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CUNNINGHAM, J. Appellant commenced this action upon a bond given by J. Taylor Bradley as principal and the other appellees as sureties, under date of October 8, 1907, binding themselves jointly, severally and individually to the appellant in the penal sum of $2,500, with 10 per cent in ease of suit on the bond, to be paid upon the following condition only: “The condition of the above obligation is such that if the above bounden . . . heirs, executors or administrators, shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may here after in any manner exist or be incurred on the part of the said J. Taylor Bradley to the White Sewing-Machine Company, or its assigns, whether such indebtedness or liability shall exist in the shape of book accounts, notes or leases, renewals or extensions of notes, accounts or leases, acceptances, indorsements, consignments of property or merchandise, failure to deliver cr account for the same, or any part thereof, or otherwise, and whether such indebtedness shall be incurred under any contract between said White Sewing-Machine Company and the said J. Taylor Bradley or otherwise, and whether the same shall arise out of the purchase and sale of sewing-machines, or otherwise, hereby waiving presentment for payment, notice of nonpayment, protest and notice of protest, and diligence upon all notes, accounts or leases, now or hereafter executed, indorsed, transferred, guaranteed or assigned by the said J. Taylor Bradley to the White Sewing-Machine Company, its agents or assigns, then this obligation to be void, but otherwise to be and remain in full force and effect. ’ ’ Further provisions are made in the bond relating to matters of signature, notice of acceptance by the company, other agreements for discharge or release of the signers, and agreements arising that do and that do not have the effect to discharge the obligation. The instrument is literally set out in the complaint. The complaint alleges that: “During the year of 1907, defendant Bradley purchased from the plaintiff various sewing-machines and sewing-machine supplies, and in payment therefor made, executed and delivered to plaintiff his promissory note in favor of plaintiff, in the sum of $2,094.63 in words and figures following, to wit,” setting out the note dated October 30, 1907, due 18 months after date, with interest at 8 per cent per annum from maturity, and providing for 10 per cent attorney’s fees to be added in case of suit, signed by J. Taylor Bradley. Plaintiff admits credits have been allowed upon the note, and alleges: ■ “That the sum of $736.45 is now due on said note, and that the same is the whole indebtedness due from defendant Bradley to plaintiff.” Plaintiff alleges that: “Defendants have wholly failed and neglected to pay said indebtedness, or any part thereof, though demand has been made on them for such payment, and said indebtedness has not been paid' by said defendant Bradley . or any other persons.” Plaintiff claims 10 per cent on the amount alleged to be due as attorneys’ fees as provided in the bond. The defendants Overlook and Peironnet answered alone. The defenses interposed by these answering defendants consist of demurrers, of a denial that J. Taylor Bradley executed and delivered the note pleaded and deny that there'was any consideration for the note; deny that at the time of the maturity of the note, or at any time since, that there was due the plaintiff anything from Bradley. They deny that they made and executed the bond sued on, and deny that demand for payment íias been made, and-allege that on information and belief all sums of money due from Bradley to plaintiff have been paid. These defenses are verified. The cause was. tried before a jury, and upon the close of the evidence of all parties the court- instructed a verdict for the defendants, and rendered judgment accordingly. Plaintiff moved for a new trial, which motion was denied. This appeal is prosecuted from the judgment and from the order refusing a new trial. Appellant assigns as error the instruction of the court, directing a verdict for defendants, “because there was substantial evidence to sustain the plaintiff’s case.” This, assignment is the equivalent of the allegation that the evidence does not sustain the verdict and judgment. Such allegation was one' of the grounds assigned as reasons for a new trial in the motion. The purpose of action is to enforce the obligation of the bond. The right to recover depends upon whether J. Taylor Bradley is indebted to the plaintiff in any amount, and whether such indebtedness arose -by reason of any of the things specified in the bond. If he is indebted by a note and neither he nor the sureties on the bond have paid the amount owing, the condition of the bond is. broken, and plaintiff is entitled to recover. If it be a fact, that J. Taylor Bradley is not indebted to the plaintiff, evidenced by the note, because the note was made by him without consideration, if in fact these defendants did not make,, execute and deliver the bond sued on, or if all the indebtedness represented by the note has been paid, any of these facts appearing, defendants are not liable, and the obligation ■ of the- bond is not enforceable against them. - The condition of ■the bond has been performed or the obligation never existed, as the case may be. The issues raised by the pleadings are whether defendants made, executed and delivered the bond .set forth in the complaint. If so, did J. Taylor Bradley make the note pleaded to the plaintiff, and was such note made upon a consideration? Is any part of that note due and unpaid ? These are the questions presented for trial as raised by the defense. In order to recover the plaintiff must satisfy the jury from a preponderance of the evidence that the defendants made, executed and delivered to plaintiff an obligation in effect such as is pleaded; that before the commencement of the suit J. Taylor Bradley was indebted to the plaintiff in some manner contemplated by the bond and to some amount; that he gave plaintiff his promissory note in effect such as is set forth in the pleadings; that the note was given for a consideration; that the note or some part of the note is due and unpaid. The question is, Does the record contain substantial evidence tending to prove these facts, and such as would support a verdict for the plaintiff? The plaintiff introduced the testimony of H. S. Smith, a witness, who testified: That he prepared the bond on an approved blank form of bond furnished him by plaintiff, by filling in the blanks and making other notations on the instrument. That he saw all the defendants sign their names to the bond, and he signed his name as a witness to such signatures of all the defendants except that of J. G. Dixon, and that he saw Dixon sign the instrument, and saw the witness to his signature also sign it as such witness. The instrument is otherwise identified. That the instrument was made as one of three instruments closing a sale, of sewing-machines by the witness for the plaintiff to defendant Bradley. That the other two instruments consisted of an order for the goods by Bradley and plaintiff and- a contract between Bradley and plaintiff bearing on the matter of the sale of the goods. The witness says: “I got Bradley’s order for the machines and contract, and I went with him to the other people who signed the bond, and I saw them sign it, and I signed the bond myself as a witness. The White Sewing-Machine Company approved the contract, order, and bond and shipped the machines.” Plaintiff then introduced C. A. Hawkins, who testified: That he was the general manager of plaintiff company in October, 1907; that the contract, order and bond was received by plaintiff company, and he as general manager for the company approved the contract and order, and the carload of machines was shipped. The order and contract are produced as a part of this witness’ testimony. He testifies that letters were caused by him to be sent by registered mail to each of the parties signing the bond, notifying them that the plaintiff company had accepted the bond. A copy of the letters and return register receipts appear in the evidence. That upon notice from Bradley that the goods had been received, he was furnished three notes to execute and return to the company to cover the full account payable to the company. The total sum due for the carload of sewing-machines was $5,415. That another small order was given by him and the freight advanced. All aggregated, including the machine account, $6,283.91. That the three notes were all dated October 30, 1907. One was due April 30, 1908, one October 30, 1908, and the third and last was due April 30, 1909. The first two notes were for the sum of $2,094.64, and the last one was for the sum of $2,094.63. “The consideration for the notes was the carload of machines . . . and the freight on the machines from Cleveland, Ohio, to J. Taylor Bradley in Arizona. ...” The witness goes into detail regarding the sums paid on account of the notes, admitting that the first two notes have been paid and furnishing a statement of the account. The witness states: “I have the last of said notes, which I have referred to as note No. 103. . . . The balance due from J. Taylor Bradley on August 13, 1911, was $600.59, and the interest due at said time was $111.69.” This is substantial evidence tending to prove every essential fact necessary to establish a prima facie case. Without further evidence, if submitted to the consideration of a jury and a verdict should have been returned for the plaintiff, such verdict would not be unsupported by the evidence. In Kroeger v. Twin Buttes R. R. Co., 14 Ariz. 269, Ann. Cas. 1914A, 1289, 127 Pac. 735, we adopted and approved the rule announced in 38 Cyc. 1567, 1568, as follows: “It is only where a court can find no evidence which in its deliberate and ultimate judgment is entitled to be weighed that the jury should be instructed in terms that there is no evidence to support the burden of proof which rests upon the party.” We adhere to this rule as one supported by reason and authority. In view of another trial we deem it proper to notice one other matter that has been the subject of a close contest in the trial of this case, viz., the' question of another bond, made by these same defendants for the same purpose of insuring to plaintiff the payment of any sums that J. Taylor Bradley might become indebted to plaintiff, but fail to pay. Such a bond was mentioned in the evidence, and it was virtually admitted by plaintiff’s counsel that such bond had been made by the defendants and forwarded to plaintiff. There is some evidence tending to show that such bond was in effect the same form of bond sued on. The bond in suit contains the following paragraph of agreement: “Each one signing this bond is bound according to the purport of it without any regard to any understanding that any person should also sign this instrument; and the person to whom this is intrusted has absolute authority to deliver it, and no notice of its acceptance by said company shall be required, and the same is made and shall be construed without reference to any other instrument or agreement whatsoever, and any claim of any arrangement or agreement with any of the signers hereof to discharge or release them or any of them, shall be void and of no binding effect upon the White Sewing-Machine Company unless this bond shall be delivered up or discharged in writing by the said White Sewing-Machine Company, over the signature of its president or secretary of the company, and it is to continue in full force until so delivered up or discharged.” Conceding that the prior bond did contain a provision in effect the same as above quoted, the defendants argue, and the court apparently accepts the argument as sound, that, such agreement being in the prior bond, that bond only is a binding obligation upon these defendants, and by reason of the existence of such prior binding obligation these defendants are not liable on this subsequent bond. In the first place, no such defense is set up by the defendants, and the validity of the prior bond is not involved in this case. In the second place, a free, competent person may obligate himself by written or oral agreement as many times as he chooses, without one obligation entered into by him disqualifying him from •entering into another, in the identical terms of the former obligation. If we are to hold that a man can bind himself but one time in one form of bond, such holding would be revolutionary in the extreme, and would have the effect to nullify all manner of contracts. "When suit is commenced to ■enforce the prior bond mentioned in the evidence in this case, its binding effect may then be determined. It has no place in this action under the issues joined. Besides the evidence allowed on that fact tends to prove, if the question was- one for consideration, that that bond was never accepted, and was returned and declared by plaintiff to be void. Plaintiff claims no rights under the prior bond. The judgment is reversed for this reason: The- court erred in directing a verdict for defendants when substantial evidence was before the jury tending to establish all the essential facts of plaintiff’s alleged cause of action. Reversed and remanded. ROSS, C. J., and FRANKLIN, <T., concur. ■

CUNNINGHAM, J. This is a statutory action in the nature of an action in ejectment for the recovery of real estate. In such actions the complainant or plaintiff must recover on the strength of his own title. Paragraph 4110, Ariz. Rev. Stats. 1901. The common source of the title involved is through Joseph H. Holmes. The question is whether plaintiff, as the representative of the estate of L. E. Payson, has acquired the title and the right of possession incident thereto through his sheriff’s deed, based upon the mortgage and foreclosure sale. Plaintiff acquired all the title and right to possession he claims through the foreclosure of the mortgage. His suit to foreclose this mortgage was commenced March 22, 1911, on account of condition broken, a failure to pay the money secured thereby. At the time of foreclosure, defendant United States Land, Title and Legacy Company had acquired all the estate of Holmes in the mortgaged property, with knowledge of the mortgage debt. In the foreclosure suit Joseph H. Holmes and his wife, said company, and S. Henry were made parties defendant. Jessie F. Tull and her husband, M. Tull, were in the actual occupancy of one of the mortgaged lots, and James M. Barney was in actual occupancy of another of the lots involved in the foreclosure suit. By their answers their right to the possession so held was based on and made to depend solely upon conditional contracts not recorded, entered into with the said defendant company after it acquired Holmes’ rights, and of which plaintiff had no notice. Such persons so actually in possession of said lots were not made parties to the foreclosure suit. The foreclosure suit resulted in an order of foreclosure and a sale, at which sale this plaintiff became the purchaser, and in due time the sheriff executed and delivered his sheriff’s deed; no redemption from such sale having been made by anyone. The defendants contend that the judgment of foreclosure .and subsequent sale and deed are ineffective as to them and evidence of no title, for the reason they were in actual open, and notorious possession of the property and had such a valid, subsisting interest therein as would require them to be made parties in order to foreclose their rights, and, not having been made parties, the foreclosure proceedings as to them and their rights are void. Is a party holding an executory contract to purchase mortgaged property, executed by the mortgagor subsequent to the giving and recording of the mortgage and 'before a foreclosure is commenced, a necessary party defendant to such suit?’ What rights does such contracting purchaser acquire to the mortgaged property as against the mortgagee that the court in the foreclosure suit must recognize and protect under its judgment to the effect that the plaintiff recover his debt, damages, and costs with an order of foreclosure? An order of sale was issued to the sheriff directing him to seize and sell the same as under execution, in satisfaction of the judgment. Such is the judgment and order authorized by statute in foreclosure suits. Paragraph 1432, Ariz. Rev. Stats. 1901 -r paragraph 554, Ariz. Rev.. Stats. 1913. “A mortgage on land is not extinguished, nor its lien divested, by a sale of the premises to a purchaser who has. notice of the mortgage; but, on the contrary, his title is taken subject to the mortgage, and is not better or stronger than that of his grantor, which ... is a legal title charged with the mortgage lien, but ... is subject to the contractual and statutory rights of the mortgagee. The purchaser’s possession under his deed is in subordination to the title of the mortgagee, to the same extent as that of his grantor, and cannot cease to be of that character, and become such an adverse possession as may ripen into a title under the statute of limitations, until there is an open assertion of a distinct and hostile title with the knowledge of the mortgagee.” 27 Cyc. 1337, 1338. Where one agrees to buy, and another agrees to sell, land, and the consideration is not paid, and the party contracting-to buy enters into possession, the fair inference is that the-entry and possession are in subordination to the title of the seller until the stipulated payment is made. Hart v. Bostivich, 14 Pla. 162. It is said in Goodwin v. Markwell, 37 Fla. 464, 467, 19 South. 885, 886: “The authorities clearly establish the principle that, if one goes into possession of land under contract of purchase without paying the purchase money, he thereby admits the title of the vendor”-—citing Hart v. Bostwick, supra. In Palmer v. McCafferty, 15 Cal. 334, the action was to-recover a tract of land. The error assigned by appellant-was the exclusion of a certain executory contract for the sale of the land sued for. It was offered to show in connection with it that the defendant claimed the premises under one Wooster, who was a party to the instrument. The court says r “It seems that Wooster executed a mortgage of these premises to-defendant, and that the latter foreclosed the mortgage, and went into possession under the decree of foreclosure. The object of the plaintiff was to show that he had succeeded to the estate of Seaggs & Co., who made this executory agreement, and that Wooster and his assigns, having failed to-comply with the contract on their part, forfeited all their rights under the same; and that, by force of this, Seaggs & Co., became remitted to their original title, of which plaintiff was the assignee. . . . Prima facie the plaintiff’s proof, thus offered, was relevant to the issue, and that was enough to-entitle him to introduce it.” Plaintiff’s object being to show that Wooster had forfeited his rights under the contract. The buyer under an executory contract, then, acquires no-better right or estate in the premises which he contracts to purchase, by a failure to pay the -consideration, according to-the terms of this contract, than his grantor had, and he holds; possession acquired through such contract until the purchase price is paid' subject to the conditions of the contract, in subordination to the grantor’s title. Like a tenant, he cannot deny the grantor’s title unless he repudiates the contract and asserts an adverse, hostile title, whereupon he becomes a trespasser and is subject to be ousted as such. In this case the mortgage was of record at the date the contracts, under which defendants claim rights, were made. Their rights thus acquired were clearly subject to the plaintiff’s mortgage. Their possession was subordinate to the rightful possession of their grantor. United States Land, Title and Legacy Company, holding under its legal title, and sub ject to the same infirmities and liens. Their grantor held in subordination to plaintiff’s rights. When the title of their grantor was extinguished, because their rights depended wholly upon the rights of their grantor, their rights to possession ceased to exist, and nothing remained upon which they could base a right to possession. Otherwise a mortgagor could by a sale of the mortgaged property, without the knowledge or consent of the mortgagee, wholly wipe out the mortgage lien. After the making and recording of a mortgage, the mortgagor is not permitted to deal Avith the mortgaged property, to the prejudice of the mortgagee’s rights, and all rights acquired in the mortgaged property, under such circumstances, through the mortgagor, are subject to the mortgage. No privity of contract exists between the defendants and the mortgagee in this ease. The defendants have no such relation with the mortgagee as Avould sustain an action of specific performance of their contract in any event when prosecuted against the mortgagee, nor could the mortgagee maintain an action to recover the installments provided by the contract. On the facts shown, no performance of the contract would be enforced against the mortgagor by a court of equity, in the absence of a mortgage foreclosure, unless defendants would accompany their application with an offer to pay the balance due on their contract of purchase. After a foreclosure and sale consummated in a sheriff’s deed, the person holding .the executory contract could not have a specific performance by the mortgagor, because he is then in no position to convey any estate. The only remedy left is upon a breach of contract. The holder of an executory contract to purchase mortgaged property, made- with the mortgagor, or with the' purchaser of the mortgaged property, assuming the mortgage debt, the mortgage being of record, is in a similar position to defend a foreclosure with a lessee of the mortgaged property. The first, to protect his contract from foreclosure, must pay the balance due on the purchase price either to the grantor or to the holder of the mortgage before he acquires any legal "title. The mortgagee is not bound to receive payment if offered, and, if the mortgagor accepts payment, the title conveyed is still subject to foreclosure. His only right acquired is the right to possession until condition broken, or a foreclosure and sale of the property and deed issue. The leaseholder by his lease acquires a right to the use and enjoyment of the property for the full term of his lease, subject to the mortgage. Until the term expires, either by the terms of the lease or by the enforcement of the mortgage lien and delivery of the deed through foreclosure proceedings, the lessee has the right to possession. Neither party has any estate in the property involved, other than the right to the possession as limited by the contractual relations and by a foreclosure of the mortgage as consummated in the sheriff’s deed. The court in McDermott v. Burke, 16 Cal. 589, speaking through FIELD, C. J., considering the rights of a lessee whose lease was subject to the mortgage, after a foreclosure of the mortgage, in which the lessee was not made a party, says: “A mortgagor cannot make a lease which will bind his mortgagee, where the lessee at the time had notice of the mortgage, either actual or constructive. The interest of the lessee in such case is dependent for its duration except as limited by the terms of the lease, upon the enforcement of the mortgage. So long as the mortgage remains unenforced, the lease is valid against the mortgagor, . . . but with its enforcement the leasehold interest is determined. There is no privity of contract or of estate between the purchaser upon the decree of sale and the tenant. The purchaser may therefore treat the tenant as an occupant without right, and maintain ejectment for the premises. He cannot, for the want of such privity, count upon the lease, and sue for the rent or the value of the use and occupation. The relation between the purchaser and tenant is that of owner and trespasser until some agreement, express or implied, is made between them with reference to the occupation. Until then, both are equally free from any contract obligations to each other. The tenant is not bound to attorn to the purchaser, nor is the latter bound to accept the attornment, if offered. The purchaser may prefer to have the possession, and the tenant may also prefer to surrender it. . . . The error of the plaintiff arises -from a misapprehension of the rule as to the parties necessary to the foreclosure of a mortgage. The rule only requires, as parties, those who are beneficially interested in the claim secured or in the estate mortgaged. The tenant is not thus interested in the claim; he is not en titled to its proceeds when collected, or to any portion of the proceeds. Nor is he thus interested in the estate mortgaged;: that is, in the title which is pledged as security. He has not. succeeded to such estate, or to any portion of such estate. He does not stand, therefore, in the position of a purchaser. The estate remains in his lessor; he has only a contingent right to enjoy the premises. The right of the lessor to the possession ends with the sale of the premises, or rather with the deed by which the sale is consummated. The right of the-tenant to such possession depends upon that of the lessor and goes with it.” In Tyler v. Hamilton, 62 Fed. 187, 190, the court, considering the question of parties to a mortgage foreclosure ease, where the lessee contended he was not bound because he was not a party thereto, says: “The leases were made subsequent and subject to the mortgages. The contract of leasing was wholly between the mortgagor and the lessee. The mortgagee had no privity with the lessee. It did not assent to the leases, and its rights, were not affected thereby. The lessee, while in possession as. tenant of the mortgaged premises, had no seisin thereof. His. possession was the seisin of the lessor, who held the legal title. The tenants in possession were not necessary parties to-the foreclosure suit. They had no lien upon the land, and no equity of redemption therein. The foreclosure sale operated to evict them by title paramount. From and after the; sale they were trespassers, unless they attorned to the purchaser, or the purchaser recognized their rights as tenants ’ ’— citing Rogers v. Humphreys, 4 Ad. & E. 299; McDermott v. Burke, 16 Cal. 580; Teal v. Walker, 111 U. S. 248, 28 L. Ed. 415 [4 Sup. Ct. Rep. 420]; Haven v. Adams, 4 Allen [Mass.], 80. “ ... The defendants are before the court, not seeking the intervention of equity for the protection of their-rights by redemption from the mortgage sale, but contending-that the failure of the mortgagee to bring them in as parties defendant to the foreclosure suit operated as a recognition of their status as tenants, and a ratification of their leases. This, contention cannot avail them, for, as we have seen, they were-not necessary parties to that suit, and, so far as the mortgagee; was concerned, their rights were extinguished by the foreclosure sale.” In Western Union Tel. Co. v. Ann Arbor R. Co., 90 Fed. 379, 33 C. C. A. 113, the court states: “The rule that the mortgagor cannot bind the mortgagee by lease or other contract is not changed thereby. (By a statute of Michigan to the effect that no action of ejectment shall be maintained by a mortgagee for the recovery of the mortgaged premises until the title thereto shall have become absolute upon a foreclosure of the mortgage.) When the mortgagee acquires possession of the mortgaged land by foreclosure sale, the effect of his possession upon those claiming under the mortgagor is just as complete to avoid their rights and interests as was entry or ejectment at common law. Nor does it prevent this result that the holder of the easement may not have been made a party to the foreclosure suit. The easement was granted subject to being divested by the mortgagee’s acquiring possession of the mortgaged premises. That event has happened, and the divesting follows.” Strong v. Smith, 68 N. J. Eq. 686, 60 Atl. 66, 63 Atl. 493, arose npon an application of a purchaser under a decree for the foreclosure of a mortgage for a writ of assistance. A party claimed to be in possession of the mortgaged premises under an unrecorded lease made to him by the mortgagor for a term of five years, and that his possession had been open and continuous since the date of the lease. This claim was disallowed and the writ issued. The party contended in the court of appeals that such a writ can lawfully issue against those only who are bound by the decree in the cause, and that as his rights were acquired before the commencement of the suit, and he was not made a party defendant, although in open occupancy of the property, the decree did not affect him. The court suggests that such a party may not be bound by the decree, and it is necessary that some court shall pass upon his rights when he is brought before it, and says: “If, when he is thus brought in, it is clearly shown that he claims under one who was a party to the suit, and that his right of possession is undoubtedly subordinate to the right for the enforcement of which the writ of assistance is prayed, then it may be issued against him, even though technically he is not bound by the decree.” In the strictest sense the only necessary parties to a foreclosure suit are the mortgagee, the mortgagor, and those who have acquired interests in the premises subsequent to the mortgage. Proper parties are those who are so connected with the subject matter that their presence on the record cannot be objected to as a misjoinder, while, on the other hand, if they are not included, a full and complete decree can still be made without considering or affecting their rights. 27 Cyc. 1563. If it be conceded that, up to the date of the delivery of the sheriff’s deed, these defendants had acquired such an equitable interest in the subject matter of the foreclosure suit as would have made them proper parties, what effect must be given to their subsequent modified agreements with the defendant company by which the payments under the contracts were suspended and possession retained in abrogation of the express terms of their conditional contracts? At the time this action was commenced, the defendants Tulls and Barney, by their admissions while testifying as witnesses, were holding possession of the premises, not by reason of the original contracts, but by reason of the modification of important terms of those contracts, and under such modified contracts. Clearly, then, they were holding possession of the premises under an agreement made with the judgment debtor, party to the foreclosure suit, after sale made under the decree of foreclosure. Such contract was made (that is, the original contract was modified) at a time after the sale under the decree of foreclosure, and after actual notice ofá the judgment and sale, and as a means to protect defendants in possession. Evidence of such fact makes a very different ease from the case set up in the answer. By the modification of the contracts, as between the parties thereto, the defendant company waived a strict performance of the original contract, otherwise the defendant company could have recovered possession, by reason of the admitted failure to perform. Is it possible that a party who purchases mortgaged property from one standing in the place of the mortgagor can enter into an executory eonditiopal contract with a third party, charged with constructive notice of the mortgage, and after a decree of foreclosure and sale the executory contract, not having been recorded, can so modify the terms of such conditional executory contract as to confer rights upon the stranger to the mortgage suit that must be respected by the mortgagee and avoid the decree of foreclosure and thereby defeat a recovery of possession because such third party was not made a party to the foreclosure suit? By reason of the modification alone, the defendants Tull and Barney clearly became occupants, thereafter holding possession under and through a contract made with the defendant company after foreclosure and sale, and clearly such parties, assenting to a modification of their contracts and so occupying the property thereunder,- acquired only such rights to the mortgaged premises as are bound by the foreclosure decree and sale, notwithstanding their open and notorious occupancy of the mortgaged premises at the commencement of the foreclosure suit. The nature of this occupancy became changed by their modified agreement. The evidence objected to was elearly not subject to the objection, for the reason the objecting defendants in effect submitted to the decree of foreclosure and sale when they modified their contracts and claim rights under the modification. Defendants Tull and Barney are not here seeking to redeem ; they are here asserting a right, admitting they acquired their right through one standing in the place of the mortgagor, after the mortgage lien accrued and matured arid was foreclosed. , Their claim is without foundation in law or equity. Their evidence does not support their answer, but contradicts its terms by substituting another and different contract in support of their right to be heard. Before a court of equity would entertain their cause, as developed by the evidence, they would be required to offer to do equity; that is, offer to redeem from the sale. Before their contract was modified, they must have offered to pay the balance of the consideration agreed upon in addition to their offer to redeem. After the modification of the contracts, they would have to prove the performance of the stipulation in order to recover from the mortgagor (that is, that appellant’s title was defeated in favor of the mortgagor), and offer to pay the balance of the purchase money. The effect of the modification of the contract was that defendant United States Land, Title and Legacy Company granted to these defendants Tull and Barney the right to occupy the mortgaged premises without making any further payments of the stipulated purchase price until appellant should finally be defeated or should finally recover the property, upon condition that said parties retain possession after the balance of the purchase price became payable. The evidence on the trial uncontrovertibly established that defendants Tull and Barney were so holding possession of the property at the commencement of this suit. It cannot be doubted, from such evidence, that they were holding under and through defendant United States Land, Title and Legacy Company, and as that defendant was a party to the decree of foreclosure, and it is bound by that decree, the defendants are likewise bound by the decree, although not parties to it, because they agreed to hold possession and were holding possession of the property at the commencement of this suit for and in behalf of said company and in subordination to the title of the mortgagee. The question of parties to the foreclosure suit was disposed of when defendants admitted the nature of their possession at the time of the commencement- of this action. They could not hold possession under the modified contract to defeat the decree of foreclosure and sale, upon the grounds that they began to occupy the premises under another and different contract which was in force when the foreclosure suit was commenced. By the modification, the original contract ceased to be effective for any purpose of possession. The issue here was the right of possession at the commencement of this suit. Defendants admit in their evidence that their right to possession at the commencement of this suit was acquired after the sale of the property under foreclosure from a party to the foreclosure suit. Such is no defense to this action. The judgments for these reasons are erroneous and must be reversed. The cause is remanded for further proceedings in accordance with law and not in conflict herewith. FRANKLIN, O. J., and ROSS, J., concur. Application for rehearing denied. NOTE.—Eor tie general rule that plaintiff must recover, if at all, on the strength of his own title in action of ejectment, see note in 18 L. K. A. 781. As to the effect of defendant’s inability to specifically perform, see note in 16 L. B. A. 614.

FRANKLIN, C. J. Appellant was convicted of the crime of grand larceny and sentenced to serve a term in the state prison. On application hy the appellant, the learned judge of the trial court granted a certificate of probable casue for an appeal to this court. The case is now here for review on an appeal from the judgment and an order denying appellant’s motion for a new trial. The charge in the information is grounded on the taking of a gelding alleged to be the property of one C. G. 10, an Apache Indian. The taking of the gelding is not denied, but the felonious intent of the defendant in taking the animal was the decisive issue in the trial of the case. The defendant claimed that he took the animal having an honest belief that he had a right to take it. Though there was a decided conflict in the evidence on this phase of the matter, a brief resume of the testimony in behalf of defendant discloses: That he and one Pete Baca had purchased some horses from the Indians near the San Carlos reservation. That the prosecuting witness and Pete Baca each owned a buckskin gelding which in general appearance corresponded one with the other, and both animals seem to have strayed off, and each of the owners was making efforts to find his horse. The animal described in the information, it also appears, was found by one Joe Hinton at his corral, where he was pumping water. Hinton thought the horse found at his corral belonged to appellant and Baca, because he knew they had purchased some Indian horses, and this horse resembled one that they had purchased. Hinton advised appellant by letter that he had found his horse and had him in the corral, and requested appellant to come and get the animal. Appellant showed the letter to Baca, and the latter stated that the horse found was his horse, one that was purchased by Baca when he and appellant were at the reservation, but at a time when appellant was not present. Baca asked appellant to go to Hinton’s place and get the horse for him, stating that he would pay appellant for the trouble of doing so. Appellant, believing the animal to be the property of Baca, went to Hinton’s place and openly took the animal from the corral for the purpose of delivering it to the one he believed to be the owner thereof.- This, in substance, is the explanation which appellant relied on for his defense to the charge. If the appellant did in fact take the property having an honest belief as to his right to take it, the crime charged would of course lack the essential ingredient of felonious intent. It was thus within the province of the jury to determine, from all the evidence in the case, the bona fides of such claim of right. The court instructed the jury as follows: “You are instructed that if you believe from the evidence that the defendant, Thomas J. Sisson, went after the animal alleged to have been stolen upon'receipt of a letter from Joe Hinton, informing him that he had caught him and had him in his possession, and that he went after the animal to deliver him to Pete Baca, as requested by Baca, and that he honestly believed that the animal belonged to Baca, then it is your duty to acquit him.” The infirmity of this instruction is at once apparent. It places a burden upon the defendant in a criminal prosecution that the law does not authorize. “A defendant in a criminal action is presumed to be innocent until the contrary be proved, and, in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted.” Section 1036, Ariz. Pen. Code 1913. “It is not necessary for the defendant to satisfy the jury that he was in fact the owner of the goods alleged to have been stolen, or that he took them under a bona fide claim of right. The burden is on the prosecution to establish the guilt of the defendant beyond a reasonable doubt, and this requirement is not satisfied, if the evidence leaves it in doubt whether or not the property taken was the defendant’s, or whether the defendant honestly believed either that he was the owner or that he had a right to the possession.” 18 Am. & Eng. Ency. of Law, 2d ed., p. 525. “The charge given by the court, predicated on defendant’s belief that he had a right to take the same, should have been given without imposing upon him the burden of proof; that is, the jury should have been instructed in connection with said charge, if they had a reasonable doubt whether or not the defendant believed he had a right to take the animal, they should acquit.” Reese v. State, 43 Tex. Cr. 539, 67 S. W. 325. In the ease of State v. Weckert, 17 S. D. 202, 2 Ann. Cas. 191, 95 N. W, 924, the following instruction was before the court: “In this case I charge you, as a matter of law, that if you are satisfied from the evidence that this defendant, Joseph Weckert, took the property in question from the corral . . . under an honest belief of ownership, although mistaken in this belief, then you would not be warranted in convicting this defendant, and it would be your duty, as jurors, to acquit him. In other words, where a defendant charged with larceny tells the jury, or where the jury becomes satisfied with the evidence, that the original taking of the property was made under an honest or mistaken claim of right to the property, it is the duty of the jury to acquit him, and, before you can convict the defendant in this case, the state must satisfy you from the evidence, beyond a reasonable doubt, that the defendant, by fraud or stealth, and with intent to deprive the owner of the property thereof, and knowing the same not to be his, took the property in the manner and form charged in the indictment.” The court commented on this instruction as follows: ‘ ‘ The accused contends that by this charge the court clearly instructed the jury that the burden was upon the accused of satisfying them that the taking of the horse by him was under the honest claim of ownership. We are of the opinion that the contention of counsel for the accused is correct. While it is true that in the latter part of the instruction the court does charge the jury that, before they can convict the defendant, the state must satisfy them of his guilt beyond a reasonable doubt, yet the former part of the instruction was not withdrawn from the jury, in which they were clearly instructed in effect that the burden was upon the accused to satisfy them that he took the property in question under an honest belief of ownership, although mistaken in that belief. This instruction was clearly erroneous, and in conflict with the provisions of section 7376, Compiled Laws of 1887, which reads as follows: ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.’ ” See, also, State v. Huffman, 16 Or. 15, 16 Pac. 640; State v. Grinstead, 62 Kan. 593, 64 Pac. 49; Black v. State, 83 Ala. 81, 3 Am. St. Rep. 691, 3 South. 814; Evans v. State, 15 Tex. App. 31; Higginbotham v. State, 42 Fla. 573, 89 Am. St. Rep. 237, 29 South. 410; Johnson v. United States, 2 Okl. Cr. 16, 99 Pac. 1022; 25 Cyc. 49. The authorities are abundant, and, we believe, substantially uniform, to the effect that the burden of proof is not upon the defendant charged with the crime of grand larceny to satisfy the jury that the taking was under a bona fide claim of right; it being sufficient to entitle him to an acquittal if the jury have a reasonable doubt arising from all the evidence in the case as to whether the defendant took the property having such an honest belief as to his right to take it. In other words, the felonious intent being an essential ingredient of the crime charged, if the taking is admitted, or proved beyond a reasonable doubt, nevertheless, if'the jury entertain a reasonable doubt of the felonious intent of the defendant in taking the property, the jury should give him the benefit of such reasonable doubt and acquit him. And it matters not whether such doubt arises out of the evidence introduced on the part of the prosecution, or is created by the evidence upon the part of the accused. Counsel for appellant has pressed this matter upon us with much learning and force, and we have followed his effort to the period of conviction that the lower court, in giving the instruction complained of, committed error. But is it reversible error? The matter has burst into a very flame, but must again die down into smoke, and the pity of it is that it is always more attractive to see smoke burst into flame than to observe flame smother into smoke. We say the instruction is erroneous, but that this case must not be reversed on account of the error. Why? Because, though not called to our attention by either party, we have just discovered by a scrutiny of the record that the instruction criticised was given- by special request of the defendant and in the precise words which he employed. The policy of reversing cases at the instance of a defendant in a criminal cause because of error occurring by his invitation and request would, indeed, be unwise, for it must readily occur to anyone that the pursuit of such a -course could not be fraught otherwise than with most mischievous consequences in the administration of the law. A party by clever and ingenious argument might in the hurry of a trial persuade a court to give an instruction which, upon a critical examination, would be found, not good in point of law. The court should, of course, refuse to give an erroneous instruction, but, if one such is given, the party urging it may not be heard in this court to decry a result fashioned by his own handiwork. The toleration of such a procedure would tend often, perhaps, to encourage parties to strive in an endeavor to catch the court, and thus predicate a foundation for reversible -error. It requires some assurance to urge upon this court to reverse a cause for an error urged and invited by the party complaining of it, but we must accentuate in this instance that such a course will not be permitted to endure. The defendant assigns as error the omission of the court to give special instructions upon particular features of the case, although he 'did not request any one which he claims was omitted, but should have been given. His contention being in substance that it was a duty of the court imposed by the law to give specific instructions upon all the defensive hypothesis raised by the evidence, whether requested to do so or not.. Such is not the law in this jurisdiction. But we are cited to-cases from Texas to sustain the contention. The Texas cases, are not in point, however, for they are governed by a mandatory requirement of the statute. In Texas the judge must-charge the jury and must “distinctly set forth the law applicable to the ease. . . . whether asked or not.” Tex. Crim. Code 1895, art. 715. The provision is quite different from, that of Arizona. After prescribing the order in which the trial must proceed, subdivision 6 of section 1033, Penal Code-of Arizona of 1913, says: “The judge may then charge the jury and must do so on any points pertinent to the issue, if requested by either party,-, and he shall declare the law.” Commenting on the Texas statute, Mr. Thompson says: “The doubtful policy of mandatory statutes of this kind will readily occur to every mind. The mere forgetfulness of' the judge to instruct the jury as to the law relating to some-defensive hypothesis furnished by the evidence of the accused, or as to the law furnished by the evidence of the state, will work a reversal, although the failure so to instruct the jury-may have had no influence whatever on the merits. The doubtful policy of such a principle is found in the numerous reversals which have taken place in Texas, where it is upheld with its >greatest strictness, for mere nondireetion, in cases, where able counsel have sat by and intentionally omitted to call the attention of the judge to the matter in respect of which the instruction should have been given. . . . There may be-good reason for such a rule, where the prisoner is not assisted by counsel, or where there is reason to believe, on an inspection of the record, that the jury may have made a mistake in matter of law; but in other cases its results must be mischievous rather than salutary.” Thompson on Trials, sec.. 2340. It is remarked in an Indiana case that: “The position seems to be that if, by oversight, mistake or accident, any point is omitted by the court in its instructions, the omission is fatal, whether the attention of the court may have been called to the matter or not. In other words, that the party and his counsel, knowing that the court is omitting to instruct the jury upon some point in the case, may remain quiet, and, without asking for further instructions, procure a reversal of the judgment on account of- such omissions. Such a practice would be wrong in theory and mischievous in results.” Powers v. State, 87 Ind. 144. At common law the review by writ of error was granted only on the fiat of the attorney general, or where it was allowed on a question of law reserved by the trial judge for the consideration of the court for crown cases reserved. "While the right of review thus restricted was rarely exercised, nevertheless, according to the principles of common-law procedure, no conviction in a criminal ease was reversed for mere nondireetion, where no instructions were requested by accused, unless the record disclosed that the jurors were mistaken in a matter of law. The question presented, then, rests on the exigency of a statute, and for this reason there are found directly opposing conclusions among the different ctates. The judge may charge the jury and must do so on any points pertinent to the issue, if-requested by either party; and he shall declare the law. Such is the statutory prescription on the subject in Arizona. Unless requested by either party, it is optional with the court to instruct or not; but, if either party does request instructions on any points pertinent to the issue, the judge has no option in the matter, but he must declare the law. In fine, mere nondireetion, partial or total, as distinguished from misdirection, is not ground for a new trial, unless specific instructions, good in point of law and appropriate to the evidence, were requested and refused. See Thompson on Trials, and the numerous cases cited under sec. 2341. Ordinarily, the trial judge will and should consider it to be his duty to, give such instructions to the jury in matters of law as, in his judgment, may be best calculated to aid and assist them in forming their verdict, and such charge should embrace the general features of the case to be presented, in- eluding a definition of the offense, and generally indicating what is essential to establish the same. . The court is not required to give instructions upon any particular matters, unless his attention is called to them and they are particularly requested, when, if they are pertinent to the issue and good in point of law, the judge shall so declare the law. In short, the sin of voluntary omission is less grievous than that of voluntary commission, in the matter of giving instructions to the jury. A party charged with crime is, by the wisdom and leniency of the law, surrounded with every safeguard and clothed with every presumption in favor of his innocence, and the procedure governing his trial is so regulated and attuned that he may at every step assert his rights to a fair and impartial hearing, and demand that such rights be fully respected and conserved, and if he is not able, by reason of poverty, to secure counsel himself, upon application to the court, counsel learned in the law will be assigned to aid him in his defense. It is not our purpose to move in the direction of multiplying new trials and reversals on account of nondirection, when an instruction pertinent to the law and applicable to any hypothesis presented by the evidence must, upon request by either party; be given. The duty in such a matter does not devolve entirely upon the court, but calls upon the parties concerned for active participation. Counsel in a cause have their duties and responsibilities. They come into court familiar with their cases, and are presumed to have studied them, and to be familiar with the facts as well as the law which is applicable to such facts. Upon their part attentive interest should be given to the charge of the judge, and the court is entitled to, and should have, the benefit of the learning and knowledge of the law and the facts possessed by counsel. In the absence of -a request for specific instructions, good in point of law and pertinent to the issue, a party will not be heard to complain in the appellate court for mere nondirection—for an omission which would not have occurred except for his own indifference or lack of diligence. Judgment affirmed. CUNNINGHAM and BOSS, JJ., concur. NOTE.—On the question of larceny or embezzlement as affeeted by belief in right to property taken, see note in 41 L. B. A. (N. S.) 549.

CUNNINGHAM, J. Upon the trial the controversy centered about the terms and conditions of the Sharples-Duvall contract of April 12, 1907, the defendant contending that Sharpies purchased 150,000 shares of the Cerro Cobre Development Company’s treasury stock, paying therefor 10 cents per share, or $15,000, and, as an inducement to purchase the said stock, W. B. Duvall offered to give him 750,000 shares of his, Duvall’s personal stock as a bonus, and that Sharpies accepted that offer, and the $15,000 was. paid upon no other condition. On the other hand, Duvall contends that the 750,000 shares of stock was transferred to Sharpies in consideration of Sharpies’ promise to finance the mines. Both parties agree that Sharpies bought and paid for and became the absolute owner of the 150,000 shares of Cerro Cobre Development Company stock. If Cerro Cobre Development Company had issued Sharpies the 750,000 shares of its stock •on condition that he finance the mines, and he failed to perform that condition, he would be liable to the Cerro Cobre Development Company for a breach of his contract. Sharpies could not avoid liability by showing that he had made a contract with and paid W. B. Duvaill to furnish the money that he (Sharpies) had agreed to furnish, and therefore the Cerro Cobre Development Company must look to Duvall for the damages. Such a showing would not present a defense, for the reason there is shown no contractual relation between the Cerro Cobre Development Company and Duvall by which the duty of Duvall to the Cerro Cobre Development Company was violated. That is this case. Sharpies owed no duty to the Cerro Cobre Development Company to furnish the required sum of money by his contract with Duvall, if the contract did or did not contain the condition Duvall contends for. In the event the contract was, as Sharpies contends, that contract was fully executed when Sharpies paid the $15,000 to the Cerro Cobre Development Company and he received the 150,000 shares of its treasury stock. If he paid the money for the treasury stock, and was induced to do so by Duvall’s promise to give Sharpies 750,000 shares belonging to Duvall as a bonus in consideration that Sharpies would advance the additional money required to finance the mines, then Sharpies assumed a duty, not to the Cerro Cobre Development Company, but to Duvall, because Sharpies’ promise was to Duvall, and the consideration for the promise moved from Duvall. It is not contended that the contract was made by Duvall for the Cerro Cobre Development Company, or that the contract was a contract between Sharpies and the Cerro Cobre Development Company represented by Duvall. The consideration paid to Sharpies was paid with the individual property of Duvall. Any duty that such contract cast upon Sharpies was owing to W. B. Duvall, and not to the Cerro Cobre Development Company-, in either view of the contract. The controversy over the terms and conditions of the Sharples-Duvall contract was immaterial to a decision of this cause. The defendant, Cerro Cobre Development Company, on April 26, 1907, accepted the offer of W. B. Duvall by which Duvall proposed to transfer all the capital stock of the Sierra de Cobre Development Company, S. A., to it in consideration of its issuing to him all of its capital stock. The stock was issued to Duvall, and Duvall transferred the stock of the Sierra de Cobre Development Company, S. A., to defendant. At the same time, and as a part of this transaction, the following was transacted: “To provide the necessary funds for the different properties now controlled by this company (Cerro Cobre Development. Company), said W. B. Duvall assigns for $1 in hand paid and. other valuable considerations, one million, four hundred, ninety-nine thousand and nine hundred ninety-seven (1,499,-997) shares of the capital stock of this company to the treasury. ’ ’ Duvall thereby provided the corporation with a property to. be used by it to raise the necessary money. Out of a part of' this property it raised $15,000 by a sale of 150,000 shares to Sharpies. Thereupon Sharpies and Duvall became the controlling stockholders of defendant company. In order to protect their respective rights, Sharpies advanced $15,000 in money to the corporation, and the money so advanced was. used by the corporation for the Sierra de Cobre Devlopment Company, S. A., mines. Sharpies refused to furnish the Cerro Cobre Development Company with any more money. Duvall then borrowed $15,000 and secured the loan with his individual note and collateral belonging to him. He ascertained that his attorney in fact had failed to carry out instructions, and that the mines and options remained in his name and had not been placed in the name of the Sierra de Cobre Development Company, S. A. Five thousand dollars had been paid on the option, and $95,000 of the purchase price remained unpaid, and $15,000 of that sum would mature on October 1, 1908. He believed that he had made a contract with P. M. Sharpies by which Sharpies had agreed to furnish the money with which to pay the purchase price of the mines covered by the optional contract, and Sharpies had refused to furnish the money, and thereby had forfeited all right to the 750,000 shares of stock. In order to protect his rights, Duvall disregarded his promise to transfer the option and convey the mines standing in his name, to the Sierra de Cobre Development Company, S. A., and caused the option to be transferred, to and the mines conveyed to the Tecolote Copper Company, S. A., a corporation he caused to be organized for that purpose, and took all, save three qualifying shares issued to. directors, of the stock of that company and gave to that company $15,000 which he had borrowed. Then the Tecolote Copper Company, S. A., paid the $15,000 installment due on that day and Duvall caused a new optional contract to be drawn, executed, and delivered by the Aguilars and Torres to the Tecolote Copper Company, S. A., providing for the payment of $30,000 .on May 1, 1909, and a final payment of $50,000 on November 1, 1909. The contract of the Aguilars and Torres with W. B. Duvall was in force on October 1, 1908, providing for a payment of $15,000 on that day, the payment of $30,000 on May 1, 1909, and a final payment of $50,000 on November 1, 1909. Such payments, with the payment of July 1, 1907, which had been made, constituted the full purchase price of $100,000 required to be paid for the mines. There is no pretense that the Sierra de Cobre Development Company, S. A., or its holding company, the Cerro Cobre Development Company, took any part in the transaction of October 1, 1908, by which the Tecolote Copper Company, S. A., acquired the transfer and conveyance therein involved, or consented to any such transaction or ratified the same at any subsequent time. Consequently, applying the well-recognized rule of equity that equity will regard that as actually done which ought to have been done, Duvall had no rights in the mining claims to convey to the Tecolote Copper Company, S. A., nor any rights in the optional contract to surrender to the Aguilars and Torres, for the reason he had promised to convey his rights in the mines and transfer and assign his rights in the optional contract to the Sierra de Cobre Development Company, S. A., for a consideration of all its capital stock, and he had received and retained this consideration. Equity will regard that transaction as one in which W. B. Duvall had actually conveyed and assigned said properties as he promised. "When Duvall caused the properties to be transferred to the Tecolote Copper Company, S. A., it took only such title as Duvall had, because it was chargeable with full knowledge of the matters and conditions under which the title to that property stood in Duvall’s name. If Duvall had directly paid the $15,000 from his own funds upon the optional contract, the payment would have accrued to the benefit of the Sierra de Cobre Development Company, S. A., and its stockholder, the Cerro Cobre Development Company, and those corporations would have become the debtors of Duvall to the amount of the money paid. Duvall, indirectly, caused the same thing to be done. He surrendered the optional contract which did not belong to him, before it expired. He paid the Tecolote Copper Company, S. A., $15,000 for all of its stock, and then, as controlling stockholder, but to his individual interest, caused that money to be paid to preserve his rights to the property under option. The Tecolote Copper Company, S. A., thereby became the holder of an interest in the mines, but it held that interest as Duvall had previously held it, in trust for the use of the Sierra de Cobre Development Company, S. A., and that corporation became its debtor to the amount paid for its benefit. When the subsequent payments were made to the Aguilars and Torres by Duvall’s agent the West Coast Smelting & Refining Company, the Sierra de Cobre Development Company, S. A., became its debtor to the amounts so paid, and when the said West Coast Smelting & Refining Company paid the P. M. Sharpies note, in effect it thereby discharged the installment due and payable by the Sierra de Cobre Development Company, S. A., on the Aguilar-Torres option on May 1, 1909, and thereby became the creditor in that sum. By reason of all the corporations participating in the transactions resulting in the West Coast Smelting & Refining Company acquiring the beneficial titles of the mining claims and the mines affected by the Aguilar option, being chargeable with full knowledge of Duvall’s relation to the titles, and Duvall being the controlling spirit in each of the steps taken by which the West Coast Smelting & Refining Company furnished the money and received the said titles; it received the titles burdened with all the infirmities incident thereto while the property stood in the name of its real grantor, W. B. Duvall. The effect of the various transactions is that the Sierra de Cobre Development Company, S. A., is still entitled to have the Tecolote Copper Company, S. A., convey to it the mines denounced in the name of W. B. Duvall, and to have the Tecolote Copper Company, S. A., convey to it the mines covered by the Aguilar-Torres option, when it has satisfied the equities of the holder of the record title—the holder of the Duvall title in the mines denounced by him, and the holder of the Aguilar and Torres title to the mines held under the Duvall option. The Sierra de Cobre Development Company, S. A., lost none of its rights in the property by reason of the numerous transactions resulting in the Tecolote Copper Company, S. A., succeeding Duvall and the Aguilars and Torres as the holders of the record titles to the property involved, and by reason of the West Coast Smelting & Refining Company discharging Duvall’s liabilities to the Aguilars and Torres, and certainly Duvall acquired none of defendant’s rights by those transactions. The defendant had no beneficial interest in the 1,000,000 shares of stock issued to Duvall as trustee. That stock represented no property belonging to defendant in any sense. By means of the resolution of April 17, 1909, Duvall offered to give the Cerro Cobre Development Company the beneficial interest in the 1,000,000 shares of stock, in consideration that it ratify the sale of the five mines denounced to the Tecolote Copper Company, S. A., the beneficial title to which was vested in the Sierra de Cobre Development Company, S. A. The offer of Duvall, at most, was an offer which, .if accepted as proposed, would have resulted in a contract; but, on November 29, 1910, the Cerro Cobre Development Company, by a positive corporate act, refused the offer as made by Duvall, and attempted, it seems, to accept that part of the offer beneficial to it, viz.: the 1,000,000 shares of West Coast Copper Mines Company stock, but rejected the conditions under which the offer was made, viz.: .that the stock would, stand in the name of W. B. Duvall, as trustee, for 10 years, etc. The offer, not having been accepted as made, failed to become a contract of the parties, and conferred no rights upon either. The defendant company having refused the condition, in effect rejected the entire offer. If said transaction had been effected, as attempted, the result would have been to vest the equitable and legal title of the said five mines in the Tecolote Copper Company, S. A., and the beneficial title in the West Coast Copper Mines Company as the stockholder of the Tecolote Copper Company, S. A., and in the Cerro Cobre Development Company as the controlling stockholder of the West Coast Copper Mines Company, but the Cerro Cobre Development Company refused to relinquish its equities in the five mines, as held by the Sierra de Cobre Development Company, S. A., by a corporate act positive in its nature, repudiating and declaring void the attempt of Duvall to bring about the change in its equities. The result was that so far as the rights of the defendant are concerned, its equities in the properties were unchanged, and Duvall retained all the property in the stock that he acquired when he received it. When the Cerro Cobre Development Company rejected the stock, the word “trustee” became descriptive of the person and conferred no rights upon this defendant. There were no disputed matters of fact material to the case for the decision of the jury. The questions presented are questions of law for the court; all matters of fact material to the case being without dispute. Upon the whole ease the verdict of the jury is correct, because under the undisputed evidence the defendant was not entitled to recover in any event. The judgment is affirmed. ROSS; C. J., and FRANKLIN, J., concur. Rehearing pending.

