Mar. 1901.]

Opinion of the Court-DUNBAR, J.

and could not be anything to try, if the claim which is the foundation of this suit had not been properly verified and presented. Edmonston v. McLoud, 16 N. Y. 543; Bernhard v. Reeves, 6 Wash. 424.

It is a familiar rule that a former decision in the same cause is final, not only as to all points raised, but as to all which might have been raised. Wilkes v. Davies, 8 Wash. 112 (23 L. R. A. 103); Stallcup v. Tacoma, 13 Wash. 146 (52 Am. St. Rep. 25); State ex rel. Holgate v. Superior Court, 19 Wash. 116; Traders' National Bank v. Schorr, 20 Wash. 1 (72 Am. St. Rep. 17). This doctrine has been recognized and applied by the court in a great variety of other cases. State ex rel. Abernethy v. Moss, 13 Wash. 44; Dennis v. Kass, 13 Wash. 137 (48 Am. St. Rep. 880); Furth v. Snell, 13 Wash. 664; Smith v. Seattle, 20 Wash. 614; O. R. &N. Co. v. Dacres, 1 Wash. 199; Taake v. Seattle, 18 Wash. 178.

It is claimed by defendant that, as she was respondent on the former appeal, she could not raise any question not raised by appellant. In answer, we say she can present any question of fact or of law disclosed by the record to show that the judgment is correct and ought not to be disturbed. First National Bank v. Wright, 50 N. W. 23; Randle v. Pacific Railroad, 65 Mo. 325; Witt v. Trustees, 13 N. W. 261; Reed v. McConnell, 133 N. Y. 425 (31 N. E. 22).

Ballinger, Ronald & Battle, for respondent.

The opinion of the court was delivered by

DUNBAR, J.-This is a suit to establish a claim presented by the appellant to the respondent, as the administratrix of the estate of John P. Gale, and by her rejected. The court decided that the claim presented to the administratrix was not properly verified to entitle it to allow

22-24 WASH.

Opinion of the Court-DUNBAR, J.

[24 Wash.

ance, and judgment was entered against the plaintiff on this theory, and the decision of the court in this respect is the error assigned by the appellant here. It was claimed here, that the question of the sufficiency of these verifications was decided by this court in Taylor v. Gale, 14 Wash. 57 (44 Pac. 110), and the doctrine of res adjudicata is invoked; and the brief of the respondent in said case was offered in evidence by the appellant in the case at bar in support of his contention that the question had been formerly adjudicated. We have examined the case in 14th Washington and the briefs upon which that decision was rendered; and while it does not appear in the opinion that the question of the sufficiency of the verification to the claim was passed upon, and while, of course, the court has no recollection of what the view of the court in that respect was at that time, the brief of the respondent in that case shows plainly that the court must have considered that proposition, and passed upon it in favor of the appellant's contention. It is true, this question was not raised by the appellant in his brief; but there was no occasion for him to raise it, as the trial court at the former trial had passed upon that question in his favor, and had admitted the claims in evidence. It was, however, raised by the respondent, and argued as a material question in the case; the insistence being that, no matter what the views of the court might be on the errors alleged, a new trial would not be granted, for the reason that the lower court had erred in its admission of the claims, and that plaintiff's case would fail in any event, for that reason. Subdivision 4 on page 35 of the respondent's brief on the former appeal, commences with this language: "If in no event the appealing party is entitled to recover, a new trial will not be granted, even though reversible error should have occurred during the trial." The remainder of the brief

Mar. 1901.]

