plaintiff, whereby he undercourt." The mere fact that this court held took to pay her $100 to $150 per month, in Bilger and his coplaintiffs to be without pres-In aid of our statement, we will quote a lieu of the $60 as provided in the decree. ent remedy does not rob the superior court of its power to enforce its orders issued part of plaintiff's testimony in this suit: “Q. pendente lite, in a case where it has juris- What, if anything, was said between you and diction of the parties as well as of the sub-him when you made that visit down there, ject-matter. * of the The judgment is affirmed as to the defendant Carlson, and the cause remanded, with instructions to the lower court to assess a fine against Erickson not exceeding the sum of $100. about his continuing to supply money to take would continue to see that we had plenty. care of the family? A. Yes, sir; he said he Q. Did he fix any amount he was going to send up to you every month? A. No, sir; not at that time. Q. Did he at any other time? A. Only in promises. Q. When was DUNBAR, C. J., and GOSE, CROW, and the first time he made such an arrangement PARKER, JJ., concur. MARYLAND. (Supreme Court of Washington. Jan. 19, 1912.) DIVORCE ( 168*) - JUDGMENT COLLATERAL ATTACK. When a wife learns that her husband has obtained a divorce on a false return of personal service against her and voluntarily contracts with him for payments toward her support, instead of attacking the decree, she waives the right to challenge the return in any court other than the one in which the decree was rendered, or to recover damages against the returning officer's surety in a collateral proceeding. with you as that? A. It was about a year * * MORGAN v. FIDELITY & DEPOSIT CO. OF what was the understanding between you and him at that time? * Q. About a year afterwards when he was to send up some money? A. It was about November, I think. He came up one day and told me that this woman he had married had left him, and he felt very blue, and he was going to contribute right along from $100 to $150 a month. Q. Did you enter into any written agreement with him at that time? A. No, sir. Q. Wasn't something said about making a written agreement to that effect, and wasn't there a paper drawn but not signed? Mr. Greene: I object as not being proper crossexamination. Q. What did you say to his proposal to send up $100 to $150 a month? Did you agree to that? A. You would think I would, but I do not know what I said. Q. You agreed to it? A. Yes, sir. Q. And that was when he told you that the woman [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 549, 550; Dec. Dig. § 168.*] Department 2. Appeal from Superior Court, Whatcom County; John A. Kellogg, Judge. Action by Mary E. Morgan against the Fidelity & Deposit Company of Maryland. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes had left him? A. Yes, sir. Q. And he seem- or invoking the inherent power of the court, as suggested in the Graham Case, she seemed willing to indorse the decree, provided Morgan agreed to pay a greater amount than the court had fixed for a family allowance; and this action is maintained, not so much because no service was had in the original act, as because Morgan has left the state and refused to keep that contract. We cannot differentiate this case from that of Tausick v. Tausick, 52 Wash. 301, 100 Pac. 757. In that case it was urged that no jurisdiction had been obtained over the person of the plaintiff, and a collateral action was brought to enforce property rights. We said: "It is not quite certain whether the theory of her complaint that the court did not acquire jurisdiction, and that she was coerced into signing the deed to respondent's property, or the theory that runs in and out of her testimony for its whole length, that she settled with respondent and allowed him to take a divorce upon the understanding that he would do the right thing by her in the way of a property settlement and future advances which he has failed to keep, is the one upon which she most relies. * * It indicates to our mind that her dissatisfaction comes, not so much from the unauthorized appearance of her attorney, as from the fact that she believes her husband has not carried out his promise with reference to the settlement of money upon her after the decree was rendered. In other words, if respondent had met her demand subsequently made, the question of jurisdiction would have been admitted." Plaintiff cannot, in a collateral proceeding, affirm the divorce decree in so far as it disposes of the marriage relation, and deny it in so far as it affects property. If the one finding is binding, the other is binding also. Good faith, as well as sound public policy, demands that erroneous and voidable judgments be set aside and modified in the courts in which they are rendered. If plaintiff desired to affirm the decree of divorce and litigate the order disposing of the property, she might have done so by either applying to the court granting it for a vacation and modification of its judgment, or by taking an appeal therefrom if the record was in proper form to bring the facts here. She did neither, and, within the logic of Wilkinson v. Wilkinson, 114 Pac. 915, and State ex rel. Holcomb v. Yakey, 48 Wash. 419, 93 Pac. 928, is estopped to proceed against strangers. The essential allegations of plaintiff's complaint are denied; but, inasmuch as the case went to a jury, we shall accept the verdict as the fact. A demurrer was filed to the complaint and overruled. The objection that the complaint does not state a cause of action has been preserved. This order of the court is assigned as error. Considering there fore the demurrer and the complaint as aided and sustained by the evidence offered in behalf of plaintiff, we think clearly that plaintiff has mistaken her remedy. The decree in the divorce case was not void, but voidable only. This plaintiff admits, and we will presume that it would have been set aside upon motion and affidavit or petition if the court entering it had been applied to. When plaintiff learned of the divorce and This court has announced a most liberal voluntarily substituted her confidence in her rule in behalf of those who seek to challenge recreant spouse, by entering into a contract divorce decrees entered in fraud of the referable to the decree, for the protecting rights of the party defendant, or where the arm of the law, she waived all right to chalcourt has been imposed upon. Graham v. lenge the return of the officer in any court Graham, 54 Wash. 70, 102 Pac. 891; Ander- other than the one in which the decree was son v. Burgoyne, 60 Wash. 511, 111 Pac. 777. rendered, or to recover damages against the Plaintiff had timely notice and, instead of surety in any collateral proceeding. The availing herself of the remedies which the fallacy of plaintiff's position is at once ap |