CUNNINGHAM, J. Reference to the parties will be made as they appeared in the complaint, as plaintiffs and defendant, for convenience. The theory of the cause as presented by the complaint is that Patrick Cunningham acquired and owned an undivided one-half interest in the 17 mines with Martin Costello; that Costello held the record titles in his name, and that Cunningham’s title is equitable in its nature, based upon a contract made between Costello and Cunningham; that Costello procured the record titles to the mines- in his name pursuant to such contract, and held title pursuant to the terms of the contract as to Cunningham, in trust for the use and benefit of Costello and Cunningham; that Costello sold and conveyed the whole estate, and received the proceeds of such sale; that the plaintiffs, the owners of the Cunningham interests in the property, have elected to ratify the sales made by Costello and claim their rights in the proceeds of the sales in lieu of their equity in the property in the hands of the purchasers. The defendant denies the right of the plaintiffs to recover anything upon any theory. She admits a contract was entered into between Martin Costello and Patrick Cunningham, pursuant to which Cunningham conveyed an undivided one-half interest in the Wagner group of six mines to Costello for the purpose of Costello’s holding of the record title thereto, to facilitate the procuring of United States patents and to facilitate a sale of the property. Pursuant to said contract Costello became obligated to account to Cunningham only .after a sale of said mines was made, and then only for one-half of the net proceeds of such sale, after deducting from the proceeds certain expenditures. The defendant denies that Cunningham owned any interest in the remaining eleven mines at any time, and denies all liability to account to plaintiffs for the proceeds of the sales of said eleven mines. Defendant, while confessing a liability to account for the proceeds of the sale of the Wagner group of six mines, alleges that such accounting was made with Julia Cunningham as heir, guardian of the estates of the plaintiffs, and as administratrix of the estate of Patrick Cunningham, deceased, and all matters in controversy existing between Costello and the said Julia Cunningham in her several capacities, were settled, adjusted and compromised; that Costello paid to said Julia Cunningham, as aforesaid, the moneys then found to be due and payable on account of all matters and dealings of trust and confidence between Costello and Patrick Cunningham; that Julia Cunningham, as aforesaid, received and accepted the moneys so paid in satisfaction of all such dealings of con fidence and trust, and executed and delivered to Martin Costello her deed of acknowledgment, release, satisfaction and discharge of the said dealings aforesaid; and that her actions in this respect were reported by her to the probate court of Cochise county, and upon notice and hearing such report was approved, and her acts were, by an order of said court, duly confirmed. The plaintiffs admit that an accounting was had by Costello and Julia Cunningham in her several capacities as alleged by defendant; that Julia Cunningham received the money to the amount alleged; that she executed and delivered releases and acquittances on their faces purporting to be in settlement and compromise of all dealings of trust and confidence between Costello and Cunningham, and that her acts in that behalf were reported to the probate court and by said court approved and confirmed, but that said settlement was in effect only a partial accounting and a settlement and accounting for the proceeds of the sale of the Wagner group of six claims; that such settlement was unfair and fraudulent upon the rights of plaintiffs in the particular that by false and fraudulent representations and by undue influence and promises made and exerted by Costello, Julia Cunningham was induced to execute and deliver the said deeds of release and report said acts to the probate court, purporting on their faces to be in satisfaction and discharge of all dealings of trust and confidence between Costello and Cunningham, and that by such false and fraudulent representations and promises, and threats made by Costello, Julia Cunningham, as such representative, was induced to allow as a credit to Costello the sum of $36,396 out of said net proceeds belonging to said estate, as an attorney’s fee to James Reilly, which was unjust, unfair and fraudulent. Defendant alleges that Reilly was employed by Costello and Cunningham to perform, and he did perform pursuant- to such contract of employment, legal services in connection with the Wagner group of claims. The contract of employment provided that Reilly’s compensation should be 30 per cent of the net proceeds of the sale of the mines, and that said sum of $36,396 was equal to said 30 per cent of Cunningham’s interest in the proceeds of the sale of the Wagner group, and was the sum agreed to be paid and payable out of Cunningham’s interest. Plaintiffs do not deny the making of the Reilly contract, except that the credit claimed and allowed to Costello for that purpose was fraudulent, unfair and unjust, the entire attorney’s fee being $72,792. The pleadings have separated the 17 mines into two distinct groups: first, the Wagner group of six mines; and, second, the other eleven mines. The issues raised by the pleadings upon the Wagner group are simple, .and may be disposed of in a few words. The defendant clearly pleads an adjudication by the probate court of the controverted questions of the- matter of accounting for the proceeds of the sale of that property. The plaintiffs do not controvert the fact that the compromise and settlement was approved and confirmed by the court upon the report of Julia Cunningham. As a matter of law, such order of the probate court was final upon all matters acted upon until reversed or vacated. Plaintiffs do not contend that the order has been reversed or vacated. One of the matters directly involved was the charge for attorney’s fees, to be paid Reilly according to the terms of his contract of employment. The contract of employment is not denied by the plaintiffs; hence they are in no position to attack the settlement until the order confirming such settlement is vacated. The matter of settlement and compromise and its approval and confirmation are peculiarly within the jurisdiction of the probate court. The plaintiffs have raised no issues of fact for trial relating to the Wagner group of six claims, as by the admissions in the pleadings the defendant testator has accounted for his trust in that respect. The settlement and compromise could only affect the Wagner group of six mines, for the reason the defendant in her pleadings definitely limits such settlement and compromise to the proceeds of the sales of that group. For defense as to the elaim of plaintiffs for an accounting for the proceeds of the sale of the other eleven mines, defendant denies liability to account upon two grounds: first, because all dealings of trust and confidence between Costello and Cunningham were settled and compromised by Costello and Julia Cunningham, in her several capacities, and the settlement was approved and confirmed by the probate court; and, second, because Cunningham owned no estate, legal or equitable, in the other eleven mines. The first ground: cannot he sustained. The settlement as made had reference only to the proceeds of the sale of the Wagner group of six mines. The defendant alleges that Costello was bound to account for one-half of the net proceeds of the sale of that group, by an agreement with Cunningham. The property in Costello’s hands was personal in its character, and its title was vested in the administratrix of Cunningham’s estate. Such administratrix was charged by law with the duty to collect the personal property, and she was the only party who could enforce collection at that time. The collection was made by means of the settlement and compromise pleaded by defendant and admitted by plaintiffs. Such estate as Cunningham owned in the other eleven claims was in its character realty, an interest in mines, as contended by the complaint. If Cunningham owned the interest that plaintiffs allege he did, and he acquired that interest pursuant to the terms of the contract set forth in the complaint, then the title to his interest vested upon his death in his heirs at law subject to be divested through a sale by the administrator of his estate for the purpose of paying his debts and the expenses of the administration; there existing no or not sufficient personal property to pay such debts and expenses. It appears from the pleadings that ample personal property was in existence to pay such debts and expenses of the administration without a resort to the realty, no order of the probate court appearing for the sale of the mine or mines; therefore the administratrix of Cunningham’s estate had no authority to dispose of the property, and any attempt to forfeit or waive the title of the other heirs at law to such equitable right in the mines would be unavailing. The deeds of release would not have the effect of divesting the title of the plaintiffs in the realty, even though the administratrix intended that such should be their effect in fact. The order of the probate court approving and confirming the settlement made by the administratrix would have been made without jurisdiction if it on its face purported to divest the title of the heirs at law to the realty, unless the facts appeared that such property was necessary to discharge the debts of the intestate or pay the expenses of the administration, or that it was being sold pursuant to a previous order of the probate court for purposes recognized by statute. The second defense, viz.: the denial that Cunningham' owned any estate in the other eleven mines, presents more difficulties. Defendant questions the right of the plaintiffs to maintain this action in the capacity in which they sue, and contends that the administrator of the estate of Patrick Cunningham, deceased, is the proper party to prosecute the cause of action asserted. Such contention cannot be maintained. The demand sought to be recovered is in equity an interest in realty, and the plaintiffs' are suing as heirs at law of the alleged owner of such interest. The title to the estate claimed, if the claim is established, vested in the heirs at law of the decedent. They are the real parties in interest, and a recovery by them will fully protect the defendant in the event another action upon the same cause is commenced, and this is the -only test as to the real party in interest with which a defendant is concerned. 30 Cyc. 84. Prom the facts appearing in the pleadings, the estate of Patrick Cunningham has no enforceable interest in the subject matter nor in the purpose of the suit, with the Wagner group of claims eliminated, and the rights of all parties beneficially interested in the remaining properties may be determined without the presence of said estate, and the defendant’s rights be fully protected by a determination of the rights of the parties now before the court. . Plaintiffs base their right to recover squarely upon the contract alleged to have been made by Costello and Cunningham during the year 1891. Such rights as they have arose from said agreement and the matters and things done by the .parties pursuant to said agreement. The said agreement as pleaded by plaintiffs imposed upon the parties thereto mutual rights and duties, and created a relation of trustee and beneficiary, and also a relation of tenants in common of the property; Anderson v. Snowden, 44 Wash. 274, 87 Pac. 356; Davis v. Givens, 71 Mo. 94. Upon this branch of the case the issue is clear-cut, viz.: Did Costello and Cunningham enter into a contract pursuant to the terms of which they acquired said eleven mines, and caused the record titles thereto to be conveyed to, and be held in the name of, Martin Costello, in trust for the use and benefit of said parties to said contract ? The cause came on for trial, and the plaintiffs demanded a jury. The jury was .duly im paneled, and the trial proceeded to the close of the evidence. A discussion arose as to the nature of the verdict to he returned by the jury, which resulted in an order being made to the following effect: “It was thereupon stipulated in open court by counsel for the respective parties that, this being' a suit in equity, the jury need not be required to return a general verdict herein. ’ ’ Special interrogatories were proposed by the counsel of the respective parties, and special instructions were requested. After the argument by the respective counsel the court instructed the jury and propounded a number of special interrogatories framed by the court for answers by the jury as a special verdict. The jury returned answers to the interrogatories as a verdict. Whereupon the parties by their respective counsel stipulated in open court that the “special verdicts and findings might be taken and held to be the jury’s verdict and recorded by the clerk.” The defendant thereupon orally moved for judgment notwithstanding the verdict, and gave notice that at a later time defendant would submit, her own findings. “Thereupon, upon stipulation by counsel in open court, it was ordered that plaintiffs should have until November 1, 1912, to file their opening brief and proposed findings, and that defendant should have until December 1, 1912, to file her reply brief and proposed findings, and that plaintiffs should have until January 1, 1913, to file their closing brief, and that the cause should stand submitted on the filing of plaintiffs ’ closing brief. ’ ’ The plaintiffs contend upon this appeal that the verdict of the jury is binding upon the parties and the court, and the defendant controverts this proposition. Ordinarily the contention of the plaintiffs would be sustained, but it appears,, from the record that plaintiffs made no such contention in the lower court, but treated the special verdict then as advisory only, and voluntarily entered into a stipulation wholly inconsistent with such contention. To permit the question to be first raised upon appeal would deprive the lower court of an opportunity to correct any error committed in that respect, if error was in fact committed. On this appeal, under the circumstances disclosed by the record, the plaintiffs must be considered as having waived the benefits of a jury trial by acts ineon sistent therewith. The cause on this appeal will be considered as an appeal from a trial by the court without a jury. From the view we take of the evidence, the question becomes immaterial in the end; it only serves to eliminate from consideration the defendant’s assignments of error relating to the jury, the verdict and the instructions given. The defendant contends that the court committed reversible error in its findings of fact. A great number of grounds of alleged error are set forth in the assignments. .Among the grounds alleged some have reference to the manner of stating conclusions of law and findings of fact, viz.: without stating them separately, by stating conclusions of law with the findings of fact. The defendant assigns as error the insufficiency of the evidence .to support all the findings to the effect that Cunningham owned an interest in the Irish Mag group of mines and the Belflower and Smogler mines, and that Costello held the title thereto in trust for the use and benefit of himself and Cunningham. Every finding made by the court upon the main issue and bearing thereon is attacked by defendant upon said grounds of the insufficiency of the evidence to support such finding. The statute relating to the findings of fact by the court in force at the time of the trial was paragraph 1406, Civil Code of 1901, as amended by section 4, chapter 74, Laws of 1907. That statute is as follows : “The trial court may make findings of fact in fact in any case tried to it without a jury and such findings shall become a part of the record of such case.” The parties having requested the findings by the court after the special verdict was returned, -the trial must be regarded as a trial to the court, and the findings a part of the record of t'he case. We find no provision of the law in force at the time of the trial that required the judge of the trial court to render a decision in writing on the issues of fact, nor any requirement that the facts found and the conclusions of law shall be separately stated, and a judgment entered thereon accordingly, as existed before the 1907 amendment. Prior to such amendment paragraph 1406, Civil Code of 1901, required the decision of the court upon issues of fact tried by the court without a jury to be in writing, and filed with the clerk within 30 days after the trial. In giving the deci sion the facts found and the conclusions of law were required to be separately stated, and the judgment upon the decision was required to be entered accordingly. Such, in substance, are the usual requirements of the statutes of the Code states. The 1907- amendment, supra, clearly left the matter of stating the findings of fact wholly to the discretion of the trial court, and requires the court to state no separate decision thereon, nor is the court required to state the facts as found. If the court does in fact state its findings, such statement becomes a part of the record of the case, and becomes subject to attack by a motion for a new trial upon the general grounds that the evidence is insufficient to sustain any finding of fact material to the ease. Paragraph 1476, Civ. Code 1901, as amended by see. 8, e. 74, Laws 1907. By the provisions of the same amendment the trial court, upon the hearing of the motion for a new trial, was required to review the evidence as to such finding. The order of the court overruling defendant’s motion for a new trial is assigned as error, and the grounds alleged in the motion are separately assigned. These assignments attack the findings as they affect the ownership by Cunningham of any interest in the Irish Mag group and the Belflower and Smogler mines, and all facts found in support thereof, and they attack all findings that support the holding by Costello of the titles to said mines in trust for the use and benefit of himself and Cunningham, upon the grounds that all such findings are not sustained by the evidence. The motion for a new trial and the assignments of error attack all the findings of fact material to the ease. The burden was upon the plaintiffs to establish, by clear and convincing evidence, ownership of the said mines in Patrick Cunningham substantially as alleged in their complaint. They concede that the record title to the mines in question was held by Martin Costello. The presumption of law is indulged in such case that the holder of the record paper title is the owner of the whole estate, and unless such presumption is overcome by proof, it must prevail. Another rule may be referred to with profit, viz.: that the party asserting an equitable title to property must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. In support of the allegations of the plaintiff’s claim of title they offered the following circumstances in evidence: Witness Julia Cunningham testified that at the time witness and Patrick Cunningham were married, Costello said to witness that Cunningham was well off, worth $50,000. Witness inquired what he meant, and Costello said: “We have a claim that the company has offered us $100,000 for. He owns half and I own half.” Costello called this claim the Irish Mag. On another occasion Costello said that Patrick Cunningham would have to lay off, meaning stop working for the Copper Queen Company, and do assessment work. Costello said there were eleven claims that he and Cunningham had, enumerating the Wagner group and the Irish Mag, George Washington, the Republican and Angel. The work was not necessary on the Wagner group, for the reason they had patents for those mines. They did not have the Belflower and Smogler then. About that time Costello gave Cunningham $100. Cunningham went to Bisbee to do the assessment work. He then lived in Tombstone. After that date parties began to work on the Irish Mag, and witness wrote Costello that other parties had “jumped” the claim. In December, 1895, witness wrote for Cunningham a letter to Costello, calling his attention to the fact that Peter Johnson wanted to sell two claims, the Belflower and Smogler, for $1,200. Witness later had a conversation with Costello concerning the purchase of said two claims. Costello talked about the claims in 1896. Cunningham thought they had best get the claims. In 1896 or 1897 Costello and Cunningham bought the two claims from Pete Johnson, called the Belflower and Smogler and in 1898 Cunningham did the assessment work on all of them, including the Irish Mag group. He did all of the assessment work on all these claims in 1899. A group of claims, including the Belflower and Smogler, was surveyed, at an expense of $200, and Cunningham paid $100 and Costello paid $100. Costello gave Cunningham $100 in 1895. If Costello paid Cunningham any other sum for assessment work other than above witness did not know. In Bisbee witness had a conversation with Costello about the purchase of the Belflower and Smogler from Pete Johnson. Costello was in Bisbee. Cunningham wanted to buy the claims. Costello was not very eager to buy. ■ He • had not answered a letter written about it. Finally he said: “He will take $1,000 for the claims. If I offer him $1,000 he will take it all right.” And Cunningham said, “You try it.” He said, “I will try it.” Costello said, ‘ ‘ Have you got any money ? ’ ’ and Cunningham asked witness, “How much [money] have you got?” Witness said, “I have $370.” Witness got the $370 and gave it to Cunningham, and Cunningham gave it to Costello, and Cunningham said, “I will borrow a hundred and thirty from Mrs. Letson” and they went down town. Afterward witness paid Mrs. Letson $130. About Christmas, 1896, they had not bought the claims, but were talking about buying them. They spoke about the Irish Mag. Cunningham said to Costello, “Why don’t you open up the Irish Mag?” Costello said, “That will take a great deal of money. It might take $10,000 and we might not find anything.” Cunningham said, ‘ ‘ Oh, yes; if you put in that much money, I think you will find something.” And witness said, “I have a ranch in California worth $5,000 anyhow, and I will give it to you for half of the ten thousand.” Costello said: “I ain’t buying any California real estate just now. Well, all right, I’ll open her up. When I go over home, I will send Tom Lowry over and let him take charge.” Cunningham jumped to his feet and said: “No, by G-; she is mine, and nobody shall open her up but me.” Costello said nothing more. Witness gave Cunningham $300 to use in doing assessment work for 1896. In May, 1899, Cunningham wanted to sell the Irish Mag. Witness forwarded to Costello a letter from one Graham in which Graham had offered to buy the Irish Mag group and Wagner claims, amounting to 11 in number, for $200,000. Witness added to the letter, “Martin, will we take this?” Cunningham died July 1, 1899. Costello was at the funeral. After the funeral Costello was at witness’ house. Witness said to him: ‘ ‘ Costello, I sent for you for a purpose. Paddy always said that he owned a half interest with you in all the claims he had here in Bisbee.” Costello replied: “Yes; he owns half and I own half.” Witness named every claim mentioned. Costello said: “Yes, if Paddy said he had half of them I will never say he didn’t.” Witness said, “How do I stand?” Costello said, “I will treat you just as I would Paddy.” Witness next saw Costello in Tombstone, and made an appointment to meet him at Reilly ’s law office. Reilly gave witness an instrument, signed and acknowledged by Costello, acknowledging an equitable interest in the Wagner group as belonging to the heirs of Patrick Cunningham. Witness refused to accept it as a final statement of their rights. Reilly said, “That is all you own.” Witness said, “No; there are 17; there are 11 more.” Costello said, “Well, the patents are only out on these now.” On the six. They were all the patents were out on. Costello called witness outside and asked witness to trust him, and “when I sell the rest Í will give you your half of everything.” Witness Joseph MeNelis testified that Martin Costello, in a conversation with witness in 1899, before the death of Cunningham, said, in substance, that Cunningham was worth all kinds of money, and witness asked, “What does it amount to?” Costello answered, “Mining claims; him and I is partners in the Bisbee district.” Witness asked Costello about the property Cunningham owned there, and Costello answered, “Him and I is the owners in all the claims we own in Bisbee.” At a subsequent time when he was present and Cunningham and Costello were talking about work for witness, Costello asked Cunningham, “Why don’t you take him [meaning witness] out on them claims of ours where you ■have been doing some work out there?” Cunningham said, “I tried that,, but could not make it stick.” Costello said, “Why?” Cunningham said: “Well, when I paid for hauling the ore down to the smelter, and when the smelter expenses was taken out, I hardly got an existence. I can work and get better wages and work less when working for the company.” Witness asked “him,” “Where was the mine?” and what mine he was talking about, and he said, “The Irish Mag.” On the 2d of July Martin Costello came to Cunningham’s funeral. At Mrs. Cunningham’s house Costello asked, witness out in the yard, and he said, “This shock will kill his mother.” Witness said, “I guess she will have to stand it.” He said, “It will be hard on Mrs. Cunningham and the family, but she is pretty well fixed.” Witness said, “How well is she fixed?” He said, “Paddy and I owns a half interest in all those claims over on the hill.” After the funeral, witness, Mrs. Cunningham, Costello, and T. R. Grady were present at the Cunningham home. Mrs. Cunningham had sent for Costello. After considerable talk Costello started to go, when M!rs. Cunningham said she had sent for him for a purpose. She said, “I want to know how I am fixed.” He said, “What do you mean?” She said, “I want to know how those mining claims are situated, as my husband told me he always owned a half interest in them.” He said, “If your husband told you that, he was right; certainly he owns half interest in all those claims; I will never say he don’t.” Costello mentioned a lot of claims. The'Irish Mag group and the Belflower and Smogler, among others. At a later time witness had a conversation with Costello, when Costello said to witness that he had recently seen Mrs. Cunningham and family in Los Angeles, and said, “They have got lots of money; they will get along fine.” Witness said to him, “You didn’t give them what you promised.” “Oh,” he said, “they have got lots.” Witness said, “You had better come through with the promise you made, or you will be sorry for it. ’ ’ This was the last conversation witness testifies to having with Costello about the matter. Witness T. R. Grady was at the funeral of Patrick Cunningham. He is a brother to Mrs. Cunningham. After the funeral witness, Mrs. Cunningham, Joe McNelis, Martin Costello, and perhaps others, were present, when Mrs. Cunningham and Costello had a conversation about the mines. Mrs. Cunningham said: “Say, now, Costello, Paddy always told me that he owned a half interest in the claims with you.” She mentioned some of the mines by name, among them the Irish Mag. He said, “Why, Mrs. Cunningham, I will treat you the same as I would treat Paddy. If Paddy says that he owned all the claims,” or “a half interest in all those claims, I won’t say that he didn’t.” Witness James Letson in 1892 went with Costello on the Irish Mag claim. Cunningham was doing the assessment work on the claim at the time. On the way back to Bisbee from the claim, Costello said to witness that some day Paddy Cunningham would get quite a lot of money out of that claim, the Irish Mag claim. Later on witness had another conversation with Costello in regard to those claims. That was after the Irish Mag group was sold. In the year 1902 or 1903. It was after the sale and after they had struck ore in the Irish Mag. Costello and witness were talking about the Irish Mag, and witness said, “Martin, it is a wonder that you didn’t sink that shaft yourself, as you have plenty of money?” Costello told witness that he would have sunk it himself if Paddy Cunningham had lived. Witness then asked, “Mrs. Cunningham will get quite a lot of money out of this when it is all settled?” and He said she would; she would get more money when the other six claims were sold; that Paddy had a half interest in those other six claims. The other six claims he mentioned were the Hattie Manchester, Supplement, Leo, Boy, Belflower, and Smogler. Costello told witness the reason those six claims were in his name was that Cunningham was not a citizen, and could not get a patent. Witness Jno. S. Williams testified that he had a conversation with Costello concerning the mines some time in the spring of 1892. Costello asked witness if he knew where the Irish Mag ground was, and witness did not know. Costello told witness that Paddy Cunningham was doing some work and said: “Well, if Pat is willing to put up his time, I ought to be able to put up a little money to keep him going. Some time we will make a little money out of it. ’ ’ At different times witness carried packages, such as fuse, powder, caps, from Costello and Costello always told witness to take them over to “Paddy,” his partner. Witness Jos. Chisholm wrote a newspaper article on the Irish Mag and Wagner groups for publication in a Prescott paper, at the employment of Patrick Cunningham. The agreed price for the service was $10. Cunningham told witness that Costello would pay him. Witness asked Costello for the money, and told Costello that Cunningham had said that Costello would pay the money,. Costello said that he would pay half only, and that Cunningham would own half the claim, and witness must get the other half from him, and offered witness $5. Witness would not take it because witness told Costello that Cunningham had said that he was doing the work, that was the arrangement, and Costello was putting up the money. It was on that basis that witness and Cunningham made the agreement that witness wrote the article. Costello said he would pay the money on the claims for the contract work alone, but not for any newspaper articles, and Cunningham would have to pay half. Witness Peter Johnson testified that he located the Belflower and Smogler’s claims, and sold them to Paddy Cunningham. Witness negotiated the sale with Cunningham. Witness received $1,000 by a check or two cheeks signed by Martin Costello, and made the deed to Costello. Witness T. C. Wright testified that in the spring of 1892 Paddy Cunningham was doing the assessment work on the Wagner and Irish Mag groups. Costello came to where witness was sharpening tools, near or on the property, and Cunningham came over. Witness advised that Cunningham sell the claims. Cunningham said if he sold he would have money; that he would get half of the money, and asked Costello if he would get half of it. Costello said: "Yes; you would get half of it. You are my partner; you own a half interest. ’ ’ Witness Peter C. Hansen testified that his wife sold Martin Costello her interest in the Irish Mag group for $3,000. Two thousand dollars was paid as a final payment, and Reilly got $200, and Robinson got $100, and Costello paid $1,700 to witness’ wife. This was in 1892. The agreement was made September 16, 1892, and recorded. Witness John Graham testified that witness went over the Irish Mag group with Cunningham, and went to see Costello about closing the purchase of these mines with the Wagner group. Costello stated that the mines were in litigation, there was a suit pending, and, furthermore, that Paddy Cunningham was his partner and owned a half interest in those claims, and he could not do any business without the consent of Paddy Cunningham. Later Captain Hoatson came to Bisbee, and witness showed him eleven claims, including the Irish Mag group. Then witness and Captain Hoatson went to Tombstone to see Martin Costello, and had a conversation with him in the presence of Allen R. English in regard to the purchase of the mines. Again Costello said he would see Paddy Cunningham, or have Reilly see him, and make some arrangement whereby they could set a price. Later in the day a further conversation was had, and Captain Hoatson made this proposition: “Martin, we will give you $250,000 for that Mag group of mines in Bisbee, in the Warren mining district.” Costello said he was not in any hurry about selling. He went on and told about a suit pending in regard to the titles, and that he hadn’t got possession yet, and he didn’t know when he would get it. He said, further, that Paddy Cunningham of Bisbee was a half owner in those claims, and he could not do any business without the consent of Paddy Cunningham. “We were then trying to buy 11 claims.” In a conversation had with Costello on May 28, 1899, he stated to Captain Hoatson that he was not ready to sell those claims. He said he had not been able to see Paddy, Cunningham, but that he would have Reilly see him and make some arrangements. Hoatson wanted to know why he could not in some way tie up those claims, get an option on them, or buy them outright, and Costello said that Paddy Cunningham was his partner in those claims, and he could do no business without the consent of Paddy Cunningham. Gordon R. Campbell was present and said: “That is funny. You have those titles in your name, the legal titles, and at the same time we have to go over to Bisbee to consult Paddy Cunningham. How is it?” Then Costello stated that he had the legal titles to that property, but that Paddy Cunningham was his partner, owned a half interest in those claims, and he would not do any business without the consent of Paddy Cunningham. He. refused to consider an offer for the claims. In June, 1899, witness for the first time got Costello and Cunningham together. After some talk, Cunningham said, “Martin, what do you think about selling these claims to Jack [speaking of witness] ?” Martin Costello said, “Paddy, we have a big mine in the Irish Mag. The Copper Queen people have offered us $200,000 for the Irish Mag.” Witness said, “Well, Martin, what Captain Hoatson told yod, do you think any more of the Copper Queen people than you do Captain Hoatson ? ’ ’ Costello said: ‘ ‘ Captain Hoatson offered us $250,-000 for the claims. I don’t think it is enough.” Later, when witness was again trying to close the deal after a decision of the lawsuit on the Irish Mag claims, Costello said: “I. have often thought, and do yet, and some time I will move to Bisbee, and Paddy and me will work them mines myself; we ain’t in any hnrry to sell them.” On July 23, 1899, after the death of Cunningham, witness asked Costello what he was going to do with regards to selling the mines. He stated he didn’t know how Cunningham’s estate would he settled up, and he didn’t know. In August following, when approached by witness, Costello stated that he had made a proposition that he would sell the property for $500,000. The sale was thereafter closed through Graham, Hoatson and Campbell, to the Lake Superior & Western Development Company. On May 15, 1899, Costello wrote to Cunningham: “The Daly Cohn case was decided by the supreme court of the United States to-day in our favor, after nine years courting we won at last.” This had reference to the Irish Mag group. Upon cross-examination a letter signed by Pat Cunningham and addressed to Martin Costello, dated June 3, 1899, was received in evidence. It states: “I received your letter some time ago and I was glad to hear that you had won the case, and I hope we will make a success of them now either one way or another. I understand from lots here that you are going to sink a big shaft. You must remember before you start in what you have to contend with, nine miners, three men on a shift, two engineers and two other men. So that will be an awful drag on one man’s sack. My advice would be to let go. Place the price at half a million, one hundred thousand down, for I know we can get a quarter of a million, but suit yourself, whether you work them or put on your price. There is no doubt in the world but if you work them you could make a big success, but it takes money to do it. . . . You could take more ore out in an hour in either the Irish Mag or Giberalta than either of them has got yet. ...” This evidence, taken as a whole, fairly tends to establish that Martin Costello paid the purchase price of the Irish Mag group; that his cheeks paid the purchase price of the Belflower and Smogler mines, and that Patrick Cunningham contributed one-half of the purchase price of the Belflower and Smogler; that Cunningham performed the necessary assessment work upon all the unpatented claims standing in Costello’s name from the time Costello acquired the record titles up to the time patents were acquired, or until Cun ningham died; that Cunningham claimed a half interest in all the 17 mines up to the time of his death. It is fairly to be inferred from this testimony that Costello permitted Cunningham, without objection, to perform the assessment work on the claims standing in Costello’s name when such work was necessary; that Costello looked to Cunningham to keep watch over the claims and protect them from trespasses of others; that Costello stated many times that Cunningham was his partner, and that Cunningham owned a half interest with him in the mines standing in his (Costello’s) name; that Costello stated in the presence of Cunningham that Cunningham would get money out of the sale of those mines because Cunningham was a partner with Costello, or that Cunningham owned a half interest with Costello in the mines at Bisbee; and that Costello stated to Graham, Captain Hoatson, James Briggs and Gordon R. Campbell repeatedly that Cunningham owned an equitable half interest in the Wagner and Irish Mag groups of mines with Costello, before Cunningham’s death and before these groups were sold to the Lake Superior and Western Development Company, which sale was brought about b^ Graham, Hoatson, Briggs and Campbell. The evidence fairly establishes'that after the death of Cunningham, Costello stated to Mrs. Julia Cunningham that Patrick Cunningham owned a half interest in the 17 claims with himself ; and that he (Costello) would see that she and the children of Patrick Cunningham would get their share of the sales, and that he (Costello) would never deny their claim. There is no evidence tending to prove that Cunningham performed or paid for any of the patent work on the claims in question. Prom the facts that Cunningham paid one-half of the purchase price of the Belflower and Smogler claims, and performed the assessment work thereon, and paid for having them surveyed with other mines, and claimed. an interest in them, and that Costello did not deny the claim when made to him or in his presence, the inference can fairly be drawn therefrom that Cunningham and Costello acquired the title to these mines pursuant to a previous understanding between them. These' facts substantially support the allegations of the complaint, setting up the contract, and they fairly support the findings to the effect that Costello and Cunningham were co-owners of the Belflower and Smogler mines, and that Costello held the titles thereto in his name in trust for the use and benefit of himself and Cunningham. So considered, this evidence overcomes the legal presumption arising from the conveyance to Costello to the effect that through the conveyance he acquired the whole estate in these claims. The statements made by Costello to the effect that Cunningham was his partner in the mines, and that Cunningham owned a half interest with him in the mines, may or they may not, be circumstances tending to prove ownership in Cunningham. In reference to the Belflower and Smogler, the evidence fairly establishes that Cunningham paid half of the purchase price and performed the assessment work necessary to maintain the title thereto. These statements by Costello became admissible as evidence only because they are made by him against his interest. Clearly such statements, when given the most favorable effect to the plaintiffs, are simply statements to the effect that Cunningham owned a half interest with Costello in mines in the Warren mining district, and that Cunningham was a partner with, Costello in mines situate in that mining district. Such statements and declarations, standing alone, are not sufficient evidence'' to determine, or sufficient evidence of its nature to warrant the court in finding that Costello and Cunningham acquired mines by each paying an equal share of the expenditures laid out in their acquisition, and that Costello took the record title thereto to hold in his name in trust for the use and benefit of himself and his co-owner, Patrick Cunningham. Such statements and declarations made by Costello are insufficient, standing alone, to establish the trust contended for. Leatherwood v. Richardson, 11 Ariz. 278, 94 Pac. 1110. A common requirement is that the' evidence be clear, explicit and convincing, not only as to the existence of the trust, but as to its terms and conditions. 39 Cyc. 84. The rule requiring the evidence to be clear and satisfactory is especially applicable where the trust is attempted to be proved by parol evidence, as well as when it is sought to convert into a trustee a person holding the title to property ostensibly as absolute owner. 39 Cyc. 84, 85." The statements and declarations of a holder of the record title of mines, made against such title, can affect the holder’s title only by way of working an estoppel. Oral state ments or silence could never have the effect to pass title which the statute expressly declares shall be transferred by deed only. Hayes v. Livingston, 34 Mich. 384, 22 Am. Rep. 533; Nims v. Sherman, 43 Mich. 45, 4 N. W. 434. Paragraph 721, Civil Code of 1901, provided that: “No estate of inheritance or freehold or for a term of more than one year, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, of by his agent thereunto authorized by writing. ’ ’ To justify a recovery the plaintiffs must prove their interest to have been in existence from the acquisition of the title by Costello. His subsequent oral statements and declarations could not have the effect to transfer any rights to plaintiffs nor to their intestate. As regards the title of Cunningham in the Irish Mag group of mines, the only evidence produced by the plaintiffs is the oral statements and declarations made by Costello and evidence that Cunningham performed the necessary assessment ,;work thereon. Such evidence is insufficient to sustain the findings to the effect that Cunningham was a co-owner with Costello in said mines, or that Costello held title thereto in trust for the use and benefit of himself and Cunningham. As regards the Belflower and Smogler mines, the plaintiffs’ evidence is to the further effect that Cunningham paid one-half the price paid therefor at the time of théir purchase. The inference may be fairly drawn therefrom, and from the oral statements and declarations made by Costello, that Cunningham contributed half of the purchase price pursuant to some understanding with Costello that he (Cunningham) should acquire an interest in the property in proportion to the payment made by him in the purchase of the property. So considered, the evidence is sufficient to sustain the findings that Cunningham was a co-owner with Costello of the Belflower and Smogler mines, and that Costello held the title thereto in trust as found. The court erred in refusing a new trial. The defendant assigns as error the order of the court refusing to reopen'the trial of thp cause for the purpose of hearing additional testimony. The motion was made at a time subsequent to the close of the evidence, and after the cause had been submitted for decision. The motion was addressed to the sound legal discretion of the trial court, and the exercise of such discretion is not reversible except upon a clear showing of abuse. Other grounds for reversal are assigned by defendant, which we will not discuss, for the reason their discussion would unduly extend this already long opinion, and for the further reason we deem justice requires a new trial of this cause,- and if errors occurred in the former trial, they will not again occur upon a new trial. Because the evidence is insufficient to sustain findings of fact material to the case made by the court, the judgment is vacated and the cause remanded, with instructions to grant a new trial. Reversed and remanded. ROSS, G. J., and FRANKLIN, J., concur.

FRANKLIN, C. J. This is an action to recover the possession of certain personal property, with damages for wrongful detention. The appellee had judgment, and the appeal is from the judgment and order overruling appellant’s motion for a new trial. It is- urged that this court has no jurisdiction to review this ease because of the insufficiency of the notice of appeal. The appellant gave notice of appeal in open court which was entered in the minutes of the court, and thereafter filed his bond on appeal, which bond particularly described the judgment and order overruling the motion for a new trial and recited an appeal from such judgment and order. We think appellant has substantially complied with the law and this court has jurisdiction. The complaint contains the ordinary allegations necessary in a replevin suit, and such allegations were put in issue by the defendant. To overcome the plaintiff’s proof of ownership and right to the immediate possession of the property, the defendant put in evidence a bill of sale given by plaintiff to the defendant covering the property in controversy. The bill of sale was duly acknowledged and recorded. Omitting the certificates of acknowledgment and recordation, the bill of sale is as follows: “Bill of Sale. “Know all men by these presents, that F. W. Bigham, of Phoenix, Arizona, the party of the first part, for and in consideration of the sum of one hundred sixty-seven ($167.00) dollars, gold coin of the United States of America, to him in hand paid by H. C. Meyer, of Higley, Arizona, the party of the second part, receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the said party of the second part, his executors, administrators and assigns, one ‘23’ Star well drilling outfit together with all appurtenances and appliances connected therewith, or incidental thereto. To have and to hold the same to the said party of the second part, his executors, administrators and assigns forever; and I do for myself, my heirs, executors, and administrators covenant and agree to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of said property, goods and chattels hereby made unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whomsoever, lawfully claiming or to claim the same. In witness whereof, I have hereunto set my hand this 2d day of February, A. D. 1912. “F. W. BIGHAM.” The plaintiff did not deny the execution of the bill of sale, but proceeded upon the theory that, while admitting the fact of its execution, he had a right to show mistake on his side and fraud or inequitable conduct on the part of the defendant which resulted in making what he intended to be a chattel mortgage of the property a bill of sale thereof. In other words, that by his complaint containing only the ordinary allegations in replevin, its scope was broad enough to entertain a suit to reform the bill of sale into a chattel mortgage, and, also, to enforce it as reformed. The trial court also adopted the theory of plaintiff, and together they went far afield and entirely beyond the scope of the issues as framed by the pleadings. Thus an action at law to recover the possession of personal property was converted into a chancery proceeding to reform a written instrument and then enforce it as reformed. The consequence being that, after a lengthy trial to a jury, we have the result presented here in a voluminous record which contains most every matter except that essential to the right of the plaintiff to prevail in this action, to wit, the wrongful detention by the defendant of the property in controversy, and the right to its immediate possession by the plaintiff. It is a fundamental principle governing lawsuits that the issues must be confined to those framed by the pleadings, and that no relief may be given inconsistent with the case made by the pleadings. “The well-settled principle that evidence which tends to prove or disprove an issue presented by the pleadings should be admitted, and that evidence of matters not put in issue by the pleadings should be excluded applies in actions of replevin.” 34 Cyc. 1497. “The ordinary action of replevin will not lie to correct, modify or cancel a contract. It is not a chancery proceeding. Its purpose is to take the property from one who wrongfully withholds it, and to give it to another, who has a plain legal right thereto. It is true that a vendor may replevin goods from a vendee who, by false and fraudulent representations, has obtained the same upon the theory that, by reason of the fraud, there was no contract made, and the goods remained the property of the vendor. But this is not that kind of a case.” Penton v. Hansen, 13 Okl. 450, 73 Pac. 843. The appellee does not deny the execution of the bill of sale, but seeks to avoid its legal effect and operation by showing that the contract which he made was, in fact, different from the one he intended to make. The issues of this ease will not permit of such a proceeding. So long as the bill of sale remains in force, the defendant is entitled to the possession of the property under it, and plaintiff cannot maintain this action. The judgment is reversed and the cause is remanded, with directions to dismiss the case, but without prejudice to any other action, either legal or equitable, to which the plaintiff may be entitled. CUNNINGHAM and ROSS, JJ., concur.

FRANKLIN, G. J. The appellee had judgment against the appellant for the restitution of certain lands and premises. The certificate of the clerk of the court below shows that judgment was rendered January 28, 1913, on which day, appellant’s motion for a new trial being denied, he gave notice of appeal to this court; that on January 30, 1913, the bond on appeal was filed; that on April 28, 1913, the appellant filed With the clerk of the lower court the transcript of the reporter’s notes in said cause; that no further steps have been taken by appellant to prosecute his appeal to this court. It is ordered that said appeal be docketed in this court, and that the same be and it is hereby dismissed, the appellee to recover his costs. It is further ordered and adjudged that the appellee be and he is hereby awarded damages in the sum of $50; the said amount being deemed proper in this case as damages for a manifestly frivolous appéal. ROSS, J., concurs.

CUNNINGHAM, J. The defendant admits the execution and the delivery of the written instrument sued upon, and admits that the subscription contracts procured aggregated $60,000, admits that the corporation for whose benefit and use the subscription contracts were solicited, procured, executed and delivered was organized, and it acquired the building site and erected the contemplated building thereon, and the building thereon has been appropriated to the purposes of the Young Men’s Christian Association of Phoenix. Defendant admits: That he has not paid the sums mentioned in and by the terms of the contract he undertook to pay, and admits that demand for payment has been made, and that he has refused payment. Defendant in his answer has thereby confessed the cause of action, and seeks to avoid liability, for the reasons other conditions than expressed in the written contract were agieed to between himself and the person soliciting his contract, and such other conditions were falsely made for the purpose of inducing defendant to enter into the contract, and such conditions were not kept on the part of the plaintiff, nor were they, when máde, intended to be kept. That such conditions largely influenced the defendant to make and deliver the contract sued upon, because he believed such other conditions would be faithfully kept and performed as agreed; therefore defendant was induced to and did execute and deliver said contract. Do the matters set forth in defendant’s answer constitute a defense? Are they sufficient to avoid the written undertaking? Can a party to a written contract defend upon the grounds that he was induced to execute the contract by reason of verbal conditions agreed upon, but not expressed in the instrument when executed and delivered by him? The general rule is that: “If the execution of a contract to give a subscription is induced by a fraudulent representation of fact, it is not binding upon the subscriber; the fraud affords a defense. It is essential, however, that the fraud should relate to the subject matter of the contract.” 37 Cyc. 493. Defendant’s undertaking was that he would pay the specified sum of money upon the performance by the other party of a single condition named in the contract, viz., provided that at least $60,000 be subscribed by others for the purpose mentioned. By the terms of the written instrument, the performance of that condition is made the sole consideration for his promise to pay the money. In his answer defendant does not complain that that condition has not been performed. That particular condition is the subject matter of the contract. The alleged false and fraudulent representations complained of in the answer relate to matters quite distinct from the condition expressed in their contract, made the subject matter of this action, with reference to which false and fraudulent representations and conditions the parties made no contract whatever. “A false or fraudulent representation, to afford grounds of relief against a contract which the parties have entered into, must relate to the subject matter of that contract.” Blair v. Buttolph, 72 Iowa, 31, 33 N. W. 349, citing Noel v. Horton, 50 Iowa, 687. It appears from the answer that defendant made some other agreements with the persons soliciting his subscription, by which agreements he undertook to promise to pay a like sum in consideration of the performance of certain conditions, and those conditions have not been performed. Under such circumstances the consideration for such contract and promise has failed, through the failure to perform the conditions agreed upon. That is not this case; defendant admits or does not deny that the condition expressed in the written contract as the consideration of his undertaking has been performed as agreed. Such is the contract here involved, and all other contracts, so far as this action is concerned, are wholly immaterial. Another reason exists why the matters pleaded cannot be of avail to defendant as a defense to the action: By the terms of the written instrument the performance of the condition to procure the subscription of at least $60,000 from others, for the purpose of providing a building and site for the use and benefit of the Young Men’s Christian Association of Phoenix, was made the sole condition and consideration of defendant’s promise to pay the money. In his answer in question he alleges that he was induced in part to enter into the agreement by another promise or other representations entirely different and distinct from the condition appearing in the contract made and delivered, and that that promise or condition has been broken. This presents the identical question considered by the court in Blair v. Buttolph, 72 Iowa, 31, 33 N. W. 349. In that case the court says: “ . . . Defendant alleges that part of the consideration of the contract in suit was the verbal promise and agreement of the corporation to which it was given that it would construct and complete its line of railroad from Iowa Palls to Forest City . . . within one year after the date fixed in the contract for the completion of the road to Iowa Palls; and that said company had not only failed to perform its undertaking in that respect, but had entirely abandoned the project of building the road between those points. We think it very clear that, under familiar and well-settled rules of law, the defendant cannot avail himself of the matters thus pleaded as a defense. His undertaking was that he would pay the specified sum of money upon the performance by the other party of a single condition named in the contract. By the terms of the written instrument, the performance of that condition is made the sole consideration for his promise to pay the money. In the paragraphs of the answer in question he alleges that he was induced in part to enter into the agreement by another promise, entirely different and distinct from that, and that that promise has been broken. But when the parties, by their writing, made the completion of the railroad to Iowa Palls within the specified time the condition upon which his liability to pay the money should accrue, they definitely fixed that as the condition of the contract, and the conclusive presumption is that all other conditions were excluded. When, by the express terms of the written agreement, a particular condition is made the consideration for the undertaking, it is no more competent to contradict or vary its terms by parol evidence, as to the consideration by which it is supported, than as to its other conditions. Gelpcke v. Blake, 19 Iowa, 263; Courtwright v. Strickler, 37 Iowa, 382.” Blair v. Buttolph, 72 Iowa, 31, 33 N. W. 349. “It is the general rule that parol evidence is not admissible to show that a subscription was not to be payable except on other conditions than those embodied in the written contract.” 37 Cyc. 504, citing Blair v. Buttolph, supra; Farmington First Free-Will Baptist Parish v. Perham, 84 Me. 563, 24 Atl. 958; Gerner v. Church, 43 Neb. 690, 62 N. W. 51; Blodgett v. Morill, 20 Vt. 509. See, also, Thompkins v. Dinnie, 21 N. D. 309, 130 N. W. 935. It' follows as a consequence that the court should properly have instructed the jury to return a verdict for plaintiff, as the defendant would have no right to recover under the pleadings and evidence produced. The rulings of the court, if erroneous as abstract propositions of law, could not prejudice the appellant, no issue of fact existed for trial, and the questions raised on the trial were at most questions the discussion of which could in no manner affect the rights of the parties. We find no reversible error in the record, and the judgment must be affirmed. FRANKLIN, C. J., and ROSS, J., concur. NOTE.—As to the -validity and enforceability of subscriptions for charity, see note in 48 L. R. A. (N. S.) 783. . On the validity of a subscription induced by false statements that certain other persons were to invest in the enterprise, see note in 29 L. R. A. (N. 6.) 477.

ROSS, C. J. The petitioner, Knox Laird, was serving in the state prison a term of not less than ten years commencing September 29, 1913, as punishment, after conviction, of the crime of murder. On February 25, 1915, the Governor of the state granted him an unconditional pardon. He accepted the pardon, but the appellee, superintendent of prison, refused to discharge him. In his petition he set forth the above facts, and prayed for a writ of habeas corpus directed to the appellee. The writ was issued. In his return to the writ, the appellee admitted the allegations of the petition, and stated that he declined to recognize the pardon for reason that the application for such pardon was not passed upon or recommended by the board of pardons and paroles, nor was any application for a pardon ever presented to said board. The petitioner demurred to the return and the sufficiency thereof to show that his detention was legal. The demurrer was overruled, and judgment dismissing the petition and remanding petitioner was entered, from which judgment this appeal is prosecuted. While the facts of the case are simple and easily understood, the question they present for our determination is a serious one. It is: Who, under our Constitution and laws, is empowered and authorized to grant pardons. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. As was said by Justice WAYNE in Ex parte Wells, 18 How. 307, 310, 15 L. Ed. 421: “Without such a power of clemency, to be exercised by some department or functionary of government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.” The state, in adopting a Constitution, recognized it as a fixed and desirable institution, a'nd, accordingly, incorporated it in its fundamental law. It is not a power, under our system of government, inherent in any officer of the state, or any department of the state. The people, in framing and adopting their Constitution, could have lodged the power in the' legislature, or in the Governor, Secretary of State, and auditor, or either of them, or in the members of this court, or either of them, or as has been done in some of the state Constitutions, in a board of pardons. The provision in our Constitution concerning the pardoning power is in the following language: “The Governor shall have power to grant reprieves, commutations and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as may be provided by law.” Article 5, sec. 5. Omitting from this section such words as have no effect or bearing upon the question here involved, it would read: “The Governor shall have power to grant . . . pardons, after conviction, . . . upon such conditions and with such restrictions and limitations as may be provided by law.” It is contended by the Attorney General that the “conditions, restrictions, and limitations” here mentioned bear upon and qualify the power to grant pardons, and it is contended by appellant that those words bear upon and qualify the pardon itself. The Attorney General would paraphrase it thus: ‘ ‘ The Governor shall have power, upon such conditions and with such restrictions and limitations as may be provided by law, to grant pardons.” And appellant would have it read: “The Governor shall have power to grant conditional pardons; that is, pardons containing conditions, restrictions and limitations upon the conduct of the grantee thereof.” Neither contention is unreasonable; both are plausible. The legislature evidently took the former view. At its first session it passed, over the Governor’s veto, an act that was subsequently referred to the people, and by them approved at the 1914 November election, which undertakes to limit and restrict the Governor’s pardoning power. We conceive it to be the duty of this court to sustain such law if possible. We will not seek excuses to declare it invalid, but rather strive to find reasons to sustain it. If; after a comparison of its terms with the terms of the Constitution, we entertain any doubt of its invalidity, we should and will resolve that doubt in its favor and sustain it. So much is due to a co-ordinate branch of the government; especially so when the legislative act has been submitted to, and received the approval of, the people. The act referred to is found in the Penal Code of 1913, as “Title XXI—Pardons and Reprieves,” and is subdivided into sections 1297 to 1307, inclusive. Section 1297 reads: “The Governor has power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason, and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter.” “The regulations provided in this chapter” that are material are contained in section 1301, which creates a board of pardons and paroles consisting of the state superintendent of public instruction, the Attorney General, and a third member, to be selected by those two, and section 1302, which provides that: “Said board shall have exclusive power to pass upon and recommend reprieves, commutations, paroles and pardons, and no reprieve, commutation, parole or pardon shall be granted by the Governor unless the same has first been recommended by said board. All applications made for reprieves, commutations, paroles and pardons made to the Governor shall be at once transmitted by the Governor to the chairman of the said board, and the said board shall return the same with their recommendation to the Governor. ’ ’ It is a cardinal principle of constitutional construction to give to a Constitution and its provisions the meaning; if possible of ascertainment, intended by its framers. It is a perversion to give it any other meaning. If the language used is plain and easily understood, it should be looked to without extrinsic aid for the meaning intended. In this instance the qualifying words used in section 5, article 5, of the Constitution may refer to and modify the “power” as reasonably as they may be said to refer to and qualify the “pardon.” Did the men who wrote the Constitution intend that the Gov ernor of this state should have unlimited and unrestricted power to issue pardons? It is a matter of common knowledge that at the time or just prior to the convening of the constitutional convention considerable feeling and criticism were indulged by the people of the territory over what was generally thought to be an abuse of the pardoning power, and no one knew it better than the members of the convention. The language used in our Constitution defining the pardoning power is not to be found in any other Constitution of any other state of the Union, and the difference is significant. It is not unreasonable to assume that the convention endeavored to so word section 5 of article 5 as to prevent a recurrence of an indiscriminate exercise of the pardoning power. There is a manifest lack of intention to follow the language of the organic laws of the territory. The pardoning power of that act was placed in the Governor in these words: “lie may grant pardons and reprieves and remit fines and forfeitures, for offenses against the laws of the territory. 99 Comparing our constitutional provision with that of Michigan, the language used is in the main identical, but the difference in meaning is so pronounced as to strike one with surprise and wonder. This difference is not accidental or inadvertent. It is evidently for a purpose. We give the Michigan constitutional provision: “He [the Governor] may grant reprieves, commutátions and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by law, relative to the manner of applying for pardon.” Article 5, sec. 11. In the Michigan Constitution the pardoning power is given to the Governor to be.exercised “as he may think proper”; while under our Constitution it is lodged in the Governor with conditions and restrictions and limitations to be provided by law. The appellant, in support of his contention that our legislative act is repugnant to the Constitution, among other eases, relies upon Rich v. Chamberlain, 104 Mich. 436, 27 L. R. A. 573, 62 N. W. 584. This ease involved the constitutionality of an act of the legislature creating a board of pardons whose duty it was to investigate petitions for pardons, and make reports thereof to the Governor with recommendations, but it was not attempted to make the recommendations binding upon the Governor. The act was sustained. In the opinion it was held that the pardoning power was exclusively vested in the Governor, and any law restricting the power would be unconstitutional; but “at the same time” the court said, “and with equal clearness [the Constitution] vests in the legislature the power to provide by law, regulation relative to the manner of applying for pardons.” It seems that no other conclusion was possible under the Michigan Constitution, and, if oiir constitutional provision was the same, giving the Governor the right to exercise the power “as he may think proper,” the question we have would be easily determined. Another ease relied upon by appellant is In re Ridley, 3 Okl. Cr. 350, 26 L. R. A. (N. S.) 110, 106 Pac. 549. This case involves the constitutionality of an act creating a board of pardons and paroles, and conferring on it the duty to investigate petitions for pardons, and prohibiting the exercise of the power of pardon by the Governor, except upon its recommendation or advice. The Oklahoma Constitution (article 6, section 10) is as follows: “The Governor shall have power to grant, after conviction, . . . pardons for all offenses, . . . upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.” Th"e Oklahoma court, in the Eidley case, followed the reasoning of the opinion in the Rich v. Chamberlain case, supra, as it might well do, the language of the two Constitutions of Michigan and Oklahoma being, in the former, that the Governor may grant pardons “as he may think proper,” and the latter “ as he may deem proper. ’ ’ The California Constitution (article 7, section 1) is the same as the Michigan constitution; the provision being that the Governor may grant pardons “as he may think proper.’’ Of course, when language of that kind is used, it forecloses all debate and all controversy. It is too plain to quibble over. The constitutional convention did not, however, copy the language of the Constitution of California or Michigan or Oklahoma, nor is the language used equivalent in. meaning to that used in those Constitutions or the Constitution of any other state of the Union. The first legislature of the state, very soon after the promulgation of the Constitution, with the language of section 5, article 5, before it, language not to be found in any other Constitution, and therefore without judicial construction, passed the act in question, and in doing so construed the iCconditions, restrictions and limitations” as qualifying the pardoning power, and not the pardon itself. A reference to the journals of the third session of the legislature, at page 300, discloses that on May 16, 1913, the Senate, over the Governor’s veto, passed House Bill No. 1, of which the sections creating the board of pardons and paroles were a part, with but one dissenting vote. In the Senate were members voting for the measure who had distinguished themselves as leaders of the constitutional convention. In the House the measure was approved notwithstanding the veto by a vote of 25 in the affirmative and 6 in the negative; one of those voting in the affirmative and one voting in the negative having been members of the constitutional convention. The president of the Senate, lately deceased, perhaps contributed more than any single individual in the making of the Constitution, as well also the laws enacted at the first session of the legislature, and his well-known probity, ability and fidelity to the fundamental law forbid the thought that he would vote for any legislative act inimical to that sacred instrument. He and those other members of the convention that wrote the Constitution, and later as lawmakers voted for the creation of the board of pardons and paroles, must have endeavored only to carry out the intention of the convention .as they wrote it into the Constitution. This measure was later referred to the people. After the delegated authority had passed it, the action of the delegates was approved, affirmed and ratified by the source of all authority—the people themselves. At the polls, after a thorough campaign of publicity, both by proponents and opponents of the measure, the people, the ultimate and final source of all power in a democratic form of government, placed their construction on section 5, article 5, of the Constitution by approving the creation of the board of pardons and paroles and the power lodged in it. The sovereign people have said that the power of pardon may be conditioned, restricted and limited to the extent of forbidding its exercise except upon the recommendation of the board of pardons and paroles. In Frost v. Pfeiffer, 26 Colo. 338, 349, 58 Pac. 147-151, the court had occasion to consider what effect, if any, should be given to legislative construction made immediately after the adoption of the Constitution of Colorado. It was said: “Another matter which it is proper to notice in connection with the construction of the constitutional provision under consideration is the contemporaneous construction thereof given by the legislative department of the state. It is a fact of which we take judicial notice, for it appears in the laws of the state, that the first legislature which convened after the adoption of our Constitution created no less than four new counties, without in any manner submitting the question to the people directly interested. It is a matter of history that several members of this General Assembly had been members of the constitutional convention. ■. . . Contemporaneous legislative construction of the fundamental law, while not controlling upon the courts, yet, in ease of doubt or ambiguity, is entitled to great weight, as expressive of the views entertained by those of the meaning of that law whose mandates they are bound to observe.” Endlich’s Interpretation of Statutes, section 527, says: “The deference due to such legislative exposition is said to be all the more signal when the latter is made almost contemporaneously with the establishment of the Constitution, and may be supposed to result from the same views of policy and modes of reasoning that prevailed among the framers of the instrument thus expounded.” In Manufacturing Co. v. Ferguson, 113 U. S. 733, 28 L. Ed. 1137, 5 Sup. Ct. Rep. 741, the supreme court of the United States said: ‘ ‘ The act was passed by the first legislature that assembled after the adoption of the Constitution, and has been allowed to remain upon the statute book to the present time. It must therefore be considered as a contemporary interpretation, entitled to much weight.” 8 Gyc. 737 states the rule as follows: “Practical construction of constitutional provisions by the legislative department, in the enactment of laws, necessarily has great weight with the judiciary, and is sometimes followed by the latter when clearly erroneous.” 6 R. O. L., section 60: “The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight, and should not be departed from unless manifestly erroneous.” In view of the exceptional novelty of the provision in our Constitution, and its susceptibility of two interpretations, one as reasonable as the other, and the legislature and the electorate of the state having adopted the construction limiting and restricting the pardoning power to cases recommended by a board of pardons created by legislative act, we must confess we entertain most serious doubts of the invalidity of the act, and following the rule universally followed in such case, we think the judgment of the trial court should be sustained. In another case recently decided by this court we had occasion to state what we conceived to be the duty of the court in passing upon the validity of a statute attacked for repugnancy to the Constitution. In that ease we said: “That legislation of such a character may to some seem unwise, unjust or impolitic does not authorize the courts to interfere. "When the law-making power has determined such matters, such questions are thereby foreclosed. Nor is the purpose and motive for the exercise of such legislative power a subject for judicial inquiry. Questions relating to the wisdom, policy, and expedience of such enactments are addressed to the law-making branch of the government. Likewise we may not concern ourselves with a consideration of the evils which, it is suggested, may or may not arise from the execution of the law, whether they be real or imaginary. Unless there be some constitutional provision which prohibits the enactment, the power is with the.people to determine from time to time the occasion, and what laws and regulations are necessary and expedient for their benefit. The judicial department does not make the laws, but is confined to ascertain if the power to pass them exists, and, when such power is found, then to construe and enforce them as made. A pronouncement of the invalidity of an act or any part of an act of the people in their legislative capacity is, and must always he, approached with a delicacy which the situation invites. Under our oaths as judges, this power must be exercised in cases; but neverthless it is our plain duty to uphold an act of the law-making power whenever it is possible to do so. Every presumption is in favor of its validity, and the conflict between the legislative act and a constitutional provision must be very clear and utterly irreconcilable by any reasonable interpretation before this court would be called upon to annul the act or any separable part of it.” Gherna v. State, ante, p. 344, 146 Pac. 494, 501. Our lawmakers, keeping step with the advance thought concerning the treatment of prisoners, have provided a scheme or system of paroles. The duties of carrying out and effectuating this system is lodged in the board of pardons and paroles. This board is provided a clerk appointed by the Governor at a stated salary of $1,200 per year, with duties as provided by law and the board. The board is required to meet at the state prison from time to time, at which meetings all prisoners who have served the minimum sentence, when it is an indeterminate sentence, as well as those serving definite or fixed sentences, may appear and apply for a parole or an absolute discharge. The legislature has not authorized the Governor to grant paroles except upon the recommendation of the board of pardons and paroles. Section 5, article 5, of the Constitution does not mention paroles. If the board of pardons and paroles has no legal existence, and may not exercise the powers granted it by the legislature, there is no power vested in anyone to release convicts, however deserving, upon parole. See Pen. Code 1913, secs. 1449-1458. But, if the board has a legal existence, it may administer this very meritorious feature of modern and enlightened prison reform. If the legislation here assailed should be declared void, and the contention of appellant sustained, he and others might seek and receive pardons at the Governor’s hands; but the Governor would be powerless to-release on parole. With perhaps one or two exceptions, the courts of this country have recognized the validity of legislative boards vested with the power and duty of administering parole laws (State v. Wolfer, 119 Minn. 368, Ann. Cas. 1914A, 1248, 42 L. R. A. (N. S.) 978, 188 N. W. 315, 6 R. C. L. 173), and, we think, rightly so. Judgment affirmed. FRANKLIN, J., concurs.

