stances."

STATE V. VAN WORMER

1081

of self-defense can arise out of such circum- | irregularity, if there had been one, would This is criticized in the defendant's brief, Kan. 615, 5 Pac. 173. have been waived. State v. Blackman, 32 where it is said:

"In the first place, the court was absolutely wrong; the two rights can exist as we have heretofore shown by the citation of a number of authorities, whose reasoning cannot be questioned. The right to arrest can exist, but if that arrest is attempted to be made in an unlawful manner, the right to resist the same can also exist."

[5] 5. A motion by the state to quash the first panel of jurors drawn was sustained. Upon the hearing evidence of the county clerk was used, which on account of his sickness had been taken at his house; the defendant not being present. The defendant asserts that his constitutional right to meet 10), and the requirement of the statute that the witness face to face (Bill of Rights, § no person informed against for a felony can (Gen. Stat. 1915, § 8121), were both thereby be tried unless he be personally present violated. expressly given an opportunity to attend the Counsel for the defendant were taking of the testimony, and refused to avail themselves of it. or in behalf of the defendant to permit him No request was made by to be present, nor was any objection made to the proceeding until after the testimony had been introduced, and the court had inquired whether the defense had anything to say before the motion was passed on. rights of the defendant in respect to being present when the testimony was given, both under the Constitution and under the stat

The

The entire instruction quoted is transcribed literally from a recent text (13 R. C. L. 867), the first sentence being taken from a note in 66 L. R. A. 356, and based in part upon language used in State v. Albright, 144 Mo. 638, 653, 46 S. W. 620. We do not think the instruction open to the construction which the defense seems to place upon it. It does not negative the existence of a right to resist the use of undue force by the officer, and under the evidence here we do not think the jury were likely to so interpret it. Elsewhere the jury were told that "if the defendant grabbed the warrant from the sheriff's hands and refused to give it back to him, then it was the duty and privilege of the sheriff to use such force as necessary to make the arrest," and also that "heute, may be waived (State v. Way, 76 Kan. would be justified in using such force as necessary in recovering possession of the warrant and in making the arrest." They were also told that a defendant is bound to submit to a known officer and yield himself immediately and peaceably before the law gives him a right to have the warrant read, or to inspect it, "and when in resistance the law shows him no favor." The words quoted are criticized as not being the law. The statement is somewhat general, but we think it entirely true and not misleading.

Complaint is made of the giving and refusal of various other instructions; but, if any error was committed in this regard, it was with respect to the matters already discussed, and upon the same reasoning we hold it to have been nonprejudicial.

[4] 4. The contention is made that the information was not properly verified because the affidavit thereto was taken by a notary public. In some jurisdictions that is not sufficient, but our statute (Gen. St. 1915, § 6744) provides that notaries are "authorized to administer oaths pertaining to all matters wherein an oath is required." This includes taking affidavits in criminal proceedings. In one case a different conclusion has been reached (Richards v. State, 22 Neb. 145, 34 N. W. 346), but we disagree with it. In another case the ruling is affected by the absence of a statute. Bowes v. State, 7 Okl. Cr. 316, 126 Pac. 580. The competence of a notary public to administer the oath in such a case is upheld by other courts. Mitchell v. State, 126 Ga. 84, 54 S. E. 931; State v. Mullen, 52 Mo. 430.

[12] Moreover, no objection appears to have been made to the verification, and the

928, 93 Pac. 159, 14 L. R. A. [N. S.] 603; State v. Adams, 20 Kan. 311), and we hold waived by the failure to ask permission to that under the circumstances they were exercise them and to make an earlier objection (State v. Stratton, 173 Pac. 300, decided June 8, 1918).

from the assessment rolls. A special venire was selected by the court moved to quash it because it had not been The defendant shown, except by the clerk's testimony, that list of names, and complains of the overrulthere was no jury box containing a proper ing of the motion. question, and requires the same ruling. This involves the same ton county for trial. [6] 6. The case had been taken to HamilA motion for a furudice of the judge was made and overruled. ther change of venue on the ground of prejWhether or not the evidence introduced by the defendant on the motion was sufficient to make a prima facie case, the statement of the judge himself showed abundant warrant for denying the motion. City of Emporia v. Volmera 12 Kan. 622.

The

was overruled on December 7, 1916. [7] 7. This motion for a change of venue court then set the case for trial on Monday, December 11th. On December 2d, a stipulation had been entered into by the attorneys for the defendant and the county attorney of Morton county for the taking of the depositions of witnesses in behalf of the defendant at Bethany, Harrison county, Mo., on December 9th, the stipulation including a waiver of a special commission, and an agreeand read in evidence and used in all partic ment that the depositions should be taken ulars "as though taken with all the provi

said, we agree with the trial court that the purported arrest by the constable could not constitute a defense, nor have any mitigating effect. Some evidence offered for this purpose and rejected was doubtless competent as showing the circumstances of the homicide, but all the essential matters were brought out with reasonable fullness. Evidence of the extent of injuries received by the defendant in the struggle were ruled out, perhaps unnecessarily, but this was not a vital matter. The volume of evidence was great. Much of it had only a remote connection with the real controversy. We think all was admitted that was necessary to enable the jury to reach a just result.