Opinion of the Court-DUNBAR, J.

is devoted to an argument against the legality of the claim, by reason of the insufficiency of the verification. This proposition was then answered by an argument in the reply brief of the appellant. The argument of the respondent on this proposition was somewhat exhaustive, and many authorities were cited to sustain the contention. From this it is evident that the court must have concluded (although for some reason no expression was made in the opinion to that effect) that no error had been committed by the lower court in admitting the claim; for it would be not only a foolish but harmful practice to reverse a case and order a new trial, and put the appellant to the delay and expense of a new trial, when it would necessarily follow that the trial could not result in a judgment in his favor. That is exactly what was said by the respondent in his brief on the former appeal when he used the language quoted above. This is so plain a proposition, and has been so often enunciated by this court, that it will not be presumed that an order for a new trial was made on the presumption that the appealing party was not entitled to recover in any event. It is said by the respondent in his brief in this case that "numerous opinions have been rendered by this court wherein it is expressly stated that the court expressly refuses to pass upon questions raised for the reason that the same may not again arise upon a retrial of the case." That is true, but the admission of these claims is a pivotal question in this case, and one that must necessarily arise in the proper defense of the action, and does not fall within the class of incidental errors in the admission of testimony, or rejection of jurors, or questions of that kind, which the court was discussing in the cases referred to by counsel's brief.

The judgment will be reversed and the cause remanded, with instructions to overrule defendant's objections to the

admission of the claim in evidence on all the grounds urged.

REAVIS, C. J., and FULLERTON, ANDERS and WHITE, JJ., concur.

[No. 3715. Decided March 28, 1901.]

THE STATE OF WASHINGTON, Respondent, v. DANIEL

DOWNING, Appellant.

HOMICIDE

IDENTIFICATION OF BODY

CONCLUSIVENESS OF JURY'S

FINDING.

In a prosecution for murder, in which the identity of the dead body is a question in issue, for the reason that the flesh of its face had been eaten away beyond recognition, the verdict of the jury establishing identity of the body with that of the alleged murdered man is conclusive on the appellate court, when it appears that the deceased was last seen alive near the point where the body was discovered, that the body corresponded with that of deceased in stature, size and hair, that the clothing on it was similar to that worn by deceased when last seen alive, and that a button on the shirt was identified by a witness as having been given by him to deceased some months before.

SAME CIRCUMSTANTIAL EVIDENCE

SUFFICIENCY.

In a prosecution for murder, the jury is not warranted in finding defendant guilty, when the evidence shows that de ceased was last seen alive rowing his boat in the direction of defendant's shack, that ten days later his overturned boat was found adrift and two days subsequently his body was found partially embedded in the sand on the beach, about a mile and a half from defendant's shack; that by reason of decomposi tion and the feeding of crabs and gulls on the exposed portions of the face and neck it was difficult to tell whether violence had been used against deceased, but some of the persons witnessing the body were under the impression that the throat had been cut; that the defendant and deceased had theretofore had some slight quarrel over trivial matters, but there was no proof of

Mar. 1901.]

Opinion of the Court-FULLERTON, J.

bad blood between them; and there were no indications of the use of violence in or about the shack or the deceased's boat, nor was there any evidence of blood upon the clothing or boat of deceased, or upon the clothing or person of defendant nor upon the contents of his shack.

Appeal from Superior Court, Chehalis County.-Hon. CHARLES W. HODGDON, Judge. Reversed.

J. C. Cross, for appellant.

W. H. Abel, Prosecuting Attorney, for the State. The opinion of the court was delivered by

FULLERTON, J.-The appellant was informed against by the prosecuting attorney of Chehalis county, charging him with the murder of Joseph Anderson, tried, and found guilty of murder in the first degree, and sentenced to be hanged. He appeals from the judgment of conviction, and assigns numerous errors for reversal, only one of which will be noticed, namely, that the evidence is insufficient to justify the verdict. It appears from the record that the appellant and Anderson had lived in the vicinity of Gray's Harbor, in Chehalis county, for a number of years. It is not clearly shown that either of them had any fixed abode, although the appellant had a shack at Gray's Harbor City which some of the witnesses spoke of as, and the appellant called, "his home;" and that Anderson for the last few years lived most of the time in a scow located on the south side of the harbor. The appellant lived by fishing, which he gives as his principal occupation, and by catching and selling drift logs. Anderson lived by the same means, and by clam digging, and buying and selling fish. For some days prior to June 2, 1899, the appellant was at a fishing shack located on the Gray's Harbor side of Damon's Point, being that strip of land lying between the