ROS-S, J. The appellant was convicted of the crime of murder and sentenced to life imprisonment. He appeals and assigns two errors. His first assignment is: “The court erred in overruling the objection made on the trial by the defendant, to the competency, as a witness, of one Mary Wolsey, an Apache-Mohave Indian squaw, a witness for the state, which objection was based on the ground that said Mary Wolsey did not understand the obligation of an oatb, and was therefore incompetent to testify, for the reason that upon voir dire said Mary Wolsey did not show that she understood the obligation of an oath, but, on the contrary, showed conclusively that she had no understanding whatsoever of such obligation, and was therefore incompetent to testify as a witness.” The second assignment is in the same language, except that it is directed at the ruling of the court as to the competency of Dolores Roderiquez, a witness for the state. Section 1226, Penal Code of 1913, provides that: “All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of a crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question.”' The exceptions to the general rule as above laid down are: (1) Persons of unsound minds at the time of their production for examination; (2) children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, cannot be witnesses; and (3) persons sustaining confidential relations to each other, except upon consent, may not be witnesses. Id., 1227 and 1228. The witness Mary Wolsey was an aged Indian woman and was laboring under none of the disabilities above enumerated, unless it should be that she was afflicted with mental unsoundness. On her voir dire, she said she understood what an oath "was, but in answer to the question, “Do you understand what the result would be if you were to tell a lie?” her answer was that she would tell no lie, or that she would “show what she had seen, that’s all.” It can hardly be said that these answers were any evidence of an unsound mind, or that her organs of sense were so dull as to incapacitate her from perceiving or from making known her perceptions to others. At most, her answers showed that she did not understand the full technical meaning of the common-law oath, such as fear of punishment by the Supreme Being in this world or in the world to come for false swearing. Her answer did not disclose a lack of power to observe, recollect and narrate—three essentials to testimonial qualifications. "Wigmore, Evidence, see. 484. The witness’ capacity to testify was a question for the judge or court. Wigmore, Evidence, sec. 487. Questions were asked to test the witness’ belief in God or the Great Spirit. The question should not have .been put to the witness. Section 12, article 2, of the Constitution, provides : “ . . . Nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.” The appellant was entitled to call witnesses “to evidence the facts of her incapacity” for observation, recollection and nárration (Wigmore, Evidence, sec. 485), and, failing to do so, it is fair to presume that no such evidence existed. The record does not sustain the second assignment. At best it shows that Dolores Roderiquez was a very unwilling-witness. The court was compelled to threaten her with contempt proceeding before she would answer questions. Her answers, when made, however, were intelligent and straightforward. Indeed, the testimony of both these witnesses was fully corroborated by other witnesses whose qualifications are-unquestioned. The court having determined that these witnesses were competent, the weight and effect of their testimony was properly left to the jury. People v. Bradford, 1 Cal. App. 41, 81 Pac. 712. Judgment is affirmed. FRANKLIN, C. J., and CUNNINGHAM, J., con'cur. NOTE.—On the question of religious belief as qualification of witness,, see notes in 42 L. B. A. 553 and 23 L. B. A. (N. S.) 1023.

ROSS, J. This action was commenced by the appellee as plaintiff, January 23, 1914, against the board of supervisors of Yavapai county for the purpose of restraining such board from calling an election to be held upon the question of authorizing the county to create an indebtedness by an issue of the bonds of the county to the amount of $250,000 for the purpose of raising a fund for the construction and furnishing of a county courthouse. Upon the face of the complaint it appears that the present indebtedness of Yavapai county does not exceed four per centum of the assessed valuation of the property of the county, and if such bonds are issued, then the entire indebtedness, including the present indebtedness, together with the indebtedness created by the issue of said bonds, in the aggregate would not exceed four per centum of the assessed valuation of the property of the county. It is not shown by the pleadings, nor is it contended by the appellee, that the method pursued for obtaining the assent of the taxpayers and electors is not in all respects in conformity to the provision of chapter 2, title 52, Civil Code of 1913, providing for the creation of indebtedness by counties and the issue of bonds therefor. It is alleged that if said election is held such election will cost the county $3,000, and the election thus held will be void, and any bonds issued pursuant to the result of such election will be wholly void, for the reason such election is not authorized by law and the county cannot thereby be authorized by such election to create an indebtedness of the county and evidence the same by issuing bonds of the county, except when the indebtedness thereby created will exceed four per centum of the assessed valuation of property of the county. As a taxpayer, the plaintiff prays that the board be enjoined from ordering or calling such election. The defendants demurred to the complaint upon the grounds that the facts stated are insufficient to constitute a cause of action. The court overruled the demurrer, and, defendants declining to answer further, judgment was rendered for plaintiff in accordance with the prayer of his complaint. From the judgment defendants have appealed and assign as error the ruling of the court upon the demurrer, and in rendering judgment for the plaintiff. As stated in appellants’ brief: The general rule is that a county may not issue bonds unless the power is specifically conferred by law, or unless the power is necessarily implied from the law relating to the powers of counties. The general statement of the law is conceded by appellee to be correct; indeed, it may not be controverted, for such a proposition finds support perhaps without dissent in the adjudicated cases. See the following cases: Francis v. Howard County (C. C.), 50 Fed. 44-56; Police Jury of Parish v. Britton, 82 U. S. (15 Wall.) 566, 21 L. Ed. 251; Claibourne County v. Brooks, 111 U. S. 400, 28 L. Ed. 470, 4 Sup. Ct. Rep. 489; Merrill v. Monticello, 138 U. S. 673, 34 L. Ed. 1069, 11 Sup. Ct. Rep. 441; Concord v. Robinson, 121 U. S. 165, 30 L. Ed. 885, 7 Sup. Ct. Rep. 937; Duke v. Williamsburg County, 21 S. C. 414; Colburn v. Chattanooga Western Ry. Co., 94 Tenn. (10 Pick.) 43, 28 S. W. 298; Robertson v. Breedlove, 61 Tex. 316; Nolan County v. State, 83 Tex. 182, 17 S. W. 823; Ball v. Presidio County, 88 Tex. 60, 29 S. W. 1042. This power, then, as affecting the question before us, is to be determined by a review of chapter 2 of title 52, Civil Code of 1913, to ascertain if the authority of the county to create an indebtedness and issue its bonds as evidence thereof is specifically granted by the law, or is necessarily implied therefrom. If such power is specifically granted by the law, or is necessarily implied therefrom, then the judgment of the lower court is erroneous and must be disaffirmed. A solution of the question depends upon the construction given to the chapter named. The history of chapter 2, title 52, supra, affords light in its construction. It appears first as chapter 29, first session of the legislature (Laws 1912, c. 29), and was entitled “An act enabling counties, school districts, cities, towns, and other municipal corporation to become indebted in an amount exceeding four per centum of the taxable property therein, ...” and consisted of nineteen sections, eighteen of which were devoted to providing the modus operandi by which such corporations when indebted in excess of four per centum might issue bonds or other evidence of indebtedness, increasing that indebtedness, and -one of the essentials prescribed is that an election must first be held to obtain the approval of the qualified property taxpayers within such corporation. The last section (19) bears upon the same subject matter, but by its terms is expressly made to apply to counties, school districts, cities, towns and other municipal corporations whose indebtedness does not exceed four per centum. Section 19, as passed by the first session, reads as follows: “Nothing in this act contained shall be construed to prevent any county, school district, city, town, or other municipal corporation from creating an indebtedness not exceeding four per centum of the value of the taxable property in such county, school district, city, town, or other municipal corporation; provided, that if such county, school district, city, town, or other municipal corporation shall desire to fund such indebtedness by the issuance of bonds therefor, said bonds shall be issued in all respects in conformity with the provisions of this act; and, provided, further, that it will not be necessary to hold the election required to be held therein.” If the proceeding of the board of supervisors of Yavapai county depended for its legality upon section 19, as passed by the first session, the power sought to be exercised possibly would be involved in doubt. Whether the expression “creating an indebtedness,” as used in this section, was intended by the legislature to mean a floating indebtedness arising in the ordinary transactions of the municipality, or- whether it was used in the sense in which it is employed in sections 3 and 6 (Civil Code 1913, secs. 5268, 5271) to mean a determination to incur the proposed liability, is unimportant here. We speak of funding floating or outstanding debts by issuing bonds in lieu thereof; but when bonds are issued as the first and original evidence of an indebtedness contracted it is not “a funding of the debt,” as that expression is ordinarily used. When it is considered that chapter 2 throughout treats of the creation of indebtedness by municipalities and the method and manner of evidencing such indebtedness as it is incurred, it may be that it was intended that the expression “that if such county . . . shall desire to fund such indebtedness by the issuance of bonds therefor” should be construed to mean that bonds could be issued as the original or first evidence of the liability incurred and not the funding of a floating or outstanding debt. This view finds support from the fact that the legislature has provided for a loan commission authorized and empowered to fund and refund the funded and outstanding indebtedness of counties and other municipalities. Title 52, c. 1, Civil Code 1913. But authority for the proposed action of the board of supervisors of Yavapai county is not left to chaptei 2, title 52, as passed by the first session. The third special session of the legislature amended section 19 (Civil Code 1913, sec. 5285) by adding thereto another proviso. The amendment is as follows: “Provided, that bonds may be issued under the provisions of this chapter, for the construction and reconstruction of roads, bridges and highways; for the construction of public buildings, and for any other lawful or necessary purpose. The enumeration of the above-mentioned purposes shall not be deemed as restrictive of the right to issue bonds for other purposes, but rather in furtherance thereof. In case any county in the state of Arizona shall have called or held an election for the issuance of bonds, as herein provided, prior to the becoming effective of the provisions of this section, said election shall be and is hereby deemed to have been called and held pursuant to the provisions of this chapter, and the bonds that may be hereafter issued pursuant to such election, shall be in all respects as valid and legal as though the provisions of this section had been in force at the time of said election.” No plainer or more liberal language could be employed. There is a general grant of right and power to issue bonds (not to fund indebtedness) under the provisions of this chapter. The last proviso, in effect, adopts and makes applicable to municipalities whose indebtedness does not exceed four per centum, all the preceding provisions of the chapter affecting or concerning municipalities whose indebtedness does exceed four per centum of the taxable property therein. This proviso is not only the last in place, but last in time of enactment and in direct, positive and unambiguous language empowers the municipalities named to issue bonds “for the construction of public buildings and for other lawful and necessary purpose” under the provisions of this chapter. It places its finger, so to speak, directly upon “public buildings,” and having said that the funds for the erection of such building may be raised by issuing bonds under the provisions of chapter 2, applying the maxim “ Expressio unius est exclusio alterius,” it may be doubted if funds for that purpose can be raised in any other manner. The construction and reconstruction of roads, bridges and highways and the construction of public buildings generally involve large expenditures, and the legislature has very properly lodged the power in the legally qualified taxpayers to say by their vote whether they care to assume the obligations before they are contracted. The ultimate burden of discharging the indebtedness falls on the taxpayer, and that is sufficient reason why his assent should be obtained directly, if possible, before the debt is contracted. We cannot but think that the last proviso was inserted by the legislature for the express purpose of securing the personal assent of the taxpayer by his vote before bonds could be issued against his property for the construction of roads, bridges, highways and public buildings. The last sentence of section 19, Id. (Civil Code 1913, sec. 5283), while a “validating” statute, is not confined to any class of counties, but reaches all the counties of the state. If, at the time it was enacted, doubt existed as to the legality of an election in counties owing less than four per centum of their taxable property, it was the evident purpose to set at rest such doubt as to elections already held or pending by the curative statute, and by the same token it must be that the legislature intended to expunge any doubt as to the legality of future elections held “for the issuance of bonds, as herein provided” “in . . . any county in the state of Arizona,” for it is said, if “prior to the becoming effective of the provisions of this section” an election has been called or held as provided by chapter 2, the bonds issued thereunder shall “be as valid and legal as though the provisions of this section had been in forcé at the time of said election.” By this language the legislature asserts its belief (and therefore its intention) that had section 5285, Id., in its completeness existed all the time, no validating legislation would have been necessary to legalize an election held in any county of the state , for the purpose of issuing bonds. The curative feature of section 5285 was not necessary for counties whose indebtedness exceeded the four per centum limit, if they had “held an election for the issuance of bonds, as herein provided.” The validating or curative statute had in view the other class of counties, those owing less than four per centum of their taxable property, and from its language we are informed that the legislature intended that since section 5285 in its completed form was enacted any county in the state was authorized to issue bonds under the provisions of chapter 2, as amended by the third special session. It follows, from what we have said, that, in municipalities where the indebtedness is less than four per centum, additional indebtedness may be created for the construction of public buildings in the manner and by compliance with the provisions of chapter 2, title 52, Civil Code 1913. In other words, the procedure provided in said chapter whenever it is attempted to increase the aggregate amount of the indebtedness of the municipalities named, so as to exceed four per centum of the taxable property therein, must be followed where it is attempted to increase the indebtedness of municipalities whose indebtedness is less than four per centum. Judgment reversed and cause remanded, with direction to sustain the demurrer and dismiss the complaint. FRANKLIN, C. J., concurs.

ROSS, C. J. The appellee, plaintiff below, instituted this action against the appellant, the defendant below, on November 7, 1912, for his services as a broker or middleman under a contract dated November 16, 1910. The contract, which is in the form of a letter from appellant to appellee, was set out in the complaint, and is in words and figures as follows: “Arizona-Parral Mining Company, “1012 Baltimore Avenue. “Kansas City, Mo., November 16, 1910. “Mr. A. W. Forbes, P. 0. Box No. 868, Tucson, Arizona—■ Dear sir: I have your letter of November 11th, and in reply beg to say that this company cannot consider giving you a bond or option on the San Xavier property, and cannot entertain the putting of such negotiations through third parties. “If responsible parties really desire to take up the matter seriously, they can be put by you in communication with us direct, so that we may satisfy ourselves that they are thoroughly capable of carrying out any engagement they might enter into in connection with same, and unless such parties can give us ample assurance that the matter will be taken up seriously and actively, with a full recognition of the fact that the company would not accept less than $250,000 for the property, we do not care to spend time in negotiation on the subject. “In the event that anyone should buy the property from us as the direct result of an introduction to the company by yourself, we should of course be glad to recognize your intervention by a suitable commission on any deal that might be made. “If the parties you have in mind can fill the conditions above required, we shall be pleased to have you put them in direct communication with us. Otherwise we shall not pursue the matter further. “Tours very truly, “B. D. ROWE, President.” The complaint alleged that, in pursuance of the contract, the appellee did on or about April 9, 1912, present the San Xavier mining properties to the Empire Zinc Company, and, as a direct result of his efforts, on or about August 26, 1912, a contract was entered in to with the Empire Zinc Company, by the terms of which the Empire Zinc Company was given possession of the property with privilege of purchasing the same for $200,000, to be paid in installments of $50,000. This contract was made a part of the complaint and was clearly an optional contract of sale. It is further alleged that thereafter in November, 1912, said optional contract was changed and modified into a sale of the property by appellant to the Empire Zinc Company for $175,000. This complaint was before us in Forbes v. Arizona-Parral Min. Co., 15 Ariz. 30, 135 Pac. 715, on the question as to whether it stated facts sufficient to constitute a cause of action, and our holding on that appeal sustained the complaint. The case was remanded for further proceedings, whereupon the defendant, whose answer had theretofore been a general denial, filed a plea in abatement of the action, alleging that the action was prematurely brought, in that when the action was instituted on November 7,1912, the property had not been sold to anyone whomsoever, but remained and was the property of defendant; that property was not sold nor conveyed, nor the purchase price paid until after at least the 21st day of November, 1912, and long after the bringing of plaintiff’s action. Defendant also demurred to the complaint for the same reasons, the facts appearing upon the face of the complaint, alleging for said reason the complaint did not state facts sufficient to constitute a cause of action against the defendant. ' The answer contained specific denials of all. of the material allegations of the complaint, and set up another contract between plaintiff and defendant, in writing, dated April 1, 1912, in which the plaintiff was constituted the agent of defendant to sell said properties extending to July 31, 1912, for $250,000 to the Exploration Company, Limited, of London, or to such other person as should be approved in writing by the defendant, with the agreement that plaintiff should receive 12 per cent commission for effecting any such sale, on the total purchase price. It is alleged that, if plaintiff did anything toward the sale of said property, it was done under and by virtue of the last-mentioned contract, and that that was the sole and only contract in existence between the plaintiff and defendant at any time whatsoever in regard to the sale or disposition of said property, and the only contract subsisting between them from April 1, 1912, in regard to the sale of said properties. The contract dated April 1, 1912, was not set out in the answer, but was pleaded according to its tenor and effect. It consisted of two instruments—one an optional contract of sale of the San Xavier properties to appellee, the latter, according to the recitals, acting for the Exploration Company, Limited, of London, and the other was a commission contract. In the trial these contracts were introduced in evidence. Their importance in the determination of the ease is such that we here give the part of the optional contract that we deem vital and the whole of the commission contract. Optional contract. ‘ ‘ Sixth. This agreement shall bind and inure to the benefit of the parties hereto, their successors, executors, administrators and assigns; provided, however, that this agreement shall only be assignable by the party of the second part to the Exploration Company, Limited, of London, or to such other person, firm or corporation as shall have been approved in writing endorsed hereon by the party of the first part.” Commission contract: ‘ ‘ This agreement made this 1st day of April, 1912, between Arizona-Parral .Mining Company, a corporation under the laws of Arizona, party of the first part, and A. W. Forbes, party of the second part, witnesseth: Whereas, a certain option contract has been entered into between the parties hereto for the sale to party of the second part, or his assignees as in that contract limited, of certain mining properties situated in-the Pima mining district, state of Arizona, belonging to party of the first part, and dated evenly herewith; and whereas, said A. W. Forbes is acting in behalf of the Exploration Company, Limited, of London, in making such agreement, now if said agreement shall result in a sale of said properties by party of the first part, it agrees to pay said Forbes’ commission as commission for effecting such sale as follows, to wit: Twelve (12) per cent of the total purchase price to be payable in installments after receipt by said party of the first part of each of the payments of twenty-five thousand ($25,000.00) dollars as in said contract provided, that is to say, three thousand C$3,000.00) dollars after receipt of each of said twenty-five thousand ($25,000.00) dollar payments, making a total, if said purchase price shall have been made, of thirty thousand ($30,000.00) dollars to said party of the second part, but no commission to be paid other than twelve (12) per cent on the amounts actually received in cash by party of the first part.” The plea in abatement was denied, and the demurrer was overruled. A trial was had before a jury, and the plaintiff obtained a verdict for $8,750, upon which judgment was had. Appellant assigns as errors: (1) The overruling its demurrer; (2) the denying its plea in abatement; (3) the court’s refusal to grant its motion for instructed verdict on the conceded and established facts, as a matter of law, upon the ground that the contract of November 16, 1910, was merged in and superseded by the contract of April 1, 1912, said contract being of a later date, and on the same subject matter as the former one, and inconsistent therewith; (4) the refusal to grant defendant’s motion for new trial; and (5) the refusing and giving instructions. We think the court’s ruling on the plea in abatement and demurrer should be sustained. When the ease was in this .court before, the question of the sufficiency of the complaint to state a cause of action was the only question raised or passed upon by us. Our decision was that the complaint did state a cause of action. We are now asked on this appeal to hold that the same pleading does not state a cause of action. It is contended by appellant that, in the former hearing, the sufficiency of the complaint was not formally questioned by demurrer, but only incidentally raised on objection to the introduction of evidence, and that therefore the points now; made are timely and should be sustained. In our opinion (15 Ariz. 31, 135 Pac. 715) we said: “On the trial when appellant (present appellee) offered the letter set out in 'the complaint as evidence of his contract, the appellee (the present appellant) objected to it on the ground that the complaint failed to state facts sufficient to constitute a cause of action.” This was a correct and accurate statement of the assignment upon which the case was heard and decided. It is true that the only question briefed and argued before us was as to whether the contract set forth in the complaint required a sale of the property for $250,000 before commissions were earned. The question of prematurity of suit was not suggested and was not in the mind of the court when it held the complaint sufficient. If the objection to the complaint had been by formal demurrer, and the court had overruled the demurrer, .it seems to be conceded that the judgment of the court would have established the law of the case. As was decided in Consolidated Canal Co. v. Peters, 5 Ariz. 80, 46 Pac. 74, the sufficiency of the complaint to state a cause of action may be raised “by demurrer, by objection to the evidence, by motion for judgment on the pleadings, by motion in arrest of judgment, or on motion for a new trial,” and, if these are equally available and may be made to serve the same purpose, it would seem that a judgment of this court, sustaining the pleading as sufficient would be as binding in one case as in the other, for in each case the same question is raised, to wit, the sufficiency of the complaint to state a cause of action. This rule should be adopted to avoid “the delays of the law” against which there is much just complaint, as otherwise the rule contended for by appellant would open the door to appeals equal in number to the fundamental defects in the complaint. Litigants unwilling to meet the merits of the ease would never interpose written demurrers, but, instead, would object to the introduction of evidence for insufficiency of complaint to state a cause of action, assigning one ground only, reserving other grounds, if any, for future uses if needed. The question as to whether the complaint stated a cause of action or not was one of law, squarely before the court, and we think it makes little difference how it was presented if it be in a way provided by law. It seems to be well settled that, if tbe facts presented in two appeals are tbe same, the decision given on the first appeal becomes the law of the case in all subsequent stages, and will not be reviewed on the second appeal. 3 Cye. 395; Ohio Valley Trust Co. v. Wernke, 179 Ind. 49, 99 N. E. 734. In this case the court said: “It is first contended that the court below erred in overruling appellant’s demurrer to the complaint. This ruling was made before the former appeal and was presented to the appellate court as error for which a reversal was asked. The question was decided adversely to appellant. The complaint has not been changed or amended since that ruling was made, and it settled the law of the case, so far as the sufficiency of the complaint is concerned, throughout all the subsequent stages of the cause. Chambers v. Kyle (1882), 87 Ind. 83; Lillie v. Trentmam (1891), 130 Ind. 16, 29 N. E. 405; James v. Lake Erie etc. R. Co. (1897), 148 Ind. 615, 48 N. E. 222; Hatfield v. Cummings (1898), 152 Ind. 537, 53 N. E. 761; Pittsburgh etc. R. Co. v. Collins (1906), 168 Ind. 467, 80 N. E. 415; Chicago etc. R. Co. v. Cobler (1909), 172 Ind. 481, 87 N. E. 981; Supreme Lodge etc. v. Andrews (1906), 39 Ind. App. 1, 77 N. E. 361, 78 N. E. 433. “But counsel for appellant contend that the appellate court on the former appeal did not pass upon the sufficiency of the complaint, nor in terms declare that it stated a cause- of action; that the opinion of that court shows that it was only determined that the complaint was not subject to the one objection then made against its sufficiency; and they now press numerous additional alleged defects in the complaint which, it is claimed, make it fall short of stating a cause of action. Appellant’s demurrer to the complaint was for want of facts sufficient to state a cause of action. It was overruled by the trial court. That ruling was presented to the appellate court for review as error, and the ruling of that court on the question was adverse to appellant. Thereby the sufficiency of the complaint as stating a cause of action was declared, and became the law of the case. If appellant saw fit to withhold in that appeal the objections now made to the complaint, it has waived them, and they are not available for further prolonging the Litigation. Any other conclusion would permit a party against whom a judgment had been taken on a complaint containing a number of alleged defects, each claimed to render it insufficient as a statement of a cause of action, to present the questions of the validity of the complaint, involved in one ruling on demurrer, in as many appeals as objections to it might be conjured by a fertile mind. Such a practice would be an outrageous offense against the guaranty of a speedy administration of justice and has been denied by this court. Dodge v. Gaylord (1876), 53 Ind. 365, 369; McKinney v. State ex rel. (1889), 117 Ind. 26, 27, 19 N. E. 613; Stevens v. Templeton (1909), 174 Ind. 129, 131, 91 N. E. 563. • “As was said in the case last cited, appeals cannot be allowed by piecemeal. There must be an end to them as speedily as the contention of litigants may be advanced and decided. So it is that all questions reserved for review by an appellate court must be presented on the first appeal thereafter from a final judgment, or not at all; for thereafter all questions presented by the record will be considered as finally determined and all such questions not expressly affirmed or reversed will, by implication, be deemed affirmed.” The objection that no cause of action had accrued at the institution of suit does not go to the jurisdiction of the court. It is an objection that may be waived (1 Cyc. 746), and, while we may not place our decision on the ground of waiver, we feel that appellant should be estopped by the first judgment from urging his present assignments. It is next contended that the contract of April 1, 1912, superseded and merged the contract of November 16, 1910. Whether it does or not depends upon the facts and circumstances giving occasion to the two contracts. The last contract does not in terms refer to the first. But they are between the same parties, concerning the same subject matter. The services to be rendered under the November contract, as was said in our former opinion in this ease (15 Ariz. 30, 135 Pac. 715),were: “The appellant was employed merely to perform a preliminary act; his sole office was to bring the buyer and seller together; when he did that he did all that he was authorized to do. He had no authority to fix prices, terms or conditions of sale. He was employed as a middleman to bring the parties together to enable them to make their own contract.” The construction then placed on that contract is, of course, binding as the law of the case, in its present consideration. While the contract of 1912 was given by appellant and accepted by appellee primarily for the purpose of selling the properties to the London company, it was not limited to that company, for one of its terms was: “Provided, however, that this agreement shall only be assignable by the party of the second part to the Exploration Company, Limited, of London, or such other person, firm or corporation as shall have been approved in writing endorsed hereon by the party of the first part.” In the letter of November 16, 1910, the basis of the first contract, the appellant refused to “consider the giving appellee a bond or option on the San Xavier property, ”. but authorized appellee to put the appellant in direct communication with prospective purchasers having certain qualifications therein prescribed, retaining the right, before entering upon negotiations, of satisfying itself that such prospective purchaser met the conditions imposed. In both contracts, therefore, are the same limitations. That is, the owner retained the right to deal or not to deal. The contract of 1912 imposed upon the appellee more extensive duties and powers and made his compensation definite and certain. He was to sell the properties to the Exploration Company of London, “or to such other person, firm or corporation” as might be approved by the appellant, in writing, for the sum of $250,000 on or before July 31, 1912, for which services he was to be paid 12 per cent commission. The contracts differed, in that, in the first no time limit was stated; whereas, in the second the sale must be compassed within a period of four months—from April 1 to July 31, 1912. The compensation in the one was “a suitable commission,” and in the other 12 per cent of selling price of $250,000. In one the sale price was not fixed, in the other it was fixed. In the first the appellant was to be remunerated for his services “on any deal that might be made,” and in the last only on a sale to the London company or to such other person, firm or corporation as might be approved by appellant in writing. In other words, one was a contract for a particular service—to intro duce a buyer to the owner—for which a suitable commission was to be paid, and the other was to find a buyer and to sell the property for $250,000 within four months, for a commission of 12 per cent. The sale was not effected under the last contract, but after it had elapsed, and for a less amount than in that contract stipulated, and, unless the first contract continued to subsist along with and after the second contract of agency was entered into, the appellee cannot recover. The first contract was the result of correspondence between the parties, and circumscribed the appellee’s powers and duties to a minimum, and left his compensation indefinite. It was informal and of doubtful meaning, or at least the parties sought and secured its construction by this court in the former appeal. The second contract was the result of the active efforts of appellee. It was his proposition in the sense that it was he that presented the London company to the owner as a possible purchaser. He went from his home in Tucson to Kansas City to secure an option on the property to himself for the London company and to have reduced to writing an agreement definitely and certainly fixing his compensation in case a sale was effected by him. Both contracts concerned identically the same properties, and in each the appellee was constituted the agent of the owner with different powers, duties and compensation. In the last contract he was clothed with greater power and more duties, a successful execution of which entitled him to a larger reward. Had the appellee succeeded in selling the properties during the existence of the 1912 contract to the London company or any other person, as provided in his option of that date, it goes without saying that he would have sued for the agreed commission of 12 per cent. Such a sale to the Empire Zinc Company, the company that did purchase the properties, would have earned him his 12 per cent commission. Indeed, his claim could not have successfully been based on any other contract. Por such services he could not have claimed “suitable compensation” under the contract of 1910. If he could, both contracts were alive at the same time, and he at liberty to claim commissions under either, the first if “any deal” were made as the result of an introduction by appellant, and in the second if a sale was made for $250,000 at his procurement; the compensation differing in each case. This would be true even though the sale had actually been made to the London company for less than $250,000, for the contract of November, 1910, provides: “In the event that anyone should buy the property from us as the direct result of an introduction to the company by yourself, we should of course be glad to recognize your intervention by a suitable commission on any deal that might be made.” The illustration, it seems to us, convincingly shows the impossibility of the two contracts standing together or subsisting at the same timé, and also makes clear that the last contract abrogated the first. The Empire Zinc Company was embraced in the terms of the 1912 contract as fully as in the 1910 contract. The 1912 contract was the formal act of both parties, was complete in itself covering the whole subject matter, and inconsistent with the terms of the first contract. It remains for us to determine the force and effect in law of these facts. “One written contract complete in itself will he conclusively presumed to supersede another one made prior thereto in relation to the same subject matter. If agreements be made between the same parties concerning the same matter, and the terms of the latter are inconsistent with those of the former so that they cannot subsist together, the latter will be construed to discharge the former. ’ ’ 9 Cyc. 595. “A contract may also be discharged or modified by a new contract inconsistent with the earlier contracts, so that they cannot subsist together, even though there is no express agreement that the new contract shall have that effect. As a general rule, where the new contract is in regard to the same matter and has the same scope as the earlier contract, and the terms of the two contracts are inconsistent either in whole or in a substantial part, so that they cannot subsist together, the new contract abrogates the earlier one in tota and takes its place.” 3 Elliott on Contracts, sec. 1865. “That parties may rescind a contract, either expressly or by substituting another in its place which is so inconsistent with it that the two cannot well coexist and operate at one and the same time, cannot be doubted. Rights acquired under a contract may be abandoned or relinquished either by agreement, or by conduct clearly indicating such a purpose. Falls v. Carpenter, 1 Dev. & B. Eq. (21 N. C.) 237, 28 Am. Dec. 592; Faw v. Whittington, 72 N. C. 321; Miller v. Pierce, 104 N. C. 389, 10 S. E. 554; Holden v. Purefoy, 108 N. C. 163, 12 S. E. 848; Taylor v. Taylor, 112 N. C. 27, 16 S. E. 924; Gorrell v. Alspaugh, 120 N. C., at page 368, 27 S. E. 85; May v. Getty; 140 N. C. 310, 53 S. E. 75; Lipschutz v. Weatherly, 140 N. C. 365, 53 S. E. 132, at this term. A contract may be discharged by the substitution of a new contract, and this results: (1) Where a new contract is expressly substituted for the old one; (2) where a new contract is inconsistent with the old one; (3) where new terms are agreed upon, in which case a new contract is formed, consisting of the new terms and of the terms of the old contract which are consistent with them; and (4) where a new party is substituted for one of the original parties by agreement of all three. Clark on Contracts, p. 610, see. 260.” Redding v. Vogt, 140 N. C. 562, 567, 6 Ann. Cas. 312, 313, 53 S. E. 337, 338. “A contract will be considered as having been rescinded by the substitution of another and subsequent contract relating to the same subject matter, where it appears to have been the intention of the parties, that the later contract should supersede the first one. Such inconsistency between the two contracts as renders the performance of both impossible, so that the two cannot stand together, operates in law to rescind the earlier contract. Housekeeper Pub. Co. v. Swift, 97 Fed. 290, 38 C. C. A. 187; Paul v. Meservey, 58 Me. 419; Sherman v. Sweeny, 29 Wash. 321, 69 Pac. 1117. Where the entire subject matter is covered, and there is nothing on the face of the second agreement to show that it is intended to be supplemental to the original agreement, it supersedes and rescinds the original, not as a question of intention, but by operation of law, as a result of steps taken by the parties. And the existence of these conditions is to be determined by the court. Stow v. Russell, 36 Ill. 18; Mather v. Butler County, 28 Iowa, 253; Leffel v. Piatt, 126 Mich. 443, 86 N. W. 65; Cocheco Bank v. Berry, 52 Me. 295; Chrisman v. Hodges, 75 Mo. 413; Mc-Clurg v. Whitney, 82 Mo. App. 625; Howard v. Scott, 98 Mo. App. 509, 72 S. W. 709.” Note to Redding v. Vogt, supra, 6 Ann. Cas. 315. To the same effect, see Hall v. Wright, 138 Ky. 71, 127 S. W. 516, Ann. Cas. 1912A, 255, and note, collating recent cases; McKay v. Fleming, 24 Colo. App. 880, 134 Pac. 159; Menefee v. Rankins, 158 Ky. 78, 164 S. W. 365. The question as to whether the last contract rescinded the first was submitted by the court to the jury. This, as will be seen by the citations above, was error. It was a question of law for the court. We have found but one case (Holm v. Colman, 89 Wis. 233, 61 N. W. 767) that seemingly sustains the court in submitting the question to the jury. We say “seemingly,” for, in fact, in that case the evidence showed that the contract, if any, was based upon letters, one of which was lost. The court said: “But one of the letters had been lost, and its contents were not very definitely proved, and much of the details of that contract had been left to implication or inference, and so it became a proper question . . . for the jury.” The evidence adduced on the trial shows that the appellee’s efforts to sell the properties after he secured the contract of April, 1912, were all referable to that contract. Appellee testified that on the date of the execution of that contract he stated to the agent of appellant that he had several very strong people he could deal with, and mentioned the Empire Zinc Company as one. On the 13th of April he wrote the agent of the zinc company stating that he had an option upon the property on much more liberal terms than ever offered before, and saying he might come to him with it before he got through. On July 15th, he wired the agent of the zinc company: “If you mean business, it may call for a trip to Kansas City, you and I together. The business all in my hands. ’ ’ The agent of the zinc company then went to Tucson and spent two days examining the property. Appellee says: “He [the agent] saw my special commission, bond and lease which I had.” He further testified: “I went to my house and showed him this instrument, both instruments, and he took note of them, went into them carefully, . . . and we agreed that if it was necessary for these papers—any changes in them—that I would go to Kansas City either with him or whoever went, and help and perfect the papers that were necessary, if they had to be modified in any way to interest the Boston people (Empire Zinc Company) in the deal.” The appellee in Ms dealings with the Empire Zinc Company exhibited to it the last contract as his authority to sell the property. At no time did he mention the earlier agreement. In his complaint appellee alleges he first presented the properties to the Empire Zinc Company “on or about the 9th day of April, 1912,” eight days after he had secured his last contract of agency. His every act thereafter was consistent with and related to a performance of the terms of the last contract. He was trying to sell to the Empire Zinc Company, and he had only one contract—the last one—that empowered him to sell the property. The first limited his power and duties to the introduction of a purchaser. He was required to do no more. In Simmons v. Sweeney, 13 Cal. App. 283, 109 Pac. 265, Simmons procured a sale of some real property from one Henderson to Sweeney for the sum of $16,250. A written .agreement was then entered into between them that the selling price of property should be $19,600; Sweeney to receive two-thirds of the profit, and Simmons one-third of the profit. Thereafter they entered into a verbal contract that the property should not be sold for less than $21,000, which should belong to Sweeney; any sum realized above that to belong to Simmons. Simmons, who was an auctioneer, following out the last agreement, undertook to sell the property, but was offered only $20,400. He thereupon instituted his action for damages “for the violation of said contract by defendant in preventing a sale of said property for $20,400, . . . and refusing to stand by the terms thereof and divide the profits, as provided in said contract. ’ ’ Upon these facts the court said: “The only possible question that could arise would be whether this was intended to be substituted for the written agreement and whether the subsequent conduct of the appellant in attempting to sell the property is referable to said parol agreement. This was for the court to determine from all the facts and circumstances. While there was no express declaration that the parol contract was to supersede the written one, no other conclusion seems reasonable. The terms of these two contracts were entirely inconsistent and could not be operative at the same time. But the evidence for respondent shows conclusively that everything done by appellant toward effecting a sale of the property was in pursuance of the said parol agreement. He followed its terms in advertising the property and announced to the bidders that their bids were rejected and the property withdrawn because it did not bring the said amount of $21,000. In fact, no one can read the evidence dispassionately without reaching the conclusion that the earlier agreement was entirely annulled by consent, and, since appellant failed to sell the property for the sum agreed upon, he was entitled to no compensation. If appellant intended to rely upon the first contract, he should have declined to accept and act upon the proposition subsequently submitted by respondent. He was called upon to exercise his election, and he chose to take his chances of getting a larger compensation under this second arrangement.” We think the court committed error in not holding as a question of law that the contract of November 16, 1910, was superseded by the later contract of April 1, 1912, and in submitting the case to the jury upon the evidence. The judgment of the court is reversed and the case remanded, with directions that the complaint be dismissed.. FRANKLIN and CUNNINGHAM, JJ., concur. Rehearing denied, April 9, 1915. NOTE.—As to the law of. the case on second’ appeal, see note in 34 L. R. A. 321.

ROSS, J. The appellant complains of the ruling of the court in sustaining demurrers and entering judgment of dis missal. The reason given by the court for sustaining demurrers was “that the plaintiff has nowhere in his complaint offered to do equity,” and upon plaintiff’s refusal, after permission was granted by the court, to “insert in his complaint, by amendment, an offer to do equity or an offer, upon the ascertainment upon the trial, to make such equitable restitution to the defendants upon a decree as should be adjudged by the court.” The reasons given by the court for his rulings are relied upon by appellees, in brief and oral argument, as being supported by the law and as demanding the ruling and judgment made. No other objection to the complaint is suggested or argued. We will therefore confine ourselves to the consideration of the one point raised; that is, under the facts of this ease, was it necessary, in order to state a good cause of action, that the plaintiff should have offered in his complaint “to do equity” or “to make such equitable restitution to defendants upon a decree as should be adjudged by the court”? Of course, it goes without saying, if the inclusion of such a declaration by the plaintiff in his complaint was unnecessary to his cause of action, he had a perfect right to refuse and decline to make the amendment, and to elect to stand on his complaint as filed. When a pleading is demurred to, all of the facts well pleaded are admitted as true. Then, in this case, it is admitted that the contract set forth in the complaint as executed by the president, the manager and the secretary of the a-ppellee Havalena Mining Company was executed by such officers without authority of the board of directors or stockholders, and that such contract was disaffirmed, disapproved and disavowed by the board of directors and stockholders at duly called meetings on November 11, 1912,-some nine months before the first payment of $2,000 was due; that J. Wells Smith and his assignors took possession of the mining claims under and by virtue of the contract of August 5, 1912; that J. Wells Smith, as the assignee of said contract, became the sole owner of all the interests conveyed by contract, having purchased the rights of Brown, Culley and Vastine some time prior to January 6, 1913; that J. Wells Smith, at the time of the institution of this suit, had exclusive possession of the mines, and was extracting ores therefrom and applying the same to his own use and, benefit; that the Havalena Mining Company in November, 1912, and after the board of directors and stockholders had repudiated the contract of August 5, 1912, instituted suit in the court possessing jurisdiction against Smith, Culley, Brown and Gross to have contract declared null and void, and to restrain defendants in said action from working the mines or extracting or selling ores therefrom, and from withholding the possession of mines from plaintiff corporation; that while such suit was pending defendant Smith purchased or otherwise acquired, the whole interest in said contract, and also for a comparatively small sum of money purchased more than a majority of the issued and outstanding stock of the corporation, and at a stockholders’ meeting January 6, 1913, by his own vote as the holder of a majority of said stock, did cause a resolution to be adopted ratifying the contract of August 5, 1912, and directing the dismissal of said suit, and at said meeting of stockholders likewise did elect a board of directors who were under his control and subservient to his interest, which said board of directors thereafter and on the same day, at the request and direction of Smith, who was one of the directors, did adopt a resolution ordering the dismissal of said suit; and that thereafter the said Smith caused said suit to be dismissed; that $10,000 was grossly inadequate as a bonding price of said mines; that at the time that said contract of August 5, 1912, was made, and since, other responsible parties were willing to take the mining properties on a lease and bond at a price exceeding $100,000 and on more advantageous terms to the corporation and stockholders, of which defendant Smith had knowledge; that said Smith bought the stock of the corporation to secure control and, by means thereof, to obtain said mines at less than one-tenth of their value, and thereby deprive the other stockholders of their rights therein; that the corporation and its directors have been requested to bring suit to right the alleged wrongs; and that they have refused to do so. The first admission, and an important one, is that the defendant Smith and his assignors entered into the possession of the mines under and by virtue of the instrument of August 5, 1912, designated 1 ‘ a lease and bond, ’ ’ and that such instrument was not the act and deed of the corporation, but the act and deed of certain of the corporation officers, without authority from the board of directors or the stockholders or' otherwise. Such being the admission, it follows as a legal proposition that the possession acquired by Smith and assignors was without right. Cook on Corporations, sixth edition, section 716, says: “The president of a corporation has no power, by reason of his office alone, to buy, sell or contract for the corporation, nor to control its property, funds or management.” See, also, Thompson on Corporations, second edition, sections 1464, 1470. “The secretary of a corporation has no power, merely as. secretary of the company, to make contracts for it.” Cook on Corporations, sec. 717. A general manager of a corporation has no power merely by virtue of his office to do “anything out of the usual course-of business” of his company. “The general manager does not displace them [directors], and a person dealing with the corporation is bound to take-notice of that fact.’.’ Id., sec. 719. None of the officers who signed the contract of August 5th, nor all of them together, could bind the corporation merely because they were officers. The instrument was not the act. and deed of the corporation. In Little Butte Con. Mines Co. v. Girand, 14 Ariz. 9, 123 Pac. 309, we held that a contract of sale of the corporation’s, mines made by the president and secretary, without authority from the board of directors, was ineffectual. The ■ same-learned author (Cook), at section 712, says: “All contracts of a corporation are to be made by or under the direction of its board of directors. The board of directors may make corporate contracts by a regular vote of the-board; or by authorizing an agent to make them; or by allowing an agent to assume and exercise that power; or by accepting a contract or its benefits after it has been made by an unauthorized agent. And in all cases the board of directors, and not the stockholders, nor the president, secretary,- treasurer or other agent, is the original and supreme power in corporations to make corporate contracts.” The most that could be said for the contract through which Smith claims is that it was capable of being ratified by the corporation, whereupon it would become binding. But it was. not ratified; it was repudiated by tbe directors and stockholders, and suit was instituted by the corporation itself against the present defendants and others to have it declared null and void. The defendant Smith and his assignors, upon the showing to this point, were working the mines and extracting the ores, therefrom against the will of the owner, and without any legal right or authority. They had not, nor conld they under the state of facts to this point acquire, any equities in the property or growing out of their unlawful contract as against the-corporation or plaintiff stockholder. The defendant Smith had a perfect right to purchase a-majority of the issued and outstanding stock of the corporation, and to elect a board of directors of his own choice, but. he ought not be permitted to use the power thus acquired to-force from the corporation a contract of sale of all of its property to him for what admittedly is only one-tenth of its value. Neither by such a course of conduct should he be permitted to-initiate rights or acquire equities in the mines as against the-corporation or a nonconsenting minority stockholder. The-ratification of an unauthorized contract of sale for such a. grossly inadequate price when obtained, as in this case, lends nothing to the validity of such a contract when properly challenged in a court of equity by the corporation, or, upon its. refusal, by a stockholder. To sanction such a proceeding would be equivalent to saying that a majority stockholder and director of the corporation could compel a sale of all the assets, of his company to himself at his own price and on his own terms. In Ervin v. Oregon Ry. & Nav. Co., 27 Fed. 625, 631, the court said: “When a number of stockholders combine to constitute-themselves a majority in order to control the corporation as they see fit, they become for all practical purposes the corporation itself, and assume the trust relation occupied by the-corporation toward its stockholders. . . . When several persons have a common interest in property, equity will not allow one to appropriate it exclusively to himself, or to impair its value to the others. Community of interest involves mutuaL obligation. Persons occupying this relation toward each other are under an obligation to make the property or fund productive of tbe most that can be obtained from it for all who- are interested in it; and those who seek to make a profit out of it at the expense of those whose rights in it are the same as their own are unfaithful to the relation they have assumed, and are guilty at least of constructive fraud. Jackson v. Ludeling, 21 Wall. 616, 622 [22 L. Ed. 492]; Story, Eq., sec. 323. In Backus v. Brooks, 195 Fed. 452, 454, 115 C. C. A. 354, 356, it is said: “Courts of equity have no more valuable function than to protect minority stockholders from the frauds of the majority. When majority stockholders dispose of the property of the corporation which they control in such a manner as to deprive the minority of their just rights in it, there is a breach of trust, and a court of equity is the tribune, and the only tribune, to provide an effective remedy. As said by the circuit court of appeals for the eighth circuit in Jones v. Missouri-Edison Electric Co., 144 Fed. 765, 771, 75 C. C. A. 631, 637: ‘Any sale of the corporate property to themselves, any disposition by them of the corporation or of its property to deprive the minority holders of their just share of it, or to get gain for themselves at the expense of the holders of the minority of the stock, becomes a breach of duty and of trust which invokes plenary relief from a court of chancery. ’ ’ ’ The complaint fails in its rfecitals to disclose a single equity in favor of defendant Smith. True, it set out in full the contract upon which he stands and defends. .The second party, of whom Smith is the assignee, agreed to pay $10,000 for the mines, $2,000 August 5, 1913, $4,000 August 5, 1914, $4,000 August 5, 1915, and agreed to file affidavit of assessment work on or before November 15, 1912, on or before July 1, 1913, and on or before July 1, 1914, and to pay first party 10 per cent of net smelter returns to apply on payments as they became due. If anything has ever been paid on the agreed purchase price by smelter returns or otherwise, to the corporation or plaintiff stockholder, it is not ascertainable from the allegations of the complaint. It is not shown that defendant Smith or his assignors ever performed the inexpensive and mechanical act of filing affidavits of assessment work, as agreed. If nothing has been paid the corporation or plaintiff on the purchase price, and if, as alleged, defendant is working the mines and extracting the ores therefrom and converting them to his own use and benefit, what offer of equity can plaintiff make, or what could the corporation make if it were suing? Looking at the matter from another viewpoint, we will assume, although there is nothing in the complaint to justify it, that the defendant has paid the agreed purchase price as it became due to the corporation, and that the corporation now has $2,000 of the purchase price in its treasury; still we are confronted with the proposition that the- defendant Smith is, in fact, the corporation in practically all respects, except in name. He owns a majority of the stock; the board of directors are of his selection and, according to the complaint, do his bidding. If that is true, why should the plaintiff be required, as a condition of maintaining this suit, to repay or offer to repay to defendant Smith the $2,000, for, if he has control of the corporation, he has control of its funds, or why should he be required to tender into court the moneys expended by defendant Smith in working and developing the mines when his complaint shows that defendant is appropriating to his own use the values taken therefrom, or why should he tender the 10 per cent net smelter returns if any have been paid, or the value of the assessment work, if any, has been done? "We do not find it necessary to answer these questions in passing upon the sufficiency of the complaint. The conditions implied by the questions are not to be found in the complaint, and, should they arise upon issue taken, the court will be possessed of ample powers to require the doing of equity. It would be an idle thing to require the plaintiff to insert in his complaint “an offer to do equity,” or to abide the judgment of the court. Those things the court will compel. The plaintiff is asking nothing inequitable. If the things set forth in the complaint are true, and, as here presented, we must so consider them, the possession of defendant Smith is tortious, and everything that he and his assignors have done concerning the mines in the way of working and extracting ores has been against the active opposition of the corporation and plaintiff. To require the plaintiff to tender defendant these expenditures before permitting him to prosecute his suit would be the height of inequity as it would indorse the proposition of forcing the owner of property to repay a trespasser moneys expended by him on the property, as a condition precedent to the right of recovery. Judgment is reversed and cause remanded, with directions that defendants’ demurrers be overruled. FEANKLIN, C. J., and CUNNINGHAM, J., concur.