[11] 11. A final complaint is made of the argument of counsel. It seems unnecessary to state in detail the specifications under this assignment. We do not think the rules of propriety were so far transgressed as to call for a vacation of the judgment.

sheriff. There are cases holding such testi- | sheriff was so informed. As has already been mony incompetent, but we regard the modern tendency to the contrary as based on the sounder reason. 3 Wigmore on Evidence, § 1974. A witness was allowed to testify that two or three seconds after the shot through the screen door the sheriff said to him: "I don't want to hurt him. I am going to get a warrant just to please him." He added that this was not in the presence of the defendant, but it was so soon after the shot that it may perhaps be considered a part of that transaction. What the sheriff said would, of course, not be admissible as evidence of the facts declared merely because of his being the person the defendant was charged with murdering. But these expressions may have been competent as indicating his state of mind. 3 Wigmore on Evidence, § 1732. In any event, we do not think their admission sufficient to constitute a ground for reversal. A witness for the state testified that, after hearing Van Wormer say, "Wait till I get my gun," just before the fatal shooting, he ran away. He was asked whether this was because he considered the defendant a dangerous man. Over objection he was permitted to answer, and complaint is made of this. HYATT, State Ins. Com'r, v. BLACKWELL But as he answered "No" it is difficult to see how the defendant can have been prejudiced. The witness added something to this answer, but the court struck it out. The defendant insists that the effect was injurious to him because the question was then asked, "Are those the reasons for your running away?" and answered in the affirmative. No objection was made to this question or answer, and the witness had previously given his reasons, to which they could apply, namely, that he was afraid there would be some more shooting, and he didn't want to be close.

The state introduced in evidence the screen door through which the shot was fired. The defendant asserts that thereby his privilege against self-incrimination was violated, because the door, belonging to him and in his possession, had been taken away without his consent. That the state obtained the door unlawfully is not a just ground for refusing

to admit it in evidence, inasmuch as the defendant was not compelled to surrender or produce it by testimonial process or order of the court. State v. Turner, 82 Kan. 787, 109 Pac. 654, 32 L. R. A. (N. S.) 772, 136 Am. St. Rep. 129.

The state was permitted to prove that the sheriff had a wife and five children, whose ages were shown. This was quite outside the issues, but we think it would not be reasonable to suppose that the jury was influenced by it.

[10] 10. The court rejected evidence offered by the defendant intended to show that he was already under arrest when the sheriff returned with the warrant, and that the

The judgment is affirmed. All the Justices concurring.

LUMBER CO.

(Supreme Court of Idaho. June 25, 1918.) 1. CONSTITUTIONAL LAW 276-INSURANCE

4-TAX AND RECORDING FEE-DUE PROCESS OF LAW-LIBERTY OF CONTRACT.

Laws 1913, c. 185, § 15, when applied to contracts of insurance made and to be performed outside of the state, covering property within the state, is unconstitutional as depriving persons of liberty without due process of law. 2. COURTS 97(3)-APPLICATION OF FEDERAL CONSTITUTION-RULE OF DECISION. In considering the application of the federal Constitution on the question of due process of law, the Idaho Supreme Court is concluded by the decisions of the federal Supreme Court. 3. CONSTITUTIONAL LAW 255-DUE PRO

CESS OF LAW-"LIBERTY."

"Liberty," as used in Const. U. S. Amend. 14, means not only the citizens' right to be free be free in the enjoyment of all his faculties; to from mere physical restraint, but the right to live and work where he will; to earn his livelihood by any lawful calling; and to enter into all contracts proper, necessary, and essential to such rights.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Liberty.] Appeal from District Court, Kootenai County; R. N. Dunn, Judge.

Action by W. R. Hyatt, as Insurance Commissioner of the State of Idaho, against tho Blackwell Lumber Company to recover taxes Judgment for defendant, and and penalties. plaintiff appeals. Affirmed.

T. A. Walters, Atty. Gen., J. P. Pope, A. C. Hindman, and J. Ward Arney, Asst. Attys. Gen., and Black & Wernette, of Cœur d'Alene, for appellant. John P. Gray and W. F. McNaughton, both of Coeur d'Alene, for respondent.