ROSS, J. The appellee sued the appellant for a balance of $3,176.54, alleged to be due him on a written contract, by the terms of which the plaintiff agreed to repair and put into condition a designated portion of defendant’s canal, for which he was to receive $5,000. The complaint contains two counts; one count on the contract, which is pleaded in haec verba and according to its tenor and effect; and one on quantum meruit. Defendant’s answer consisted of a general demurrer, an admission of the execution of the contract sued on, with a denial of its legal effect and tenor as pleaded by plaintiff, and a general denial of all allegations in complaint not specifically admitted or denied. The case was tried by the court without a jury, and resulted in a verdict for the plaintiff in the sum of $1,000, upon which judgment was entered. Motion for new trial was overruled. From the order overruling which and the judgment this appeal is prosecuted. Four errors are assigned, but we do not deem it necessary to pass upon all of them. The one that we shall notice is as follows: “The court erred in rendering judgment in favor of the plaintiff and against the defendant in the sum of $1,000, as there is no evidence whatever in the records of this case to support such judgment. ’ ’• All of the evidence introduced by plaintiff was directly in support of the special count upon the contract and its full performance. If that count was supported by the evidence, the appellee should have had judgment for the contract amount, less credits, or for $3,176.54, the amount sued for. In other words, if the plaintiff, by proper and legal evidence, proved full and complete performance, he was entitled to full and complete payment; nothing short of it would satisfy his demand. It is therefore evident that the plaintiff failed in his proof to convince the court that he had completely or substantially performed his part of the contract, or the judgment would have been for $3,176.54, instead of $1,000. It was a question of fact to be decided by the trial court as to whether plaintiff had fully performed his contract (Adlard v. Muldoon, 45 Ill. 193), and had that fact been resolved by the court in favor of plaintiff, the contract price was the measure of his damages. The court must have determined that fact adversely to plaintiff, because the judgment was for much less than the balance of the contract price. On the quantum meruit count it is not the amount agreed to be paid under the contract, but the reasonable value of the work and labor performed, that the plaintiff is entitled to recover. It may be true, as we think it is, that the contract is evidence of the value of the labor and work performed where the only dispute is as to the price (Livingston v. Wagner, 23 Nev. 53, 42 Pac. 290; Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035 ; 9 Cyc. 685, 686), but when the controversy is as to the manner and sufficiency of performance, and it is sought to recover the reasonable value of services, as upon an implied contract, upon the theory that, while the contract may not have been fully performed, yet the work and labor added to the value of defendant’s canal, it is incumbent on plaintiff to prove such value by evidence dehors the contract, with the limitation that the recovery could in no event exceed the contract price. There being no doubt that the judgment was based on the quantum meruit count, we have examined the evidence to see if it supports the judgment. The appellee introduced no evidence of value whatever, outside of the contract price agreed upon for the completed job. He made no proof that the work done by him on the canal was of any value. .The evidence of the amount and character of the work done was introduced by the appellant over objections of appellee. It was offered by appellant for the purpose of refuting appellee’s claim of full performance, and, from the judgment entered, it evidently had that effect. Avery, the superintendent of appellant, in his examination went into some details as to the kind and character of the work done, but in one instance only did he give any value to this work. That was when he said appellee had excavated from the canal “in the neighborhood of 900 cubic yards” of earth, which he said was worth “about $1 per cubic yard.” This was necessary work, as shown by the evidence, and an improvement to the canal, and therefore of value to appellant to the extent of $900. But the pleadings show that appellee had received from appellant on account of his contract, during the time the work was in progress and before suit, the sum of $1,823.46, over twice as much as the value of his services as proved. In other words, the court had before it evidence that the appellee had done work on the canal, but the only proof of value ivas the item of $900 for excavation. The appellee, we grant, was entitled to recover the $900, even though it was proved by appellant over his objection, and on the introduction of its defense, unless the appellee had already received from appellant that amount or more. He had been paid more than twice as much as the evidence showed him entitled to. We know of no principle of law that would authorize a jury, or court sitting as a jury, in the absence of evidence of value, arbitrarily to find a value. It might be more expeditious to dispense with such proof, and leave the value to be determined by the court or jury from their common knowledge and understanding of values, but the law, in the absence of an agreement between the parties as to the value, insists that it is an issue to be tried. The court having found, as we assume it certainly did, that the appellee had failed to fully perform or substantially perform his contract, entitling him to recover the contract price, it became necessary that evidence on the issue of value under the quantum meruit count be offered before the court would have a basis for a verdict or judgment upon that issue. The court, in the trial of the facts, was performing the ordinary functions of a jury, and, in arriving at a verdict on the facts, was controlled by like considerations. The verdict and judgment thereon do not conform to the evidence, and are without the support of any evidence. The perniciousness of such a verdict, when by a jury, is characterized by Thompson on Trials, section 2606, in the following language: “Where the verdict which the jury return cannot be justified upon any hypothesis presented by the evidence, it ought to be set aside. Thus, if a suit were brought upon a promissory note, which purported to be given for $100, and the only defense was that the defendant did not execute the note, and the jury should return a verdict for $50 only, it would not be allowed to stand; for it would neither conform to the plaintiff’s evidence, nor to that of the defendant. It would be a verdict without evidence to support it; and it is not to be tolerated that the jury should assume, in disregard of the law and evidence, to arbitrate differences of parties, or to decide according to some supposed natural equity, which in reality is merely their own whim.” Judgment reversed and cause remanded for a new trial. FRANKLIN, C. J., and CUNNINGHAM, J., concur.

ROSS, J. The defendant was convicted of statutory rape alleged to have been committed on his stepdaughter, Katie Massie, 12 years old. He appeals from the judgment of conviction, and assigns 14 errors. He argues the errors under five separate heads, and we will consider them as they have been argued. First. He insists that his demurrer to the information and his motion to dismiss the case should have been sustained. The information was sufficient in form and substance as against demurrer had one been interppsed; but the record fails to show that any demurrer was filed or tendered. There was a motion made to set aside the information on the ground that the complaint filed in the committing magistrate’s court was sworn to by Mary Zumwalt, the wife of the defendant. It is argued by defendant that, inasmuch as the wife was prohibited by section 1111, Penal Code of 1901, from being examined as a witness against her husband, without his consent, the swearing to the complaint by the wife violated the law, and was therefore insufficient and void, and all subsequent proceedings based thereon were likewise infected and void. The appellant, at his preliminary, made no objection to the complaint on the ground that it was sworn to by his wife. That was the .proper time and place for him to signify that it was done “without his consent” by proper objection. Failing to act seasonably and afford the magistrate an opportunity to correct the mistake, if one, we think he waived the right to object for the first time in the superior court on his arraignment. Secondly. Complaint is made that in the cross-examination of the prosecuting witness by the defendant he was not permitted to inquire who had instructed her in the nomenclature of certain parts of her person, and was not permitted to fully develop the facts, circumstances and influences of her surroundings after the alleged offense up to the time of the trial. We have carefully examined the evidence and ruling under this assignment, and find that defendant’s contention is not sustained, except in one immaterial instance. We think it, unimportant as to who told the witness the name of certain parts of the human body. Thirdly. It is contended that error was committed in allowing Mary Zumwalt, wife of defendant, to be called to the-witness-stand on the part of the state, without a request from her to be permitted to testify in the case, and in permitting questions to be asked her concerning the case. The record shows: That this witness is an ignorant Italian woman. That she was sworn as a witness, and the county attorney, after eliciting her name, asked her if she knew what the case was about. To that question, she answered that she did not understand, and asked for an interpreter. That question was asked in various forms many times, and was generally answered in the same way. Twice, not in response to the questions put, she volunteered answers bearing upon the merits of the ease. Counsel for defendant asked the court to instruct witness that she was not compelled to testify. The request was denied. The county attorney, protesting that he was trying to ascertain if she understood the nature of the proceeding, kept repeating questions to which the witness generally answered that she did not understand. Finally, the witness, stated that she did not want to testify, whereupon the court excused her. When the court refused to instruct the witness as requested, the defendant then objected to further interrogation on the ground that she was the wife of defendant, and not competent as a witness. The legislature of this state has declared it to be the policy of the law to encourage confidence in the marital relation, and to preserve that relation inviolate, and therefore it has said that a husband cannot be examined as a witness for or against his wife, without her consent, nor a wife for or against her husband, without his consent; however, the wife may, at her own request, but not otherwise, be examined as a witness for or against her husband upon a prosecution for rape, seduction or the crime against nature, or any similar offense committed by him. Section 1228, Pen. Code 1913. The general policy of the law, as declared, is to disqualify the wife and make-incompetent her testimony, except it be given with the consent of the husband. However, as to the particular crimes men- tinned, this disqualification is removed, so thát the wife is given the privilege to testify for or against her husband at lier option. The husband, being tried for rape, cannot invoke the disqualification and thereby prevent the wife from testifying. He has no control whatever over the exercise by her nf her privilege of submitting herself to examination as a witness for or against him. The policy of the law is that she may testify as a witness on his trial, regardless of her husband’s wishes in the particular crimes named, and to that extent her •disqualification is taken out of his power and lodged in her. The privilege of testifying is hers, and not his. Her disability is removed; the law considering it for the good of society that her lips be opened and the whole truth told in the particular crimes named. In the particular cases named the interests.of society are made of more moment than the confidence and inviolability of the relation of husband and wife. Our legislation removing the incompetency of the spouses in certain cases seems to meet the spirit of the times for, as is said in People v. Langtree, 64 Cal. 256, 259, 30 Pac. 813, 814: “ ‘On the whole,’ says Schouler, ‘the prevailing tendency of late years in both England and America is to regard the domestic confidence or the ties of a spouse as of little consequence compared with the public convenience of extending the means of ascertaining the truth in all eases; such facilities being increased, it is believed, by hearing what each one has to say, and then making due allowance for circumstances affecting each one’s credibility.’ Schouler, Husb. and Wife, 85.” .The privilege being a personal one to the wife witness, Professor Wigmore says, at section 2196 of his work on Evidence : “The claim of privilege can be made solely by the witness himself; the privilege (as the common phrasing runs) is purely personal to himself. Whether he chooses to fulfill his duty without objection, or whether he prefers to exercise the exemption which the law concedes to him, is a matter resting entirely between himself and the state (or the court as its representative) . The party against whom the testimony is brought has no right to claim or urge the exemption on his own behalf, and, on the witness’ behalf, the court is to be left to accord the protection if it is a proper one. “ (2) (a) An improper ruling by the court, upon a question of privilege, cannot be excepted, to by the party as an error justifying an appeal and a new trial, if the ruling denies the privilege and compels the witness to testify.” It is clear that the court could not compel the wife to testify, and, should she refuse to do so, there would be no power in the court to punish her as for contempt. She should be examined as a witness in the instances named for or against her husband, “at her own request, and not otherwise.” We think the manner pursued by the county attorney to ascertain if the wife wanted to be examined as a witness subject to criticism. The relation of husband and wife being known or discovered, the simple inquiry as to her wishes should suffice, and the court should have restricted the county attorney to that question. The abuse or mistreatment of the witness, however, is not a matter of which the defendant can complain. It is next contended that the court erred in permitting, against objection, the county attorney to comment on the refusal of the wife, Mary Zumwalt, to testify. In this particular offense the defendant could not make his wife a witness in his behalf. The privilege of testifying or not is entirely in her control. She may be examined as a witness for or against, “at her request, and not otherwise,” is the language of the law. He not having the right to call her as a witness, that being entirely at her option, it would seem that the county attorney ought not to make adverse comment on her refusal to testify, for it is within her power to refuse, however anxious he might be to use her as a witness. The defendant has failed to preserve in the record what was said by the county attorney, and we have no means of determining whether his comment was prejudicial to defendant’s rights or not. In those eases in which the defendant may use his wife as a witness in his own behalf, and fails to do so, we think his failure to do so is a matter of legitimate adverse comment. Commonwealth v. Weber, 167 Pa. 153, 31 Atl. 481; Armstrong v. State, 34 Tex. Cr. 250, 30 S. W. 235; Mercer v. State, 17 Tex. App. 452; Smith v. State (Tex. Cr. App.), 65 S. W. 186. But in a case like the present one, where the defendant has no control, and cannot compel his wife to testify, the fact that she does not become a witness may be no fault of his, and in such ease it would be unfair for the state’s attorney in argu ment to make use of her refusal to testify in a prejudicial and censorious way. The'defendant’s assignment, however, cannot be sustained; the language used by the county attorney not having been incorporated in the record. Judgment affirmed. FRANKLIN, C. J., and CUNNINGHAM, J., concur. NOTE.—On the question of husband or wife as witness against the other in criminal prosecutions, see notes in 2 L. R. A. (N. S.) 862; 22 L. R. A. (N. S.) 240, and 41 L. R. A. (N. S.) 1213.

ROSS, C. J. The appellant, as plaintiff, sued for damages for personal injuries received while in the employ of the defendant city as a driver of one of its street-sprinkling carts. The negligence charged in the complaint is that the defendant city knowingly furnished plaintiff a fractious, unruly and unmanageable team of horses] and that by reason thereof, on June 15, 1913, the team ran away, dragging him for a' considerable distance along the street, until he was thrown upon the ground and the sprinkling-cart passed over his body, inflicting permanent and serious injuries. The defendant interposed a general demurrer to the complaint, which was sustained.. The plaintiff refusing to amend, judgment was entered dismissing complaint. The position taken by the city is that its charter exempts it from liability in a ease of this kind, and that is one of the points raised and urged under the general demurrer. If this point is well taken, it is not necessary that other points made by defendant be discussed or passed upon. It seems quite certain that it was the intention of the legislature of the territory of Arizona, judging by the language used, that Phoenix should be immune from damages for injuries or loss occasioned by or through the malfeasance, misfeasance or neglect of duty of any of its officers or other authorities. The city received its charter from the territorial legislature in February, 1881. Laws 1881, No. 58. In 1885 the legislature amended the charter (Laws 1885, No. 61), and one of the sections of the amendatory act was section 7 of article 18, which provides as follows: “The said corporation shall not be liable to anyone, or for any loss or injury to person or property growing out of, or caused by the malfeasance, misfeasance, or neglect of duty of any officer, or other authorities of said city; or for any injury or damages happening to such person or property on account of the condition of any zanje, sewer, cesspool, street, sidewalk or public ground therein; but this does not exonerate any officer of said city, or any other person, from such liability, when such casualty or accident is caused by the willful neglect of duty enforced upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.” At the time of the accident the affairs of the city were carried on by and through what was known as a common council, consisting of a mayor and four eouneilmen. By the charter, article 13, section 1 (Daws of 1885), the common council was to have and exercise exclusive control over the streets, alleys, avenues and sidewalks of the city, with the power to clean or otherwise regulate and improve the same. Paragraph 465, Bevised Statutes of 1901, also gave to cities and common councils in cities power to light and cleanse their streets, alleys' and avenues. The matter of sprinkling the streets—a necessary step to their cleansing—was therefore under the control and direction of the common council. It was for them to say whether the streets should be sprinkled, and to design and provide the methods and means to accomplish that end. To the council’s lot fell the duty of employing men to do the actual work of sprinkling the streets, of furnishing the workmen with sprinkling-carts and with teams to draw the carts. It was the duty of the city to furnish the plaintiff a reasonably safe place in which to work and reasonably safe instrumentalities with which to do his work. The plaintiff contends that this duty of supplying him with reasonably safe instrumentalities with which to prosecute his work was personal to the city, and could not be delegated to others, and that, in contemplation of law, it was the negligent act of the city that caused the plaintiff’s injury. It is the law that the master may not delegate this particular duty to others, and thereby evade responsibility; but that is not upon the theory that he himself is personally negligent, but presupposes negligence in others for whose acts he is responsible. And in this case the act of common council in turning over to the plaintiff an unmanageable team was the act of the city, and, if the council was guilty of negligence in that act, the city was likewise negligent, and probably would be liable in damages but for the exemptions from liability for the malfeasance, misfeasance and neglect of duty of its officers. The plaintiff further contends that the provisions of section 7, article 18, of the charter, attempting to relieve the city from damages occasioned by the neglect of its officers, is unconstitutional and void. Without enumerating the reasons he assigns to support his contention on this point, we may say that in our search we have found such statutes generally upheld by the courts. In 28 Cyc. 1343, it is said: “A city may be specifically exempted from liability by its charter”; citing Parsons v. San Francisco, 23 Cal. 462, which fully supports the text. In Goddard v. Lincoln, 69 Neb. 594, 96 N. W. 273, where the principle we have was before the court, it was said: “A city is a creature of the legislature; its rights, duties and liabilities are to be measured by the statute under which it exists. Early in the history of this state a city was held liable for injuries resulting from the defective condition of its streets, on the ground that it had exclusive control of such streets, and the legislature had placed ample means at its disposal to maintain its streets in a safe condition. Omaha v. Olmstead, 5 Neb. 446. The principle announced in that ease has since been frequently applied. Aurora v. Cox, 43 Neb. 727, 62 N. W. 66; Lincoln v. O’Brien, 56 Neb. 761, 77 N. W. 76; Beatrice v. Reid, 41 Neb. 214, 59 N. W. 770. As the liability in such eases must rest on some express or implied provision of the statute, it is clear that the legislature may place such limitations upon it as it may deem proper, or, for that matter, take it away entirely. ’ ’ The legislative power to exempt municipal corporations from liability for the negligence of its officers has been recognized in personal injury cases arising out of neglect to keep streets in safe condition for travel in Oregon under charters whose provisions were very similar to the charter of the defendant city. O’Harra v. Portland, 3 Or. 525; Rankin v. Buckman, 9 Or. 253. In Mattson v. Astoria, 39 Or. 577, 87 Am. St. Rep. 687, 65 Pac. 1066, a provision in the charter of Astoria exempting both the city and its officers from liability for injuries occasioned by negligence was held to be repugnant to the state Constitution, guaranteeing to every person a remedy by due course of law for injury done him in person, property or reputation, in that such a statute deprived the injured person of a right of action against anyone and left him without remedy. The court, however, used this language: “That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair is unquestioned”— citing with approval the O Tlarra ease. The court in Wilmington v. Ewing, 2 Penne. (Del.) 101, 45 L. R. A. 79, 43 Atl. 307, reviewed most, if not all, of the decisions bearing upon the power of the legislature to exempt a municipal corporation from liability for damages suffered because of the negligence of its officers to keep its streets in suitable condition for travel, and announced its conclusion as follows: “The power to alter, modify or take away the liability of mu'ffíeijíal corporations for injuries sustained from defective streets and sidewalks has been frequently exercised by state legislature and sustained by the courts.” But the eases cited by us have not directly involved the power of the legislature to exempt the master from liability for damages occasioned by the neglect of duty or malfeasance or misfeasance of his employees, whereby his servant has been injured. The relation existing between plaintiff and defendant at the time of injury was that of master and servant. The master was the city. It is a creature of the legislature. Its powers, duties and functions are prescribed by law. That law has said: “The said corporation shall not be liable to anyone [or] for any loss or injury to person or property growing out of, or caused by the malfeasance, misfeasance or neglect of duty of any officer, or other authorities of said city. ...” The city could exercise and perform its powers, duties and functions only by “officers or other authorities.” Whoever furnished the team to plaintiff must have been a person falling within the words “officers or other authorities” of said city for whose “neglect of duty,” if any, the city is expressly exempt. The plaintiff accepted employment of defendant knowing that the charter of defendant exempted it from liability for any injury he might sustain while in its employment by reason of the malfeasance, misfeasance or neglect of duty of any of its officers. It is well settled that contracts are to be construed in connection with the law in force at the time of their execution. The law enters into and forms a part of every contract. While, independent of law authorizing it, contracts purporting to exempt the employer from liability for his own negligence or that of his employees have been viewed with disfavor, and correctly and justly so, as being against public policy, deference to the legislature requires a more favorable attitude be assumed toward such contracts when authorized by statute, especially as applied to contracts of a municipal corporation. There is, indeed, a prohibition in the Constitution (section 3, article 18) against “any person, company, association or corporation” requiring such a contract from servants or employees; but the 'provisions of this section do not have reference to municipal corporations. Sections 1 and 10 of article 18 designattrthe last-named corporations as “political subdivisions of the state” and ‘1 any municipality. ’ ’ The word ‘ ‘ corporation, ’ ’ wherever used in said article 18, entitled “Labor,” has reference to private corporations, and not to cities or towns. If the municipal corporation of Phoenix could make such contracts before the Constitution was adopted, it may still do so, if its charter is unchanged. The constitutional malediction of such contracts does not extend to contracts of employment by the city. While we do not concur in a policy that exempts a city from the results of its negligence or the negligence of its officers, we may not set aside, or control or nullify that policy as declared by legislative enactment, unless we find the same repugnant to some provision of the Constitution. The statutory test of the liability of a municipal corporation, as given by Shearman & Redfield, Law of Negligence, section 254, volume 2, is: “It is impossible to state a general rule by which the liability of every municipal corporation of every class, for either the nonfeasance or misfeasance of its officers, may be determined. The only test of a particular corporation is the statute under which it exists, and which confers its powers and prescribes its duties. Subject to constitutional limitations, the state may, either in the charter, as a condition of a grant of powers, or subsequently by an independent act, impose upon such bodies such burdens and charges as are thought most likely to accomplish the object of their creation; or it may exempt them altogether from certain kinds of liability. It is a universally recognized principle that they have no powers, except those given by statute, either expressly or as necessarily incident to their express powers, and that their liabilities are to be determined upon a true interpretation of the statutes creating or governing them.” There is no provision of the state or the federal Constitution violated by section 7, article 18, of the city charter, so far as we have been able to discover. The contention of plaintiff: that it violates section 6, article 18, of the state Constitution, providing that the right of action to recover damages for injuries shall never be abrogated, is not tenable, for the reason that said section only undertakes to preserve rights already cognizable by law, and does not undertake to create new rights of action. When the Constitution was adopted the charter of the defendant was in force and effect as a law of the territory, and was carried forward as a law of the state where not repugnant to the Constitution, and by that law the defendant city is exempt from liability for the injury complained of. We regret exceedingly that the legislature has by its act prevented us from ordering the submission of plaintiff’s claim to a jury of his country, for we are unable to see why, as a matter of justice, the city of Phoenix should not be held liable for its neglect or the neglect of its officers. Judgment affirmed. FBANKDIN, J., concurs.

CUNNINGHAM, J. In describing the character of this instrument in Houck v. Anderson, 14 Ariz. 502, 131 Pac. 975, we said the instrument “is reciprocal in its terms in that each (party thereto) purports to give all his interest in the common property to the other, effective upon his death, with remainder over after the survivor’s death to nearest heirs at law of both the testators.” We held that Peter Anderson revoked the instrument as his will by his marriage with Ruth Wilson Anderson, and therefore held the instrument not subject to probate as the will of Peter Anderson. In this case the instrument is propounded as the will of Isabella Anderson, and the first question that must be settled is whether it can be admitted to probate as the will of one of the joint makers when it has been revoked by the other. The instrument, considered as a whole, may be, and it is, both a mutual or reciprocal will of the parties, and a separate will of the survivor. That part of the instrument preceding the “fourth” paragraph of the conditions of trust deals with the community property making testamentary disposition of the said property. That part of the instrument preceding the terms of the trust is in form an absolute deed from the husband to the wife, and from the wife to the husband. The property purported to be conveyed by the husband to the wife is different in description from the property purported to be conveyed by the wife to the husband, but a general description of “all personal property and other real estate owned by” each party at the time of his or her death is added to the specific description of the real property in each instance, and, all property owned being conceded to be community property, the difference in description is immaterial to the disposition of this case. The conveyance is declared to have been made “for the disposition of all their property that they or either of them may own at the date of their death. ’ ’ Following the words of conveyance and description above noticed, the habendum, clause is “To have and to hold unto (as the ease may be) in life rent subject to the terms of the trust hereinafter written.” Then follows this introductory statement, “Now the terms of the before mentioned trust are these.” The first: “Upon the death of either one of the parties hereto the survivor shall set apart” the sum of $1,000 for the use and benefit of G. B. Blom. The second: “Upon the death of one of the parties hereto the survivor shall set apart” $500 for the education of Yiolet Thompson. The residue of both sums shall become the property of such survivor. ° ‘ ‘ These two sums shall be expended by and under control of said survivor to the best interest of the beneficiaries.” The third: “After the payment of all debts owing by the parties hereto, the remainder shall become the sole property of the survivor, who shall have the power to dispose of any or all of said real estate and personal property and grant, bargain, sell and convey the same and enjoy the same during her life or his lifetime.” The necessity of administration is waived and all bonds are waived. Clearly the instrument, up to the fourth paragraph of the so-called terms of the trust, as we have noticed, is the will of both the husband and wife, and makes full disposition of all the property of each and all the community property after the death of one of the spouses. The fourth paragraph of the so-called terms of trust deals with an entirely different property and is a separate and separable matter which we will notice later in this opinion. The wife, Isabella Anderson, having died, and Peter Anderson having become the survivor, the instrument, so far as it purports to dispose of the wife’s estate in the community property, became subject to probate as the last will and testament of Isabella Anderson. This is the intention to be gathered from the clear terms of the instrument. No other construction can be given the instrument. If established and admitted to probate as such will, then the question first to arise would be whether, under the terms of the will, Peter Anderson would take the residue of the property, after setting aside the sums to Blom and Violet Thompson and paying all the debts, as a life estate, or would he take the entire estate in fee simple? It is clear that the survivor, Peter Anderson, would take a fee-simple title both under the terms of the will and under the express provisions of the statute (paragraph 723, Ariz. Rev. Stats. 1901). The statute is as follows: “Every estate in lands which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” This statute was taken from Texas, and, before its adoption, the supreme court of Texas, in Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268, said, as to the common-law rule of construction: “It is a rule of construction of the common law, independently of the statute, that in every case, where land is charged with a trust which cannot be performed, or where the will directs an act to be done, which cannot be accomplished, unless a greater estate than one for life be taken, it becomes necessary that the devise be enlarged to a-fee. 4 Kent’s Commentaries, 540; Collier v. Walker, 6 Co. (Coke’s Rep.) 16; Doe v. Woodhouse, 4 Term Rep. 87.” Peter Anderson, the survivor, could not grant, bargain, sell and convey the property during his lifetime, according to the express terms of the will, if he acquired only a life estate. Under the statute, and also under the common-law rule of construction, Peter Anderson would take a fee-simple estate in the lands through the will. The will in terms devises that estate, and the statute would give him that estate. Prom the terms of the will the clear intention of the testator was to transfer a fee-simple estate to the survivor, and that clear intention must prevail, if the instrument is established as the will of Isabella Anderson. The “fourth” condition has no reference to the community property. That is disposed of in the preceding part of the instrument to the survivor of the community. Such preceding part of the instrument clearly, on the death of his wife, became her will, and the survivor became her devisee, with Blom and Violet Thompson legatees. The “fourth” condition of the so-called trust deals, not with the community property, but solely with the estate of the survivor. The husband and wife jointly and mutually agreed that the whole estate of the survivor, at his or her death, should go to the nearest heirs at law of both parties and to Violet Thompson, share and share alike. Whether Peter Anderson as a fact repudiated the will of Isabella Anderson, and took her estate under the statute, or whether he acquired title through the will, is not a question in this case. That question might arise upon a distribution of the estate. If he took the title under the statute, he would have repudiated the will; and, if he took under the will, he waived the statute; the result, however, is not the same. In either event he took the fee-simple estate. If he took under the will, the estate would be charged with the payment of the legacies and debts; if he took under the statute, the estate would be charged with the payment of the debts alone. Violet Thompson, now Violet Houck, is alleged to be a legatee under the will; therefore she, as such legatee,, is entitled to have the will probated in order to protect her rights. Ruth Wilson Anderson, as the surviving wife, has such an interest in the estate of Peter Anderson, a devisee under the purported will, as would give her the right to contest its admission to probate. After probate, if it should appear that Peter Anderson elected to take the estate of his deceased wife under the will, •then such estate, so acquired by him, would be charged with the legacies provided in the will and with the payment of the debts; and Ruth Wilson Anderson, his surviving spouse, would take such property still charged with such burdens, unless Peter Anderson discharged them in his lifetime. In any event, the nearest heirs at law could claim nothing in the estate of Peter Anderson by reason of the instrument. Yiolet Thompson can claim the legacy of $500 provided in Isabella Anderson’s will, and follow the claim against the estate of Peter Anderson, not because of any will of Peter Anderson, but because of the will of Isabella Anderson and Peter Anderson’s implied promise to pay the legacy arising upon his taking the property under the will burdened with the payment of such legacy. If he accepted the benefits, he must stand the burdens. Yiolet Thompson, now Yiolet Houck, can claim no part of Peter Anderson’s estate under the instrument, any more than the “nearest heirs at law” can claim under the instrument, for the reason it was revoked by operation of law on his remarriage as to such devisee. We have no hesitancy in holding that the order of the court involved in this appeal, admitting the instrument to probate as the last will and testament of Isabella Anderson, deceased, is without error. The order is affirmed. FRANXLIN, C. J., and ROSS, J., concur. Application for rehearing denied. NOTE.—As to probate of joint wills to operate on survivor’s death, see note in 38 L. E. A. 292.

FEANKLIN, J. This is an action to foreclose a statutory lien for labor performed upon and materials furnished for a certain group of mining claims owned by the appellant, Oceanic Gold Mining Company, a corporation. The appellee brought this action as the assignee of certain persons whom he claims performed such labor and furnished such materials, in an amount aggregating the sum of $8,543.28. Appellant and the Imperial Mines Company, a corporation, are defendants. A trial was had, which resulted in a judgment against the appellee, refusing a foreclosure and decreeing the lien to be null and void, and on his motion a new trial was granted. The appeal is from such order. In the notice and claim of lien it is staled under the oath of appellee that the whole of said labor was performed upon and said materials were furnished for the said mining claims during and after the month of December, 1912, and under a contract with and at the request of the Imperial Mines Company, a corporation, and for which it promised to pay, but which it failed to do; that all. of said mining claims, at the time said labor was performed and materials furnished, were owned by said Oceanic Gold Mining Company, and said claims were then under bond or option to buy, or contract to purchase the same, from the said Oceanic Gold Mining Company to the said Imperial Mines Company—said bond, option or contract permitting said Imperial Mines Company “to go upon said mining claims and locations and to work and develop the same.” The claimant also states that the full amount of $8,543.28 is still due and owing to him for all of said labor and material, over and .above all just and lawful payments, offsets and claims. The foregoing statements in the claim of lien are substantially what is alleged in the complaint in respect of the matters which we deem it necessary to refer in the decision of this appeal. The lien is claimed under chapter 2, title 40, of the Eevised Statutes of Arizona of 1901, and all amendments thereto, relating to liens of mechanics, laborers and others. The bond or option to buy, or contract to purchase, as the instrument is designated in the claim of lien and complaint, is alleged in the complaint to have been made by the Oceanic Gold Mining Company on November 22, 1912, to one Efíie S. Tyron, and by her subsequently, on December 23, 1912, assigned to the Imperial Mines Company. When this instrument was executed the law applicable to a lien of the kind in question is found in paragraph 2904 (section 25), Revised Statutes of Arizona of 1901. It provides: “All miners, laborers, and others who may labor, and all persons who may furnish material of any kind, designed or used, in or upon any mine, or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid.” This statute was amended at the first session of the First Legislature, which statute, as amended, became the law on December 5, 1912, and so far as pertinent to this case is as follows “All miners, laborers, and others who may labor, and all persons who may furnish material of any kind designed or used, in or upon any mine, or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid. And said lien for labor performed or material furnished, shall attach to said mine, or mining claim, whenever said labor was performed, or said material was furnished in or upon said mine, or mining claim, under any of the following conditions: 1. . . . 2. . . . 3. Under or by virtue of a contract between persons performing said labor, or furnishing said material, and any person or corporation having an option to buy, or contract to purchase said mine, or mining claim, from the owner thereof, where said option or contract permits the person, or corporation, having said option to buy, or contract to purchase, to go upon said mine, or mining claim, and to work or develop the same.” Chapter 66, First Session, First Legislature, 1912. It will be seen, therefore, that the law as amended was not in effect at the time of the execution of the bond, option or contract, as it is called. We have recently had this statute as amended before us, wherein it was sought to have it applied to a bond, or option, or contract, made before the amendment, went into effect and after a careful consideration of the authorities we refused to give the amendment a retroactive operation, for the reason that such an application of the law as amended would be a substantial interference with the obligation of the contract itself, and such an application of the law is prohibited by the Constitution of Arizona, and the Constitution of the United States. See Foltz v. Noon, ante, p. 410, 146 Pac. 510. The right to the lien must be tested by the statute as it existed before the amendment went into effect, and under this statute no lien could be secured unless the labor performed and the material furnished was at the instance of the owner of the property or his agent. The complaint seeking to foreclose the lien fails to show that the labor was performed and the materials were furnished at the instance of the owner of the property or his agent. “The mere fact of such a contract, or option, or bond, by the terms of which the proposed purchaser was permitted to enter upon, work and develop the mines, with no further or additional powers over the property, would not constitute the proposed purchaser the agent of the owner in the employment of labor.’.’ Foltz v. Noon, supra. There is, therefore, a fundamental defect in the complaint, which we must recognize on this appeal as affording no basis for a judgment in favor of the appellee. The appellant also calls the attention of the court to the claim of lien, and asserts that the lienor’s (assignee) demand is not a true statement, and does not deduct all just credits and offsets and by reason of the omission of credits and the inclusion of nonlienable items in the claim of lien, and the the blending together of lienable and nonlienable items, that such claim of lien must be disallowed in toto. Appellant invokes the rule here, as he did in the lower court, that where a lien claimant puts on record a statement of the account which he knows to be untrue, or which, by the exercise of reasonable diligence, he’ could have ascertained to be untrue, he loses his lien, citing in support of such rule Griff v. Clark, 155 Mich. 611, 130 Am. St. Rep. 582, 29 L. R. A. (N. S.) 305, 119 N. W. 1076; New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512, 83 N. Y. Supp. 450; Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329, 106 Pac. 447; Lynch v. Cronan, 6 Gray (Mass.), 531; McPherson v. Walton, 42 N. J. Eq. 282, 11 Atl. 21; Lewis v. Beeman, 46 Or. 311, 80 Pac. 417; Kendall v. Fader, 199 Ill. 294, 65 N. E. 318. On this appeal, and the disposition to be made of it, we do not feel called upon to enter into a discussion of this contention. The complaint fails to show that the work was done or the materials were furnished at the instance of the owner of the property or his agent. As we have said, this is a fundamental defect, and affords no basis for a foreclosure of the asserted lien. The order granting the motion for a new trial will not be disturbed, but the cause is remanded, with directions to sustain the general demurrer to the complaint. EOSS, C. J., and CUNNINGHAM, J., concur.

ROSS, C. J. This case grows out of the case just decided, No. 1419 (ante, p. 395, 146 Pac. 504), wherein the ArizonaParral Mining Company was appellant and the present appellant was appellee. The appellant Forbes, who was plaintiff below, as stated in that case, had sued for broker’s commission. At the time of instituting his suit he caused a writ of attachment to be levied upon the appellee’s mining property for the purpose of securing any judgment he might recover. The court dissolved and dismissed the attachment. This appeal is prosecuted from the order of dissolution. Having decided in ease No. 1419, supra, that the appellant herein could not recover upon the contract sued on, it follows that the order of the court dismissing the attachment must be affirmed without regard to the reasons the court may have assigned for such” order. There being no debt, there could be no attachment. Judgment affirmed. FRANKLIN' and CUNNINGHAM, JJ., concur. Rehearing denied April 9, 1915.

O’CONNOR, J. The appellee, Howard Sheep Company, commenced this action to establish its rights to the waters flowing in Spring Valley Wash at flood seasons, and impounded by it in Howard Lake and appropriated to use in stock-raising, and for the purpose of restraining the appellant, J. F. Daggs, from diverting such flood waters from plaintiff’s ditch used by plaintiff for conveying such waters from the said wash to said lake. The defendant demurred to the complaint, assigning a number of grounds for demurrer, among which he specifies that the complaint fails to state facts sufficient to constitute a cause of action, because the facts stated do not authorize the court to grant the relief sought, or any relief, because the complaint fails to show that the water was ever appropriated by plaintiff to a beneficial. use, and because the complaint fails to show that defendant is not entitled to a reasonable use of water on his lands, but seeks to enjoin such use. The defendant answers with denials of the allegations of the complaint, and also sets forth bis rights in the nature of an affirmative defense presenting his title to a part of the flood waters in question. The court overruled the demurrers, and the issues of fact were submitted to the jury generally and upon special interrogatories. The jury returned a general verdict for the plaintiff and answered the interrogatories submitted by the court. Upon the coming in of the verdicts of the jury, the court made and filed its findings of facts in accordance with the verdicts of the jury and made conclusions of law therefrom, and ordered judgment entered accordingly for the plaintiff. The judgment was rendered and entered on the 16th day of January, 1912. A motion for a new trial was made on February 27, 1912, and considered made, filed, and overruled as of January 16, 1912, by stipulation of counsel entered into in open court on January 16, 1912. The stipulation so made was to the effect that defendant was allowed 40 days’ additional time to the time given by the statute in which to prepare and file a motion for a new trial. The motion for a new trial was actually filed February 27, 1912. When filed it was deemed overruled as of January 16, 1912, in accordance with the said stipulation. The defendant appeals from the judgment and from the order refusing a new trial. The appellee on this appeal contends that appellant has failed to present his appeal in accordance with the rules of this court relating to the matter of assigning errors, and for that reason we are precluded from the consideration of any errors requiring an examination of the evidence; that we can only consider the questions raised by the demurrer, and such fundamental errors as manifestly appear upon the judgment-roll, because no other error is assigned. Aside from the fact that the errors are not sufficiently assigned to meet the requirements of our rules, the contention of appellee must be sustained upon another ground. The record discloses that the motion for a new trial was not made and filed until Feb-, ruary 27, 1912, although the judgment was rendered on January 16, 1912—42 days prior. Paragraph 1478, Eevised Statutes of Arizona1 of .1901, provides: “All motions for new trials in arrest of judgment or to set aside a judgment shall be made within five days after the rendition of verdict or judgment, if the term of court shall continue so long; if not, then before the end of the term. ’ ’ The terms of this law are mandatory and must be obeyed by the courts as well as by the parties. As was said by the court in Gill v. Rodgers, 37 Tex. 628, before Arizona adopted this statute: “We know of no exception to this requirement of the statute, which will allow parties litigant to come in after the expiration of the time limited by law, with a simple motion for a new trial.” Gill v. Rodgers, supra, was followed in Svea Ins. Co. v. McFarland, 7 Ariz. 131, 60 Pac. 936, and the same rule approved in White v. Springfield etc. Ins. Co., 3 Ariz. 352, 29 Pac. 1006, and Walker v. Blake, 13 Ariz. 1, 108 Pac. 221. Counsel cannot stipulate to disregard the mandatory requirements of a statute, and thereby nullify its provisions. The text in 29 Cyc. 927, which is fully supported by the authorities, is as follows: “In most jurisdictions statutes or rules of court having the form of statutory enactments provide that an application for a new trial must be made within a certain number of days after the rendition of the verdict or decision, or within some other fixed time. The statutory provisions must be strictly complied with. "Where a motion is not filed until after the time therefor has expired, the effect is the same as if no motion were filed at all. A motion filed out of time may be either stricken from the files or overruled, and the "reviewing court cannot correct the errors which are grounds for new trial. ’ ’ Paragraph 1473, Revised Statutes of Arizona of 1901, provides that: “Every motion for new trial shall be in writing, and shall specify generally the grounds upon which the motion is founded. ...” A set of facts like the facts in this case was before the court in Carmack v. Erdenberger, 77 Neb. 592, 110 N. W. 315, and it was said by the court: “The appellant contends that the record with respect to a motion for a new trial discloses a common practice—that is, that the courts frequently, during the hurry incident to the closing days of the term, rule on a motion in anticipation of one to be filed subsequently—-and that, where this is done, the defeated party by custom is allowed, to file his motion at any time within three days from the adjournment of the term. The trouble with that contention is that the alleged custom runs counter to the statute. Section 317, Code of Civil Procedure, provides that the application for a new trial must be by motion, upon written grounds, filed at the time of making the motion. Under the statute there is no such thing as an oral motion for a new trial, because the statute is mandatory that the application must be made by motion, upon written grounds, filed at the time of making the motion. The court has no authority under the statute to pass on a motion that has not been filed, or in anticipation of one being filed. ’ ’’ The cause stands for review in this court as on appeal upon the judgment-roll, and such questions only as the judgment-roll presents may be considered. Appellant assigns as error the order of the court in overruling his demurrer to the complaint, because of the alleged failure of the complaint to state facts sufficient to constitute a cause of action. Appellant contends that the complaint must allege facts showing the beneficial use to which the water has been applied, the quantity of water so used, and the time it has been used. In order to show a right of action the plaintiff must allege facts showing that plaintiff has appropriated to a beneficial use a definite quantity of the public waters of the state prior to any use of the waters made by the defendant, and that defendant by some subsequent act is depriving the plaintiff of some part of such definite quantity of water theretofore appropriated by plaintiff. Appellant correctly asserts that the necessary facts and not conclusions of law must be pleaded. The rights in unappropriated waters or the surplus or flood waters are acquired by any person or corporation for delivery to consumers, rental, milling, irrigation, mechanical, domestic, stock or any other beneficial purpose, by appropriation of such waters. “ . . . The person or persons, company or corporation first appropriating water for the purposes herein mentioned shall always have the better right to the same.” Paragraph 4169, Ariz. Rev. Stats. 1901. The right to appropriate the waters depends upon- whether the water is unappropriated and upon the purpose for which the water is to be applied after appropriation. The person first in time who uses the unappropriated waters of the state for any of the purposes mentioned in the statute, supra, acquires the better right to the water so used. If, in order to use or appropriate the water for any of the purposes mentioned, it becomes necessary or convenient, the appropriator is given by the said statute the right to construct and maintain reservoirs, dams, canals, ditches, flumes and any and all other necessary waterways. In order to state a cause of action in this kind of case, such facts must be stated as from them it is made reasonably to appear that the plaintiff has appropriated to some beneficial use some of the unappropriated waters, or surplus or flood waters at a time prior to the time the defendant has performed any adverse act of appropriation of the waters in his own right, and that defendant has performed or threatens to perform some act that will deprive the plaintiff of some right acquired by such appropriation. An examination of the complaint discloses that for a period of about 15 years prior to the commencement of this action the plaintiff has maintained a dam on Spring Valley Wash, and a ditch from such, dam to Howard Lake; that the flood waters to the amount of the carrying capacity of the ditch, during tha't period of time, have been diverted by said dam and conveyed by said ditch to Howard Lake and stored in said lake; that during said period of time the waters thereby diverted, conveyed and stored have been used by the plaintiff for the purpose of furnishing its sheep with water; that, in order to furnish a sufficient amount of water for such use, the dam, ditch and storage reservoir are necessary. These facts appearing in the complaint, the prior appropriation of the flood waters of Spring Valley Wash for a beneficial purpose unquestionably appears. Plaintiff thereby shows a better right to the amount of water his ditch will carry from the dam to the reservoir lake. The complaint then alleges, in brief, that during August, 1910, the defendant constructed a diversion dam across said Spring Valley Wash at a point about 1% miles above plaintiff’s said lake and about one mile above plaintiff’s said diversion dam, and proceeded to construct from his said diversion dam a ditch through which all of the waters of said Spring Valley Wash might be diverted and conducted into another lake; that said dam and ditch constructed by the defendant did divert all of the water thereafter flowing in said wash into said other lake. Prom these facts the clear inference must be drawn that the defendant by means of his said dam and ditch has deprived plaintiff of the use of the amount of the flood waters of Spring Valley Wash that his ditch would carry from plaintiff’s dam to Howard Lake; in other words, the acts of defendant have deprived plaintiff of its right to the amount of water appropriated by it to the purpose of furnishing water for its sheep. What amount of water is necessary or required for such purpose is specified by plaintiff in its complaint as the amount its ditch will carry from the dam to Howard Lake. That statement is sufficiently specific for the purposes of a pleading, and the exact amount of water appropriated may readily be arrived at from evidence of the size of the ditch, the velocity of the flow, and other like facts. It is clear that the facts stated in the complaint are sufficient to set forth a cause of action when attacked by a general demurrer as here interposed. The general verdict of the jury is responsive to the issues raised in the pleadings. The special verdict—that is, the interrogatories submitted and answers thereto—is not included in the abstract of record, and for that reason may not be considered in this case. The findings of fact by.the court cover all the material facts necessary to support a decree for the plaintiff under the pleadings. The decree is responsive to the allegations of the complaint, following the verdict of the jury and the findings of fact, quieting plaintiff’s title to the waters appropriated and used, and enjoining perpetually the defendant from any and all future interference with plaintiff’s rights, and defendant is commanded to restore the conditions in the vicinity of plaintiff’s dam and ditch “so that all of the waters which would have flowed into Howard Lake before the construction of defendant’s dam and ditch may henceforth continue to flow therein.” Such a judgment the court is authorized to enter, viz., one that conforms to the pleadings, the nature of the case proved, and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Paragraph 1428, Ariz. Rev. Stats. 1901. We find no reversible error in the record. The judgment is affirmed. CUNNINGHAM and ROSS, JJ., concur. N. B.—FRANKLIN, C. J., being disqualified, and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the Constitution, called in Hon. W. A. O’CONNOR, Judge of the superior court of the state of Arizona in and for the county of Santa Cruz, to sit with them in the hearing of this cause.