RICE, J. Sess. Laws 1913, c. 185, § 15, p. repugnant to the Fourteenth Amendment of 600, reads as follows:

"All persons, firms, companies or corporations, obtaining fire insurance upon property situated in this state, in companies not authorized to transact business in this state, shall file with the Insurance Commissioner a statement or declaration under oath setting forth the name of the company and its location, the number of the policy, the amount of insurance, rate, premium and description of property in sured in such unauthorized company, and shall be required to pay a tax thereon of ten per cent. of the premiums paid on such policies to the said Insurance Commissioner; and shall pay a further fee to the commissioner of one dollar on each policy in such unauthorized company for making record of said statement or declaration which record shall be kept for the information of the insurance department of this

state.

"If any person, firm, company or corporation obtaining fire insurance in such unauthorized company shall fail or neglect for twenty days after taking such insurance to file the report and to pay the taxes and fees herein provided to be paid to the Insurance Commissioner, the insurance commissioner is hereby authorized to begin suit against such person, firm, company or corporation, in any court of competent jurisdiction, in his name as Insurance Commissioner, for said taxes and fees, and in addition thereto shall recover from such person, firm, company or corporation in any such suit a penalty equal to the amount of said taxes so unpaid, plus the sum of one hundred dollars. The Attorney General of the state shall file and prosecute all such suits when requested so to do by the Insurance Commissioner, and the moneys so recovered shall be paid to the State Treasurer as other fees received by the Insurance Commissioner."

the federal Constitution, in that it deprives persons of liberty and property without due process of law, and denies to persons within its jurisdiction the equal protection of the laws.

[2, 3] In considering the application of the federal Constitution to this question, we are concluded by the decisions of the federal Supreme Court. The case falls within the rule laid down in Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. In that case it is said that:

The "liberty" mentioned in the Fourteenth Amendment means "not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned."

In the case of New York Life Ins. Co. v. Dodge, 246 U. S. 357, 38 Sup. Ct. 337, 62 L. Ed. - it is said:

"In Allgeyer v. Louisiana, supra, we held a Louisiana statute invalid which undertook to restrict the right of a citizen while within that state to place insurance upon property located there by contract made and to be performed beyond its borders. We said, "The mere fact that lar state does not prevent his making a contract a citizen may be within the limits of a particuoutside its limits while he himself remains within it,' and ruled that under the Fourteenth Amendment the right to contract outside for incannot be taken away by state legislation. surance on property within a state is one which So to contract is a part of the liberty guaranteed to every citizen. The doctrine of this case has been often reaffirmed and must be accepted as established."

The respondent obtained insurance in such unauthorized companies and paid to them $5,943.16 as premiums upon 110 insurance policies. A statement or declaration under oath was filed with the Insurance Commissioner, setting forth the names of the companies and their location, the number of each policy, the amount of insurance, rate, premium, and description of the property insured; but respondent refused to pay the 10 per cent. tax and $1 per policy for making record of such insurance. This action was instituted to recover the tax and the $1 recording fee for each such policy, and in addition a penalty equal to the amount of the taxes so unpaid and $100 provided for by the statute, amounting in all to $1,508.64. The court found that all the contracts of insurance referred to in the complaint, and involved in this case, were made and were to be performed outside of the state of Idaho, and that any losses covered by the same were payable outside of the state; that the contracts were valid at the place where made and where they were to be performed. The court further found that none of the companies had an agent within the state soliciting insurance, and did no act relating thereto within the state, and that none of the companies were The action in the court below was institutengaged in doing business in the state at the ed by George F. Steele, who at that time was time the insurance was procured or written. Insurance Commissioner of the state. Since Judgment was entered in favor of the defend- the trial of the case was had, W. R. Hyatt ants, from which this appeal is prosecuted. has succeeded Steele in the office of Insurance

[1] As applied to such transactions as were had in this case, the statute is unconstitutional. It is an abridgment upon the freedom to contract which the Fourteenth Amendment guarantees. If any such restriction should be upheld as an exercise of the taxing power of the state, the burden may be increased until it becomes prohibitive. Allgeyer v. Louisiana, supra; Nutting v. Massachusetts, 183 U. S. 553, 22 Sup. Ct. 238, 46 L. Ed. 324; Dalamater v. S. D., 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733; N. Y. Life Ins. Co. v. Head, 234 U. S. 149, 34 Sup. Ct. 879, 58 L. Ed. 1259; Provident Savings, etc., Society v. Kentucky, 239 U. S. 103, 36 Sup. Ct. 34, 60 L. Ed. 167, L. R. A. 1916C, 572; New York Life Ins. Co. v. Dodge, supra. See, also, the case of Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297.

2. MANDAMUS 3(11) TRANSMISSION OF RECORD ON APPEAL-ADEQUATE REMEDY AT LAW-STATUTE.

147(2, 3) — PLACE OF CON- the peace or clerk of the probate court to transMandamus will not lie to compel a justice of TRACT PLACE OF PERFORMANCE-PRESUMP-mit to the clerk of the district court the record on appeal, since Rev. Codes, § 4841, provides a There is no presumption as to the place plain, speedy, and adequate remedy.