ROSS, J. The appellant mining company, as shown by its complaint, is the owner of two groups of mines situate in the Globe Mining District, Gila county, Arizona, to wit, the Inspiration Group, consisting of 36 patented mines, and the Live Oak Group, consisting of 15 patented mines. These mines are low-grade copper mines; the ores found in them containing an approximate average of 2 per cent copper. There has been disclosed in the Inspiration Group deposits of approximately 30,000,000 tons of copper ore of commercial grade, and in the Live Oak Group a deposit of approximately 15,000,000 tons of copper ore of commercial grade. The appellant has purchased at great expense a mill or concentrator site for the treatment of ores from the two groups, and contemplates and intends to erect such mill or concentrator at a point about IV2 miles in a northeasterly direction from the Inspiration Group and approximately 2y2 miles in same direction from the Live Oak Group. Because of the low-grade ores found in said mines, it is necessary, in order to mine the same at a profit, to mine and treat the same in large quantities, and to that end the concentrator is to have an approximate capacity of 7,500 tons of ore daily. The Inspiration Group and the Live Oak Group are entirely separated from each other by the mines of the appellee,- New Keystone Copper Company. The appellant has sunk shafts upon both groups and run tunnels or drifts through and across both groups up to the Keystone line. It is alleged: “That for the successful working of said Live Oak Group of mines and the utilization of said mill or concentrator it is necessary and indispensable that the plaintiff have a right of way across said Copper Hill claim (being one of the Keystone mines) and throughout the length thereof for the eon struction, maintenance, and operation of a tunnel or drift 9 feet high and 11 feet wide; . . . that said Live Oak Group of claims have and will have great value because of their production of ores and metals, and that their further development and mining will contribute to the development of the mineral resources and the prosperity of the United States and of the state of Arizona; that the plaintiff is constructing said tunnel to enable it to develop and mine said Live Oak Group of claims, and that the construction thereof is necessary for said purposes, and the same is and will be a public use for and on behalf of which the plaintiff may exercise the right of eminent domain; that the taking of said property to the construction of said tunnel across said Copper Hill claim is necessary to such use and is authorized by law.” A demurrer to the complaint was sustained upon the ground that the right of way for tunnel or drift sought to be condemned was to be devoted to a private use and not to a public use. The oral arguments of the learned counsel in their presentation of the case were devoted entirely to the one question as to whether the proposed use was private or public and their very elaborate briefs were given over to the same proposition, apparently upon the assumption that the solution of that question determined the case; it being conceded in the arguments that the use must be public to authorize condemnation. By an analysis of the facts, it is easily discovered that the tunnel asked for is for the private and individual use of the plaintiff. Both of its ends are perpendicular shafts on the private property of plaintiff and under its complete dominion. If the necessities of the case required its use by others, it could be used only upon consent of plaintiff. Public participation in the use of the tunnel in the sense that other mining companies might use it to transport their ores is precluded by the fact that it begins and ends on the plaintiff’s property. Therefore, if user by the public is essential under our laws to constitute a public use, and if private property may-be taken only for public use, the plaintiff must fail. The Constitution of the United States (and most of the state Constitutions are modeled after it) provides that private property shall not be taken for public use without just compensation. The decisions of the courts under such Constitutions, as to the purposes for which private property may be taken and as to what constitutes a public use, are not controlling in this state, and, indeed, lend us but little aid toward solving our problem. In the first place, it should be borne in mind that the right of eminent domain is an inherent right of sovereignty, and that the provisions found in the various Constitutions of the states defining eminent domain are restrictions and limitations upon the legislative department, and not the grant or extension of power to that department of government. In authorizing the taking of private property for private use, the legislative department of the government is therefore limited to the purposes named in the Constitution. The legislature may provide the modes and means of exercising the right thus defined by the fundamental law, and designate the persons and agencies authorized to exercise the right; but it cannot enlarge that right to include other private uses for which condemnation may be had. There is no limitation upon the sovereign’s power to take private property for public use, except that just compensation shall be made. Constitutions that provide that private property shall not be taken for public use (except upon just compensation) have been uniformly construed, so far as we know, to prohibit by negation the taking of private property for private use. Under such Constitutions private property can be taken for public use only. “Public use,” instead of having a common definition, because of local conditions, has acquired at least two meanings; one is user or right of use by the general public without the consent of the owner, and the other is public welfare, or public benefit or advantage. These definitions have been adopted in the different jurisdictions as the local conditions and necessities demanded, and very properly so. For to give the words their popular meaning in the arid West would often mean the prevention of the reclaiming of desert areas there found or the development of other of its paramount resources, such as mining, lumbering or stock-raising. The strained or unnatural construction given the words in some jurisdictions have been imperative to the development and prosperity of the country. In other words, the exigencies of the eases were such as to require the courts to declare what was in fact a private use to be a public use; otherwise the right of eminent domain was denied, private enterprises paralyzed, and natural resources left dormant. Such a strained construction disregards the plain intent of the Constitution that forbids by implication the taking of private property for private use; but no such necessity exists under our Constitution, for that instrument, in section 17, article 2, provides that: “Private property shall not be taken for private use except for private ways of necessity, and for drains, flumes or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation. ...” This definition of the right of eminent domain found in our Constitution, if approved and followed, authorizes the lawmaking body to enact legislation providing for the condemnation of private property for private use, to wit, “private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, . . . purposes.” Without such constitutional sanction or authority, Nevada, in Dayton Min. Co. v. Seawall, 11 Nev. 394, Utah, in Nash v. Clark, 27 Utah, 158, 101 Am. St. Rep. 953, 1 Ann. Cas. 300, 1 L. R. A. (N. S.) 208, 75 Pac. 371, and Highland Boy Gold Min. Co. v. Strickley, 28 Utah, 215, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, 1 L. R. A. (N. S.) 976, 78 Pac. 296, and the supreme court of the United States in Clark v. Nash, 198 U. S. 361, 49 L. Ed. 1085, 4 Ann. Cas. 1171, 25 Sup. Ct. Rep. 676, and Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 50 L. Ed. 581, 4 Ann. Cas. 1174, 26 Sup. Ct. Rep. 301, have decided that private property may be taken for private use in connection with irrigation and mining. It is true that such courts have indulged the fiction that a private use is a public use, simply because it was for the general welfare or of public utility or benefit, but this conceit, however pardonable, does not change the use from private to public. The fact is that the above cases hold that private property may be taken for private uses in the particular instances passed upon, and our Constitution in providing in certain cases that private property may be taken for private uses is in line with those decisions. Lewis, in his work on Eminent Domain, third edition, section 315, page 595, says: “The legislature of a state may not take, or authorize the taking of private property, except for public use, but the state itself, the people in their collective capacity, may take, or authorize the taking of-private property for any purposes of public utility, or public welfare. . . . The policy of permitting private property to be taken for a particular purpose may promote the public welfare, though the purpose may not be a public use, as we have defined it. Just what purposes the public welfare will include will depend upon the ideas and needs and practices of the time. ... At the present time there are at least three things which are deemed to promote the public welfare in such way and in such sense as to justify the exercise of the power of eminent domain, though the property taken is not devoted to the use of the public, but becomes the private property of the petitioner, as truly and completely as if he had purchased it by private contract. These three things are: (1) The reclamation of wet and arid lands,- (2) the development and utilization of the mineral resources of the land; and (3) the development and utilization of water .power. Wherever the local conditions are such that these improvements affect, in a material degree, the general prosperity and welfare of the state, there they become matters of such public concern as justifies the exercise of the eminent domain power to make them possible.” The Washington and Wyoming and Arizona Constitutions, so far as the present question is concerned, are so alike that any construction of the eminent domain provisions of their Constitutions by the former two states should be very persuasive to this court. The Wyoming court, in Grover Irr. & Land Co. v. Lovella Ditch R. & Irr. Co. (Wyo.), 131 Pac. 43, decided in April, 1913, reading at page 56, said: ■ “We are not required in this case to discriminate between a public use and a private use with reference to the taking of property under the power of eminent domain, for, whether our Constitution is to be understood as authorizing such taking for a use distinctly private, as distinguished from a public use, when the purpose thereof is irrigation, or as declaring that any taking for irrigation purposes is for a public use, it clearly authorizes a taking for such purpose. It is provided in the Constitution as follows: ‘Private property shall not be taken for private use unless by consent of the owner,. except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.’ Article 1, section 32. ‘Private property shall not be taken or damaged for public or private use without just compensation. ’ Article 1, section 33. It was said in Washington, referring to a provision like that contained in section 32: ‘Here is an inference so strong as to amount almost to an affirmative declaration that private property may be taken for private use when the use is confined to the purposes enumerated in the provision, one of which is ditches on or across the land of others for agricultural purposes; and it is no strained construction of the provision to say that this includes ditches for irrigation purposes, in view of the vast extent of arid land within our state and the benefits of irrigation thereto in the increase of its productiveness and value. The very thought of agriculture in connection with this vast arid portion of our state suggests irrigation in connection therewith.’ State v. Superior Court, 59 Wash. 621, 140 Am. St. Rep. 893, 110 Pac. 429. ... A private use for any of the purposes mentioned in section 32 is given the same force and effect as a public use, and no greater.” The eminent domain provisions of the Colorado Constitution and ours are very much the same. In Lamborn v. Bell, 18 Colo. 346, 20 L. R. A. 241, 32 Pac. 989, that court said: “It is apparent from the foregoing provisions that our Constitution is, in certain particulars touching the right to take private property for private use, exceptional; and, for certain enumerated uses, changes the accepted rule that the use to which private property may be condemned must be public. The right of eminent domain is an exercise of sovereign power, and is generally conferred by legislative act; yet a constitutional provision that, in express terms, affirmatively confers the right for particular uses, is likewise an expression of the sovereign will, and grants the right as effectually as if expressed in an act of the legislature, and can be enforced when such grant is supplemented by an act of the legislature providing the means for its exercise.” In other words, it is not the public or private character of the use- to which the property is to be devoted that au tliorizes its taking, but rather the public policy as announced in the Constitution, or, in the absence of constitutional limitation, as announced by the legislative body. Now, our fundamental law, the collective act of all the people of the state, in plain and unmistakable language says that private property may be taken for certain private purposes, as for drains, flumes or ditches for mining and for private ways of necessity for mining. Drains, flumes or ditches are designed for use in getting water to or from the mines. They are possibly comprehensive enough to cover all the instrumentalities ordinarily used for ridding a mine of surplus water, or supplying a mine with water for power or domestic use. These terms are to be distinguished from “private ways of necessity,” in that they are for water service, while the latter is descriptive of the various means of ingress and egress of travel and freight. It is used in the Constitution somewhat generieally and might be made to include all the different kinds of private ways, commonly known and used in connection with modern mining. In Jones v. Venable, 120 Ga. 1, 1 Ann. Cas. 185, 47 S. E. 549, it being an action to condemn a right of way for a private railroad across the lands of others to a business of quarrying granite or other stone, the court said: “We grant the contention of the defendants in error that ‘the enterprise of quarrying stone and marketing the same is purely private and one in which the public has no interest. ’ This being granted, the statute in question, as applied to this ease, cannot be held to be constitutional upon the idea that property condemned under its provisions will be condemned for a public use. Can- property, under -the Political Code, section 650 et seq., be condemned for a private use? The Constitution of this state provides: ‘In eases of necessity, private ways may be granted upon just compensation being first paid by the applicant.’ Civ. Code, see. 5729. If, then, the rights of way provided for in these sections of the Political Code are private ways, the power of the legislature to authorize their establishment under condemnation proceedings, in cases of necessity, cannot be questioned. The Constitution does not undertake to define private ways (nor does ours), or to limit the purposes for which they may be granted (nor does ours). The only limitation upon the power of the legislature to provide for the granting of private ways is that they can only he granted in cases of necessity.” So we conclude from our research that it is not necessary that the right of way for tunnel should be declared to be for a public use, before it could be taken as a private way of necessity, and the fact that our Constitution has provided that private property may be taken for private ways of necessity evidences an intention on the part of its framers to obviate a judicial finding or declaration to that effect. The phrase “private ways of necessity,” as used in the "Washington Constitution, was construed to have the common-law meaning in' Long v. Billings, 7 Wash. 267, 34 Pac. 936, and Healey Lumber Co. v. Morris, 33 Wash. 490, 99 Am. St. Rep. 964, 63 L. R. A. 820, 74 Pac. 681. Such a construction was not justified. Private ways of necessity, under the common law, were always the subject matter of contract, either express or implied. They rested in grant, as incidental, and necessary to, the proper enjoyment of the principal estate. The Constitution has undertaken to provide for ways other than common-law ways. There was no occasion to provide for common-law ways of necessity, for the manner of their acquisition was well-known and understood. To accommodate industrial expansion and encourage and facilitate a ■full utilization of the natural resources of the country, the Constitution provided for the acquisition of means of ingress and egress to mineral deposits and to water sources, not recognized at common law; the theory being that private ownership must in the particulars named give way to the common good. The view we have taken is fully, sustained by a later decision of the Washington supreme court, to wit, State v. Superior Court (decided January 24, 1914), 77 Wash. 585, 137 Pac. 994. In this case a timber company sought to condemn a right of way for a logging road over and across private lands, in order that it might convey its timber from lands owned by it to its sawmill and could not secure right of way except by condemnation. In the opinion many of the earlier Washington cases are adverted to, but their reasoning is not followed nor their conclusions adopted in whole. Indeed, the decision marks a new mile-post in the law of eminent domain and its administration in the state of Washington under a Constitution like ours. The court sustained the application for condemnation of right of way and boldly announced that private property could be taken for a private use under the Constitution and laws of that state. The court said, quoting from an earlier case: “ ‘The right of property is a legal right and not a natural right, and it must be measured always by reference to the rights of others and the public.’ If this be true, then there can be no universal law which, in the absence of constitutional restrictions, forbids a state from providing for the condemnation of private ways of necessity in the furtherance of the development of its material resources.” It was accordingly held that an act of the legislature defining “private ways of necessity” to “mean and include a right of way on, across, over or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, logging roads, flumes, canals, ditches, tunnels, tramways and other structures upon, over and through which timber, stone, minerals or other valuable materials and products may be transported and carried” as constitutional, saying: “We think the legislature acted within its constitutional powers in defining a private way of necessity and establishing the procedure for making the right available. As defined, it is promotive of the public welfare, in that it prevents a private individual from bottling up a portion of the resources of the state.” Lewis on Eminent Domain, third edition, section 367, says: “This power [eminent domain], with all its incidents, is vested in the legislatures of the several states by the general grant of legislative powers contained in the Constitution. From this it follows: First, that the power can only be exercised by virtue of a legislative enactment; second, that the time, manner and occasion of its exercise are wholly in the control and discretion of the legislature, except as restrained by the Constitution. ‘It lies in its discretion to determine to what extent, on what occasions, and under what circumstances this power shall be exercised.’ ” Our Constitution does not define “private ways of necessity,” nor has the law-making body defined the expression. While, as above stated, we are of the opinion that it is used in the Constitution somewhat generically, and therefore includes all necessary private ways, we think it is the province of the legislature, rather than the courts, to define the words. The power to appropriate private property to the use of another, whether public or private, lies dormant in the state until the legislature authorizes its use, designates agents, prescribes the purposes and extent of use. In other words, before this sovereign power of the state may be exercised, he who claims the right must point out the modes, conditions and agencies of appropriation as fixed and granted by legislative expression. As was said in Tacoma v. State, 4 Wash. 64, 66, 29 Pac. 847: “The exercise of the power of eminent domain is so high and peculiar a thing that nothing less than an act of the legislature of a state can support it, and that act must not only confer the power, but prescribe the'method by which it is to be done.” The same decision quotes Judge Cooley’s language approvingly : “The right to appropriate private property to public uses lies dormant in the state, until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriation.” Under the provisions of title 13, Civil Code of 1913 (pars. 3071-3097), private property may be taken for public uses only. In that title, the law-making body of the state has de•fined “eminent domain” as the right of the people or government to take private property for public use, and has prescribed the manner in which the right may be exercised. As the tunnel site here sought to be condemned is clearly for the individual uses and purposes of the appellant for the profitable mining and milling of its private ores, it is indispensably essential that the legislature authorize its condemnation by direct and unambiguous language before the court could entertain this proceeding. The law-making body has not defined a tunnel such as the one here desired as private way of necessity, and therefore the power of condemnation in this instance lies dormant. . The constitutional provision to the effect that private property may be condemned for private ways of necessity not having been supplemented by proper legislation defining what “private ways of necessity” are, the judgment of the trial court must be affirmed. The order of the lower court is affirmed^ FRANKLIN, C. J., concurs.

ROSS, J. The appellant and Federico Merino and Brigido Lira were accused by the same information with the larceny of a cow. Appellant demanded a separate trial. He was convicted and sentenced to the penitentiary. He appeals from the order overruling his motion for a new trial, and from the judgment. The facts in brief are: The appellant and his eodefendants were woodchoppers. Prior to October 6, 1913, the date of the alleged crime, appellant and his codefendants pitched their camp in Long Canyon or Dick’s creek, a rather isolated and unfrequented part of Greenlee county, as we infer from the evidence. They were occupied, as the testimony shows, in chopping wood with a view of conveying it to market on burros. On October 6th three cowmen, Frank Davis, Clyde Barber, and Ed Elrage, while riding the range after cattle, about a mile and a half from the wood camp, discovered some blood on the rocks in the trail they were traveling. These blood marks led them to investigate for evidence of the cause of their being there. Following the clue some 40 or 50 yards evidences were found indicating that an animal had fallen. The signs of blood indicated that the animal died there. A drag from that point was followed some 60 or 70 yards into a dry arroyo where the hide, head and entrails were found covered, as one witness said, with about a ton of malapai rock. The hide bore the brand and earmark of George Graham. Men’s tracks were seen in the soft gravel bed of the arroyo where this cache was found. The animal was killed by shooting; two or three bullet holes being found in head and hide. About 50 yards from where the first blood was discovered three empty 25-20 cartridge shells were found. Taking up the signs where the animal was dressed, the three cowmen followed the tracks and signs for 1% miles to the camp of appellant and his codefendants. Some meat was found cached in a draw under some sheltering rocks some 40 or 50 yards from the wood camp. It was cut into small pieces, with the bones removed, except some small parts of the ribs. It was covered with some gunny-sacks, and appeared, as did the hide and head, to have been butchered about 24 hours. About 40 pounds of the meat was found just a few feet from tents covered over with pack saddles, blankets and wood. Some tallow and cracklings were found in a kettle in one of the tents. A piece of rope, with blood and tallow on it, was found in the camp. An ax was found, with blood and tallow on it. One witness testified the meat “was all chopped up with an ax in chunks that would weigh about 10 or 20 pounds.” A 25-20 rifle and a belt of cartridges of that size were found in appellant’s possession. There was, from the tents of appellant and his eodefendants, a trail with signs of recent use to where the meat was cached. One witness said: ‘ ‘ There were four different foot tracks, and one of them had on hobnailed shoes, and we could trail him very plainly. On his left foot the heel was off, and no hobnails. We trailed it and the others to where we found the beef. When they arrested this man [appellant] he had on the hobnailed shoes that made the track. . . . He had on a pair of shoes with no hobnails in the left heel.” The appellant’s codefendant Federico Merino was sworn as a witness on his behalf. The county attorney objected to his testimony on the ground that he was a codefendant with appellant. The court sustained the objection. Whereupon -appellant offered to prove by Merino, if permitted to do so, that none of the defendants was concerned in the killing of the animal, and did not carry away any of the meat, or take it close to where they were camped, nor conceal it, and that, if there was any such meat there, it was carried there by other persons, and that defendants had no knowledge of any such meat, or the concealment of the same, until or after their arrest. This offer was refused by the court. The appellant then testified that he did not shoot the cow, nor let anyone have his rifle.to shoot it with; that he had no bloody axe nor piece of rope; that he knew nothing of the meat until arrested ; that Merino had brought the carcass of a goat out to camp on October 2d. After appellant had rested, the county attorney withdrew his objections to Merino’s testimony and offered to permit the appellant “to introduce such testimony at this time.” Appellant, announcing that he had rested, refused the offer. The appellant complains that his rights were prejudiced by errors committed in his trial, as follows: (1) In the refusal of the court to permit Federico Merino to testify on behalf of defendant. (2) In giving the following instruction: “The intent with which the defendant committed the act complained of must be determined by you from all the evidence.” (3) In refusing the request of defendant to give the four following instructions: “No. 12. I charge you it is necessary for the state to prove the ownership of the animal as alleged in the indictment; that the defendant himself, or with others, killed this animal, or was concerned in carrying its meat away.” “No. 13. In this ease it is not sufficient to warrant a conviction of the defendant that the state prove that the carcass of the animal alleged in the indictment was found on the commons, or on the public domain, at a place near where the defendant lived, or that the defendant, or defendant and others, was or were found with fresh meat in his or their possession; but the state must go further and show beyond a reasonable doubt that the defendant, or that the defendants with others, did in fact carry away the meat of the animal, or was concerned in killing the animal in order that he, or he with others, may carry its meat away, or, in other words, the state must prove beyond a reasonable doubt that the defendant, or he with others, did steal the animal, or assist in killing it, or did assist in carrying away its meat.” “No. 14. Neither is it sufficient to prove that the defendant, or the defendant with others, had guns or firearms in his or their possession, or that the animal was apparently killed with a. caliber gun such as might have been found in the possession of the defendant.” “No. 15. Possession means dominion over, as one has some article in his house, in his trunk, or in his inclosure; it means' exclusive possession. A possession of a thing on the public domain, of which any and every one may come along, may have the same possession, is not possession at all. “In order that possession of anything may be any evidence . of guilt, the possession must be exclusive; a joint possession, or a possession with others, or a possession that others have, is no evidence of guilt, and in larceny is not deemed possession at all.” We will consider these assignments in the order given. It is provided by law that all persons, except persons occupying particular relations (section 1228, Penal Code) and persons of unsound mind and incapable children under 10 years of age (section 1227), are competent witnesses (section 1226). Neither parties nor other persons who have an interest in the event of an action or proceeding are excluded, nor those who have been convicted of crime; but in every case the credibility of the witness may be drawn in question. Section 1226. A defendant may be a witness in his own behalf. Section 1229. Had there been no severance, the co defendant Merino could have testified in the joint trial of himself and appellant. It has long been the settled law that upon a severance the defendant being tried may use his eodefendant as a witness, and that section 1040, Penal Code, does not deny that right. People v. Labra, 5 Cal. 183; People v. Newberry, 20 Cal. 440; McGinness v. State, 4 Wyo. 121, 31 Pac. 978, 53 Pac. 492; Wigmore on Evidence, secs. 580, 581. It was error, therefore, to refuse the appellant the testimony of his codefendant Merino, and the question is: Was this error cured by the subsequent offer, after appellant had rested, but before the case was closed or submitted to the jury, to allow the witness to testify? Of course the orderly procedure would have been to permit the witness to give his evidence at the time he was offered by appellant. The erroneous ruling of the court in rejecting him as a witness had the effect of disarranging the order of witnesses as tendered by appellant; but we are unable to perceive wherein this departure could harm the appellant. It was not too late, when the court reversed its erroneous ruling, for the appellant to secure the benefit of the testimony of his codefendant. From his offer of proof by this witness, we cannot see wherein its probative value could have been affected by the postponement until after the appellant testified. The order of introducing topics of evidence and witnesses is largely in the discretion of the trial court, and not the subject of error, if the evidence tendered is, in fact, allowed at some stage of the trial, and no prejudice is shown. Wigmore on Evidence, sec. 1867; Thompson on Trials, sec. 344; 12 Cyc. 902. We think to reverse the case on this assignment would be an encouragement of technical adroitness of counsel to the disparagement of the rules of justice. Error No. 2 refers to the subject matter of the assignment as an “instruction”; whereas, it is, in fact, only an excerpt from an instruction. The excerpt taken alone is seriously objectionable, in that it assumed that the defendant “com mitted the act” charged against him. Nor is the instruction, taken as a whole, any better. It reads: “The intent with which an act is committed being but a mental state of the accused, direct proof of it is not required, nor indeed can it ordinarily be shown; it is generally established by all the facts and circumstances attending the doing of the act complained of as disclosed by the evidence, and in this case the intent with which the defendant committed the act complained of must be determined by you from all the evidence in the case. ’ ’ The very first instruction given by the court was that the defendant was charged with “stealing a cow, the property of one-George Graham.” In a later instruction the jury were told the felonious stealing, taking, carrying, leading or driving away a cow the property of another was grand larceny. “The act complained of” was the stealing of a cow, and in this quoted instruction the jury were told that: “The intent with which the defendant committed the act complained of must be determined” by them from all the evidence in the case. Of course the intent with which an act is done is important in determining whether the act was criminal or not, and in this case, if the defendant had admitted killing the animal and claimed as a defense that it belonged to him, or his co-defendants, or that it had been killed by mistake, the instruction given would have been applicable. But the defendant denied killing the cow, or having anything to do with it. That was the controlling issue. It was a question of fact for the jury. That the defendant’s evidence was weak and improbable did not authorize the court to assume and state to the jury in his instruction that the “defendant committed the act complained of.” In the circumstances of this case, the larcenous intent was conclusively shown. The all-important question was, Who killed the cow ? For whoever killed it did so with the felonious intent to steal. The court had no right to assume in the instruction given that the “defendant committed the act complained of, ’ ’ for in doing that, in effect, the jury was told that the defendant was guilty as charged. Where. a fact is incontrovertibly proved and wholly undisputed, there exists no reason prohibiting the court from so stating in the instruction given. In People v. Putnam, 129 Cal. 258, 61 Pac. 961, the rule is stated: “An instruction which assumes a fact as provided will not warrant a reversal if the fact is admitted, or there is no shadow of conflict of evidence with respect to it.” Stewart v. Territory, 2 Okl. Cr. 63, 100 Pac. 47; Bartell v. State, 4 Okl. Cr. 135, 111 Pac. 669; State v. Watson, 47 Or. 543, 85 Pac. 336. If a fact is controverted, and the evidence concerning its existence is in conflict, it is error for the court to assume its existence in the instruction to the jury. Territory v. Kay, 3 Ariz. 92, 21 Pac. 152; State v. Lewis, 56 Kan. 374, 43 Pac. 265; People v. Lang, 104 Cal. 363, 37 Pac. 1031; People v. Matthai, 135 Cal. 442, 67 Pac. 694; Heivner v. People, 7 Colo. App. 458, 43 Pac. 1047; State v. Allen, 34 Mont. 403, 87 Pac. 177; State v. Mackey, 12 Or. 154, 6 Pac. 648. Section 12, article 6, Arizona Constitution, reads: “Judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.” The instruction we are considering clearly violates both the spirit and language of this provision of our fundamental law. The trial judge is forbidden the right to charge with respect to matters of fact, or to comment on the facts. The facts and what they prove or disprove are for the sole consideration of the jury. As was said in State v. Whitney, 7 Or. 390: “ It is the exclusive province of the jury to determine questions of fact. They, and they only, have a right to judge of the credibility of witnesses, and the weight and effect of their testimony. And it has always been held, to be an erroneous instruction when the court assumed any controverted fact to be proven, instead of submitting to the jury the question whether or not it has been established by the testimony before them. ’ ’ It is said in People v. Dick, 32 Cal. 216: “It would be better for the court [in charging the jury in a criminal case] to avoid assuming any material fact ... as proved, however clear to the mind of the judge such fact may seem to be established, because it is the province of the jury, unaided by the judge, to say whether a fact is proved or otherwise.” Where the exclusive province of the jury is invaded by the court, as in this case, however much we may regret the duty of reversing, we feel that there is no other course open to us. We cannot say, as a matter of fact, that the court’s announcement that the “defendant committed the act complained of” had no effect on the jury. Ordinarily the opinion of the judge as given from the bench in the trial of causes has great influence with the jury, and, while our Constitution provides that “no cause shall be reversed for technical error in pleading or proceedings when upon the whole case it shall appear that substantial justice has been done” (section 22, article 6), it seems to us that to hold no prejudice is shown in this ease would be doing violence to the other provisions of the Constitution guaranteeing the right of trial by jury, and prohibiting the judge from charging the jury in respect to matters of fact, or from commenting on the facts. Nor do the instructions, taken as a whole, cure the error complained of. It is true the court instructed the jury that they were the sole judges of the facts in the case; but almost in the same breath he told them that the “defendant committed the act complained of,” and that it was for them to determine his intent from all the evidence in the ease. The court refused to give the requests numbered 12, 13, 14 and 15, quoted above, and asked by defendant. The instructions given do not cover the points desired to be submitted by these requests. The first proposition in request 12 is undoubted law, and, standing alone, should. have been -given ■ but the last sentence is too restricted, as the defendant might not himself, or with others, have killed the animal, or been concerned in carrying the meat away, and still be guilty of the larceny of the animal. For the same reason, the court correctly refused request No. 13. The facts and circumstances detailed in request No. 14 are not sufficient to justify a conviction; but, if true, we think they should be considered in connection with all the rest of the evidence, and, in that view of it, it Avas properly refused. Request No. 15 does not contain a correct statement of the law. Joint possession or possession with others may be evidence of guilt, depending upon the facts of the ease. The evidence of the meat being cached near defendant’s tent, and of tracks leading from tent to the cache, was certainly competent as tending to show claim of control and ownership of the meat by the persons occupying the tents. Judgment reversed and case remanded for new trial. FRANKLIN, C. J., and CUNNINGHAM, J., concur.

ROSS, J. The defendants in error were the plaintiffs in the trial court, and, in addition to the above-named plaintiffs in error, J. EL Root, Phil C. Merrill, Sheriff S. Marshall, Glen Root, David W. Cluff, Alfred M. Cluff, David Johnson, Kate Martin, John D. Goodman, William A. Clark, H. W. Heinan, William Williams, Joseph H. Lines, George W. Williams, Jr., and Nancy Cluff were defendants in the trial court. The complaint asked the court to adjudicate the respective rights and priorities of the plaintiffs and defendants as against one another to the use of the waters of Ash creek, situate in Graham county, for irrigation and for domestic and stock uses and to enjoin the defendants from interfering with plaintiff’s nse of such waters. Sheriff S. Marshall, David Johnson, Kate Martin, H. W. Heinan, William Williams, Joseph H. Lines and Geo. W. Williams made no appearance, and judgment was taken against them hy default. The other defendants answered setting forth their claims to. certain of the waters of said creek for irrigation, domestic and stock purposes. The case was tried before the court without a jury, and on June 18, 1912, judgment was entered adjudicating the respective priorities and rights of the plaintiffs and the defendants who filed answers. Within the time allowed by law a motion for a new trial, was made. No formal ruling was had on this motion; but, by operation of law, it was denied twenty days after it was filed, the hearing thereon not having been continued by order of the court or by stipulation of the parties (section 591, Civil Code 1913) on or before July 8, 1912. By the provisions of subdivision 3, section 15, chapter 74, Laws of 1907, carried forward so far as material into the Civil Code of 1913 as section 609, the transcript of the reporter’s notes may be incorporated into the record by filing it with the clerk of the court and serving notice thereof upon the opposite party or his attorney within sixty days after the entry of judgment or order denying a motion for new trial, or order granting or denying a motion in arrest of or to set aside a judgment, or within such additional or less time as may be stipulated between the parties or within such additional time as may be allowed by the court or judge by an order in the case. There was no stipulation extending the time to file transcript. On September 3, 1913, an order was entered extending the time until October 1, 1913. This was more than a year from the time judgment was entered and motion for new trial denied. In Southern Pacific Co. v. Pender, 14 Ariz. 573, 134 Pac. 289, it was said that such an order “must be held for naught, because it was not made within the period of time allowed by law to file the statement of facts or reporter’s transcript.” If the transcript of the reporter’s notes is rejected, there is no evidence in the record that may be considered. Among the files of the case are a number of papers marked as exhibits, and plaintiffs in error insist that they are properly a part of the record on appeal; hut, if that be granted, still they are only a small part of the evidence used on the trial. The court should have before it all the evidence, and not fragments of it—if it is to decide the case on its merits. Wooster v. Scorse, ante, p. 11, 140 Pac. 819, just decided. The record, then, before us for consideration, consists of the complaint, the answers and cross-complaints and the judgment. It has been repeatedly held by the predecessor of this court and by this court that, if the pleadings and the judgment disclose no fundamental error, they constituting the record on appeal, there is nothing to do but affirm the judgment. Only one of the defendants filed a general demurrer to the complaint. It is argued that the demurrer should have been sustained for the reason that the. complaint failed to allege that plaintiffs were “inhabitants” of the state, and section 5346, Civil Code of 1913, is cited as decisive of that point. Without entering into a discussion of the meaning to be given the word “inhabitant,” as therein used, it is sufficient to say that it does not appear from the complaint that plaintiffs were not inhabitants of this state. If it is essential to a valid appropriation of water in Arizona that .the appropriator be an inhabitant therein, and the plaintiffs, or any of them, lacked that qualification, we conclude that it could not be reached by general demurrer. No fundamental error appearing in the record of the case, no reason exists for disturbing the judgment of the trial court. But had the evidence been properly preserved in the record, we suggest, without deciding, that it is very doubtful if the writ of error proceeding could be entertained for the reason that only a part of the parties to the judgment are made' parties here. There were some six or seven parties whose rights and priorities were adjudicated and settled in the judgment who are not made parties here. The judgment adjudicates some eighteen different rights to the waters of Ash creek with reference to priority and quantity. The facts in this case would seem to distinguish it from Egan v. Estrada, 6 Ariz. 248, 56 Pac. 721, for, as said in that case, “the judgment sought in this ease to be corrected is a judgment between plaintiffs and the defendant Estrada alone, as to the priority of right to the use of water.” In other words, all the parties interested in the judgment as rendered were made parties to the proceedings in the appellate court. In the present case that is not so, for the respective priorities of some six or seven defendants below were adjudicated and they are not made parties here. Judgment affirmed. FRANKLIN, C. J., concurs.

CUNNINGHAM, J. This action was commenced by the appellant to recover $20,000 damages for the conversion of 2,000 tons of ore alleged to have been the property of the plaintiff. It is alleged that the ore had been mined and severed from certain mines, and was placed upon the surface of the ground adjacent to and in the workings in and upon the mines described, known as the Omega group of mines. The defendant answered, denying generally the allegations of the complaint except the first paragraph, setting forth defendant’s corporate character, and answered specially, setting up matters in the way of estoppel upon the grounds: That prior to March 14, 1904, plaintiff held in his name in trust the Omega group of mines for and as the property of the firm of L. Zeckendorf & Co. That plaintiff was a member of such firm. That the other member, L. Zeckendorf, brought suit against plaintiff to dissolve the firm, and on said March 14, 1904, receivers were appointed to take and hold all the property of the firm, and the receivers took possession of such property. That pursuant to an order of the court the plaintiff conveyed to the receivers the Omega group of mines and all the metals, all gold and silver bearing quartz, rock and earth therein. The receiver conveyed to plaintiff, Albert Steinfeld, by bill of sale certain personal property of the said firm. That public sale was made of the Omega group of mines, and Lonis Zeckendorf bid for and became the purchaser of the property, and plaintiff was then present and made no claim that any of the ores in or on said mine should not be included in said sale. That immediately upon the making of said sale'of the said Omega group of mines and the ores, including all the ores referred to and described in the complaint, Louis Zeckendorf took possession of the property and retained possession thereof until April 25, 1906, when on that date he sold and conveyed the title and transferred the possession thereof to the defendant, Omega Copper Company, which defendant retains possession of the property, including the ores in question, claiming it and said ores as its own. That the plaintiff never at any time until the institution of this suit claimed that the ores referred to in the complaint were not part and parcel of, or appurtenant to, the said Omega group of mines, or the title to the said ores separate and apart from the said Omega group of mines. The cause was tried before a jury, and a verdict for the defendant resulted. Judgment was entered thereon, and a new trial was refused. From the judgment and order refusing a new trial, plaintiff appeals. The plaintiff relies upon adverse possession of the ore on the dump for two years for his title thereto. In so doing, he necessarily contends that the ore on the dump is personal property, otherwise his deed to the receivers of L. Zeckendorf and Company under date of May 5, 1904, would necessarily carry the title to the ore in question and work an estoppel to claim adversely to the deed. The defendant controverts the claim of plaintiff as to the character of the property, and contends that the ore on the dump is real estate, and its title passed by the deed conveying the mines. If defendant succeeded in maintaining this contention, clearly plaintiff failed to establish his title as pleaded. Plaintiff makes no pretense that he severed the ore from the dump while the mine was in his possession. The evidence is conclusive, or at least not controverted, to the effect that plaintiff did nothing in the way of changing the relation of the ore to the mines. The plaintiff testified that: “The claim of L. Zeckendorf & Co. to be the owners of the ores on the dumps and in the mines was continuous from the Hose contract (made about 15 years prior to the date when plaintiff was testifying) up to the time of the suit to dissolve the copartnership, and was open and notorious.” “I think that the ore I saw when I first went out there in 1884 is the same ore that I saw when I went out there on a later trip.” “I first claimed that L. Zeckendorf & Co. owned this ore on the Omega mine immediately after the sheriff’s sale. I claimed it as coming to Zeckendorf & Co. through the sheriff’s proceedings, whatever they were. . . . That is the claim I made as I remember. I think I have made other claims to it, except that the property came to me through the sheriff’s deed and through the Portugal deed. I claimed by reasou of possession. We immediately took possession of it, immediately after these proceedings, and were in possession of it up to the time it was sold by the receivers. I think that is a different title than the one I got from the sheriff.” The witness positively asserted that the ore was claimed by him for L. Zeckendorf & Co. by reason of the sheriff’s deed. The sheriff put him in possession of the property at the time the deed was delivered. Witness does not remember whether he made any direct claim to the firm of L. Zeckendorf & Co., to Louis Zeckendorf, or the defendant, Omega Copper Company, as to the ownership of the ores until this suit was filed. Prom this evidence plaintiff’s claim of title by adverse possession arose, if at all, after the conveyance of Steinfeld and Zeckendorf to the receivers of L. Zeckendorf & Co. Up to that date, May 6, 1904, the possession of the ore on the dump had passed at each transfer with the mines. Plaintiff so received the possession of the ores for L. Zeckendorf & Co., and for that firm held the possession until the members of the firm were ordered by the court to, and they did, convey to the receivers “all the real estate and mines or mining claims owned by said firm, or by either member as the property of the firm.” Prom the plaintiff’s evidence, as testified by plaintiff, when he made the conveyance to the receivers of L. Zeckendorf & Co., he did not intend to convey'the ores on the dumps with the mines. He made no reservation in the deed of such ores, but the reservation was in his mind, a mental reservation. If it is conceded that a grantor may effectively reserve rights in property by such mental reservation alone, and such reserved property does not pass by his deed, then plaintiff con tinued to hold the title to the ore on the dump for -L. Zeckendorf & Co. and as its trustee. He has failed to show that the trust under which he held was repudiated by him at any time, until this suit was commenced, so that the statute of limitations would commence to run in his favor. Regardless of a grantor’s mental reservations, if the ore on the dump was a part and parcel of the realty, the mines, the title to such oret passed to the receivers of L. Zeckendorf & Co., and thereafter by deed to the defendant as a matter of law. The vital fact to be determined is whether the ore was so annexed to the realty and remained so annexed thereto as to become a part and parcel thereof. If so, it passed with the conveyance of the mines. The intention with which the owner of the property extracted the ore from the ground and the purpose and intention of the owner with which it was placed on the dump is controlling in arriving at a solution of the question of whether the ore after having been extracted and placed in the dump was personalty or realty. Only one witness testified relative to these matters. This witness was Fred G. Hughes. The “Old” Omega Copper Company owned the mines, and Hughes was its superintendent. Under Hughes’ supervision the ore was extracted. He testified: “At the time I took that ore out we had no intention of doing anything with it. . . . There was simply—naturally in working a mine, you have got to get rid of your waste or ores that you are using, and it was just put out on the dump to give us a chance to develop and get out better ore to send to the smelter. In other words, I moved it out there to get a chance to get out our better ore to send to the smelter. At the time we took that ore out and put it on the dump, it at that time had no value.” This evidence is of such a substantial nature that a jury would be justified in drawing the natural inference therefrom that the owner’s purpose and intention in extracting the ore from the ground and placing it on the dump was not to sever the ore from the realty, but to remove a part of the realty from the workings underground to the surface, then such removal had no effect to change the character of the ore moved. It remains realty. No one has ever contended that because the owner of realty removes a portion of earth from one part of the premises to another that such portion removed necessarily becomes personal property by reason of the fact of removal. The question of the character of the ore on the dump was fairly submitted to the jury for determination in this case. The verdict of the jury was returned for the defendant. The verdict is supported by the evidence upon the theory that the ore on the dump is a part and parcel of the mines. On this theory the verdict is responsive to the issues made and tried. Upon such theory no error appears from the record, and no error is assigned by appellant. The error assigned has reference solely to an issue in its nature collateral to the vital issue of the use, and depends solely upon the jury finding in their deliberations that the ore on the dump in question was not realty, but was personalty. Then the question would arise for determination, notwithstanding the ore was personal property, whether the ore as personal property passed by the conveyance of the mines by reason of a well-recognized and prevailing custom among mining men. Upon this theory of the case the errors are alleged to have been committed. In the first place there is no evidence in the record that would justify the jury in finding that the ore was personal property. The plaintiff makes it clear that he secretly intended it should be so considered while the property belonged to L. Zeckendorf & Co., but that is not evidence of the fact that it is personal property. This amounted only to a conclusion. Before real property can become personal property something more is required to be done toward its severance than the operation of the mind unexpressed to others. Such was the only severance here contended for. Plaintiff failed wholly to support his title to the property. He failed to produce legal evidence supporting the alleged personal property character of the ores on the dump. He also failed to produce evidence supporting his alleged claim of title by adverse possession, and the evidence produced tends to show that at no time did he assert title adverse to the title of L. Zeckendorf & Co., but the evidence tends to show that he held title in subordination to the title of L. Zeckendorf & Co. up to the date of the conveyance to the receivers of that firm. "When plaintiff began tu assert .title adverse to the title of the receivers is not shown. If the receivers did not take title to the ore on the dumps by reason of the personal character of the property, then plaintiff and Louis Zeckendorf continued to own the property as partners, because he did not claim title by the bill of sale from the receivers to plaintiff, and such bill of sale fails to describe the ore on the dump on. the mines as any part of the personal property sold and transferred to plaintiff, and no other disposition of the personal property belonging to that partnership is shown to have been made by the court in that suit. Plaintiff could not have initiated a title by possession as against his partner until and unless he made adverse claim of title under such circumstances as would have charged Louis Zeckendorf with notice of the adverse claim. The jury would not be justified in drawing the inference that plaintiff asserted an adverse claim to the property under circumstances charging Louis Zeckendorf with notice of such adverse claim because no evidence of that fact was before the jury. On the other hand, plaintiff admits in his testimony that he has never asserted such claim to either Zeckendorf or to defendant, Omega Copper Company, prior to the commencement of this action. Under this state of the proof, conceding that the ore on the dump was personal property, plaintiff could not recover, because he has failed to establish the title pleaded by him. Such being the case, the question of the existence of a custom for the ore on the dump to follow the conveyance of the mines becomes wholly immaterial to a disposition of the case by the jury. The argument of the law applicable to custom under the circumstances disclosed by this record becomes an abstract question, having no application to the disposition of the case, and requires no further discussion here. We find no reversible error in the record. The judgment is affirmed. FRANKLIN, C. <L, and ROSS, J., concur.

ROSS, C. J. The plaintiff appellee, as the assignee and legal owner and holder of a real estate mortgage, brought this action to foreclose on the mortgaged property which had, by mesne conveyance from the mortgagor, come into the ownership and possession of defendant appellant. The mortgage was given on January 31, 1907, to secure a note of same date for $1,500, payable on or before five years after date, bearing 9 per cent interest, but the note provided it should be payable in monthly installments of $25 per month, plus interest for such month on the entire debt. The payee of the note and mortgage died in November, 1910. In January, 1912, appellee became the owner by assignment of “the mortgage, . . . together with the debt thereby secured.” Suit to foreclose was begun December 10, 1913. As to the amount due on the mortgage, the allegation of the complaint was as follows: ‘ ‘ That there is due upon the same [promissory note], as the plaintiff is informed and believes, and upon such information and belief alleges it to be a fact, the sum of about $1,500 and interest thereon.” Defendant in his answer admitted the execution of the note and mortgage as alleged in the complaint, denies on information that appellee is the legal holder and owner of note and mortgage, and “also denies that the sum of $1,500 is now due-, to plaintiff under said note and mortgage,” and alleges on information that $1,050 had been paid on note and mortgage-to the payee in his lifetime, together with interest thereon up-to October 13, 1910, admitted a balance due of $576.83, and paid the same into court. It is stipulated by the parties that at the trial the only evidence introduced by appellee was a certified copy of the-mortgage and the assignments of note and mortgage to him. The original mortgage and note were not produced, and their nonproduction was not accounted for. No evidence at all was produced or offered respecting said note or mortgage-(except the certified copy of mortgage) or of the amount due-thereunder. Upon this showing, no evidence being introduced by appellant, the court entered judgment in favor of appellee for $1,500 and interest from date of note amounting to $933.-75, and foreclosed the mortgage lien upon appellant’s property for that sum. From this judgment this appeal is prosecuted by appellant. Under the facts as they appear, and', under the stipulation of the parties, the only question for us to pass upon is: Did the court err in rendering judgment for appellee, he not having produced the original note and mortgage nor accounted for their nonproduction and not having made proof of the amount due thereon ? At the date of the institution of suit, December 10, 1913,, the note and' mortgage were long past due. In fact, the-note itself provided for partial payments of $25 per month and interest monthly from its date. The payee thereof held it for nearly four years before he died. The plaintiff evidently did not know the amount due thereon, for in his complaint he alleges, on information and belief, that there was. due and unpaid “about $1,500 and interest thereon,” and. prayed “that an account may be taken ... of the amount, now due upon said promissory note and upon said mortgage. ’ ’ Had no answer been filed by appellant, under the prayer of' the complaint, no judgment could have been entered without, proof of the amount due on note and mortgage, as in case-the defendant defaults, the statute (paragraph 563, Civil Code) provides that “judgment in the amount sued for in the complaint, including the costs,” where the action arises; out of contract for the recovery of money or damages only,, may be entered. The amount sued for was not definitely stated. It was “about $1,500 and interest tbereon.” This allegation is indefinite and uncertain in the amount sued for as principal, and still more indefinite and uncertain as to amount claimed as interest, as no date is given from which the interest could be computed, and, to emphasize the uncertainty of amount claimed as due, the prayer of the complaint asks for an accounting. Nor do we think the complaint was aided by the answer filed, in respect of the amount claimed as due. The answer denies that $1,500 is due, and affirmatively alleges that $1,050’ had been paid on the principal, and that the interest had been paid up to October 13, 1910, and admits a balance due of only $576.83, principal and interest. The certified copy of the mortgage introduced by the appellee was proof of nothing that had not been admitted in the answer. The answer admitted the execution of the note and mortgage as alleged. The only controverted question was as to the amount still unpaid. The note and mortgage were not produced, and their nonproduetion was not accounted for. They were long past, due. In the absence of proof to the contrary, the presumption of law is that past-due paper has been paid. Ward v. Munson, 105 Mich. 647, 651, 63 N. W. 498, 499, was a case wherein the bond secured by a mortgage was not produced nor sufficiently accounted for, and upon these facts the court said ‘1 The defendant was asserting the mortgage as a valid lien upon the premises. The law would not raise a presumption of nonpayment, but of payment when due, unless the contrary was shown by the production of the bond, or other evidence repelling the presumption of law when the bond could not be produced. Bailey v. Gould, Walk. Ch. (Mich.) 478. In Bassett v. Hathaway, 9 Mich. 28, the bill was filed to restrain the foreclosure of a mortgage. The notes were not produced, and. it was said: ‘It was held in Bailey v. Gould, Walk. Ch. (Mich.) 478, that, unless the note accompanying a mortgage is produced or accounted for, it must be presumed paid as against the party setting up the mortgage. This is in accordance with well-settled principles. In the case now before us, the notes are not produced, and we are entirely without evidence either of their existence or ownership at the present time.’ In George v. Ludlow, 66 Mich. 176, 33 N. W. 169, the cases of Bailey v. Gould and Bassett v. Hathaway were referred to and approved. It was further said: ‘For aught that appears in this ease, Mr. Pearl might have receipted payment of the notes and mortgage before he died, and, if they were produced, might be found to furnish the evidence establishing the fact. ... A decree will not be made on the foreclosure of a mortgage without producing the securities, unless their absence is accounted for by clear and conclusive proof.’ In Bergen v. Orbahn, 83 N. Y. 49, the action was to foreclose a mortgage. Upon the hearing the plaintiff did not produce the bond nor account for its nonproduction. It was said: The case ‘is subject to the rule which makes the nonproduction of the bond referred to in the mortgage evidence of the nonexistence or discharge of the mortgage debt, and, when unexplained, is conclusive against the plaintiff’s right to recover.’ Buckmaster v. Kelley, 15 Fla. 180, Butler v. Washington, 28 S. C. 607, 5 S. E. 601, and Field v. Anderson, 55 Ark. 546, 18 S. W. 1038, where the same doctrine is laid down.” To the same effect is George v. Ludlow, 66 Mich. 176, 33 N. W. 169, 171. The appellee was entitled, under the admissions contained in the answer, to a judgment for $576.83, but we think the presumption of payment should be indulged as to the amount alleged to have been paid and denied as due and owing, until overcome by competent evidence. The plea of payment may be an affirmative defense that places the onus of proof upon him who pleads it; but under the general issue, the appellee failing to produce the note sued on, and it being past due, the burden was on him to overcome the presumption of payment by showing that the note has not, in fact, been paid. Judgment is reversed and case remanded, with directions that a new trial be granted. CUNNINGHAM and FRANKLIN, JJ., concur.

CUNNINGHAM, J. The appellant was arrested February 16, 1914, upon a complaint charging him with the commission of the crime of burglary on or about the 15th day of February, 1914. The defendant was taken before the justice of the peace who issued the warrant, immediately upon his arrest, for the purpose of a preliminary examination of the charge. The justice’s entries recite that the defendant was ‘1 arraigned and informed of his rights to time, attorney,” etc. The defendant waived the examination of the case before this court; whereupon the court made the following order: “It appearing to me that the crime of felony—to wit, burglary—has been committed on or about the 15th day of February, 1914, in the county of Turna, state of Arizona, and that there is sufficient cause to believe that J. A. Vincent is guilty thereof, I order that he, the said J. A. Vincent, be held to answer the same, and that he be admitted to bail. ...” A transcript of the proceedings with the complaint and warrant were filed in the superior court on February 19, 1914. On the same day the county attorney filed an information charging as follows: “The said J. A. Vincent, on or about the 15th day of February, 1914, and before the filing of this information, at the county of Yuma, state of Arizona, did then and there willfully, unlawfully, feloniously, and burglariously enter the dwelling-house of one Carmelita Mayhew, in the town of Yuma, in the county and state aforesaid, with the felonious intent then and there to commit the crime of grand and petit larceny, contrary,” etc. (We have omitted the formal parts of the information.) On the same day the defendant appeared before the court without counsel, and the court appointed counsel for him. Thereupon the information was read to him and he was furnished a copy. One day was allowed in which to plead to the information. On February 20, 1914, the defendant entered his plea of “Not guilty.” The trial followed on February 24, 1914, both parties announcing ready for trial. The first assignment of error is that the defendant was not held to answer in accordance with the provisions of law governing the same. Paragraph 893, Penal Code of 1913, is a sufficient answer to such contention. Said statute is as follows: “When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, which the justice court has no jurisdiction to try and determine, such defendant may, if he so elect, waive the examination provided in this chapter, and the magistrate shall thereupon enter such waiver in his docket, and shall immediately make an order holding the defendant to answer as if he had been held to answer after examination. No defendant who has been held to answer after such waiver of examination shall be discharged upon writ of habeas corpus or other proceeding upon the ground that he has been committed on a criminal charge without reasonable or probable cause.” This statute has been substantially followed by the magistrate holding the defendant to answer. The assignment is without merit. The second assignment is to the effect that the information was filed without authority of law, and, by reason thereof, the court acquired no jurisdiction to try the cause. Paragraph 885, Penal Code of 1913, requires the county attorney to file an information within 30 days after the order of the magistrate holding the defendant to answer is made. The appellant contends that the filing of the information gave the court no right to try the defendant thereon, because, under the law, the charge must be presented by indictment found by a grand jury, and not by information. This contention is untenable. Section 30 of article 2, Constitution of the state, provides for the prosecution of all felonies either by indictment or by information; a prosecution by information being limited only to such cases where the person charged has had a preliminary examination of the charge and has been held to answer thereto, or when he has been given an opportunity to have such preliminary examination held, but has waived it. Either mode of procedure may be legally adopted by the prosecution. The-citation of authorities is not. necessary, they are so numerous. The constitutional and statutory provisions are too clear to require comment. The questions presented by the sixth assignment require serious consideration. They relate to alleged erroneous instructions of the court. The first instruction objected to, which we will notice, was given and later repeated. The said instruction is as follows: “Under the testimony in this case, if any burglary has been committed, it was committed in the daytime, so that you are only concerned with burglary of the second degree.” By giving this instruction the court definitely and unequivocally instructed the jury to acquit the defendant of the charge of burglary of the first degree. The jury obeyed this instruction by returning a verdict of burglary of the second degree. The most startling position is taken-by counsel for appellant contending that that part of the charge reading, “ ‘under the testimony in this case, if any burglary has been committed, it was committed in the daytime,’ was damaging in the extreme, for the reason that the information charged only burglary in the second degree, while the evidence, if tending to prove burglary at all, tended to prove burglary in the night-time, instead of the daytime, as instructed by the court.” Assuming that the information charged burglary in the second degree only, it would have then become the duty of the court to so instruct the jury. Under such charge of second degree burglary the defendant could not have been convicted of burglary of the first degree, and to have permitted a conviction in the first degree would have been reversible error. The information, however, charges burglary in general terms. Under that charge the defendant may be convicted of burglary of the first degree, if the evidence warrants it; or he may be convicted of burglary of the second degree, if the evidence warrants it. The information as filed will support a conviction of burglary of either the first or of the second degree. The instruction was clearly a comment by the court on the weight of the evidence, but was made in favor of the apcused, not against his rights. He was not entitled to such an instruction withdrawing from the consideration by the jury the evidence, if any, bearing, upon the degree of the offense. The error, if error was committed, was against the prosecution, and not against the rights of the accused, and therefore must be deemed error without injury on this appeal. The other instruction included in the said assignment is as follows: “You are charged that possession of stolen goods by the accused recently after a burglary in which larceny has been committed, if unexplained, is a circumstance from which you may infer the complicity of the accused in the larceny.” The objections are made that the instruction assumes that the property was stolen, that it was found in the possession of the accused, and such possession is unexplained, and that it would lead the jury to infer that such evidence of possession alone is sufficient to warrant a conviction of burglary. The instructions given must be considered as a whole and so construed. The language quoted above that is made the subject of these objections is only a part of the instruction given by the court on this subject. The remaining portion, not the subject of objection, is as follows: “The value of such evidence, however, is to be determined by you alone. In determining the weight to be attached to such a circumstance as evidence tending to prove guilt, you should take into consideration all the facts and circumstances connected with such possession, and their relation to the other proofs in the case.” The instruction as given by the court, is stated in nearly the language used by Mr. Justice DAVIS in stating the rule applicable to this question in Taylor v. Territory, 7 Ariz. 234, 64 Pac. 423. After considering the rule announced in the ease, of Territory v. Casio, 1 Ariz. 485, 2 Pac. 755, and expressly overruling that case, he says: “Recognizing that the jury are the sole and exclusive judges of the facts proved, and the inferences to be drawn therefrom, an expression of the law more in harmony with the current authority would be substantially as follows: The possession of stolen goods by the accused recently after the larceny, if unexplained, is a circumstance from which the jury may infer his complicity in the larceny. Its value as evidence, however, is to be determined by them alone. In determining the weight to be attached ,to this circumstance as evidence tending to prove guilt, the jury should take- into consideration all the facts and circumstances connected with such possession, and their relation to the other proofs in the case.” A number of cases are cited in support of this rule. The instruction under consideration in the Taylor case was approved as within this general rule and as applicable to the evidence in that case. The supreme court of Iowa, in State v. Brady, 91 N. W. 801, upon some of the authorities cited in the Taylor case, states the rule a little more clearly, as follows: “There is no presumption of guilt or burglary attaching to the mere possession of the stolen goods by the accused, but such fact, if the alleged crime be of recent occurrence, has a tendency to prove his guilt, and, if there be other proved circumstances tending to connect him with the commission of the offense, the fact of possession thus aided will sustain a conviction.” See State v. Powell, 61 Kan. 81, 58 Pac. 968, to the same effect. Section 12 of article 6, state Constitution, provides that: “Judges shall not charge juries with respect to matters of facts nor comment thereon, but shall declare the law.” On authority of the Taylor case, supra, the court in the entire instruction declared the established rule of law applicable to the question then under consideration. The instruction, when considered as a whole, is not open to the objections advanced. The rights of the accused were sufficiently guarded in other parts of the instructions given, and, while the instruction now under consideration might have been expressed in different language more appropriate to the evidence in this case than in the form in which it was given, we are of the opinion that no error was committed in giving the instruction in the form it was given, and that as given the court fairly declared the law, without charging the jury with respect to matters of fact, or without commenting thereon, as required by the Constitution, supra. If counsel is not satisfied with the instructions of the court as given, additional instructions may be requested, and, upon proper request made, must be given. Subdivision 6, par. 1033, Ariz. Pen. Code 1913. A failure of the court to give specific instructions, good in point of law and pertinent to the issue, in the absence of a request therefor, is no ground for reversal. Sisson v. State, ante, p. 171, 141 Pac. 713. One other assignment only merits notiee. The verdict of guilty was returned and filed on February 24, 1914. On February 26-, 1914, the court pronounced judgment of conviction. On March 6, 1914, the defendant moved in arrest of judgment. The defendant by his counsel on the same day, March 6, 1914, made an oral motion that the judgment and commitment theretofore entered be vacated. The prosecution assented, and the order was made by the court vacating the judgment for the purpose of considering defendant’s motion in arrest of judgment. The motion in arrest was submitted,, and on March 23, 1914, was by the court denied; whereupon the court, over the objections of defendant, pronounced final judgment of conviction. Appellant assigns as error the order of the court overruling his objections to the imposing of the final judgment and sentence. The assignment is without merit. The first judgment pronounced was vacated at the instance of the defendant for the specific purpose of having-the- court rule upon his motion in arrest of judgment. He cannot now assume the inconsistent position that he was injured by. an order of the court which he brought about for his supposed benefit at that time. The court retained control over its judgments, and retained the power, under the facts, appearing in this respect, to modify its judgment in accordance with law, and render its final judgment on the verdict. The appellant has assigned as error other matters, all of' which have been carefully examined and found to be without, merit. They are not of sufficient importance to require separate notice. We find no reversible error in the record. The judgment is affirmed. FRANKLIN, C. M., and ROSS, J., concur. NOTE.—On the question whether the possession of recently -stolen, property is evidence of burglary, see note in 12 L. B. A. (N. S.) 199.

CUNNINGHAM, J. The complaint of appellants sets forth two grounds or causes of action upon which their right to recover is based: First. Upon the grounds that the annual assessment work for the year 1911 was commenced upon the Golden Eagle group during that year by J. T. McDonald, as the agent or representative of plaintiffs, and for and in behalf of the said estate, and that such work was directly resumed after an interruption on January 16,1912, and thereafter completed prior to the completion of the relocations of defendants. The relocations of defendants were initiated during the said period of interruption of such work. Second. Upon the grounds that the relocations, while actually initiated before the plaintiffs resumed the performance of the annual work, cannot be effective against the rights of the plaintiffs in any event, for two reasons: First. Because such relocations were initiated through a wrong and trespass committed by the reloeators, in that the relocators wrongfully entered upon the rightful possession of plaintiffs before the expiration of the assessment year 1911, and thereby caused the performance of the annual work of plaintiffs to be suspended, and the relocators continued their said trespassing during the remainder of said year, and, upon the expiration of that year, in the said manner they initiated their relocations. Second. Because plaintiffs commenced the performance of the annual work for the year 1911 through J., T. McDonald as their agent and representative for that purpose in the year 1911, and on December 28, 1911, they expressly contracted with McDonald to finish and complete the performance of the annual work for that year by continuing the work after the 1st day of January, 1912, until the full amount of said annual work was completed. That their said agent and representative, J. T. McDonald, conspired with the other defendants, and, in pursuance to such conspiracy, suspended the performance of such work on December 30, 1911, and, after the expiration of the year 1911, he aided and assisted the other defendants to relocate a part of the claims in their names, and relocated a part of the Claims in his name, and for that reason defendants are estopped from claiming any rights, by reason of their said relocations. And they for that reason hold such legal title as they acquired thereby in trust for the benefit of plaintiffs. Both causes of action are denied, and the defendants plead their relocations as valid relocations of abandoned property, and ask for affirmative relief. The evidence produced fails to support the said first alleged grounds for recovery. Without conflict, the evidence tends to* show that all the work done on the Golden Eagle group during the year 1911 was done and work ceased on December 30, 1911; that such work was done by J. T. McDonald for his own personal benefit, and not primarily for the benefit of the estate. The purpose McDonald had for causing the work to be done was to protect the title to the mines for the estate so that he could negotiate a sale, and out of the proceeds of such sale he could recover a large claim due him from the estate. The estate had no money with which to pay his claim, nor with which to pay for the annual work. If he did not protect the estate’s. title in the mines, and they were lost by relocation, all hopes, of collecting his claim from the estate were gone. He had. caused the annual work to be done for his brother for the year-1909; that is, he had caused some work to be done on the mines for that year, but not a full assessment. The expense thereby incurred amounted to $174.25. His brother, through plaintiff Arthur J. McDonald, sent to him $100 in money t» pay for that work. Defendant paid the balance with money of his own and a duebill for $62. J. S. McDonald died during the year 1909. Defendant was thereafter given a power of attorney by the representatives of the estate, the plaintiffs, which upon its face authorized him to sell the mines. While he held this instrument during the year 1910, he caused $150’ worth of -work to be done on six of the claims. This work was. done by Posey while he held an option to purchase the property. Posey acquired the option through J. T. McDonald, as attorney in fact for the estate. Defendant McDonald also caused $142 additional work to be done on the mines during the year 1910. The estate furnished him $300 cash to be applied to the assessment work that year. The claim of the estate included a group of five locations, the Golden Eagle group, and one claim detached from the group known as the Lubec claim. On the last-named claim work was done for the year 1910 by Posey taking samples. In November, 1910, defendant’s power of attorney was revoked. In September, 1911, defendant wrote to plaintiffs concerning the annual work on the mines for 1911, and requesting money with which to perform such work. He received no reply to his request. He was then residing in Mexico. In order to protect the title, he put one man to work on the mines in October, and went to Chicago seeking a settlement of his claim from the estate. Then it was that he was informed by the plaintiffs that the estate had no money with which to pay his claim, or for any purpose connected with the mines. Defendant returned to Mexico, and stopped the man then at work on the mines at Oro Blanco. He paid personally for the work done on the mines under his orders, and made no claim against plaintiffs for repayment. On December 20, 1911, he went to the mines for the purpose of doing what he could to protect the title to the mines by resuming the work. His purpose in protecting the title was that he might be able to sell the mines for plaintiffs, and out of the proceeds of the sale recover his claim against the estate. He had no^ authority from the estate to cause the work to be commenced. He commenced the work voluntarily, and at his own personal expense and risk, and for his own benefit. In order to see to the work, he occupied a house on one of the claims of the group. Defendant Quitty occupied the house with him. On December 23, 1911, defendant started two men to work on ■ the claims at an agreed wage of $2 per day. One man worked five days, and quit, for the reason he could get work nearer his home. The other man worked five days on-the mines, and one day packing and providing wood for the camp; after which he quit, for the reason he was sick. For all of which work defendant McDonald paid. For that purpose he borrowed $100 from a friend. He made no charge against the estate. The plaintiffs knew he had had men at work on the mines. On the 28th of December, 1911, about 5:30 P. M., plaintiffs sent a representative to the mines to see if the mines were valid, and, if so, to arrange to have the annual work done. Plaintiffs’ representative said nothing about the work defendant was having, and had had, done on the mines, although he was informed of the fact. He made no offer to pay for the work nor to continue the work for plaintiffs. Plaintiffs’ representative admitted that plaintiffs had not furnished him with money with which to pay for the annual work, but stated that he was informed that money had been provided for that purpose. This representative expressed a desire to arrange with defendant McDonald to perform the annual work on the group of claims for the plaintiffs. The arrangement the representative desired to make was that McDonald would commence the work immediately and continue the work during the remaining days of the year 1911, and continue the work in January until the representative could notify him that the money to pay for the entire annual work had reached the representative at Prescott. As an inducement to agree to this arrangement, the representative offered to personally guarantee to McDonald wages for the work done up to the time McDonald could receive such notice, not later than January 5, 1912. The further promise was made as a further inducement to McDonald that the representative when he received the money, would award the contract to McDonald to complete the annual work. The plaintiffs contend, and introduced substantial evidence in support of their contention, that McDonald accepted plaintiffs’ said offer, and thereby agreed to commence the annual work on the claims for plaintiffs immediately after December 28, 1911, and continue the work until lie received notice from plaintiffs’ representative at Prescott to the effect that said representative had the money for the annual work in his possession, and that he would continue such work at least until January 5, 1912, for which he would receive ordinary miner’s wages. On the other hand, defendant McDonald contends, and he introduced substantial evidence in support of his contention, that he refused said offer, and informed plaintiffs’ representative that he would not trust plaintiffs’ promise to send the money; that defendant would cause the annual work to be done on condition that they pay the money first, and on no other condition. The court and jury find this contested fact for the defendant. We will not disturb such finding, supported by substantial evidence, merely because the evidence is conflicting. That McDonald performed sueh work as shown by the evidence for his own benefit and as his only remaining hope of collecting his account due from the estate is conclusive. That the plaintiffs did not adopt this work as their work done for the purpose of the annual work and for the purpose of the estate is a reasonable inference to be drawn from all the facts and circumstances in evidence that transpired at the time of the visit of plaintiffs ’ representative to the mines on December 28th, and subsequent events. Mr. Linney, the representative, among other things, stated: “I do not know now, and did not know then, definitely, the value of the work done by the men McDonald had there. My idea was from $60 to $100. I did not pay for the work done by the men hired by McDonald.” This evidence, considered as a whole, is convincing that McDonald was not on the property as an agent or representative of plaintiffs. The work was done voluntarily by McDonald for his personal benefit, but with the hope and expectation that plaintiffs would adopt the work as their work, and receive the benefit of it, so as to benefit defendant and permit him to accomplish his purpose; that is, effect a sale and collect his account. When plaintiffs’ representative appeared and expressed no willingness to approve of the course McDonald had adopted to protect the property from forfeiture, and showed a disposition to deal with McDonald at arm’s length, and then begin the performance of the annual work for the year 1911 without reference or regard to the work that McDonald had caused to be done, and, by means of express contracts having reference to the future, to have the work done, as plaintiffs’" work, the conclusive inference therefrom must necessarily be drawn that plaintiffs performed no annual work upon the mines during the year 1911. The work done by McDonald cannot justly be considered as plaintiffs ’ work. The facts and circumstances would not permit such inference to be drawn. The first alleged grounds for recovery are not sustained by the evidence. At the time Powell and J. T. McDonald initiated their relocations, January 1, 1912, and January 3, 1912, respectively, the plaintiffs had not performed any annual work on any of their locations for the year 1911. They began such work on January 16, 1912, after said defendants had initiated their relocations. As a second grounds for recovery, plaintiffs contend that, conceding these said relocations were initiated before plaintiffs resumed work on January 16, 1912, such relocations cannot be effective as against plaintiffs’ rights. The two reasons, urged why the said relocations cannot affect plaintiffs’ rights are stated under the second grounds for recovery and need not be again stated here. We will consider each in the order stated. The fact that defendant J. T. McDonald went to the property for the purpose of performing the annual work on the mines in order to protect plaintiffs ’ title for his personal benefit, and, while there engaged in such work, he merely occupied a house on the ground, cannot in any sense be considered a trespass. After plaintiffs’ representative visited the mines on December 28, 1911, said defendant, by continuing to occupy the house, could not be considered a trespasser on the mines. By plaintiffs’ theory of the ease, McDonald had an implied permission from plaintiffs ’ representative to remain there, and his occupancy of the property was the possession of plaintiffs. It is clear McDonald was not a trespasser asserting any rights, adverse to plaintiffs’ rights at any time prior to January 3, 1912. Defendant Powell reached the mines on December 30, 1911. He was a friend of J. T. McDonald, and occupied the same house with McDonald by invitation. Powell’s business at the mines at that time was twofold: First, to see a man residing near these mines; and, second, to relocate a part of the ground covered by the plaintiffs’ locations on the expiration of the year, if the annual work had not been done for the year 1911. Powell asserted no right to relocate any of the ground in question until the expiration of the year 1911, and then only upon the condition that the annual work had not been done. Powell did nothing in the way of initiating his relocations until after 12 o’clock midnight, December 31, 1911. At that time the ground became open to relocation because of plaintiffs’ failure to perform the annual work thereon for the year 1911. Section 2324, U. S. Rev. Stats. (5 Fed. St. Ann., p. 19; U. S. Comp. Stats. 1901, p. 1426). If Powell had the right to relocate the property, he violated no right of plaintiffs by going on to the ground for that purpose. After 12 o’clock midnight, December ”31, 1911, plaintiffs had. no right to the exclusive possession of the locations in the group, and any qualified relocator could go upon the ground and relocate it, and in doing so commit no trespass to plaintiffs’ rights. What we say of Powell can also be said of J. T. McDonald in this particular. The facts in evidence do not support this ground of contention under consideration. Plaintiffs did not commence to do any annual 'work on the property prior to January 1, 1912, and therefore no suspension of such work took place. The second grounds for appellants’ second contention are likewise without support in the evidence. Plaintiffs commenced to perform their annual work for the year 1911 on January 16, 1912, and after the relocations of Powell and J. T. McDonald had been initiated. The said relocators thereby acquired the right to exclusive possession of the ground relocated by them, and the work done by the plaintiffs was without effect to restore any rights to plaintiffs in the ground so relocated; the said defendants owing no duty to plaintiffs, as we have shown above. The evidence to the effect that the Lubee claim was no part of the Golden Eagle group, but a location disconnected from the group, is undisputed. That a sufficient amount of work was not performed upon the Lubee claim for the year 1910 is also uneontradicted. Defendant Quitty relocated the Lubee ground in September, 1911, and he thereby acquired a superior title thereto. The Dalton relocation remains to be noticed. Dalton relocated a part of the grounds claimed by plaintiffs in September, .1912. On January 16, 1912, plaintiffs resumed work bn the Golden Eagle group by starting one man to work thereon, with the instructions to continue the work until the annual work for the year 1911 was completed. No evidence was offered to show on which location of the group this work was started. Plaintiffs’ witness testifies that he put the man to work on the group, and the man informed witness that the work was finished about the 1st of August, 1912. No objection was raised to the hearsay evidence upon the grounds that it was hearsay. The court found for the defendant Dalton, and this finding can be supported upon the theory that the work so resumed and performed was performed upon other ground within the group than upon the ground included within the Dalton relocation. At the time the work was resumed both J. T. McDonald and Powell had initiated their relocations, thereby appropriating a large part of the group and destroying the group identity. In order that plaintiffs’ work be considered as work done upon the group for the benefit of the Dalton ground, such work must necessarily have been done on ground owned by and in the right and possession of plaintiffs, which would tend to develop the said Dalton ground. Such fact does not appear from the evidence. If the work was resumed and finished as testified to, but done on ground covered by the relocations of J. T. McDonald or Powell, such work would not suffice as the annual work for other locations of the original group, not covered by the re-locations. This inference can readily be drawn from the evidence that the work was not done by plaintiffs on the ground covered by the Dalton relocation, nor on other ground owned by, or in the possession of, plaintiffs for the benefit and development' of the ground covered by such relocation, and therefore the Dalton relocation is deemed valid, and has precedence over any claim of plaintiffs. The judgment appealed from is affirmed. FRANKLIN, C. J., and ROSS, J., concur. Application for rehearing denied. NOTE.—The question as to when a mining elaim is subject to relocation is treated in a note in 68 L. B. A. 833.

FRANKLIN, C. J. Action for the alleged breach of a contract. There was a prayer for judgment in the sum of $3,707.03. The appellant set up a counterclaim in the action based on a breach of the contract sued on, and prayed for-judgment in the sum of $614. The case was tried to a jury, which returned a verdict in favor of appellee in the sum of $1,425.51; judgment thereon being given accordingly. On September 3, 1912, William G. Shanley and Harry Sultan were partners engaged in the wholesale and retail butcher business at Globe, Arizona, under the firm name and style of the Pioneer Meat Company. On that date the partnership made a contract with W. C. McFadden, the appellant who was defendant below, and the breach complained of is based on this contract. It appears that on December 9, 1912, the partnership was dissolved; Harry Sultan conveying all of his interest in the company to the appellee, who was plaintiff below, and who prosecuted the action as the individual who became the sole owner of all the partnership property. It is claimed that there was a want of capacity in the plaintiff to maintain the action because he was a member of the Pioneer Meat Company, which entered into the contract in question, and that the firm had not filed any certificate of partnership, as required by title 51, Revised Statutes of Arizona of 1901. Observe that the action is not maintained by the persons composing the partnership, but is maintained by an individual who became vested with the ownership of all the property of such firm before the suit was brought. The chapter cited does not declare that a contract made by such a partnership is invalid and unenforceable by reason of its failure to comply with the statute; but the penalty attached by the statute for such failure is a legal incapacity to maintain an action by the persons transacting business as a copartnership under a fictitious name, or a designation not showing the names of the persons interested as partners. There is no disability to make contracts or have transactions; but the disability attached is a want of capacity to maintain any action upon or on account of any contract made and transactions had in their partnership name until they have first filed the certificate required. Upon compliance with the statute the disability is removed, and the removal of such disability relates back to embrace any contract or transaction had prior to the compliance, and of course comprehends all such contracts and transactions subsequent thereto. We must determine, therefore, if the statutory disability attaches to an assignee of such firm, even though such assignee be a member of the firm within the inhibition of the law. Purchases by one partner of his copartner’s interest in the firm are of frequent occurrence, and when made in good faith operate to vest the ownership of firm property in the purchasing partner. 30 Cye. 456. The good faith of this transaction, in which one member of the firm sold all of his interest in the firm’s property to another member, is not questioned. The provision in the statute prohibiting the maintenance of an action by such a partnership does not preclude the assignment of a claim held by the partnership, nor does it prevent the assignee of any such claim from maintaining an action thereon in his own name. Cheney v. Newberry, 67 Cal. 126, 7 Pac. 445; Wing Ho v. Baldwin, 70 Cal. 194, 11 Pac. 565. That such assignee was a member of the firm is immaterial. Gray v. Wells, 118 Cal. 11, 50 Pac. 23; Trudel v. Butori, 19 Cal. App. 584, 127 Pac. 76. It appears that the firm did file a certificate in an attempt to comply with the law, and, while it is unnecessary for us to pass upon its sufficiency in this case, we might observe en passant that the record discloses a substantial compliance with the requirement of the statute in this behalf. There is no merit in this point. We shall now have surcease of it and pass on to others. By the contract McFadden obligated himself to deliver to the Pioneer Meat Company, at its slaughter-house about three miles hitherward of Globe, 300 head of cattle, with the privilege on his part of delivering up to 400 head. The kind and quality of the cattle, and the price per pound to be paid therefor, were specified in the contract. Deliveries were to be made as follows: September 20 to October 1, 1912, 75 to 125 head of cattle. October 20 to November 1, 1912, 75 to 125 head of cattle. November 20 to December 1, 1912, 75 to 125 head of cattle. The first delivery was duly made and accepted, and the controversy here arose over the second one. There was no attempt to make the third delivery. One of the specifications of the contract was that the cattle delivered were to be good, fat, beef cattle, ready for immediate use, and this specification is the axis on which the alleged breach of the contract revolves. It appears that on November 1, 1912, the appellant delivered to the Pioneer Meat Company at its slaughter-house near Globe about 86 head of cattle, and the delivery was refused because, as appellee contends, the quality of the cattle did not meet the specifications of the contract, in that said cattle were not good, fat, beef cattle, ready for immediate use. Upon this issue the record presents a sharp conflict in the evidence. Its tenor ranged from that of one witness engaged in the butchering business for 19 years, who testified that the cattle when delivered were not fit for beef, ‘ ‘ some of them had hips you could hang your hat on,” to that of another who stated the cattle were good, fat, beef cattle, ready for immediate use. The jury was competent, and, indeed, that was its province to determine the weight to be given the several witnesses on the subject. Of course the company was not bound to receive or pay for the cattle delivered, if they were not of the kind and quality specified in the contract. The contract having been broken, the person injured by the breach ought to be placed, as far as money can do it, in the same position as he would have been in if the contract had been filled. Where the carrying out of the contract would give one of the contracting parties the use or enjoyment of a particular thing, and he has lost it (without fault on his part), the damages he should be entitled to would be the value of that which he has lost. The important question we have to deal with is: What is the principle upon which the damages in such a ease are to be assessed ? In the leading ease of Hadley v. Baxendale, 9 Exch. 341, the general rule on this subject is stated as follows: “Damages recoverable on a breach of contract are measured by the actual loss sustained, provided such loss is what would naturally result as the ordinary consequence of the breach, or as a consequence which may, under the circumstances, be presumed to have been in the contemplation.of the parties as the probable result of a breach. ’ ’ This case is the polar star to which the courts of both England and America have looked for guidance in ascertaining the true rule as to the measure of damages for breach of contract. It is often referred to by Sedgwick and by Sutherland in their treatises on Damages, and Mr. Lawson cites it as the leading case which has been followed in all the courts of the United States. Mr. Elliott says: “The term ‘damages’ means the pecuniary compensation or indemnity which the law awards to an injured party for the breach of a contract or a duty. They are based on the idea of a loss which must be made good; they are that which is given or adjudged to repair the loss. The test, in general, for the measurement of these damages in actions for breach of contract is compensation, and this intends that the party injured shall be put in as good condition as he would have been if the injury would not have been inflicted. ’ ’ Elliott on Contracts, see. 2120. In cases where actual loss is sustained, the basic idea then is compensation. But how shall we arrive at a just and fair compensation to which an injured party is entitled in a suit for the breach of a contract for failure to deliver personal property of a stated quality sold at a specified price, and for a particular use ? It is most important to consider this, for it is the vital factor in the case. The general rule is that the measure of damages is the difference between the contract price and the market price at the time and place fixed for the delivery. This general rule, however, must not be taken as one subject to no exception or modification. What if there should be no market at the time and place fixed for delivery? Can the seller, omitting to do that which his contract obligated him to do, thus escape liability to respond in actual damages to the other party ? Mr. Benjamin, after reviewing a number of authorities, says: “It is submitted that these decisions establish the following rules in cases where goods have been bought for the purpose of resale, and there is no market in which the buyer can readily obtain them: “I. If, at the time of the sale, the existence of a subcontract is made known to the seller, the buyer, on the seller’s default in delivering the goods, has two courses open to him: (1) He may elect to fulfill his subcontract, and for that purpose go into the market and purchase the best substitute obtainable, charging the seller with the difference between the contract price of the goods and the price of the goods substituted. (2) He may elect to abandon his subcontract, and in that case he may recover as damages against the seller (a) his loss of profits on the subsale, and (b) any penalties he may be liable to pay for breach of his subcontract; but, if the amount of the penalties has not been made known to the seller, the buyer is not entitled to recover their amount as a matter of right, but the jury may, if the penalties are reasonable, assess the damages at that amount. It is further submitted that, in order to entitle the buyer to claim exceptional profits arising from a subsale, express notice of the amount of such profits must have been given to seller at the time when the contract was made, under circumstances implying that he accepted the contract with the special condition attached to it. “II. If, at the time of the sale, the existence of a subcontract is not made known to the seller, a knowledge on his part that the buyer is purchasing with the general intention to resell, or notice of the subcontract given to him subsequent to the date of the contract, will not render him liable for the buyer’s loss of profits on such subcontract; the buyer may either procure the best substitute for the goods as before and fulfill his subcontract, charging the seller with the difference in price, or abandon the subcontract and bring his action for damages, when the ordinary rule, it would seem, will apply, and the jury must estimate, as well as they can, the difference between the contract price and the market value of the goods, although there is no market price, in the sense that there is no place where the buyer can readily procure the goods contracted for. “III. In every case the buyer, to entitle him to recover the full amount of damages, must have acted throughout as a reasonable man of business, and done all in his power to mitigate the loss. ’ ’ Benjamin on Sales, 6th Am. ed., sec. 1327. Mr. Elliott says that: “Where there is an available market, the measure of damages, ordinarily and in the absence of special circumstances, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of refusal to deliver. This contemplates a fair market, and, if no market exists at the place, the value at the market nearest available, plus the cost of transportation, is generally taken in its place.” Elliott on Contracts, sec. 5108. Mr. Sutherland, in his treatise on Damages, ninth edition, section 739, says: “If there is no market value at the place of delivery, the true value of the goods at the time fixed for delivery is to he shown by the best evidence possible. If there is a neighboring market, the price at such market is competent evidence, after making due allowance for the cost of transportation between points. Whether such cost should be added to or subtracted from the price in the nearest market depends on circumstances. If the goods were bought to be used at the place of delivery, the buyer can be compensated only by adding such cost to the price. This would represent the cost of replacement.” In support of the text the author, among other cases, refers to Gaunt v. Ralston Purina Co., 198 Fed. 60, 117 C. C. A. 168, where the measure of damages for breach of the seller of a contract for sale of grain to be delivered at a certain place was stated to be the difference between the contract price and the market price of the same quality of grain at the place of delivery at the time of breach, if there was a market price at such time and place, and, if there is no market, the difference between the contract price and what it cost the buyer to procure the grain delivered there from the most accessible market where the buyer purchased the same in a reasonable and diligent manner. It was said in the case of Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203, speaking on this subject in an action by the seller: “The general measure of damages in such a case is the difference between the contract price and the market price at the time and place of delivery. This measure is adopted as one that will generally give complete indemnity to the seller. He can dispose of the commodity contracted to be sold at the market price, and his damage will be the difference between the price thus obtained and the price he would have received if the contract had been performed. Evidence as to the price need not be confined to the precise time when the contract was to have been performed. It may sometimes be impracticable to show the price at the precise time, and hence evidence of the price for a brief period before and after the time may be given, not for the purpose of establishing a market price at any other time, but for the purpose of showing as well as practicable the market price on the day the contract was to have been performed. So it may not always be practicable to show the price at the precise place of delivery. There may have been no sales of the commodity there, and hence evidence of the price at places not distant or in other controlling markets may be given, not for the purpose of establishing a market price at any other place, but for the purpose of showing the market price at the place of delivery.” The Pioneer Meat Company was engaged in the wholesale and retail meat business at Globe. The contract called for the delivery at the slaughter-house of the company of good, fat cattle, ready for immediate use. The animals were thus designated for the special purpose for which they weré needed to supply the trade of the company, and the ordinary consequences of a failure to have the cattle for the intended use must be held to have been within the contemplation of the parties to the contract. The evidence discloses: That at the time the contract was broken there were no cattle to be had at the place of delivery or at Globe. That there was no market for cattle at Globe. That buyers were offering 6 and 7 and cents per pound for such cattle, but none were procurable. That the firm, in order to supply its trade and keep its business going, procured 228 head of cattle in the Gila Valley in the vicinity of Globe, and paid 6% cents per pound for 131 head, and less than 6 cents per pound for the balance. The difference in the price paid, with transportation expenses of the cattle substituted added, and the price under the contract, amounted to the sum of $3,251.03. It appears that the demands of the firm’s business and the situation of the cattle market required it to procure the substituted cattle in the manner pursued. We think, under the circumstances of this case, that the firm was justified in avoiding so far as it could the consequences of the breach and procuring the most available substitute in the manner open to it; indeed, it was perhaps the duty of the firm so to do. And in procuring the substituted cattle by the method pursued, there does not appear any lack of good faith in the transaction, nor is there any want of reasonable diligence and dispatch apparent in the premises on the part of the firm. The verdict of the jury has so determined. The appellant requested an instruction in substance defining the measure of damages toffie the difference between the contract price and the market value of property of the same kind and quality at the place where the delivery was to be made under the contract at the precise time of delivery specified in the contract. We think, under the circumstances of this case, the court was justified in refusing to place such a limitation in the instruction. The court modified the instruction so as to tell the jury that they might find the value within a reasonable period of that time. It was impracticable to confine the evidence as to the market value of the cattle to the place where and the precise time when the contract was to have been performed. There was no market at the place of delivery, no cattle being sold and purchased there when the contract was to have been performed; and it was therefore impracticable to confine the evidence as to the market value of the cattle to the precise time and place of delivery. The court took the view that the plaintiff should have a reasonable time to go into the market and substitute other cattle in the place of those not delivered under the contract, and, in substance, instructed the jury that the measure of damages would be the difference between the contract price and the market value of property of the same kind and quality at the place of delivery and within a reasonable time after the contract should have been performed, but, in the event that there is no market value of such property at the time and place of delivery, then the measure of damages is the difference between the contract price and the market value at the nearest market from the place of delivery, not to exceed, however, the actual price paid by the plaintiff for the cattle he substituted for those not delivered under the contract. In actions for breaches of contract, the circumstances of each ease must determine what measure of damages should apply, having in view always the giving actual compensation for actual loss. Slaughter v. Marlow, 3 Ariz. 429, 31 Pac. 547. When the property contracted for is not readily obtainable on the market at the place of delivery under the contract, it has been held that the purchaser may recover the difference between the agreed price and the actual cost of procuring similar property by due diligence. Vulcan Iron Works Co. v. Roquemore, 175 Fed. 11, 99 C. C. A. 77; McFadden v. Henderson, 128 Ala. 221, 29 South. 640; Den Bleyker v. Gaston, 97 Mich. 354, 56 N. W. 763; Rhind v. Freedley, 74 N. J. L. 138, 64 Atl. 963; Miller v. Stern, 25 Misc. Rep. 690, 55 N. Y. Supp. 765; Hassard-Short v. Hardison, 117 N. C. 60, 23 S. E. 96. See, also, Semon Bache & Co. v. Coppes, Zook & Mutschler Co., 35 Ind. App. 351, 111 Am. St. Rep. 171, 74 N. E. 41; Piowaty v. Sheldon, 167 Mich. 218, Ann. Cas. 1913A, 610, 132 N. W. 517; Armeny v. Madson & Buck Co., 111 Ill. App. 621. The principle just stated seems to have been recognized by the appellant, for he requested, and the court gave to the jury, the following instruction, to wit: “You are hereby further instructed that it is the duty of the plaintiff, where a defendant has committed a breach of a contract to deliver property at a certain time and place, by reasonable diligence to lessen damages that might be incurred by him by reason of such breach. Therefore, if you find from the evidence that the defendant, McFadden, did commit a breach of his contract by failing to deliver cattle of the kind and quality mentioned in the contract set forth in plaintiff’s complaint herein, and that the plaintiff, by reasonable diligence, could have procured in the vicinity of Globe, where said cattle were to be delivered, other cattle of the same kind and quality as those mentioned in the contract, and at no greater cost and prices than mentioned in the contract, then, and in that event, the plaintiff in this case cannot recover anything more than nominal damages.” The theory of this instruction is that the appellee was involved in a matter dictating good faith and due diligence. So he was, and if, in the exercise of good faith, and with due diligence, he procured in the open market, in the vicinity of Globe, cattle to substitute for those contracted for, and he did not pay more than the market price, we fail to recognize any principle that would preclude him from recovering as damages for the breach of the contract the difference between the price paid and the contract price. In view of the evidence disclosing that cattle were not obtainable at the place of delivery or at Globe, that there was a good demand for them at the time and place of delivery, and buyers were offering 6, 7 and l1/^ cents per pound, and cattle were not readily obtainable at that price, and that the plain tiff exercised good faith and reasonable diligence in going into the open market in the vicinity of Globe and purchasing cattle to substitute for those not delivered, the price paid not exceeding the market value of the eattle, but they were bought for less than the market price, we cannot feel persuaded that the instruction was, in the particular complained of, in any wise prejudicial to the rights of appellee. It did not authorize a recovery beyond the principle of actual compensation for actual loss, and we feel that the court determined the measure of damages as best it could under the facts of the case. While generally the measure of damages ought to be fixed at the time of the breach of the contract, it is not a procrustean rule which the peculiar circumstances of a particular case may not justify some modification thereof. The firm did the best it could to remedy the default of the seller and save the damages as far as possible on account of its business. The prayer was for damages in the sum of $3,707.03, and the verdict was- for $1,425.51, and we cannot say it was not justified by either the law or the facts. Other alleged errors have been pointed out; but, upon a careful consideration of the entire record, we do not feel that there is any matter presented which would justify a reversal of the judgment, nor such as to invite a more .extended review. Judgment affirmed. CUNNINGHAM and ROSS, JJ., concur. Application for rehearing denied. NOTE.—On tie question of the measure of damages for breach of a contract for the sale of an article having no market price, see note in 57 L. R. A. 193. As to the duty to prevent or reduce damages on breach of contract for sale or purchase, see note in 52 L. R. A. 259.

CUNNINGHAM, J. The parties have stipulated that the record consists of the complaint, answer, judgment, motion for new trial, notice of appeal and the stipulation signed by the attorneys for the respective parties and approved by the trial judge. The stipulation contains this provision: “It is further stipulated and agreed that the only question or issue submitted for the consideration and decision of the supreme court in this appeal is whether or not the mass meeting held by the electors of Nogales School District No. 1, Santa Cruz County, Arizona, on the 25th day of May, 1912, was or was not a compliance with law; and, if not a compliance with law, did the subsequent acts of the board of trustees of Nogales school district cure such omission or defect, and render the bond issue valid.” Counsel have filed no briefs in the case, nor formally assigned errors, and the court has received no assistance from that source. The above stipulation seems to have been treated by the parties as embodying the whole question, and as a sufficient assignment of errors. Without some attempt on the part of counsel to observe the rules of practice established in this court, we are not called upon to consider the record filed on appeal, further than to look into it for fundamental error appearing upon the face of the record presented. For this purpose we will examine the complaint, in order to determine whether a cause of action is stated thereby, and, if so, whether the judgment is responsive to the complaint. The complaint sets forth as grounds for action that no election of the qualified school electors of the district had been held for the purpose of locating the high school in the district prior to the time when the bonds were ordered issued ana sold. The complaint admits that a majority of the qualified school electors of the district had voted to establish and maintain a high school in the district but contends that the election to locate the high school in the district prior to the issuance of the bonds was necessary and a condition precedent to the lawful issuance of any bonds of the district, ‘ ‘ and that on account of the failure to hold the said election for the purpose of locating the high school the said $60,000 bond issue is unauthorized by law, illegal, and void.” The judgment is that the bonds are unauthorized and void, following a finding “that an election to select a location for the high school, was necessary, and a condition precedent to the lawful issue of any bonds of said district.” The statutes in force authorizing the issuance of bonds of a high school district are paragraphs 2780, 2736, 2737 and 2738, Civil Code of 1913. Paragraph 2780 provides that high school districts may vote bonds “for the same purpose and in the same manner as common school districts.” Paragraph 2736 provides that: “The board of trustees of any school district may, whenever in their judgment it is advisable, and must, upon petition of fifteen per cent of the school electors, as shown by the poll list at the last preceding annual school election, residing in the district, call an election for the following purposes: . . . (4) To decide whether the bonds of the district shall be issued and sold for the purpose of raising money for purchasing or leasing school lots, for building schoolhouses, and supplying same with furniture and apparatus, and improving grounds, or for the purpose of liquidating any indebtedness already incurred for such purposes. ...” Paragraph 2737 provides the procedure required to be followed in calling the election by giving notice of the holding of the election and the time notice must be given. Paragraph 2738 prescribes the contents of the notice. Paragraph 2740 provides: “On the seventh day after said election, at 1:00 o’clock P. M., the returns having been made to the board of trustees, the board must meet and canvass said returns; if it appear that a majority of the votes east at said election were in favor of issuing such bonds, then the board shall cause an entry of that fact to be made upon its minutes and shall certify to the board of supervisors of the county all the proceedings had in the premises, and thereupon said board of supervisors shall be and they are hereby authorized and directed to issue the bonds of such district, to the number and amount provided in such proceedings, payable out of the building fund of such district,- naming the same, and the money shall be raised by taxation upon the taxable property in said district for the redemption of said bonds and the payment of the interest thereon: Provided, that no school district shall issue bonds for the purposes herein specified to an amount in the aggregate, including the existing indebtedness, exceeding six per cent on the value of the taxable property within such school district, to be ascertained by the last assessment of state and county taxes previous to the issuing of such bonds.” We find no provision of the law requiring as a condition precedent to the issuance of the bonds of a school district for the purpose of raising money with which to purchase a high school site or lots and to erect a school building thereon, and supply the same with necessary furniture and apparatus, and improve the grounds, the holding of an election to locate the school building. No such requirement exists. Such election is unnecessary to the authorization of the issue of bonds of the district for the purposes mentioned. Appellee in his complaint makes no contention of other omission to follow the law, and as the officers are public officers we must presume for the purposes of this case that they performed their duty. They are not required to call or hold an election for the purpose of locating the high school within 15 days after a majority of the qualified school electors of the district voted to establish and maintain a high school, before bonds of the district could be lawfully issued for the purposes stated above. If the officers failed to substantially follow the requirements of the statutes, supra-, such failure is not the subject of plaintiff’s complaint. As the record stands, the judgment of the court is based upon an erroneous proposition of law, embodying no cause of action, and discloses fundamental error. The judgment is reversed and the cause remanded, with instructions to permit the plaintiff to amend his complaint, if desired, so as to set forth a cause of action and take such further proceeding as the law requires. Reversed and remanded. ROSS, C. J., and FRANKLIN, J., concur.

ROSS, J. The appellant, who was the plaintiff below, brought her action against the appellees, defendants below, in general assumpsit on the common count for money lent without giving the date of any of the loans. The allegations were: “That the plaintiff lent to the defendants, at their request, at different times, divers and sundry sums of money amounting in the aggregate to $600, which the defendants promised to repay on demand; that the plaintiff duly demanded payment of the same from the defendants; that the sum of $15 was paid by the defendants, and no more, leaving a balance of $585 still owing by defendants. ’ ’ The defendants moved the court to require plaintiff to make the complaint more definite and certain, so that the same would disclose the dates of loans and the amount of each loan. The motion was granted as prayed. Thereafter, and in response to the court’s order, plaintiff filed an amended complaint, as follows: “II. That the plaintiff lent to the defendants, at their request, at different times between about the 1st day of January, 1909, and the 1st day of January, 1911, divers and sundry sums of money, amounting in the aggregate to six hundred ($600.00) dollars, which the defendants promised to repay on demand. “III. That the plaintiff duly demanded payment of the same from the defendants. “IV. That the sum of fifteen ($15.00) dollars was paid by the defendants, and no more, leaving a balance of five hundred eighty-five ($585.00) dollars still owing by defendants. “V. That on or about the 19th day of January, 1912, and on or about the 17th day of March, 1912, the defendant Mrs. J. C. Dunne acknowledged to plaintiff her said indebtedness to the plaintiff, and promised to pay the same, which said acknowledgments and promises were contained in several writings signed by the said defendant Mrs. J. C. Dunne. That on or about the 19th day of January, 1912, the defendant Mrs. J. C. Dunne acknowledged to plaintiff for herself and her husband their said indebtedness to the plaintiff, and promised for herself and her husband that they would pay the same, which Said acknowledgment and promise was contained in a writing signed by said defendant Mrs. J. C. Dunne. ’ ’ Thereupon defendants moved the dismissal of complaint and for judgment, for the reason that plaintiff had not complied with the order of the court requiring her to give dates of loans and amount of each separate loan. Also answered by general denial. Motion to dismiss was granted, and judgment for costs entered against plaintiff. The appeal is prosecuted from the judgment. It is the contention of the plaintiff that the complaint stated a cause of action, and we assume that the defendants admit this contention, as they did not file any demurrer to it. It seems to be well settled, at least in most of the code states, that a complaint containing the common counts is good. Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542, and note; Pleasant v. Samuels, 114 Cal. 34, 45 Pac. 998; 4 Cyc. 339, 340. It is next contended that defendants mistook their remedy; that they should have moved for a bill of particulars, and not to make more definite and certain. We are in entire accord with this contention. For, indeed, our statute (paragraph 421, Ariz. Rev. Stats. 1913) provides that: “It shall not be necessary for the party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party within ten days after a demand therefor, in writing, a copy of the account, or be precluded from giving evidence thereof. The court or a judge thereof may order a further account when the one delivered is too general or is defective in any particular. ’ ’ This section was taken from California (Code Civ. Proc., see. 454), and has been passed upon by that court both before and after it was adopted by us. In Pleasant v. Samuels, supra, the common count objected to was: ‘ ‘ That defendant is indebted to the plaintiff in the sum of $32,364.06 on account of moneys heretofore, at the special instance and request of defendant, paid, laid out, expended, loaned and advanced to and for the defendant by the plaintiff, and that the defendant had not paid to plaintiff any part or portion of said sum.” In that ease the court said, at page 37 of 114 Cal., page 999 of 45 Pac.: “1. The objection that the common counts are inconsistent with the provision of the code that a complaint must state the facts constituting the cause of action in ordinary and concise language, and are therefore insufficient, is not tenable. It was held in this state at an early day, and has since been repeatedly held, that the common counts may be used to state a cause of action, notwithstanding the provision referred to, which was found in the old statutes, and was adopted into the code. Freeborn v. Glazer, 10 Cal. 337; Abadie v. Carrillo, 32 Cal. 172; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199. And this rule has been recognized and acted upon in most of the states where the code practice has been adopted. Allen v. Patterson, 7 N. Y. 476 [57 Am. Dec. 542]; Cudlipp v. Whipple, 11 N. Y. Super. Ct. 610; Grannis v. Hooker, 29 Wis. 65; Ball v. Fulton Co., 31 Ark. 379; Pom. Code Rem., secs. 542, 543. The first count was therefore not subject to a general demurrer. Was it then ambiguous, unintelligible or uncertain in any material respect? It was not necesssary to state when the plaintiff paid, laid out, expended, loaned or advanced to and for the defendant the moneys sued for, or when defendant became indebted to plaintiff therefor, or when defendant requested plaintiff to make such payments, expenditures, loans or advancements. Nor was it necessary to set forth the items of the account. The statute expressly provides that the items of an account need not be set forth in a pleading, but a bill of particulars must be furnished on demand. Code Civ. Proc., sec. 454. If, therefore, the defendant desired more particular information as to the account, he should have resorted to the remedy provided for by the statute, and not to a demurrer. Wise v. Hogan, 77 Cal. 184, 19 Pac. 278; Burns v. Cushing, 96 Cal. 669, 31 Pac. 1124; Rogers v. Duff, 97 Cal. 66, 31 Pac. 836; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199.” A motion to máke more definite and certain is no more ap-’ plicable than a demurrer, for the reason that the complaint is as definite and certain as the law requires it to be. In other words, in language complete, sufficient, perfect and formal the complaint states a cause of action. Neither the time when nor the amount of each separate loan is an essential allegation (Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; Pleasant v. Samuels, supra); and time would become essential only when the statute of limitation is interposed, and is then a matter of proof, and not of pleading. The province of the motion to make more definite and certain is not, as we understand it, to require the pleader to set forth his evidence, but is applied when he has stated a cause of action so imperfectly and incompletely as not to make “apparent the precise nature of the charge or defense.” Section 474, Rev. Stats. 1913. It is said in American Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 366, 73 N. W. 1089, 1090: “This motion (definite and certain) is available when the allegations in a pleading are so indefinite that the precise nature of the cause of action or of the defense is not apparent. If the court can see the meaning of the different allegations, and the cause of action or the defense intended to be set forth by them, the pleading is not indefinite. Nor can it be pronounced uncertain if the nature of the charge or of the defense is apparent. 1 Stover’s N. Y. Ann. Code, see. 506, and notes; 6 Eney. PL & Pr. 274, and notes.” If a pleading states no cause of action or defense, general demurrer is the remedy. If it states a cause of action or defense in language so indefinite and uncertain that the precise nature of the charge or defense is not apparent, and, because of its obscurity, the adverse party is not willing to proceed to trial, he may move to require it to be amended. If the pleading is based on an account, the items of which are not set out in full, the adverse party may demand a bill of particulars. But in no case should the motion be made to take the place of the demurrer, nor, as in this case, to take the place of a bill of particulars. It follows that the first order of the court requiring the plaintiff to “disclose the dates when the plaintiff loaned to defendants money, and the amount so loaned on each of said dates” was improvidently made. The defendants, upon a proper motion, were entitled to a bill of particulars giving the items of account sued upon and the dates, or approximate dates, of the loans, but they were not entitled to have these set out in the complaint. However, plaintiff, in response to the erroneous order of the court, and in the only way we know of that he could obey the order, filed an amended complaint. This amended complaint did not “disclose the dates and the amount so loaned on each of said dates,” but gave the total amount of loans and the dates between which they were made, and, in addition, alleged written acknowledgments of the indebtedness by the defendants, for the purpose, we presume, of tolling the statute of limitation. Whereupon the court dismissed the complaint, “for the reason that the plaintiff has not complied with the order of this court. ” ' It may have been impossible for the plaintiff to give the dates of loans and amount of each loan. As is often the case, no books of account may have been kept. These facts could be set up and sworn to in a bill of particulars, but would have no place in the complaint. We should not penalize the plaintiff to the extent of denying her a trial, simply because she failed to set out in her complaint the dates of the loans. Such a standard of exactness about an immaterial matter would effectually bar the doors of the courts to many honest creditors, for it is common knowledge that money is often loaned with no record of dates or amounts, except memory aided by association and circumstances. The ruling of the court, if upheld, would announce the novel proposition that dates and not debts are the essentials to a good pleading on account. We are satisfied that the defendants mistook their remedy, and that the court was thereby led to commit error in making the order requiring the plaintiff to make her complaint more definite and certain by setting forth the dates of each item of loan and the amounts of each separate loan, and that the order of dismissal and judgment for defendants for noncompliance with such erroneous order, were also contrary to the law. Judgment is reversed, and cause remanded for reinstatement and such disposition as the law may require. FRANKLIN, C. J., and CUNNINGHAM, J., concur.

BOSS, C. J. The foregoing statement discloses that this is an action in equity, and that, as is usual in such actions, many issues and questions of fact are necessarily involved. The legislature, whether wisely or unwisely, it is not for us to say, in the revision of our laws affecting verdicts of juries, inserted a new statute applicable to “actions where equitable relief is sought” which materially changes the procedure in the trial of that kind of an action. It appears in the Civil Code as paragraph 542, and reads as follows: “In all actions where equitable relief is sought the court .shall, if a jury be demanded by either party, submit to the jury all controverted questions of fact. Interrogatories shall be framed and approved by the court presenting such questions, and each interrogatory shall be confined to a single question of fact and shall be so framed as to be answered by ‘Yes’ or ‘No,’ and shall be so answered where ‘Yes’ or ‘No’ is possible. In every such case the verdict shall be binding upon the court in the determination of the action, unless set aside and a new trial granted on motion made for that purpose. ’ ’ The evident purpose of the legislature was to transfer from the court to the jury the power and duty of finding all controverted questions of fact in equity cases as fully and completely as in actions at law. In other words, the conscience of the jury is substituted for that of the chancellor in determining the merits of a cause in so far as the controverted facts are .concerned. The statute is mandatory that if a jury is demanded, the court shall submit “all controverted questions of f&ct” to it in the form of interrogatories, and that each interrogatory shall be confined to a single question of fact. As to whether the phrase “all controverted questions of fact” is broad-enough to include both evidentiary or subordinate facts and the principal or ultimate facts in issue or not we do not feel called upon in this case to decide. It is enough to say that in our opinion the two interrogatories submitted to the jury fall far short of the requirements of the statute, even if it should be held that only thé ultimate facts put in issue by the pleadings should be submitted to the jury. The first question calls for a conclusion of law. It is, in effect, Did K. enter into a contract with B. at the time and place alleged in the complaint ? That would depend upon the substantive facts of their agreement. It is alleged that K. promised to do certain things and that B. promised to do certain things. The question should be, Did they promise to do those certain things ? An affirmative answer being had, it becomes a question of law as to whether the mutual promises constitute a contract or not. It is not for the jury to determine whether a contract was made or not, their duty being confined by the statute to finding the controverted facts of promises; one party insisting that such promises were made and the other denying that they were made. If made upon sufficient consideration, it follows as a conclusion of law that the contract was entered into. If not made, it follows as a conclusion of law that no contract was entered into. Were it determined that the interrogatory was proper in form and calling for a conclusion of fact, still it would be bad as it is not sufficiently definite. The complaint sets forth two contracts, one of date 1892, made in New Jersey, and one of date June 14,1900, made in Arizona. The question is, Which one of these contracts does the interrogatory refer to, and Uhich one did the jury have in mind when they answered the 'question? The suit is based upon the contract of June 14, 1900, but who can know that the interrogatory and answer thereto referred to that contract instead of the earlier contract ? The other interrogatory is subject to a like criticism. It calls for a conclusion of law. It is true that the statute (paragraph 431, Civil Code) relieves the party “pleading the performanee of a condition precedent in a contract” from stating “the facts showing such performance,” and permits him’to state generally in his pleadings that he has duly performed all the conditions on his part, but if such allegation is controverted, he is required on the trial to establish the facts showing performance. One may, under this statute, plead a conclusion of law, but if it is controverted, he must introduce his evidence showing the “facts” of performance. Under the pleadings, Benedict was required to do several things on his part. What he did is a question of fact, and whether what he did was referable to his contract and done in pursuance thereof is a question of fact. The facts of the performance being settled by the jury, it was for the court to determine from these ascertained facts as a conclusion of law whether there was performance or not as promised and agreed. It is clearly the intention of paragraph 542 that the verdict of the jury, in equity cases, on the controverted questions of fact, together with the admitted facts, shall be sufficient in fact and in law for the basis of a judgment of the court fínálly settling and adjudicating the rights of all parties before it. The verdict returned by the jury afforded no such basis. Therefore the court did not err in setting it aside and ordering a new trial. There are some other questions presented in the briefs and which were urged for decision at this time in oral arguments, but as they were not involved in the order granting the new trial nor raised in the trial court so far as the record shows, we will not assume the burden of deciding them. The order granting a new trial is affirmed, with direction that the cause be remanded for further proceedings according to law. FRANKLIN and CUNNINGHAM, JJ., concur.

ROSS, J. Suit by appellant on a note for $300, and interest, and for moneys loaned and money had and received. Answer admitted execution of note, and alleged that, at the time of its delivery, the appellant was negotiating with ap pellee the purchase of some mines, and that the $300 evidenced by note was an advancement on the purchase price of .mines, providing the sale was effected, in which event the note was to be canceled and considered as fully paid and discharged. It is alleged that sale was consummated. Answer denies that appellant ever loaned appellee any moneys, and denies that appellee ever received any moneys for the use and benefit of appellant, and pleads accord and satisfaction, also the three-year statute of limitation as to count for money loaned and money had. Appellant replied to answer by moving that it be made more definite and certain by showing if contract as to the manner note was to be paid was oral or in writing, and, if the latter, that contract be set out in full and be produced for inspection; also moved that allegations of answer as to manner of payment be stricken; demurred specially to plea of payment, and generally to the whole answer; denied payment; and denied the agreement as set forth in answer as to manner payment was to be made. The case was tried to the court without a jury, and judg■ment entered against appellant. The appeal is from the judgment and the order overruling a motion for a new trial. Appellant makes seven assignments. The first is that the court erred in refusing, upon his motion, to require the appellee to set out in his answer whether the contract as to manner in which note was to be paid was in writing or oral. The contract alleged in the answer was one between the parties to this litigation, and therefore as m'uch within the knowledge of appellant as appellee. He therefore knew whether there was such a contract, and, if one, whether it was oral or written. "Where the mover is already in possession of the facts, ordinarily his motion to make more definite and certain will be refused. 31 Oyc. 646. The contract was as binding if made orally as if in writing. It was not in violation of the statute of frauds, nor subject to the plea of limitations. Besides, if it ever existed, under the allegations, it had been fully executed. The second, third and fourth assignments revolve around the same legal proposition, and that is that contemporaneous oral agreements may not be proved to vary, or alter, or contradict the terms of a written contract, especially a promis sory note. That is the undoubted and well-settled law, in the absence of fraud or mistake. It seems to us that appellant has misconceived the defense. It is admitted that the note sued on was executed and delivered for the consideration named, to wit, $300; but it is alleged that it has been fully paid and discharged. That it was paid by a transfer to the payee of mining property instead of specie goes to the manner of payment. Obviously such a defense is a perfect one, and that it does not tend in the least to vary, or alter, or contradict the terms of the note is too plain to require notice. Fifth assignment: The appellee, in support of his defense of accord and satisfaction, testified that he was the owner of some stock in a mining company, and that he sold the stock to appellant for a very small price, and in settlement of all their differences. The negotiations of this transaction were carried on by telegrams that had been destroyed, and appellee, testifying as to the contents of his acceptance of appellant’s offer to buy, said the telegram that he sent was, “Will accept your offer with a clean sheet.” The appellant complains because his motion to.strike this evidence was refused. The testimony may have been somewhat indefinite, but it tended to sustain the plea of accord and satisfaction, and motion was properly refused. Appellant complains that the- court erred in refusing to admit in evidence a Western Union telegram offered by him. This telegram purports to be from appellee to appellant. It was the telegraphic copy, and not the original. Its authenticity was denied by appellee. “Where they [telegrams] are relied upon to establish contracts, they must be proved in the same manner as other writings.” Section 210, Jones on Evidence. The telegram was properly rejected without some evidence of its authorship. We have overlooked in this case what appears to us to be of serious importance to appellants, who rely, in this court, upon the reporter’s transcript as containing the evidence and the rulings, orders and other action of the trial court desired to be preserved for review. The reporter’s transcript is simply “approved” by the trial judge. This is not a compliance with the law. When there is no statement of facts or bill of exceptions, but reliance is' had on the reporter’s transcript, great care should be execised to have it properly-authenticated by the trial' judge, for in it are contained not only the evidence, but the rulings, orders and other action of the court excepted to. - By an unwarranted and liberal indulgence in presumptions, “approved,” as herein used, might be construed as the equivalent of the certificate required by section 614, Bevised Statutes of 1913, but that is not the ordinary meaning of the word “approved.” The section referred to reads as follows: “When the statement of facts, bill of exceptions or reporter’s transcript is presented to the trial judge he shall certify thereto that the same is correct; or first amend it as it may require and then so certify it, and file it, together with the written statement or written statements, in the record of the case, within ten days after the same has been presented to him, unless both parties consent to a delay.” Of course what we have said as to the necessity of a certificate of the trial judge to the reporter’s transcript applies with equal force to the statement of facts and bill of exceptions. See sections 608, 610 and 614, Id. Judgment affirmed. FEANKLIN, O. J., and CUNNINGHAM, J., concur. NOTE.—On the question of contemporaneous agreements and their ■ breach as a defense to a promissory note, see note in 43 L. R. A. 449.

PER CURIAM. The facts in this case are on all-fours with the facts in Foltz v. Noon, ante, p. 410, 146 Pac. 510, just decided. The decision in that case is necessarily determinative of this ease. Therefore the judgment is affirmed.

PER CURIAM. Judgment in this case was rendered on November 20, 1912, and on the same day a motion for a new trial was made and denied. On November 18, 1913, a writ of error was sued out to have the judgment and order reviewed by this court. The law which went into effect October 1, 1913, provides that a judgment or order in a civil action or proceeding or in a probate proceeding may be reviewed by appeal, and not otherwise. Paragraph 1226, Ariz. Rev. Stats. 1913, Civil Code. Before the writ of error in this case was sued out, the law-making power had abolished that method of review. It follows, therefore, that we have no jurisdiction to entertain the writ. Steinfeld v. Nielsen, 139 Pac. 879. Writ of error dismissed.

SMITH, J. This cause originated in the superior court of Apache county and was removed to the superior court of Navajo county upon change of Venue. This is an action ex contractu. The cause was tried upon the amended complaint of plaintiffs and appellees, answer of defendant and appellant to- plaintiffs’ amended complaint, defendant and appellant’s cross-complaint, and answer of plaintiffs and appellees to defendant, and appellant’s cross-complaint. From a judgment in favor of plaintiffs, in the sum of $212.85, defendant appeals. The assignments of error regarded as essential to this decision will be considered in their order. Defendant and appellant’s first and second assignments of' error may be considered together. They are as follows: (1) The court erred in overruling the defendant’s objection to the jurisdiction of the court, and upon the ground that there had been no compliance with the requirements of paragraph 1377, Revised Statutes of Arizona of 1901, as to the payment of costs of change of venue, and requiring the filing of a bond by the party moving for a change of venue. (2) The court erred in overruling the defendant’s objection to the jurisdiction upon the ground that the files in this cause were not legally on file in this court, and that said cause was not legally docketed in said court, by reason of the nonpayment of the filing fees required by law and by the rules of said court. The record in this cause discloses that defendant and appellant filed a motion for change of venue in the superior court of Apache county, supported by the required affidavit. Thereafter, counsel for plaintiffs and appellees appeared and consented to change of venue. Thereupon, the court made an order transferring the cause to the superior court of Navajo county. When this order was made, defendant and appellant was not represented in person or by counsel. Defendant and appellant never filed any bond upon change of venue, as provided by statute; but the clerk of the superior court in Apache county, without having received such bond, forwarded the files and papers in the cause to the clerk of the superior court in Navajo county. The clerk of the superior court in Navajo county, without receiving any fees, filed the papers in said cause in his office. The material part of paragraph 1377, Revised Statutes of Arizona of 1901, as amended by Act No. 74, Session Laws of 1907, is as follows: “And the clerk of the proper court shall receive the papers and docket the cause in its order, and it shall be tried or otherwise disposed of as if it had originated in that court: provided, however, that the change of venue shall be deemed abandoned, unless the applicant shall also within said five days, give an undertaking to the opposite party, with sureties to be approved by the clerk of the court, to the effect that he will pay all costs that may be adjudged against him in said case. ’ ’ Paragraph 1380, Revised Statutes of Arizona of 1901, provides in part as follows: “Each party shall be heard to urge his objections to any county or judge in the first instance, and the change of venue shall be to the most convenient county to which the objections of parties do not apply or are least applicable.” It is to be noted that, in urging his objections to the jurisdiction of the superior court of Navajo county, defendant and appellant is endeavoring to take advantage of his own default. Under a statute somewhat similar, the supreme court of Illinois, in Lowry v. Coster, 91 Ill. 182, held that, where a defendant obtains an order for a change of venue to another court under a statutory provision requiring him to pay the clerk the expenses attending the change within a specified time and he fails to pay such charges, the defendant cannot take advantage of his neglect to pay to defeat the change and have the cause remanded. Aside from this point, however, the record discloses that when the case was called for trial January 11, 1913, counsel for defendant appeared in open court and demanded a jury and made no objection to the jurisdiction of the court until after the demand for jury had been denied. Even then, counsel for defendant made no formal motion or objection. It is elementary that, upon change of venue, counsel must make his objection to the jurisdiction in the proper manner and at the earliest opportunity. This cause was docketed in the superior court of Navajo county October 3, 1912. No motion to remand was ever made or filed or presented at any time. No plea to the jurisdiction of the court was ever filed or presented at any time. In appearing in the superior court of Navajo county and making his demand for a jury trial, counsel could not thereafter be heard to urge objections to the jurisdiction, particularly objections based upon his own neglect. Christ v. Flannagan, 23 Colo. 140, 46 Pac. 683; State v. District Court of Pine County, 88 Minn. 95, 92 N. W. 518. Our statutes are silent as to what fees, if any, shall be paid to the clerk of the court to which an action may be_transferred upon change of venue. In the absence of any statutory provision of any rule of court regarding the payment of fees in such a situation, no jurisdictional question was involved in the failure of the parties to make payment of fees. The third assignment of error is as follows: (3) The court erred in notifying counsel for defendant by letter that cases 347 and 348 had been set for hearing on the 11th day of January, 1913, when he intended to set those eases for trial on that day. The record discloses that on December 28,1912, Judge SAPP wrote counsel for defendant and appellant as follows: “This is to advise that cases 347 and 348, Greer v. Brown, have been set for hearing January 11, 1913.” While a more definite notice of the setting of these eases for trial might have been given, the notice so given was certainly sufficient to place counsel for defendant and appellant upon inquiry. In the absence of any showing whatever to the trial court of unpreparedness to go to trial on January 11, 1913, the court did not commit error in ordering the cause to proceed for trial by reason of the alleged insufficient notice. The last four assignments of error will be considered together. They are as follows: (4) The court erred in refusing to hear and decide the general demurrer to plaintiffs5' amended complaint and the motion to strike out plaintiffs’ answer to defendant’s cross-complaint. (5) The court erred in compelling the defendant to go to trial in said action, when there were pending and undecided by either the superior court of Apache county or the superior court of Navajo county the defendant’s motion to strike the plaintiffs’ answer to the defendant’s cross-complaint and the defendant’s general demurrer to the plaintiffs’ answer to the defendant’s cross-complaint. (6) The court erred in forcing the defendant to proceed to trial in this action without due and legal notice and without an opportunity to procure the attendance of witnesses essential to his proper defense. (7) The court erred in refusing defendant’s demand for a trial by jury in this action, which demand was made at the earliest opportunity after the defendant was required to proceed to try said action, and as soon as defendant was advised that a time had been set for the trial of this action, which was soon after defendant’s counsel reached the courtroom at or about 2 P. M. on January 11, 1913; it appearing by the record that there had been no call of the calendar on the first Monday of any month since this case was docketed in said superior court of Navajo county. An examination of the record discloses a general demurrer to the complaint and a motion to strike the answer to the cross-complaint, as well as a motion to strike certain portions thereof; also, a general demurrer to the answer to the cross-complaint. When the ease was called January 11, 1913, counsel for defendant and appellant referred to these law questions as follows: “I think we have some demurrers here.” Page 124, Abstract of Record. Argument followed, during which the uncontradicted statement was made that the demurrers had been passed upon by the superior court of Apache county. The court finally made this ruling: “If it is the same thing the court has passed upon heretofore, the court will not listen to it.” And thereupon the cause proceeded to trial. The motions to strike were not raised. The record in the superior court of Apache county is very meager; it shows no action taken upon the motions to strike, and the only reference to the demurrers is found in the minutes referring to the action of the court on motion for change of venue. Page 103, Abstract of Record. In these minutes, July 18, 1912, this statement appears: “Demurrer in this case having been previously overruled.” Aside from this, the only other reference to this matter is upon the minutes of July 13, 1912, where this statement is found: “Counsel on both sides argued in relation to some points of law.” So far as the record is concerned, it does not appear that the particular demurrers of defendant and appellant, to which reference is made in his assignments of error, had ever been ruled upon by the court. After suggesting the matter, however, counsel clearly allowed the court to proceed upon the theory that the superior court in Apache county had previously ruled upon the demurrers. So far as the motions to strike are concerned, it does not appear that counsel for defendant and appellant brought them to the attention of the trial court in any manner whatever, and he cannot now predicate error upon his failure to properly present these motions. With reference to assignment No. 6, it is sufficient to say that counsel for defendant and appellant, both at the trial and upon the motion for new trial, wholly failed to properly present to the court any sufficient showing of unpreparedness for trial or inability to procure the attendance of witnesses at the trial January 11, 1913. Immediately upon the calling of the case January 11, 1913, counsel for defendant and appellant demanded a trial by jury. Lengthy argument followed upon the question of whether or not defendant had had an opportunity to demand a trial by jury at a previous call of the calendar. Section 23, article 2, of the Constitution of the state of Arizona, is as follows : “The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number of less than twelve in courts not of record, and for a verdict of nine or more jurors in civil cases in any court of record, and for waiving of a jury in civil cases where the consent of .the parties interested is given thereto.” Paragraph 1389, Revised Statutes of Arizona of 1901, provides as follows: “On the first day of the term, or on such day as” the court may direct, “the docket shall be called, and” the jury must be demanded or “the right to a trial by jury shall be regarded as waived.” One of the rules of the superior court of Navajo county provides: £' The trial calendar will contain all cases in which issues of fact have been joined . . . and in which all preliminary motions and demurrers have been disposed of. . . . Parties desiring a jury must demand the same on the call of the trial calendar. On the first Monday of each month the trial calendar will be called and the eases thereon set for trial. ’ ’ A certificate of the superior court clerk in the record discloses that the trial calendar was not called upon the first Mondays of November and December, 1912; there is some uncertainty as to when the trial calendar was called in October. We do1 not consider this material, however, as, under the rules of the superior court of Navajo county, the case could not properly have been upon the trial calendar as certain law questions were still undetermined. Aside from the uncertainty of any action having been taken upon the demurrers, as referred to above, it clearly appears that no action whatever had ever been taken upon motions to strike, and •defendant never waived these motions by failure to present them until his first appearance in court January 11, 1913. Aside from this, however, it is to be noted that our constitutional provision regarding the right of trial by jury is extremely explicit. In so far as the statutory proviso above quoted or the rule of court conflict with the provisions of the Constitution, they become inoperative. Even if the case had been at issue prior to January 11, 1913, in the absence of an affirmative showing in the record that defendant had “ consented to a waiver of trial by jury,” his demand on January 11, 1913, did not come too late. Either party in civil actions has the absolute right of a trial by jury; it is not a privilege. And unless the parties “consent” to waive a jury in civil causes, it is error for the court to refuse either party his constitutional right. Aside from any question as to whether the trial calendar had been called previous to the date of trial, January 11, 1913, and waiving any question as to whether the ease could properly have been on the trial calendar in view of the situation concerning the law questions, we hold that, in the absence of any record disclosing the appearance of defendant in court consenting to the waiver of his right to a jury trial, the court erred in refusing his demand for jury trial made on January 11, 1913. This is uniformly supported by all the eases bearing upon this question, and, for this reason, this cause is reversed and remanded to the superior court of Navajo county -for trial. FRANKLIN, C. J., and CUNNINGHAM, J., concur. ROSS, J., being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the Constitution, called in Hon. FRANK 0. SMITH, Judge of the superior court of the state of Arizona, in and for the county of Yavapai, to sit with them in the hearing of this case. Application for rehearing denied.

PER CURIAM. These appellants were jointly charged by information with Genoveno Lujan with the crime of grand larceny. The evidence is practically the same as in the Lujan case, just decided. The instruction complained of, if possible, is more inviting to criticism than the one in the Lujan case (ante, p. 123, 141 Pac. 706). It is: “The intent with which the defendants committed the crime complained of must be determined by you from all the evidence in the case.” Here the jury are told that the defendants committed the act, and that it was a crime. We cannot refrain from saying that it seems to us that errors so patent and egregious must be the result of carelessness and inapplication. A little care and industry applied to each individual case, so that the court may correctly “declare the law,” would relieve this court from the unpleasant duty of reversing cases and ordering new trials entailing expenses on both defendant and the state. Such errors in the administration of the law give rise to much complaint, and the courts are blamed for being technical; whereas, the courts are simply insisting that no man, whatever his station in life, shall be unlawfully tried and punished. This duty of protecting the meanest as well as the most exalted person from the invasion of a substantial right, and forbidding the conviction of one charged with crime, except upon the well-settled rules of the criminal law, is a duty imposed upon us by the law, and our oaths as judges. The rule of conduct prescribed by the Constitution that no cause shall be reversed for technical error in pleadings or proceedings, when upon the whole ease it shall appear that substantial justice has been done, shall govern this court in all cases. If we catch the spirit and purpose of such a rule, its wisdom may not be gainsaid. But its liberal application, and, when so applied, its beneficial operation in the orderly administration of justice, must not impute to courts a license to impair in the trial of his cause any substantial right of one charged with crime. We do not reverse this case for technical reasons, for the palpable invasion and destruction of a vital and substantial right may in no wise be cloaked under the term “technicality,” and such right thus frivolously dissipated. "Upon the case presented it is apparent that the de fendant has been denied a trial wherein his substantial rights have been respected and conserved, and by reason thereof this case is reversed, because we are compelled to reverse it. Judgment reversed and cause remanded for a new trial.

PER CURIAM. The appellant, Louis Gherna, appeals from a judgment of conviction of selling intoxicating liquor, to wit, a bottle of whisky, on . January 1, 1915, in violation of the prohibition amendment to the state Constitution. The initiative petition by the qualified electors of the state for the proposed amendment was filed with the Secretary of State on July 2, 1914. It was adopted by the electorate of the state at the 1914 November election and became law and a part of the Constitution on December 15, 1914, by proclamation of the Governor. It appeared in the Publicity Pamphlet, which was mailed'to the voters of the state, as follows : “Proposed Amendment of the Constitution of the State of' Arizona. “Prohibiting’ the introduction into, the manufacture of, and the giving, exchanging, bartering, selling or disposing of ardent spirits, ale, beer, wine or intoxicating liquors in the state of Arizona and prescribing a penalty for the violation thereof. “Be it enacted by the people of the state of Arizona: “That the Constitution of the state of Arizona be and is hereby amended by adding thereto another article the same to be numbered XXIII and to read as follows, to wit: ‘ ‘ Section 1. Ardent spirits, ale, beer, wine, or intoxicating liquor or liquors' of whatever kind shall not be manufactured in or introduced into the state of Arizona under any pretense. Every person-who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind to any person in the., state of Arizona, or who manufactures, or introduces into, or attempts to introduce into, the state of Arizona any ardent spirits, ale, beer, wine, or intoxicating liquor of ,any kind, shall be guilty of a misdemeanor and upon conviction shall be imprisoned for not less than ten days nor more than two years and fined not' less than twenty-five dollars and costs nor more than three hundred dollars and costs for each offense: Provided, that nothing in this amendment contained shall apply to the manufacture or sale of denatured alcohol. .“See. 2. The legislature shall by appropriate legislation provide for the carrying into effect of this amendment. “See. 3. This amendment shall take effect on and be in force on and after the first day of January, 1915.” It is the contention of appellant that this amendment (1) is not self-executing; (2) that if it is self-executing, it is confiscatory; and (3) that it violates the interstate commerce clause of the Constitution of the United States. We are of the opinion that, by the terms of the amendment, it is self-executing. It denounces certain things and prescribes a penalty for doing them, or any of them. It is as complete and full as most criminal statutes that define crimes and prescribe penalties for their commission. But, upon the hypothesis that it is self-executing, it seems to be the contention of appellant that its self-executing feature is suspended or postponed, by virtue of section 2 thereof, until a time when “the legislature shall by appropriate legislation provide for the carrying into effect of this amendment.” This construction nullifies section 3, which should not be permitted, if possible. By it, it is provided that the “amendment shall take effect on, and be in force' on and after the first day of January, 1915.” Neither section 2 nor section 3 should be cast aside as so much “dead wood.” It may be admitted that the language used in these sections, if literally interpreted, is apparently subject to the criticism of contradicting itself. But the framer, and the people who adopted the amendment, must have inserted both sections with a clear vision of their separate purpose. The object sought was to stop the traffic in intoxicating beverages. The qualified voters were clothed with the power to accomplish that object. They could have announced, in the amendment, the principle of prohibition and stopped there, as many of the states have done, and left to the law-making bodies (themselves or the legislature) the duty of enacting laws defining the offense and fixing the penalties. But they did not do that. They not only announced the principle of prohibition, but entered the domain of legislation defining the offense and prescribing punishment, and fixed a date when it should be in force and effect, to wit, January 1, 1915. The purpose, then, of inserting in the amendment section 3, is evident. It cannot be mistaken. It means, if words are really the vehicle by which thoughts and ideas are conveyed, just what it says; i. e., that the amendment is in force on and after January 1, 1915. While the enacting clause printed at the head of the amend-ment was not necessary and is no part thereof, we think it permissible and proper to look to it to aid us in ascertaining the intention of the electors in adopting the amendment. It conveys the idea of a self-operating law. It connotes prohibition of the things mentioned and punishment for violation thereof. The context amplifies and elaborates the title into positive, prohibitive, and penal law. While section 2 is a part of the amendment, we do not think it an essential part of it. Before discussing section 2, however, let us examine the amendment with it eliminated. With section 2 laid aside for the moment, the amendment in substance and effect would read: “Ardent spirits, ale, beer, wine or intoxicating liquor or liquors Of whatever kind shall not be manufactured in or introduced into the state of Arizona under any pretense. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine or intoxicating liquors of any kind to any person in the state of Arizona, or who manufactures, or introduces into, or attempts to introduce into the state of Arizona, any ardent spirits, ale, beer, wine or intoxicating liquor of any kind, on or after January first, 1915, shall be guilty of a misdemeanor, and upon conviction, ’ ’ etc. Having here suggested in concrete form what we conceive to be the meaning of the amendment as intended by the electorate when voting for it, we will now reinsert section 2 giving it number “3.” The transposition of sentences and sections in an enactment, in order to aid in construction, is no new or novel thing. As was said In re Bull’s Estate, 153 Cal. 715, 96 Pac. 366: “The numbering of sections in statutes is a purely artificial and unessential arrangement, resorted to for purposes of convenience only, and can never be allowed to hinder a correct construction of the entire act.” The changing of the position of section 2 from 2 to 3 does not change its meaning in the least, nor does it change the meaning of the whole amendment in the least. It does, however, aid in searching out the meaning of its authors. It makes plain that the amendment was a living, vital thing with a sting in it, on and after January 1, 1915. We have found, beyond a doubt, what sections 1 and 3 mean with section 2 eliminated for the moment. Do sections 1, 2, and 3 mean the same thing that sections 1 and 3 mean ? Our answer is, “Yes.” Note the language of section 2: “The legislature shall by appropriate legislation provide for the carrying into effect of this amendment. ’ ’ The last section of the state Constitution (section 21, article-22) , while not in the exact language of section 2, conveys the same idea and was doubtless inserted in the Constitution for the same purpose. The section of the Constitution reads: “The legislature shall enact all necessary laws to carry into-effect the provisions of this Constitution.” There are some provisions of the Constitution that are self-operating, expressly made so, and there are many just as plainly self-operating by implication. There are some that contain mandates to the legislature to enact supplemental legislation, and there are some sections that indicate a policy or principle, and no more. -Surely, no one would contend' that, because of the existence of section 21, article 22, of the-Constitution, the provisions thereof expressly self-executing or clearly impliedly so, are to be suspended or postponed until the legislature shall speak; nor do we think section 21,. article 22, superadds any power in the legislature not already possessed by it to “enact all necessary laws to carry into-effect” all of the provisions of the Constitution, whether those provisions be self-executing or merely indicate a line of policy or principles. The declaration of a policy or principle in the fundamental law, in and of itself, imposes a duty on the legislature to provide the method and means of effectually carrying out the policy or principle. A mandate to the legislature-to do its duty cannot make the obligation any more binding. The duty exists just the same without the mandate. So we-say that section 21, article 22, might just as well have been, omitted from the Constitution, as it granted no power to> the law-making body not already possessed, and for the same-reason section 2 of the prohibition amendment fills no office,, except it be given the effect of a request to the legislature to do what was already its duty to do. The request, then, to-the legislature was that it pass “appropriate legislation” for earrying into effect the amendment. The Century Dictionary defines ‘ ‘ appropriate ” as “ suitable; fit; befitting; proper. ’r It should be remembered that this prohibition amendment is an act of the sovereignty. The legislature, therefore, cannot take from it or add to it, but it may pass suitable, fit or proper laws as an aid to the authorities whose duty it is to enforce the constitutional provision. The experience of those states that have tried to suppress the liquor traffic has been that many subterfuges are resorted to to defeat the object aimed at. This fact was doubtless well known to the electorate, and in anticipation of like tactics being practiced in this state, and out of abundant caution, they requested, by section 2 thereof, that the legislature pass appropriate legislation, for instance, such as declaring places where liquor is sold nuisances, making possession of liquor prima facie evidence of guilt, providing for the search of blind tigers, and rules requiring transportation companies to keep records of liquor shipped into the state, éte. As was said in Nowakowski v. State, 6 Okl. Cr. 123, 129, 130, 116 Pac. 351, 353, 354: “It is not every self-executing provision of a Constitution which exhausts legislative power upon the subject with which it deals. There are many such where legislation in aid of or in addition to the provision is both permissible and desirable. . . . In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same, so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified. Stevens v. Benson, 50 Or. 269, 91 Pac. 578; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Becher v. Baldy, 7 Mich. 488; Willis v. Nabon, 48 Minn. 140, 31 Am. St. Rep. 626, 16 L. R. A. 281, 30 N. W. 1110; People v. Draper, 15 N. Y. 532; Cooley’s Const. Lim., 7th ed.; 122; Ordronaux’s Const. Legislation, 262-265. ‘In creating the legislative department, and in conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department of a state is not made a special agency for the exercise of specifically defined legislative powers, bnt is intrusted with the general authority to make laws at discretion. Cooley’s Const. Lim., 7th ed., 126. ’ ” "What we have said with reference to a proper construction of the prohibition amendment has been in view of the general rule of construction, as applied to instruments of this kind. That rule is stated by Judge Cooley, in his work on Constitutional Limitation, seventh edition, at page 91, to be: “That effect is tobe given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.” 2 Lewis’ Sutherland, Stat. Con., par. 380. The construction contended for by appellant would not give operative effect to section 3. It would ignore its provisions entirely, and in doing so would ascribe a meaning to provisions of section 2 incompatible with section 1, ’for, as we have seen, section 1 not only declares the policy or principle of prohibition, but defines its violation as a crime and prescribes the penalty. By section 2 it could not have been intended that the legislature should give the crime a different definition or prescribe a different penalty, but should be limited to the enacting such appropriate legislation as would aid “in carrying into effect” successfully the law as announced in section 1. This construction gives to section 2 the evident meaning intended by its authors, for whatever it is worth, harmonizes all of the provisions of the amendment, and gives the intended effect to the whole instrument. If we should yield to the arguments of appellant as sound and relegate the amendment to the legislature for the breath of life, what could that body do? Simply re-enact section 1 word for word, and provide, as directed in section 2, appropriate legislation for carrying into effect section 1; that is, pass legislation in aid of but not inconsistent with the provisions of section 1. While the question is not directly before us at this time, we may say, as illustrating “appropriate legislation” (in addition to illus trations heretofore given) in aid of section 1, that to onr mind there is at least some donbt as to whether the general laws, as they now exist, provide a method of collecting the fines mentioned in section 1, and a most serious doubt as to whether the “costs” may be collected under the law as it now exists. If so, supplemental legislation in aid of section 1 is necessary in order that the full penalty for its violation may be inflicted upon the transgressor of its provisions. ' • The appellant makes the further point that the amendment is not self-operating, for the reason, as he says, it fails “to fix the jurisdiction of the courts in such offenses, as well as to fix the place of imprisonment thereof.” Paragraph 340, Civil Code, confers on the superior courts original jurisdiction in all cases and all proceedings in which jurisdiction is not vested by law exclusively in some other court. Paragraph 385, Id., gives jurisdiction to justices of the peace of criminal cases other than felonies, where the punishment is a fine not exceeding $300, or imprisonment in the county jail not exceeding six months, or both. The penalty prescribed in the amendment is in excess of the jurisdiction of the justices’ courts, and therefore the offense falls within the superior court’s jurisdiction. The place of imprisonment is in the county jail. The offense is defined as a misdemeanor. The Penal Code, paragraph 16, divides crimes into felonies and misdemeanors. Paragraph 17, Id., provides that a felony is a crime punishable by death or imprisonment in the state prison, and that every other crime is a misdemeanor. The place of punishment grades the crime—if in the state prison, it is a felony; if in the county jail, it is a misdemeanor. Under the provisions of the Penal Code, all misdemeanors punishable by imprisonment, the imprisonment must be in the county jail. The authors of the prohibition amendment knew this; and, when they designated the violation of its provisions a misdemeanor, they adopted as the place of imprisonment the county jail. There is also a rule that where a statute is silent as to the place of imprisonment, and any doubt exists as to whether it should be in the penitentiary or county or local jail, the defendant should have the benefit of the doubt and be incar cerated in the county or local jail. Ex parte Cain, 20 Okl. 125, 93 Pac. 974. We are therefore of the opinion that the amendment provides that the superior courts shall have jurisdiction of offenses in violation of its provisions, and that the place of imprisonment is definitely and certainly fixed as the county jail. The fact, if it be a fact, that the costs cannot be collected under the existing laws, and that supplemental legislation may be necessary to enforce their collection, does not affect the features of the amendment that are clearly self-executing. Ex parte Cain, supra. As we understand the matter from the oral argument on behalf of appellant and in his brief, this position is taken. If the enactment in question be held not self-executing, and therefore not in force and effect, it is constitutional. Putting it in another way, if the amendment must lie dormant and be of no effect until some other action by some other agency is or is not taken, then it is perfectly constitutional and unobjectionable to appellant. But if the amendment went into effect on January 1, 1915, it is wholly void and utterly objectionable : First. Because it is confiscatory, and therefore violative of the fourteenth amendment to the Constitution of the United States. Second. Because it imposes a burden on interstate commerce, and is therefore repugnant to the commerce clause of the Constitution of the United States, for the reason that the amendment prohibits the introduction of liquor into this state for any and all purposes, without regard to the lawfulness or unlawfulness of the purpose for which such liquor is intended to be put. It is argued that the amendment in question does not even purport to prohibit the use of liquor in all eases. For instance, it is claimed that the amendment does not make the possession of liquor by one for his or her individual consumption unlawful. It is contended, therefore, that, if liquor may be kept and put to a lawful use, it may be introduced into this state for such lawful use, and that this part of the amendment, in forbidding the introduction thereof for any and all purposes, exceeds the assent, which Congress has given-in what is known as the Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699 [Fed. Stats. Ann. Supp. 1914, p. 208, U. S. Comp. Stats. 1913, sec. 8739]), to divest liquor of its interstate character only in certain cases, to wit, where it is intended, by any person interested therein, to be received, possessed, sold or in any manner used in violation of any law of such state. In fine, that it is the scope and intent of this act of Congress to be an auxiliary or aid to a state in the better enforcement of its prohibitory liquor laws by prohibiting the interstate shipment of liquor intended for any purpose denounced by such laws. Third. Because the provision of the amendment prohibiting the introduction of liquor is so essentially a part of the amendment and so interdependent and blended with the other parts thereof that such unconstitutional feature, if it exists, is of such a character as to render the entire act void. It is conceded by all: That the several states may not impose any burden upon interstate commerce, unless it is done with the express consent of Congress. That this function is by the Constitution committed exclusively to Congress. That shipments of liquor from one state to another state have been accorded the protection of interstate commerce by repeated decisions of the supreme court of the United States, whose judgment on such a matter is conclusive and binding on every other court. But the Congress of the United States has given its assent in certain cases. Its last enactment concerning the matter is what is known as the Webb-Kenyon law, which prohibits shipments of liquor into prohibition territory in certain cases. Speaking of this act, the brief submitted on behalf of the state says: “It prohibits the transportation in interstate commerce from one state into another state of intoxicating liquor which is intended for anyone therein to be received, possessed, sold, or in any manner used in violation of any law of the state, to which it is sent.” In the brief submitted in behalf of the appellant it is observed, concerning the introduction feature of the amendment, thus: “It has long been known that prohibition does not prohibit, unless the introduction be prevented. The prohibition law in Maine has been a farce for half a century. When passed in Georgia, the saloons of Atlanta remained open with a laugh, because public sentiment was opposed to prohibition. In Memphis, Tennessee, the same conditions existed, except that the whisky bottles were openly exposed in the stores, and every human being knew that people were violating the law. In Alabama it was worse, so bad that the law was repealed at the next election, practically with the consent of those who believed in prohibition. Young men grew up with a notion, superinduced by these circumstances, that law was a farce, and became naturally improvident and reckless with respect to the sanctity of the law.” To remedy the evil so forcibly proclaimed by appellant, and to aid the states in erasing a condition that all will concede appellant has strikingly presented, may have been the motive and purpose which actuated the Congress in passing the act. The question has been reviewed with great learning and discussed in elaborate detail in the following cases, which may be consulted: United States v. Oregon-W ashington R. & N. Co. (D. C.), 210 Fed. 378; State v. Grier (Del. Gen. Sess.), 88 Atl. 579; State v. Van Winkle (Del. Gen. Sess.), 88 Atl. 807; State v. United States Express Co. (Iowa), 145 N. W. 451; Atkinson v. So. Express Co., 94 S. C. 444, 48 L. R. A. (N. S.) 349, 78 S. E. 516; Adams Express Co. v. Commonwealth, 154 Ky. 462, 48 L. R. A. (N. S.) 342, 157 S. W. 908. However interesting and instructive a discussion of this phase of the matter might be, and what, if any, constitutional objection may be urged to the introduction feature of the enactment, or what its application in any particular case when presented will be, are moot questions in this case. The appellant is not charged with introducing liquor into Arizona, but he is charged and has been convicted of unlawfully selling liquor in Arizona. We believe it to be the unquestioned rule that a person cannot raise a constitutional objection to a part of a statute which is not applicable to his own particular case. The authorities are overwhelming to this effect. We cite but a few: Southern R. Co. v. King, 217 U. S. 524, 54 L. Ed. 868, 30 Sup. Ct. Rep. 594; Engel v. O’Malley, 219 U. S. 128, 55 L. Ed. 128, 31 Sup. Ct. Rep. 190; Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 Sup. Ct. Rep. 784; Yazoo & M. Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Rosenthal v. New York, 226 U. S. 260, 57 L. Ed. 212, Ann. Cas. 1914B, 71, 33 Snp. Ct. Rep. 27; Darnell v. Indiana, 226 U. S. 390, 57 L. Ed. 267, 33 Sup. Ct. Rep. 120; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 58 L. Ed. 713, 34 Sup. Ct. Rep. 359; Missouri, Kansas & Texas R. Co. v. Cade, 233 U. S. 642, 58 L. Ed. 1135, 34 Sup. Ct. Rep. 678; Cram v. Chicago Burlington & Quincy Ry. Co., 85 Neb. 586, 26 L. R. A. (N. S.) 1028, 123 N. W. 1045, reported in 19 Ann. Cas. 170, with a note wherein the authorities are extensively collated. Courts will not entertain an. objection to the. constitutionality of a statute, unless the objection is made by one whose rights have been in some way injuriously, affected. Unless a person’s rights are directly involved, such questions must necessarily be postponed, until they are met with upon the highway of adjudication, unless the unconstitutional feature, if it exists, is of such a character as to render the entire act void. New York Central R. R. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 Sup. Ct. Rep. 304; People v. Huff et al., 249 Ill. 164, 94 N. E. 61; Hammer v. State, 173 Ind. 199, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034, 24 L. R. A. (N. S.) 795, 89 N. E. 850. Of course, if the enactment is wholly void, it is no law. It is as though it had never been enacted, and one who has suffered conviction under such an act will be heard to raise an objection as to its being entirely void, for his rights in such a .case would be invaded. In a word, he could not be held to suffer a punishment, which is unauthorized by any law, without a clear invasion of his rights being committed. But a law may be valid in part and separable and capable of being executed so that the invalid part may be disregarded. But without, even for the sake of argument, conceding that there is any merit whatever in the contention that any part of the act is invalid as placing an unauthorized burden on interstate commerce, we must at once dismiss the consideration of such a matter as unnecessary, and therefore improper to a decision of this cause, if, upon an examination of the amendment, its provisions are found to be separable, and the clause under which appellant was convicted be valid. Are the several parts of this amendment capable of separation, so as to give effect to the legislative intent of the people ? “It is well settled that, if a statute is in part unconstitutional, the whole statute must be deemed invalid, if the parts not held to be invalid are so connected with the general scope of the statute that they cannot be separately enforced, or, if so enforced, will not effectuate the manifest intent of the legislature.” Int. Text-Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 18 Ann. Cas. 1103, 27 L. R. A. (N. S.) 493, 30 Sup. Ct. Rep. 481. “It will sometimes be found that an act of the legislature is opposed, in some of its provisions, to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the Constitution, or to accomplish some lawful and even laudable object, by means repugnant to the Constitution of the United States or of the state. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. . . . The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative in tent, wholly independent of that which was rejected, it must be sustained.” Cooley’s Constitutional Limitations, 7th ed., pp. 246-247. “If one provision of an enactment is invalid and the others' valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so insepa-rably connected that they cannot be divided without defeating the object of the statute. And the converse is true. The vicious part must .be distinct and separable, and, when stricken out, enough must remain to be a complete act, capable of being carried into effect, and sufficient to accomplish the object of the law as passed, in accordance with the intention of the legislature. ... It may be laid down generally as a sound proposition that one part of a statute cannot be declared void and leave any other part in force, unless the statute is so composite, consisting of such separable parts, that, when the void part is eliminated, another living, tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the legislature which enacted it in connection with the void part. If the legislative purpose, as expressed in the valid portions of the act, can be accomplished, independently of the unconstitutional portion, and, considering the entire act, it cannot be said that the legislature would not have passed the valid portion had it been known that the invalid portion must fail, effect will be given to so much as is good.” Lewis’ Sutherland, Statutory Construction, Vol. 1, pp. 578, 579. Evidently the main purpose and controlling principle pervading the amendment is to prohibit the manufacture in Arizona and to prohibit the disposal thereof to any person in Arizona in any way, of ardent spirits, ale, beer, wine or intoxicating liquor of any kind. It is not questioned in this case that the state may, in the proper exercise of its police powers, enact such legislation. The power to regulate, restrain or prohibit whatever is injurious to the public health and morals is universally recognized. Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Crowley v. Christensen, 137 U. S. 86, 34 L. Ed. 620, 11 Sup. Ct. Rep. 13; Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Eberle v. Michigan, 232 U. S. 700, 58 L. Ed. 803, 34 Sup. Ct. Rep. 464; Purity Extract Co. v. Lynch, 226 U. S. 192, 57 L. Ed. 184, 33 Sup. Ct. Rep. 44; Foster v. Kansas, 112 U. S. 205, 28 L. Ed. 696, 5 Sup. Ct. Rep. 8, 97; Kidd v. Pearson, 128 U. S. 1, 32 L. Ed. 346, 9 Sup. Ct. Rep. 6; Black on Intoxicating Liquors, par. 37; Joyce on Intoxicating Liquors, par. 83; Woollen & Thornton’s Law of Intoxicating Liquors, par. 93. That legislation of such a character may to some seem unwise, unjust or impolitic does not authorize the courts to interfere. When the law-making power has determined such matters, such questions are thereby foreclosed. Nor is the purpose and motive for the exercise of such legislative power a subject for judicial inquiry. Questions relating to the wisdom, policy and expedience of such enactments are addressed to the law-making branch of the government. Likewise we may not concern ourselves with a consideration of the evils Which it is suggested may or may not arise from the execution of the law, whether they be real or imaginary. Unless there be some constitutional provision which prohibits the enactment, the power is with the people to determine from time to time the occasion, and what laws and regulations are necessary and expedient for their benefit. The judicial department does not make the laws, but is confined to ascertain if the power to pass them exists, and, when such power is found, then to construe and enforce them as made. A pronouncement of the invalidity of an act or any part of an act of the people in their legislative capacity is, and must always be, approached with a delicacy which the situation invites. Under our oaths as judges, this power must be exercised in cases; but nevertheless it is our plain duty to uphold an act of the law-making power whenever it is possible to do so. Every presumption is in favor of its validity, and the conflict between the legislative act and a constitutional provision must be very clear and utterly irreconcilable by any reasonable interpretation before this court would be called upon to annul the act or any separable part of it. It is apparent that the amendment has in view at least two objects: the first to prohibit the manufacture and traffic in liquor in Arizona, and the second to prevent its introduction into Arizona. It is perfectly obvious, to the mind of candid inquiry: that the prohibition of the manufacture and traffic in liquor in Arizona is the main purpose sought to be accom plished by the amendment, and that the prohibition concerning the introduction of liquor into Arizona is rather an auxiliary or as an incidental to the better accomplishment of the main design. That the prohibition of its introduction will be contributory to the accomplishment of the main object, to wit, the suppression of the liquor traffic. Yet these two provisions are in no sense so interblended and dependent one upon the other that each cannot be separately enforced, and, when so enforced, effectuate the manifest intent of the people. In other words, the two objects may be divided without in any wise defeating the object of the amendment. That part of the amendment which appellant seeks to urge an objection to on constitutional grounds may be stricken out, and still the main purpose of the act would be complete, and capable of being carried into effect, so as to accomplish the object of the law as passed in accordance with the intention of the people. Even if Congress had not heretofore given its assent to the state to place a burden on interstate commerce in the particulars stated, and the importation feature had been entirely eliminated from the amendment, we feel persuaded the people would have adopted it, whether the importation of liquor could have been prevented or not. If the introduction feature of the act was stricken out, it might burden somewhat the facility with which the main object could be obtained. This, however, would be only incidental to the execution of the main object of the law, but that would not render it incapable of accomplishment. "What we have said must not be taken as any intimation whatever that any part of the act is subject to any constitutional objection. "We have adverted to the question for the purpose of showing that appellant is in no position to urge such objections, if any such exist. He is charged with the sale of a bottle of whisky, and not with the importation of it, so that he is in nowise affected by the alleged unconstitutionality of the law in the feature complained of. Appellant contends: that, if the constitutional amendment is held self-executing, it then becomes confiscatory. It is assumed that saloon-keepers have procured privilege licenses to conduct their business for specified lengths of time. That the money required to be paid for such licenses was paid and accepted in consideration of the granting of the privilege to engage in the business for the full length of time specified. That in some instances, at least, the time specified did not expire until after January 1, 1915, and the licensee has no remedy by which he can recover the pro rata part of the money so paid for sueh license; therefore such money is confiscated. That many of these saloons have leases which run for years. These leases were taken for the purpose of conducting a saloon business on the leased premises. If the amendment goes into effect on January 1, 1915, these leases are valueless to them, and yet they must continue paying the rentals thereunder. They are given no time in which to arrange or otherwise use or dispose of such leases. Appellant contends: that for these reasons and to this extent the law is confiscatory of property rights. That the liquor dealers had on hand many thousands of dollars’ worth of stock when the amendment was adopted, December 15, 1914, as officially determined. If the amendment is held to be self-executing and in effect January 1, 1915, the stock on hand cannot be disposed of, and the money invested in liquors, et cetera, would be lost, and would result in a deprivation of property without due process of law and amount to absolute confiscation of property. A license for the sale of liquor is not a contract between authority, federal, state or municipal, granting it, and the person to whom it is issued, in any such sense as to be within the protection of constitutional guaranties. 23 Cyc. 110, and cases supporting the principle cited in note 3. A license for the sale of liquor is in effect a mere permit, affording protection to the holder against legal, animadversion for acts which, without its sanction, would be illegal and punishable. Commonwealth v. Luck, 2 B. Mon. (Ky.) 296. All the privileges permitted by the license, and all the protection given thereby, although yet unexpired, are canceled and revoked by the repeal of the law which authorized its grant. Pleuler v. State, 11 Neb. 547, 10 N. W. 481; State v. Holmes, 38 N. H. 225; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344; Ex parte Lynn, 19 Tex. App. 293; Robertson v. State, 12 Tex. App. 541. The adoption of a constitutional provision entirely prohibiting the manufacture and sale of intoxicating liquors repeals and annuls all existing laws which permitted such manufacture and sale under licenses or other restrictions. Prohibitory Amendment Cases, 24 Kan. 700; State v. Tonks, 15 R. I. 385, 5 Atl. 636. The repeal and amendment of the laws under which the granting of the license was authorized withdraws the protection given by the license from criminal liability for continuing in the business. Whether the licensee is furnished a remedy by which he can recover the unused portion of the money paid for the license is a question not involved in this case. Whether he has a remedy we do not decide. It is clear that he has no right to continue the business of selling intoxicating liquors in violation of law to the end of the license term, in order that he may earn profits therefrom. If he is injured to the extent of the unused portion of the license money paid by him, he cannot set up that injury in mitigation or extenuation of the punishment for violating a criminal law. The right to recover for the injury, loss of a part of license money paid, is not triable in a criminal action, but he must resort for relief to a tribunal exercising its civil jurisdiction. The consequential depreciation in value of the stock of intoxicating liquors on hand arising from the going into effect of the prohibition amendment, and the supposed loss of rental paid by dealers for premises leased for the purpose of use in carrying on saloon businesses have reference to property rights. By means of the constitutional amendment taking effect, such property may depreciate in value; that is, the owner is certainly deprived of an opportunity to make a profit by conducting a certain business on leased premises, and thereby disposing of his stock of intoxicating liquors at a profit. It is well-settled law that a statute absolutely prohibiting, within the limits of the state, the manufacture and sale of intoxicating liquors as a b.everage is a lawful exercise of the police power of the state, and is not open to constitutional objection, either on considerations of natural right or of the specific limitations of state powers. 23 Cye. 77. ■ Such a statute, although it may deprive persons of the right to pursue a business which was previously lawful and diminish the value of property devoted to such business, cannot be said to deprive them of their liberty or property without due process of law. Nor does it for similar reasons violate the prohibition against impairing the obligations of contracts, nor that which forbids discrimination against citizens of other states or citizens of the United States; and such a law, in so far as it prohibits the sale of liquors in existence at the time of its passage, is not an ex post facto law, since, if it lessens the value of such liquors, such civil consequence does not make it retroact criminally in such sense as to bring it within the constitutional prohibition against laws of that character. 23 Cye. 78, and authorities cited in the notes. If a statute is not open to such objections, certainly a state constitutional provision is free from them. The question of a confiscation of the license money, the lease rental, and the depreciation of the value of stocks of liquor are civil consequences flowing from the revocation by the state of the license to engage in the liquor traffic, and have no bearing upon the right to sell intoxicating liquor after the license has been revoked. Upon a contest for the recovery of relief from an injury resulting to the property rights of one whose license has been revoked by the constitutional amendment going into effect at a time before a license expired, leaving on hand large stocks of liquors and leased premises, then the question, as to such injured persons, whether the law was confiscatory in effect, might be litigated and determined as bearing upon property rights, provided the state would permit such an action to be brought and maintained against it for such purpose. In which event the cases cited by appellant would have a bearing upon the question. We do not hesitate to hold that the state, in the lawful exercise of its police power, could and did revoke the license of every person theretofore authorized to sell intoxicating liquors in Arizona, and such revocation went into effect on January 1, 1915. That the appellant and others theretofore lawfully engaged in the liquor business suffered an injury to their property rights because their licenses were revoked is and can be no defense justifying a violation of the law. If the state, by revoking their license, inflicted an actionable injury upon their property rights, if they have a remedy, certainly that remedy does not consist of reinstating their license and privilege to continue in business. The fact that appellant and others will suffer an injury to their property rights if the amend ment goes into effect on January 1, 1915, whether they have a remedy for the injury or not is no sufficient reason to prevent the constitutional provision from taking effect on January 1, 1915. Before concluding we might observe: That it was sought by various interested parties to restrain by injunction the enforcement of this amendment by the judgment of a special tribunal organized for the district of Arizona, under the laws of the United States, and which tribunal, consisting of three United States judges, heard the matter in Los Angeles, California. That upon bills in equity filed for that purpose, and mainly grounded on alleged irreparable injury to the property rights of complainants, which would result from an enforcement of the law, and presenting for determination every question which is now presented to this court by appellant, the United States court assumed jurisdiction to pass upon the matter in its entirety, and rendered its judgment in those cases contrary to the contentions here pressed by this appellant in each and every particular. Judgment affirmed. NOTE.—As to self-executing constitutional provisions, see note in 16 L. B. A. 281. On tbe question who may raise objection that a statute contains an unconstitutional discrimination, see note in 32 L. B. A. (N. S.) 954.

PER CURIAM. Action on note given for purchase price of lot in Willcox, Cochise county, and to foreclose mortgage security." Judgment for defendant in error, who was plaintiff below. The judgment was entered January 17, 1913. Motion for new trial was overruled February 21, 1913, on which day defendant gave notice of appeal to this court. Bond for costs on appeal was filed and approved March 4, 1913. April 18, 1913, an order was made extending the time for preparing and filing the reporter’s transcript sixty days from that date. June 17, 1913, defendant filed in the office of the clerk of the superior court of Cochise county the reporter’s transcript of the evidence as part of the record on appeal. The defendant took no further steps in aid of her appeal, but on September 11, 1913, she sued out a writ of error. The record was caused to be filed in this court on October 14, 1913, in support of the writ of error. From the recital of the facts it will be seen that the appeal was perfected by giving the notice of appeal and filing the bond, and the court in which the action was pending, by reason thereof, lost jurisdiction to entertain the writ of error when, on September 11, 1913, it was attempted to be sued out. The writ of error, therefore, should be dismissed. Landers v. Joerger, 15 Ariz. 480, 140 Pac. 209. There is no record here on appeal. The appeal evidently was purposely abandoned by defendant, and we will accordingly dismiss the appeal for want of prosecution. It is so ordered.

ROSS, C. J. Appellant, as the assignee of numerous laborers who worked upon appellee’s mining claims, instituted this action for the purpose of fastening a miner’s lien upon said mining claims. The important allegations of the complaint are: that appellee is the owner of mining claims; that on March 6, 1912, he entered into a bond, option or contract of sale of mining claims to W. R. Layne, who thereafter, on March 18, 1912, assigned the agreement of sale to the Border Mines Company, and by the terms of said agreement the Border Mines Company “was permitted to go upon said mining claims and to work and develop the same”; that during the months of August, September, October, November and December, 1912, and January, 1913, the Border Mines Company employed miners and laborers in and about said mines, whom it promised to pay; that the Border Mines Company failed to pay such laborers and miners, whereupon the appellant made out his claim of lien for the labor and work of said employees and served a copy thereof on the Border Mines Company, and also filed the same as provided hy law. The appellee’s demurrer to the complaint was sustained, and, the appellant standing upon his complaint and. refusing to amend, judg ment was entered' for appellee. From this judgment this appeal is taken.- Appellant contends that his complaint stated facts sufficient to entitle him to a foreclosure of his claim of lien: First, under the law as it existed in the Revised Statutes of 1901, chapter 2, title 40, before • amendment; and, second, in any event under said law as it was amended by chapter 66, first session of the legislature of 1912, carried forward into the Civil Code of 1913, as section 3654. The statute, before it was amended, read as follows: “2904 (Sec. 25). All miners, laborers and others who may labor, and all persons who may furnish material of any kind, designed or used in or upon any mine or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid.” This section with others, bearing on the same subject matter, in the'chapter of _ which it is a part, has been construed as not giving a lien to miners and laborers who labor on mining property, unless they do so at the request of the owner or his agent. Eaman v. Bashford, 4 Ariz. 199, 37 Pac. 24; Gates v. Fredericks, 5 Ariz. 343, 52 Pac. 1118; Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. 443; Griffin v. Hurley, 7 Ariz. 399, 65 Pac. 147; Bogan v. Roy, 10 Ariz. 237, 86 Pac. 13. The contract of sale, or option or bond, as the pleader calls it, between Noon and Layne or his assignee, the Border Mines Company, is not set forth in the complaint, and is not before us. We are therefore unable to say whether its terms bring it within the rule laid down in Eaman v. Bashford, supra. The mere fact of such a contract, or option or bond, by the terms of which the proposed purchaser was permitted to enter upon, work and develop the mines, with no further or additional powers over the property, would not constitute the proposed purchaser the agent of the owner in the employment of labor. See cases, supra. The allegations of the complaint go no further than that; The above-quoted section of the statute was, however, amended, the amendment taking effect on December 5, 1912, some eight months after the contract, option or bond from appellee to the assignor of the Border Mines Company, so as to entitle the miners and laborers who worked on said mines to a lien for -their unpaid wages, providing its application to tbe facts of this case does not impair tbe obligations of appellee’s contract. The statute, as amended, reads as follows: “3654. All miners, laborers and others who may labor, and all persons who may furnish material of any kind, designed or used, in or upon any mine, or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid. And said lien, for labor performed, or material furnished, shall attach to said mine, or mining claim, whenever said labor was performed, or said material was furnished in or upon said mine, or mining claim, under any of the following conditions: “ (1) Under or by virtue of a contract between the person performing such labor, or furnishing said material, and the owner of said mining claim, or his agent, trustee, receiver, contractor or contractors. “ (2) Under or by virtue of a contract between the person performing such labor, or furnishing said material, and the lessee of said mine, or mining claim, or his agent, or contractor, where the terms of the lease from the owner of said mine or mining claim, to said lessee, permit said lessee to develop or work said mine, or mining claim. “(3) Under or by virtue of a contract between persons performing said labor, or furnishing said material, and any person or corporation having an option to buy, or contract to purchase said mine, or mining claim, from the owner thereof, where said option or contract permits the person, or corporation, having said option to buy, or contract to purchase, to go upon said mine, or mining claim, and to work or develop the same.” The decisions of the predecessor of this court, to the effect that miners and laborers upon a mine were not entitled to a lien for their wages, unless employed by the owner or his agent, were well known to the legislature, and the amended statute, we may reasonably assume, was passed for the specific purpose of avoiding the effect of such decisions and making it as certain as possible that the miner and laborer should be paid for his labor. But the serious question, as intimated above, is as to whether this amended law can be applied to the facts of this case. At the time that the contract of sale was entered into, the appellee, as well- as all concerned, knew that miners and laborers on mines could not enforce a lien for wages against .the mines upon which they worked, unless employed by the owner or his agent. That was the settled law of this state at that time. The work and labor here sought to be fastened on to the appellee’s mines, however, was done in part after the amendment went into effect. If the new liability created against his property would have released the appellee from his agreement to sell and left him unharmed, it would put a different face on it; but, notwithstanding the new liability created by a law passed subsequently to its execution, he was still bound by the terms of his agreement, and, if the amended statute applies, he could do nothing but stand by and watch debts accumulate against his property, that were never contemplated when he made his agreement to sell. The effect would be that the mine owner would be forced to assume obligations not within the terms of his contract by operation of law or otherwise, at the time of its making. In this instance, the appellee entered into his contract of sale in March, 1912, at a time when his property, under the law, was not liable for the wages of miners and laborers, when employed to work thereon by any other person than himself or his agent, and later, and during the life of such contract, the legislature has passed a law, according to appellant’s contention, making his property liable for the wages of miners and laborers working thereon at the instance and request of others, acting under the terms of said contract. In Andrews & Johnson Co. v. Atwood, 167 Ill. 249, 47 N. E. 387, the court said: “It is a familiar rule that the law in force at the time a contract is executed 'enters into and forms a part of the contract. ’ ’ The facts in this case involved the rights of a sub-subcontractor to a lien. Under the law at the time of the execution of the builder’s contract, a sub-subcontractor was not entitled to a lien. But, before he had furnished material and performed labor, the law had been enlarged so as to include him as one entitled to a lien. The court said: “The new act confers upon claimants rights heretofore unknown to the law, and at the same time it subjects the property of the owner to new liabilities. But if the construction contended for should .be given the act of 1895, and it should be held to govern contracts entered into before the act was passed, it would be an act impairing the obligation of contracts, and would clearly fall within the inhibition of the Constitution. Under the contract as executed on May 27, 1895, the George A. Fuller Company and its subcontractor, the Charles H. Simmons Company, were entitled to enforce a lien on the premises of Atwood for labor and material furnished under contract in the erection of Atwood’s building, but no other contractors or materialmen had any lien whatever. But under the new statute if it governs this case, not only the Fuller Company and the subcontractor, the Simmons Company, have liens that may be enforced, but sub-subcontractors may also come in and enforce liens on the property. Thus the contract of Atwood, by the force of a statute, is changed, and new obligations imposed upon him and his property in favor of others who were strangers to him. The obligation of contracts is too sacred to allow this to be done.” The text law is stated by Jones on Liens, volume 2, section 1184a, third edition,' to be: ‘ ‘ The statute in force at the time a building contract is executed governs the rights of the parties in a proceeding to enforce a claim for a mechanic’s lien thereunder. Thus, though a lien is sought to be enforced after the passage of a new law, the law, as it stood at the time the contract was made, will govern the rights of the parties. But the remedy is controlled by the law in force at the time suit is brought to enforce the lien.” In Gardner v. Resumption Co., 4 Colo. App. 271, 35 Pac. 674, the plaintiff claimed a lien by virtue of a statute that went into effect after the date of his contract of employment, but before he had labored on defendant’s mines. It was held that he was not entitled to a lien; the court saying: “It is a matter of common learning, as a general proposition, that a statute cannot be given a retroactive effect, and be made operative to affect rights and interests vested prior to its enactment. The construction for which the plaintiff contends would work a violation of this very well-settled principle.” We are aware that there are cases apparently holding a contrary view to what we have, announced as the law. In 8 Cyc. 1006, it is said: “And, where there is a contract between a land owner and a builder for the erection of a building on the owner’s land, a mechanic’s lien law subsequently enacted, giving to subcontractors and materialmen who have sold on credit to the builder a lien on the property, is generally held to be constitutional. These decisions sometimes go on the theory that a lien law is in effect only an assignment to the lienor of the amount due the principal contractor; and the cases are for the most part agreed that the land owner cannot, on account of such lien, be obliged to pay more than the original contract price.” An examination of the cases cited by the author to sustain the text discloses an entirely different state of facts from the facts in the instant ease. In those cases, the owner was the paymaster and had the right and power to protect himself by seeing to it that those who labored on or furnished material for his building were paid. Appellee had entered into •contract by which- he had agreed to sell, and under the terms of which he was to receive money instead of paying out money. There was no law, at the time he entered into the contract of sale, providing that miners and laborers working on his mine should have lien for their services when employed by the proposed purchaser, unless the latter was in fact or in law his agent. It is argued bjr the appellant that the amended law is merely remedial, and even though retroactive, does not impair the obligation of contract. As was said in National Surety Co. v. Architectural Co., 226 U. S. 276, 283, 57 L. Ed. 221, 33 Sup. Ct. Rep. 17, 19: “The decision must turn, we think, upon the familiar distinction between a law which enlarges, abridges, or modifies the obligation of a contract, and a law which merely modifies the remedy, by changing the time or the method in which the remedy shall be pursued, without substantial interference with the obligation of the contract itself. As Chief Justice MARSHALL observed in Ogden v. Saunders, 12 Wheat. 213, 349 [6 L. Ed. 606], the obligation and the remedy originate at different times. ‘The obligation to perform is coeval with the undertaking to perform; it originates with the contract itself, and operates anterior to the time of performance. The remedy acts upon a broken contract, and enforces a pre-existing obligation.’ ” We are of tbé opinion that the application of the amended law would burden the appellee’s contract with a new obligation. One under the case made by the complaint that did not exist at the time he executed his contract of sale, and therefore violative of section 25, article 2, of the state Constitution, which provides that no law impairing the obligation of a contract shall ever be enacted. The law, however, is constitutional when applied to contracts made subsequent to its taking effect. Jones v. Great So. etc. Co., 86 Fed. 370, 30 C. C. A. 108; Arizona etc. R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104; 27 Cyc. 82, subd. 6; 8 Cyc. 1006. Judgment is affirmed. FRANKLIN and CUNNINGHAM, JJ., concur.

FRANKLIN, C. J. On the preliminary examination of one William Blake, charged with a publie offense, a justice of the peace of one of the precincts in Greenlee county, sitting as a committing magistrate, held the said Blake to answer the charge of grand larceny. The magistrate by whom the said Blake was so held admitted him to bail in the sum of $500. On the 31st day of July, 1912, Ed. Elrage, George Smith and Mosby Wilkerson, the appellants here, entered into a written undertaking as sureties for the appearance of the said Blake to answer the charge. The sureties duly justified, and the undertaking was approved by the magistrate. Blake was thereupon discharged from custody, and subsequently, having been indicted by the grand jury in Greenlee county for the said crime of grand larceny, was called to answer the indictment in the superior court for Greenlee county, and, failing to appear, the undertaking was declared forfeited. The forfeiture not having been discharged, the county attorney of Greenlee county brought this action in the name of the county against the bail upon their recognizance. Prom a judgment in favor of the county, and from an order overruling a motion for a new trial, the case is brought to this court for review. It is urged that the action should have been brought in the name of the state of Arizona. The disposition of fines and forfeitures is directed by the law, and the amount to be recovered in this action must be paid into the county treasury of Greenlee county. Section 1430, Ariz. Pen. Code 1913. The county attorney is authorized to bring the action. Section 1215, Ariz. Pen. Code 1913. The county being the real party in interest, the action is properly brought in the’name of the county. People v. De Pelanconi, 63 Cal. 409; Malheur County v. Carter, 52 Or. 619, 98 Pac. 489. It is said that the complaint is objectionable because the facts showing the jurisdiction of the magistrate to make the order holding the said Blake to answer are not pleaded. That the undertaking is also insufficient for the reason that it was not executed by the person held to answer, to wit, the said Blake. There is no merit in either contention. Thomas v. Territory, 10 Ariz. 180, 85 Pac. 1063. While the sufficiency of this undertaking is to be tested by the laws in force at the date of its execution, and under those laws the person held to answer after a preliminary examination was not required to join as principal in the undertaking to appear and answer, the Penal Code of Arizona 1913 makes provision that such person shall join as principal in the execution of such under taking. Section 1195, Ariz. Pen. Code 1913. Of course undertakings executed after the present Penal Code went into effect will he governed by its requirements, and magistrates must act accordingly. By a clerical misprision the name of the defendant Blake was left blank in a preliminary recital of the undertaking. But these appellants in the written undertaking do recite that the above-named "William Blake will appear and answer, etc. In this respect there is no uncertainty, and, if Blake’s name had been inserted in the blank, it would not have made the conditions of the undertaking more definite. There is no reversible error, and the judgment and order stand affirmed. CUNNINGHAM and EOSS, JJ., concur. NOTE.—As to the effect of the delivery of a bail bond unsigned by principal obligor, see note in 12 L. ft. A. (N. S.) 1118.

CUNNINGHAM, J. This appeal is prosecuted from an order refusing to discharge appellant upon habeas corpus. The appellant was charged by information with one Yoshida of an assault with intent to kill one Wing Lee with a knife. Tiie information was filed September 13, 1912. Appellant was arraigned on September 14, 1912, and entered bis plea of not guilty on September 16, 1912. A trial was had September 20, 1912, which resulted in a verdict of guilty of an assault with a deadly weapon. On October 19, 1912, a new trial was ordered on motion of appellant. January 14, 1913, the case was set for trial on January 23, 1913. On the last-mentioned date appellant filed his motion to dismiss the cause for failure to prosecute the same, upon the alleged grounds that more than 60 days had elapsed since the new trial was ordered on October 19, 1912, and alleging that the trial has not been postponed at the instance of appellant. This motion was heard on January 27, 1913, upon the record and affidavit of the appellant filed in support of the motion. This affidavit sets forth that appellant had been confined in the county jail of Gila county since October 19, 1912, upon the charge laid in the information; that during that period of time a trial jury has been drawn and in attendance on the court during December, 1912, and again on January 6, 1913; and that affiant has not asked for a postponement of the trial nor consented thereto. These facts are not disputed, and no excuse is offered by the prosecution why the cause has not been brought to trial. The motion" to dismiss was denied on January 27, 1913, and the cause set for trial for February 27, 1913, and the appellant was ordered remanded to jail. On February 24, 1913, appellant filed his petition for a writ of habeas corpus, alleging that he is illegally restrained of his liberty because he has not been brought to trial upon said charge, and 60 days have elapsed and expired sine.e the date of granting him a now trial, and such delay has not been caused by him, nor has appellant consented to such delay. The writ was denied February 27, 1913. From the order denying the writ, this appeal is prosecuted. The appellant contends that paragraph 1158, Penal Code of 1901, paragraph 1274, subdivision 2, Penal Code of Arizona of 1913, and section 24, article 2, of the state Constitution, entitle him to his discharge upon his application, unless, for good cause shown, he is not given a trial within 60 days after the motion for a new trial was granted. The record discloses that the order'granting a new trial was made on October 19, 1912, and appellant’s application for discharge was made Feb ruary 24, 1913, at the expiration of 95 days, and that the prosecution shows no cause whatever for this delay. Section 24 of article 2, Constitution, provides that: “In criminal prosecutions, the accused, shall have the right . . to have a speedy public trial by an impartial jury of the county. ...” The legislature defines and limits the meaning of a “speedy” trial. Paragraph 1274, Penal Code of 1913, provides : “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: . . . “(2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment or the filing of the information.” The attorney general, upon the part of the prosecution in this court, makes no contention in support of the order involved. The fact appearing that one trial was had and the result vacated on October 19, 1912, is a sufficient cause shown why appellant was not awarded a fair and impartial trial up to that date. But such failure of trial is no cause why the appellant has been deprived of his liberty without his consent an additional 95 days. If good cause therefor existed, the prosecution would have shown it, is readily to be inferred. "We must presume that the sworn officers of the law will perform their official duties, and certainly it was the official duty of the county attorney to show such cause as existed why this action had not been prosecuted. No good cause existed we must conclusively presume. California has substantially the same constitutional guaranty found in our Constitution and a statute identical with ours above quoted. Article 1, sec. 13, Cal. Const.; paragraph 1382, Cal. Pen. Code. In Re Begerow, 133 Cal. 349, 85 Am. St. Rep. 178, 56 L. R. A. 513, 65 Pac. 828, the supreme court had before it the identical question here presented, arising upon habeas corpus when a mistrial was had and 84 days elapsed thereafter before any further trial was prosecuted. After considering the authorities on the question, the court says: “That the defendant had been brought to trial, and a mistrial had, excused the delay until that time, and it was assumed that there must elapse 60 days during which there was no excuse for delay. And, indeed, a mistrial is not a trial, within the meaning of the constitutional or statutory provision. The fact that there has been an attempted trial may constitute the good cause which the prosecution is required to show to excuse delay • but the speedy trial which is guaranteed is for the purpose of determining the guilt or innocence of the accused person, and the guaranty of the Constitution, and of the habeas corpus act of England, are of no substantial advantage if they mean less than this. ... It only remains to say that the statute does not authorize the state or Its officers to hold an accused person in imprisonment unnecessarily, even for 60 days. . . . When the prosecution is begun, the state becomes a party litigant, and, as such, must diligently prosecute its ease. No unnecessary delay against the will of the defendant is to be allowed to it.” No other just, fair meaning can be given these provisions of the law. The order is reversed, and the defendant is ordered discharged and the cause dismissed. FRANKLIN, C. J., and ROSS, J., concur. NOTE.—The authorities on the question of the delay of prosecution as ground for the discharge of the accused are gathered in a note in 56 L. R. A. 513.

CUNNINGHAM, J. The pleadings and the contract sued upon are, in all essential particulars, the same as appear in the case of Hurley v. Young Men’s Christian Assn., ante, p. 26, 140 Pac. 816, just decided, and the rules of law therein recognized control this cause, also. The judgment is affirmed. FRANKLIN, C. J., and ROSS, J., concur.

FRANKLIN, C. J. Judgment was rendered in the court below on July 19, 1913, and on September 20, 1913, a motion for a new trial was denied, at which time notice of appeal to the supreme court was given. A supersedeas bond was filed on September 27, 1913. The1 certificate of the clerk of the court below shows these facts, and also that, subsequent to the filing of the supersedeas bond, no other steps have been taken to bring the case to this ■court by appellant. The appellant has not appeared and made any counter showing. While, in form, the motion of the appellee in this court is to affirm the judgment on a short transcript, that method of disposing of such cases has been abolished by the legislature. We shall, however, treat the motion to affirm as a motion to dismiss the appeal for want of prosecution. The idea is that successful parties are entitled to the fruits of litigation, and that they may not be denied this right, unless the losing party, with reasonable diligence and in the method prescribed by law, prosecutes his appeal to this court. We are of opinion that this appeal has been taken for delay, and that there was no sufficient cause for taking said appeal. It is ordered that said appeal be docketed in this court, and that said appeal be, and it is hereby, dismissed. The judgment of the court below not being one for the recovery of money, it is further ordered and adjudged, in accordance with paragraph 1272, Revised Statutes of Arizona of 1913, Civil Code, that the appellee be, and he hereby is, awarded damages in the amount of $50; said amount being deemed proper in this case as damages for a frivolous appeal. ROSS, J., concurs.

FEANKLIN, C. J. The appellee W. H. Otterson had a contract with the appellant, the Tube City Mining and Milling Company, for the hauling of fuel oil from Casa Grande to certain mining property of the appellant situate in Pinal county. Having hauled and delivered the oil pursuant to the contract, and the company refusing to pay a balance remaining due on account of the services rendered, the said Otterson did, on the 23d day of May, 1911, file a claim for lien with the county recorder of Pinal county upon the mining property for which said oil was designed for use for his labor in hauling and delivering the same; a copy of the claim for lien being served upon the Tube City Mining and Milling Company. Thereafter, in the month of July, 1911, the said Otterson commenced an action in Pinal county for the foreclosure of his claim for lien. The Tube City Mining and Milling Company appeared in the action and asserted its defense thereto by a motion to strike, a special demurrer, and denials. The motion to strike, the special demurrer, and denials vigorously contested the validity of Otterson’s claim for lien for the hauling of the fuel oil. Each method of attack interposed the defense that the statutes of Arizona do not give a lien to the laborer or other person who hauls materials designed for use in or upon any mine or mining claim. By stipulation of the parties the action was transferred to Maricopa county for trial and further proceedings. The motion to strike and demurrer coming on for hearing before Hon. Edward Kent, judge of the district court, the demurrer was overruled, and the motion to strike was denied. In overruling the demurrer and denying the motion to strike, however, Judge Kent expressed the opinion that Otterson’s claim for lien was controlled by the case of the Santa Fe, Prescott & Phoenix Ry. Co. v. Arizona Smelting Co., 13 Ariz. 95, 108 Pac. 256. In the opinion Judge KENT stated: . “Under this decision it seems plain that the plaintiff is not entitled to a lien under the statute for the hauling of the oil. The demurrer, however, to the complaint may not be sustained, for the reason that the complaint asks judgment against the defendant for the value of the services rendered in hauling the oil,, irrespective of the lien. Nor can the motion to strike be granted, for the reason that the items of the lien, as sworn to and filed according to the statute, includes items for furnishing supplies not connected with the hauling thereof. ’ ’ In this condition of the record statehood intervened, and there was a change in the personnel of the court; Hon. John C. Phillips, judge of the superior court, succeeding Judge Kent. The cause, being at issue on the complaint and answer, was set for a trial on the merits, and the attorneys for defendant duly notified thereof. At the trial which took place on March 20, 1912, the Tube City Mining and Milling Company did not appear, for the reason that a bankruptcy proceeding had intervened, which will presently be mentioned. At the trial the court held Otterson’s claim for lien to be a valid existing lien, and rendered its judgment foreclosing the lien, and also directing a sale of the' property upon which the lien existed as under execution in satisfaction of the judgment. Pursuant to the judgment the property was sold by the sheriff of Pinal county, and on the 24th day of May, 1913, the sheriff made and delivered to the plaintiff Otterson, who was the purchaser, a certificate of sale of the property subject to redemption under the laws of Arizona. Prom the judgment foreclosing Otterson’s claim for lien no appeal was taken nor writ of error prosecuted by the Tube City Mining and Milling Company, and the time therefor having long since expired, the present action was commenced on December 13, 1913, to have the judgment in the foreclosure action annulled, and also to enjoin the sheriff from delivering a deed to the purchaser of the property. It appears from the complaint in the present action that on the 23d day of October, 1911, a petition in bankruptcy was filed against the Tube City Mining and Milling Company. Subsequently, on December 7, 1911, an amended petition was filed, and on the hearing of this amended petition the court in bankruptcy adjudged the mining company an involuntary bankrupt under the acts of Congress relating to bankruptcy. The order of adjudication was made on the 6th day of February, 1912. While the foreclosure suit was pending in the superior court, it does not appear that the adjudication of the defendant’s bankruptcy was in any way brought to the attention of that court, and no attention was paid to it. No application for a stay of proceedings was made on that account. The trustee in bankruptcy, if one was appointed, did not seek to intervene or appear in the action in any way. The pleadings and proceedings in the foreclosure suit are set out in the complaint in this action, as also the proceedings in the bankruptcy court. It is alleged that the superior court never acquired jurisdiction of the property upon which the Otterson lien was claimed to exist, because no valid lien was claimed by Otterson, and no lien existed against the property to be foreclosed; that the complaint, therefore, failed to state facts sufficient to constitute a cause of action, hence the judgment of foreclosure is void and of no effect; that during the pendency of the bankruptcy proceedings the Tube City Mining and Milling Company had no right to appear in the action by Otterson to foreclose the lien, nor in any matter affecting the title to any of its property, because of such bankruptcy proceedings intervening; that when the proceedings in bankruptcy were instituted against the Tube City Mining and Milling Company the jurisdiction of the state court to proceed with the suit already pending therein for the enforcement of the lien against its property was taken away, and, upon the adjudication as a bankrupt, the custody of the res passed to the bankruptcy court; and that the bankrupt’s discharge fully discharged the debt due said Otterson, and any judgment of the state court rendered therefor. This statement of the case thus epitomized is sufficient to obtain an understanding of the position assumed by appellant in seeking to have the foreclosure judgment annulled. A general demurrer to the complaint was sustained, and, the appellant electing to stand on its complaint, judgment followed dismissing the action. The appeal is from the judgment. We may conveniently catalogue the contentions pressed by appellant under two headings: (1) Did the superior court acquire jurisdiction to hear and determine the foreclosure suit and give the judgment rendered? (2) Did the intervening bankruptcy proceedings take away the jurisdiction of the superior court to proceed with the pending suit for the enforcement of the lien? The argument of the appellant goes to the proposition that the state court had never obtained jurisdiction of the res, because the asserted lien was invalid, and the complaint seeking to enforce did not state facts sufficient to constitute a cause of action; further, that, by reason of the adjudication in bankruptcy, jurisdiction of the res became vested in the bankruptcy court; that, by reason thereof, the Tube City Mining and Milling Company had no right or authority to subsequently appear in the action in the state court, and the judgment rendered by the state court in its absence was void. The present action is a collateral attack on the judgment of the superior court foreclosing the lien; collateral at least, in the sense that the judgment is attacked in a separate action, and not on appeal. It is not an attempt to avoid or correct the former judgment in some manner prescribed by the law, but it is an effort to obtain another and independent judgment which will destroy the effect of the former judgment. As the present action is a collateral attack on the former judgment, it must be made to appear that such judgment was rendered without jurisdiction and is void. It is clear that the merits of the foreclosure suit are not now here for consideration. We are not here perplexed with the question whether the judgment of the superior court was correct or incorrect, but the scope of the inquiry is circumscribed to determine if the superior court had jurisdiction to pass upon and determine the validity of the lien. If it had jurisdiction, the judgment cannot be attacked collaterally. If the court has jurisdiction of the cause, it has jurisdiction to pass judgment on the question of the sufficiency of the complaint to state a cause of action, and, even if its judgment on these questions be wrong, it is only error. Neither its judgment on either question nor its judgment on the merits of the cause is open to collateral attack. Superior courts are courts of general jurisdiction. They have jurisdiction in eases involving the foreclosure of all mortgages and liens. Such jurisdiction may not he the subject of any controversy. Judgments of courts within the scope of their power to hear and determine are not void, whether right or wrong. If it was within its power to determine the sufficiency of the Otterson claim for lien, as tested by the statutes of Arizona, its action in determining its sufficiency involved only a construction of the statutes relating to liens of laborers—a rightful exercise by the court of its jurisdiction. If the decision on the question was wrong, its judgment could have been reversed on appeal; it cannot be successfully impeached collaterally. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry; not whether its conclusion in the course of it is right or wrong. Foltz v. Railway Co., 60 Fed. 316, 8 C. C. A. 635; Board of Commissioners v. Platt, 79 Fed. 567, 25 C. C. A. 87. In the Foltz case the conclusion of the court was expressed in these words: “ ‘Jurisdiction of the subject matter’ is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court, by the law of its organization, to deal with the abstract question. Nor is this jurisdiction limited to making correct decisions. It empowers the court to determine every issue within the scope of its authority according to its own view of the law and the evidence, whether its decision is right or wrong, and every judgment or decision so rendered is final and conclusive upon the parties to it, unless reversed by writ of error or appeal or impeached for fraud. Insley v. United States [150 U. S. 512], 14 Sup. Ct. 158 [37 L. Ed. 1163]; Cornett v. Williams, 20 Wall. 226 [22 L. Ed. 254]; Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552 [8 Sup. Ct. 217, 31 L. Ed. 202]; In re Sawyer, 124 U. S. 200, 221, 8 Sup. Ct. 482 [31 L. Ed. 402]; Skillern v. May’s Exrs., 6 Cranch, 267 [3 L. Ed. 220]; McCormick v. Sullivant, 10 Wheat. 192 [6 L. Ed. 300]; Hunt v. Hunt, 72 N. Y. 217 [28 Am. Rep. 129]; Colton v. Beardsley, 38 Barb. 30, 52; Otis v. Rio Grande, 1 Woods, 279, Fed. Cas. No. 10,613; Hamilton v. Railroad Co., 1 Md. Ch. 107; Evans v. Haefner, 29 Mo. 141, 147; State v. Weatherby, 45 Mo. 17; Rosenheim v. Harstock, 90 Mo. 357, 365, 2 S. W. 473; State v. Railway Co., 100 Mo. 59, 13 S. W. 398; Hope v. Blair, 105 Mo. 85, 93, 16 S. W. 595 [24 Am. St. Rep. 366] ; Musick v. Railway Co., 114 Mo. 309, 315, 21 S. W. 491. Wherever the right and the duty of the court to exercise its jurisdiction, depends upon the decision of the question, it is invested with power' to hear and determine, there its judgment, right or wrong, is impregnable to collateral attack, unless impeached for fraud.” In Board of Commissioners v. Platt, supra, the court, in speaking of the decision of a court on a matter within the scope of its power to hear and determine, said: “If its decision was erroneous, its judgment could be reversed on appeal; but its determination of the question, which the plaintiff in error is seeking to retry in this case, was the exercise by that court—and the rightful exercise—of its jurisdiction ; and, whether its decision was right or wrong, it cannot be successfully attacked in this- collateral proceeding.” “Where there is general jurisdiction of a subject, and the jurisdiction of a particular case depends on the facts, the decision of the 'tribunal is conclusive as against a collateral attack. Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531; Spencer v. Spencer, 31 Ind. App. 321, 99 Am. St. Rep. 260, 67 N. E. 1018. In Manley v. Park, 62 Kan. 553, 64 Pac. 28, it is said: “ ‘Jurisdiction over the subject matter’ is the right of the court to exercise judicial power over that class of cases; not the particular ease before it, but rather the abstract power to try a ease of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or, under the particular facts, is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial. . . . By ‘jurisdiction over the subject matter’ is meant the nature of the cause of action and, of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. . . . The power to determine and decide a case includes the power to decide it wrong as well as to decide it right.” When the validity of a mortgage has been adjudicated in a foreclosure suit, its validity is finally settled by the decree, and the decree settling it is not open to collateral attack. Carpenter v. Zarbuck, 74 Ark. 474, 86 S. W. 299; Wood v. Jordan, 125 Cal. 261, 57 Pac. 997; Brenholts v. Miller, 80 Kan. 185, 101 Pac. 998; Hansen v. Wagner, 133 Cal. 69, 65 Pac. 142; George Long Co. v. Albert, 116 Md. 111, 81 Atl. 265, reported in Ann. Cas. 1913B, 1259, with note on collateral attack on judgment or decree in mechanic’s lien proceeding. Whether a complaint does or does not state a cause of action, so far as it affects the question of jurisdiction, is tersely stated in the case of Winningham v. Trueblood, 149 Mo. 572, 51 S. W. 399, in a quotation from 1 Elliott, Gen. Prac., section 320, as follows: “Whether a complaint does or does not state a cause of action, is, so far as concerns the question of jurisdiction, of no importance; for, if the complaint states a case belonging to a general class over which the authority of the court extends, there is jurisdiction, and the court has power to decide whether the pleading is good or bad.” Speaking of the question of jurisdiction, Mr. Justice JOHNSON, of the court of appeals of New York, says: “Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity (right) to be enforced, nor the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity (right), either in the plaintiff or in anyone else. . . . Have the plaintiffs shown a right to the relief which they seek, and has the court authority to determine whether or not they have shown such a right? A wrong determination of the question first stated is error, but can be re-examined only on appeal. The other question is the question of jurisdiction.” People v. Sturtevant, 9 N. Y. (5 Seld.) 263, 269, 59 Am. Dec. 536. The principle just stated finds abundant authority in the adjudicated eases. The following may be consulted: In re Hughes, 159 Cal. 360, 113 Pac. 684; Bresee v. Seberger, 88 Neb. 632, 130 N. W. 264; O’Connor v. Board of Trustees, 247 Ill. 54, 93 N. E. 124; Baldwin v. Foster, 157 Cal. 643, 108 Pac. 714; Burke v. Interstate Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879; Board of Commissioners v. Equitable Inv. Co., 80 Kan. 492, 103 Pac. 996. See, also, Yan Fleet’s Collateral Attack, sec. 61. Coming now to the opinion of the trial judge in overruling the special demurrer and denying the motion to strike: It does not have the effect sought to be given it by appellant. The special demurrer and the motion to strike both attacked the validity of the claim for lien for hauling the fuel oil. The demurrer could have been sustained and the motion to strike granted, and still those phases of the complaint seeking a recovery of the value of the services rendered and the enforcement of the lien for supplies furnished not connected with the hauling thereof remain intact. It is evident that the court was of opinion at the time that at least a part of the items claimed as lienable were so. The ruling was in no sense a final determination of the matter, and did not preclude either the judge who gave the ruling or his successor in office from subsequently changing it. Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074. But, irrespective of this, the difficulty here is that the trial judge did overrule the demurrer and did deny the motion to strike the objectionable items. Under this state of the record, as appellee well suggests, we do not think it devolved upon Otter-son to abandon his lien, part of which was held to be good, and all of which he maintained to be good. The appellant could well have insisted upon the point at subsequent stages of the proceedings, and, as remarked in one of the eases cited: “The defendant, having been summoned into court, was compelled to take cognizance of all subsequent proceedings, and if it was aggrieved by the action of the court, its remedy was by appeal; and it could not lie dormant until all remedy by appeal had become unavailable, and then go into court and ask that the judgment be set aside as void.” Board of Commissioners v. Equitable Inv. Co., supra. Even in eases where a court has jurisdiction to enter judgment by default, a judgment on default is as conclusive against collateral attack as any other form of judgment. Warthen v. Himstreet, 112 Iowa, 605, 84 N. W. 702; Orr v. Mercer County Mut. F. Ins. Co., 114 Pa. 387, 6 Atl. 696; Last Chance Mining Co. v. Tyler Min. Co., 157 U. S. 683, 39 L. Ed. 859, 15 Sup. Ct. Rep. 733; Southern Pacific R. Co. v. United States, 168 U. S. 1, 51, 42 L. Ed. 355, 18 Sup. Ct. Rep. 18; 1 Freeman on Judgments, sec. 330; 2 Freeman on Judgments, sec. 532; 5 Bigelow on Estoppel, p. 77. It is also claimed that the complaint in the foreclosure suit did not sufficiently describe the property. While it was not as certain, perhaps, as it should have been, it is admitted that a sufficient description of the property is set out in the claim for lien attached to the complaint and made a part thereof. The description of property is not such a substantive allegation as may not be aided by reference to an exhibit made a part of the complaint, within the rule announced in McPherson v. Hattich, 10 Ariz. 104, 85 Pac. 731, and State ex rel. Young v. Superior Court, 14 Ariz. 126, 125 Pac. 707. We are now met with the contentions arising on the record due to bankruptcy proceedings. • It is insisted here that the filing of the petition in bankruptcy “is a caveat to all the world and, in effect, an attachment and injunction”; that, upon appellant’s adjudication in bankruptcy, the bankruptcy court took exclusive jurisdiction of the mines and real estate, and therefore the state court had no power further to proceed. The quotation just made is taken from the case of Mueller v. Nugent, 184 U. S. 1, 46 L. Ed. 405, 22 Sup. Ct. Rep. 269. This statement, however, as well as that in other cases which- have repeated it, has been limited in its application by the later decisions of the supreme court of the United States, in which it is adjudged that the statement applies only to parties who have no substantial claim of lien upon, or title to, the property of the bankrupt, and that, against those who have such claims of existing liens or titles when the petition in bankruptcy is filed, that filing is neither a caveat nor an attachment; that it creates no lien. Jacquith v. Rowley, 188 U. S. 620, 47 L. Ed. 620, 23 Sup. Ct. Rep. 369; York Mfg. Co. v. Cassell, 201 U. S. 344, 50 L. Ed. 782, 26 Sup. Ct. Rep. 481; Hiscock v. Varick Bank, 206 U. S. 28, 51 L. Ed. 945, 27 Sup. Ct. Rep. 28. The actual possession of the bankruptcy court is the indispensable condition of its exclusive jurisdiction. First National Bank v. Title Trust Co., 198 U. S. 280, 49 L. Ed. 1051, 25 Sup. Ct. Rep. 693; Louisville Trust Co. v. Comingor, 184 U. S. 18, 46 L. Ed. 413, 22 Sup. Ct. Rep. 293; Murphy v. John Hofman Co., 211 U. S. 562, 53 L. Ed. 327, 29 Sup. Ct. Rep. 154. In the last case cited the court said: “The jurisdiction in such eases arises out of the possession of the property and is exclusive ... of all other courts, al-. though otherwise the controversy would be cognizable by them. ’ ’ In the ease of In re Rathman, 183 Fed. 913, 106 C. C. A. 253, it is observed: “Here is the touchstone of the exclusive and of the summary jurisdiction of the bankruptcy court to determine the merits of adverse claims to liens upon and titles to property claimed to belong to the bankrupt. It is the taking possession of the property as the property of the bankrupt, by' the act of some officer of the bankrupt court, such as a referee, a receiver, or a trustee.” See, also, National Foundry etc. v. Oconto City etc., 105 Wis. 48, 81 N. W. 125. It is the intention of the Bankruptcy Act to protect all liens, whether arising by contract or by statute, except only such as are expressly declared annulled or invalidated. Nowhere in the act is a lien of the character under consideration denounced by the act. It is not intended to avoid a lien secured by the act of labor and preserved and enforced by legal 'proceedings. From the dates mentioned it is seen that the Otterson lien attached more than eight months before proceedings in bankruptcy were commenced, and the' action to foreclose the lien was commenced long prior thereto. ■ See In re Emslie, 102 Fed. 291, 42 C. C. A. 350; Hobbs v. Head & Dowst Co., 184 Fed. 409, 106 C. C. A. 519; In re Rohrer, 177 Fed. 381, 100 C. C. A. 613; Metcalf v. Barker, 187 U. S. 165, 47 L. Ed. 122, 23 Sup. Ct. Rep. 67; In re Kerby-Dennis Co., 95 Fed. 117, 36 C. C. A. 677; Pickens v. Roy, 187 U. S. 177, 47 L. Ed. 128, 23 Sup. Ct. Rep. 78; In re Koslowski (D. C.), 153 Fed. 823; Kritzer v. Tracy Engineering Co., 16 Cal. App. 287, 116 Pac. 700; Jensen v. Dorr, 23 Cal. App. 701, 139 Pac. 659; Louisville Dry Goods Co. v. Lanman, 135 Ky. 163, 135 Am. St. Rep. 451, 121 S. W. 1042, 28 L. R. A. (N. S.) 363; Bradley v. United States Tel. Co., 79 N. J. Eq. 458, 81 Atl. 1107; Heckscher v. Blanton, 111 Va. 648, 37 L. R. A. (N. S.) 923, 69 S. E. 1045; McDougald v. Chattanooga Medicine Co., 10 Ga. App. 653, 73 S. E. 1089. Liens are rights of property, and not mere matters of procedure. The Lottawanna, 21 Wall. 558, 22 L. Ed. 654. The lien here contested was not a “lien obtained through legal proceedings” within the meaning of the Bankruptcy Act, even though it was necessary to file a claim and initiate the prosecution of a suit to preserve and enforce it. The eases cited so hold. The mere bringing of an action does not ordinarily bring the assets of the debtor into the custody of a state court. But the commencement of suit to foreclose a mortgage or to enforce liens against specific property thereby brings the property to be affected into the control of the court and withdraws it from the jurisdiction of every other court. Love-land on Bankruptcy, sec. 41. And where a suit to foreclose a mortgage is begun in a state court before a petition in bankruptcy is filed against the mortgagor, the state court may proceed to a decree of foreclosure and sale, and pay the debt secured by the mortgage from the proceeds of such sale, without interference from the court or bankruptcy. Id., sec. 57, 58; Black on Bankruptcy, sec. 390; McLoughlin v. Knop (D. C.), 214 Fed. 260. “Where particular property of a bankrupt is covered by a lien not fraudulent or preferential, but valid and enforceable notwithstanding his bankruptcy, a state court has concurrent jurisdiction with the bankruptcy court to foreclose the lien and satisfy the debt. The trustee may indeed elect and claim the right to sell the property for the sake of saving for general creditors whatever may remain out of its proceeds after satisfying the lien claimant. But if he does not take this course, he is considered as abandoning the property to the lienor, and there is then nothing to prevent a state court from entertaining a foreclosure suit or other proper proceeding.” Black on Bankruptcy, sec. 26. “The federal bankruptcy law does not operate to take jurisdiction from courts otherwise authorized to determine the existence of liens on the property of the bankrupt.” Murphey et al. v. Brown et al., 12 Ariz. 268, 100 Pac. 801. In the case of Eyster v. Gaff, 91 U. S. 521, 23 L. Ed. 403, Mr. Justice MILLER expressed the opinion of the supreme court of the United States in this emphatic language: • “It is a mistake to suppose that the bankrupt law avoids of its own force all judicial proceedings in the state or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition. The court in the ease before us had acquired jurisdiction of the parties and of the subject matter of the suit. It was competent to administer full justice, and was proceeding, according to the law which governed such a suit, to do so. It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending. It was the duty of that court to proceed to a decree as between the parties before it until, by some proper pleadings in the case, it was informed of the changed relations of any of those parties to the subject matter of the suit. Having such jurisdiction, and performing its duty as the case stood in that court, we are at a loss to, see how its decree can be treated as void. It is almost certain that, if at any stage of the proceeding, before sale or final confirmation, the assignee had intervened, he would have been heard to assert any right he had, or set up any defense to the suit. The mere filing in the court of a certificate of his appointment as assignee, with no plea or motion to be made a party or to take part in the ease, deserved no attention, and received none. In the absence of any appearance by the assignee, the validity of the decree can only be impeached on the principle that the adjudication of bankruptcy divested the other court of all jurisdiction whatever in the foreclosure suit. The opinion seems to have been quite prevalent in many quarters at one time that the moment a man is declared bankrupt the district court which has so adjudged draws to itself by that act not only all control of the bankrupt’s property and credits, but that no on'e can litigate with the assignee contested rights in any other court, except in so far as the circuit courts have concurrent jurisdiction, and that other courts can proceed no further in suits of which they had at that time full cognizance; and it was a prevalent practice to bring any person who contested with the assignee any matter growing out of the disputed rights of property or of contracts into the bankrupt court by the service of a rule to show cause, and to dispose of their rights in a summary way. This court has steadily set its face against this view. The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of those rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has for certain classes of actions conferred a- jurisdiction for the benefit of the assignee in the circuit and district courts of the United States, it is concurrent with, and does not divest, that of the state courts. ’ ’ See, also, Claflin v. Houseman, 93 U. S. 130, 23 L. Ed. 833, and Davis v. Friedlander, 104 U. S. 570, 26 L. Ed. 818. Appellant contends that the judgment rendered in the foreclosure suit in the absence of the Tube City Mining and Milling Company should be treated as a nullity. To sustain this conténtion appellant cites Reynolds v. Stockton, 140 U. S. 254, 35 L. Ed. 464, 11 Sup. Ct. Rep. 773. We fail to perceive that the principle laid down in the Reynolds case has any bearing whatever upon, or any relation to, the facts of this case. In the case cited the chancery court of New Jersey had held that a decree or judgment which is not appropriate to any part of the matter in controversy before the court can have no force; that the matter in controversy is that exclusively which is presented by the pleadings and the issue framed thereby; and that a decree of a New York court which is entirely aside of the issue raised in the record is invalid, and will not be treated as res adjudicata. This judgment the court of errors and appeals of that state affirmed. In the supreme court of the United States it was there contended that the New Jersey court had refused to give effect to section 1 of article 4 of the Constitution of the United States, providing that: “Full faith and-credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Referring to this constitutional provision, the supreme court said: “It does not demand that a judgment rendered in a court of one state, without the jurisdiction of the person, shall be recognized by the courts of another state as valid, or that a judgment rendered by a court which has jurisdiction of the person, but which is in no way responsive to the issues tendered by the pleadings, and is rendered in actual absence of the defendant, must be recognized as valid in the courts of any other state,” In the New York suit the defendant appeared and filed his answer, and took no further part in the proceedings and was not present at the trial. This feature of the case is disposed of as follows: “Nor are we concerned with the question as to the rule which'obtains in a case in which, while the matter determined was not, in fact, put in issue by the pleadings, it is apparent from the record that the defeated party was present at the trial, and actually litigated that matter. In such a case the proposition, so often affirmed, that that is to be considered as done which ought to have been done may have weight, and the amendment which ought to have been made to conform the pleadings to the evidence may be treated-as having been •made. Here there was no appearance after the filing of the answer, and no participation in the trial or other proceedings. Whatever may be the rule where substantial amendments to the complaint are permitted and made, and the defendant responds thereto, or where it appears that he takes actual part in the litigation of the matters determined, the rule is universal that, where he appears and responds only to the complaint as filed, and no amendment is made thereto, the judgment is conclusive only so far as it determines matters which by the pleadings are put in issue. ’ ’ Of course, the complaint must be relevant, but the judgment we are asked to treat as a nullity determined no matter not put in issue by the pleadings, but was entirely responsive to the matters put in issue and contested. Within the limitations of the Reynolds case it is plain that the superior court could not, in an action for the recovery of personal property, give a valid judgment by default for the recovery of real estate; nor could it, in an action on a promissory note give such a judgment for the recovery of real estate. Likewise, if a magistrate having authority to fine for breach of the peace should adjudge the offender guilty of treason and punish him as prescribed for treason, such a judgment would be a nullity, as much so as if the magistrate had found the offender guilty of a breach of the peace without the preliminary jurisdiction to hear and determine that class of cases. Nor must we be understood as holding that a claim for labor in hauling supplies designed for use or used in or upon a mine or mining claim is not lienable under the statutes of Arizona. It has never been determined by the highest court in this jurisdiction and may be a debatable question when properly presented. The foreclosure suit was tried upon its merits and decided in favor of the lien by the superior court, and, even if its judgment was incorrect, it was but error, which could have been revised on appeal, but cannot be corrected in this proceeding. The superior court could not take judicial notice of the bankruptcy proceedings, and if the bankrupt chose to absent itself from the trial or its trustee chose not to intervene, such was no fault of the plaintiff, but must be attributed to the bankrupt, or to the conduct of those representing the interests of its estate. As said by Mr. Justice BENSON in the case of Brenholts v. Miller, 80 Kan. 185, 101 Pac., at page 998: “If the defendant’s contention that this judgment should be set aside on motion is correct, then, in any case where a petition would be held insufficient to state a cause of action, if demurred to, it would be better not to incur the expense of presenting a demurrer and taking an appeal from an adverse ruling, since the judgment might at any time be set aside on motion. A party who is summoned in the course of regular judicial proceeding either personally or by publication, in a court having jurisdiction, will have his day in court, and must appear and take the proper steps to protect his interests, within the time allowed for that purpose. Opportunity may not knock again at his door.” The superior court had jurisdiction of the subject matter of the foreclosure suit, and the parties were properly before the court. The judgment of the court was within the issues presented by the pleadings and relevant to the matters con tested. This being true, its judgment in that action, however erroneous it may be, is not void. Some other matters have been suggested, but we have deemed it unnecessary to extend this opinion in discussing them. Upon the whole case presented, however, we are of opinion that there is no error in the judgment sustaining the demurrer and dismissing the action, and therefore it must be affirmed. Judgment affirmed. ROSS, J., concurs.

ROSS, J. Appeal from an order of allowance and settlement of guardian’s account and from an order authorizing and directing the guardian to sell real estate of the ward. In 1906 'the appellee married May Harris, the mother of Emma J. Harris who was then about ten years old. The mother, May Harris Lyon, died June or July 17, 1907, leaving no estate. From that time on Emma Harris lived with her grandmother, Mrs. Lena White, who was the mother of May Harris Lyon. The appellee, stepfather to Emma, was; a party to an arrangement that she should live with her grandmother, he to furnish her housing, clothing, food and medical attention and generally to provide for them. While perhaps there was no definite agreement in terms to such an arrangement, the subsequent conduct was along those lines. The appellee made provision for the grandmother and minor in this, manner from June 17, 1907, until March 11, 1912, simply as the stepfather to Emma. On the last-mentioned date he secured letters of guardianship of both the person and estate of the minor, but continued the arrangements, with slight interruptions, as to her care and keep as before. The estate of which he was appointed guardian consists of one hundred and sixty acres of land in Yuma county, filed upon by May Harris under the federal homestead law October 28, 1903, before her marriage to appellee. After the' death of entry-woman, appellee continued to improve and cultivate the land to comply with the homestead act, and in course of time made final proof. The final receipt was issued by the government March 10, 1913, and in June, 1913, a patent was issued to the heirs of entrywoman. The appellee prefaced his account against the minor, Emma Harris, as follows: “That since the death of the mother of said minor, May Lyons, on June 17, 1907, affiant has, out of his own funds, cared for and maintained said minor, she not having any estate or income whatsoever, except her prospective interest in said land (homestead) which until this time has always been uncertain, remote and practically valueless. That in such care and maintenance affiant has expended the following sums.” The statement shows an expenditure from June 17, 1907, to April 1, 1913, for care and maintenance of $5,300, and moneys paid out improving and cultivating homestead, final proof, fees, commissions and attorney’s fees, court costs, in the sum of $680, two-thirds of which is charged to minor, and $20 paid clerk of court, making $473.33, or all told $5,773.33. This account of appellee was contested by the guardian ad litem as being: (1) Excessive and fraudulent; (2) on the ground that all advances for the care and maintenance of Emma were made by appellee voluntarily; and (3) that appellee was the stepfather of Emma, and as such exercised all the rights of a natural parent, and thereby assumed all the duties and obligations of a natural parent; (4) that the account of guardian was barred by the three-year statute of limitation; and (5) that all items charged against the minor before letters of guardianship were issued should be disallowed for the reason that the minor is not liable for any expenditures made by her stepfather prior to his appointment as guardian. The court overruled the legal questions raised by guardian ad litem, heard evidence in support of and against the account, and rendered judgment allowing the account of appellee for care and maintenance in the sum of $2,780, or $40 per month from June 17, 1907, to April 1, 1913, and for improving and pre serving the homestead the sum of $585, or a total sum of $3,365. Both parties appeal from this judgment, appellee contending that allowance is too small, and appellant that it was far too much. The law imposes upon the parent the duty of caring for his 'child during the period of its inability to eare for itself, and only in exceptional cases may he use the estate of the latter for that purpose. In this ease the minor, Emma Harris, after her mother’s death, was left without parents and without any available or tangible estate. She was but ten years old and of delicate constitution. The appellee, either because of his being the husband of her mother and therefore the child’s stepfather, or out of sympathy for her in her helpless condition, or both, without any legal obligation to do so, undertook to care for her out of his own means. Without letters of guardianship, he provided for her and her grandmother, furnishing them the ordinary and necessary comforts of life from June 17, 1907, until March 11, 1912. While appellee was under no natural, and therefore no legal, obligation to care for the minor child, the assumption of that duty by him carried with it legal responsibilities. As is said in the note to National Valley Bank v. Hancock, 57 L. R. A. 729 (100 Va. 101, 93 Am. St. Rep. 933, 40 S. E. 611) : “The universal rule is that a stepfather, as such, is not under obligation to support the children of his wife by a former husband, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services. ’ ’ In Sharp v. Cropsey, 11 Barb. (N. Y.) 224, it is said: “The stepfather is not bound to support his stepchildren, nor the latter to render him any services; but if he maintains them, or they labor for him, they will be deemed to have dealt with each other in the character of parent and child, and not as strangers, without obligation on the part of the father to pay for his children’s services, or on the part of the children to remunerate their father for their support.” See National Valley Bank v. Hancock, supra, and Bartley v. Richtmyer, 53 Am. Dec. 338 (4 N. Y. 38), for collection of cases on this point The record shows that the appellee claimed the right to the custody of Emma from the time of her mother’s death, aud that he first placed her with one of his own blood relatives; that she was left with her grandmother in obedience to a request of his wife before her death; that the grandmother’s position was that of housekeeper, largely subject to the orders and directions of the appellee; that he furnished the house for them to live in, much of the time retaining a room for his personal use; that he exercised the parental rights of controlling and supervising the conduct, education and employment of Emma, and at one time corporally chastised her for disobedience. Practically the only surrender made by appellee was in the matter of Emma’s religious training, in which he deferred to the expressed wishes of his deceased wife and the wishes of the grandmother. The rights, powers and duties claimed and exercised by him over the child were such as only a parent could lawfully claim and exercise. Indeed, in his petition to the court for authority to sell the homestead, dated and sworn to by appellee March 12, 1913, he describes Emma as follows: “That said minor is the only daughter of one May Lyon, now deceased, and the stepdaughter of her guardian, William H. Lyon.” The law will not permit a parent or one in loco parentis, years after he has made advances to the child for its support, to recover his expenditures as upon an implied contract. Here the duty was voluntarily assumed, and voluntarily the obligation was discharged. Moreover, it fairly appears that appellee never expected to be remunerated when he first took charge of the child and for quite a while thereafter, for in his first account against his ward, dated March 17, 1913, he states that he “has, out of his own funds, cared for and maintained said minor, she not having any estate or income whatsoever, except her pros^ pective interest in land, which until this time has always been uncertain, remote, and practically valueless.” Indeed, the thought of repayment of his outlays for the child seems to have germinated coincidently with or shortly before she secured title to the homestead, theretofore considered “uncertain, remote and practically valueless,” but, as shown by the inventory and appraisement, of the real value of $85 per acre. That the appellee kept no books of account between himself and the child and had no record of the items, nor the dates when furnished, and in making up his account was compelled to resort to the memory and books of the various tradespeople with whom he had had accounts, are strong circumstances indicating an absence of intention at the time to ask for reimbursement. That for a long time he expected no remuneration is shown by his own testimony in which he said: “A. When Emma’s mother first died there wasn’t any property except that piece of land on the Mesa, and I didn’t think it was worth anything at all, and lots of times I called in Ap John and didn’t think about getting a receipt. I paid him and kept no record of it. I paid very little attention to it because I didn’t think there was anything in the Mesa land. “Q. When did you first have any assurance you would get anything out of the Mesa land? “A. I first began to believe that the property might be of value in 1909 or 1910. “Q. As to getting the title, when did you begin to have hopes of getting title to it ? “A. About a year ago.” The intention or purpose to require repayment is essential (In re Tucker, 74 Mo. App. 331, 337); otherwise the support will be considered voluntary and gratuitous. The appellee relies upon In re Besondy, 32 Minn. 385, 50 Am. Rep. 579, 20 N. W. 366, to support his contention that he is entitled to reimbursement. In this ease the stepchild’s estate consisted of $1,138.40 cash, and it was expressly arranged between the stepfather and mother that the child should live with them and be supported as one of the family, and that the estate money should be applied and used in payment therefor. The court said: “The arrangement made by the stepfather, though invalid as a contract, is sufficient to rebut the presumption that he took the child into his family to support in loco parentis, and on account of his tender years he could render no service in return for such support. . . . And a stepfather is, of course, not bound to maintain the children of his wife by a former husband. But if he voluntarily assumes the parental relation and receives them into his family under circumstances such as to raise a presumption that he has undertaken to support them gratuitously, he cannot afterward claim compensation for their support.” The account was allowed, because, the court said, “It is quite clear that they [mother and stepfather] furnished such support under the circumstances with the expectation of being reimbursed out of his [the child’s] income, and not as a gratuity.” The decision turned on the intention formed at the time the support was given, and the added fact that the infant was at the time the owner and possessor of an estate in cash available for his present care and maintenance.. To the same point appellee cites In re Beisel’s Estate, 110 Cal. 267, 40 Pac. 961, 42 Pac. 819, and says: “In view of the fact that we have the same statute on guardian and ward- as the state of California, we regard, and urge upon this court, the case of Beisel as the most persuasivé authority.” In this ease the mother was allowed for the maintenance of her minor children for over five years before she was appointed their, guardian. However, their estate, consisting of $4,007 and some realty, was in the possession" and control of the mother during all that time. The court said: “Appellant contends that there was no warrant for an allowance by way of credit to Mrs. Sherrer for maintenance of the minor children during the time when there were no letters of guardianship upon their estates. But she is charged in equity as a quasi guardian or trustee of their estates, and the accounting must be deemed in the nature of an accounting in equity, and determined upon equitable principles. The court finds in substance that the action of Mrs. Sherrer, as the mother of the children, was bona fide; and it had jurisdiction to allow reasonable and proper credits to her for their maintenance and for expenditures incurred on their account. A guardian de facto, who is not a guardian de jure, will be held to account in equity only upon equitable principles, and will be allowed for all proper disbursements for the benefit of the ward. Peale’s Admr. v. Thurmond, 77 Va. 756. ‘The rule is that where an infant has property of his own, and his father is dead, or. is not able to support him, he may be maintained and educated out of the income of property absolutely his own, by the person in whose hands the property is held; and a court of equity will allow all payments made for this pur pose which appear upon investigation to have been reasonable and proper.’ Schouler, Dom. Rel., sec. 238. Where the income is insufficient' for the maintenance and education of a child, equity will break into the principal. Barlow v. Grant, 1 Vern. 255; Bridge v. Brown, 2 Younge & C., c. 181; Ex parte Green, 1 Jac. & W. 253; Newport v. Cook, 2 Ashm. [Pa.] 332; Osborne v. Van Horn, 2 Fla. 360. A mother will be allowed in equity for the past maintenance of her children, from the death of the father, out of the estate of the children, though she has a separate estate. Wilkes v. Rogers, 6 Johns. [N. Y.] 567, 589, 593; Gladding v. Follett, 2 Dem. Sur. [N. Y.] 68; Aynsworth v. Pratchett, 13 Ves. 320; In re Besondy, 32 Minn. 385, 20 N. W. 366 [50 Am. Rep. 579]; Osborne v. Van Horn, 2 Fla. 360. The criterion for determining whether a past maintenance should be allowed is whether a chancery court would"have authorized it in advance. Alston v. Alston, 34 Ala. 27.” In the Beisel case and cases cited therein it will be observed that an estate existed at the time support was given the minor, and that the relation of trustee and cestui que trust was present. Take the criterion given in the Alston case, supra, and, endeavor ever so hard, it cannot-be applied to the present ease. Upon the death of the entry-woman, May Harris Lyon, the surviving child, Emma Harris, had only an inchoate right in the homestead, and neither this remote interest, nor the perfected title, under the law, could be subjected to the payment of any debt contracted for support, or on any other account, before title was obtained. No court of chancery would have done the futile thing of entering an order authorizing the appellee to maintain and support the minor child, Emma Harris, with the hope or expectation of being remunerated .out of the homestead. Under the peculiar facts of this case we are satisfied that the trial court committed error in allowing and settling the appellee’s accounts for the care and maintenance of Emma' Harris prior to letters of guardianship. The petition for authority to sell the homestead represents that the land is unproductive, and that it is necessary that the same be sold in order to realize money with which to pay off the appellee’s allowed claim of $3,365 and to care for the future education and support of the minor. The order ap pealed from directing the sale of the homestead is based upon the reasons assigned in the petition. This order involves the question as to whether the homestead may be subjected to the payment of debts contracted by the minor, before patent was issued to the heirs of the original entrywoman. If not, the order authorizing the sale for that purpose is in error. The entrywoman, May Harris, filed on the land in October, 1903. She became the wife of appellee in 1906, and died in 1907, before the required residence, improvement and cultivation were complete, and before she was entitled to a patent. The appellee, after the death of entrywoman, performed the necessary acts of improvement and cultivation, made final proof, and in June, 1913, a patent to the land was issued to the heirs of the deceased entrywoman under the provisions of sections 2291 and 2292, Revised Statutes of the United States (U. S. Comp. Stats. 1901, pp. 1390, 1394, 6 Fed. Stats. Ann., pp. 292, 303). Section 2296, Id. (U. S. Comp. Stats., p. 1398, 6 Fed. Stats. Ann., p. 307), provides that: “No lands acquired under the provisions of this chapter .shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” The courts have many times passed upon this section, holding that the antecedent debts of the entryman cannot be collected out of the homestead against the will and consent of the entryman. Sprinkle v. West, 62 Wash. 587, Ann. Cas. 1912D, 281, 34 L. R. A. (N. S.) 404, 114 Pac. 430; Sorrels v. Self, 43 Ark. 451; Towner v. Rodogab, 33 Wash. 153, 99 Am. St. Rep. 936, 74 Pac. 50. While the right of the heir to claim the same exemption from debts contracted by him prior to the issuance of patent has not been before the courts so often, there is the same uniformity in the decisions to the effect that the heir takes the land free from his antecedent debts. In Coleman v. McCormick, 37 Minn. 179, 33 N. W. 556, the original entrywoman devised the land to her brother, to whom patent was issued. The question was as to whether a debt contracted by patentee before the patent was issued to him as such devisee under the provisions of section 2291, Revised Statutes of the United States, could be enforced as against the land. That court said: “The statute provides specifically for the acquisition of a patent by the homestead settler, or, in ease of his death, by his widow, or, she having died, by his heirs or devisee, or, in ease the entry is by a widow, then, upon her death, by her heirs or devisee. Bearing in mind the specific provision thus made, empowering these different classes of persons to secure the title under this law, it is difficult to construe the unqualified language of the exemption as being applicable to one of the specified classes, but not to the others. It is, of course, effectual as to the original homestead settler. There would seem, too, to be no doubt of its applicability, where the widow of the settler, or, she dying, his minor children, the members of his family, perfect the title in. themselves, so that they would hold the land free from liability for any prior debts which they might have contracted. Such cases are clearly within the beneficent purpose of the homestead law, and within- the terms of the section declaring the exemption. It may be said that the law was not framed for the . . . remote heirs of the homestead settler, not members of his family, and not dependent upon him for support, nor for the benefit of devisees not of kin to the testator, and that therefore the exemption does not attend the title acquired by such persons. But it is impossible by any process of judicial construction to determine that the exemption, which in terms is applicable to heirs and devisees without distinction, was intended to apply only in favor of certain heirs or devisees, and was not applicable as to others. The statute affords no indication that any distinction is to be made, nor anything by which a court could be guided in declaring what patentees under this law are within the exemption, and what are not. Such distinctions, can only be made arbitrarily, and this would not be construction, but legislation.” Gould v. Tucker, 20 S. D. 226, 105 N. W. 624. It follows that the court erred in ordering the Emma Harris homestead interest to be sold to pay debts contracted by her prior to the issuance of the patent. On a new trial, the court should disallow the appellee’s claim for care and maintenance and money laid out in cultivating and improving land, attorneys and in fact all expenditures prior to his appointment as guardian. The appellee should be allowed all necessary expenditures-since his appointment as guardian that have been made for the support of his ward or the protection of her rights in homestead. Should another order authorizing the guardian to sell her homestead interest be made, it should be made to appear that such sale is necessary in order to secure ready means for the support and education of the ward and the payment of the guardian’s account for necessary expenditures for her support incurred since the issuance of patent to homestead. Judgment is reversed, with directions to proceed in accordance with this opinion. FRANKLIN, C. J., and CUNNINGHAM, J., concur. Application for rehearing denied. NOTE.—On the question of the parent’s duty to support as affected by child’s property interests, see note in 57 L. B. A. 729. As to the right of a parent to sue child for support, see note in 4 L. B. A. (N. S.) 1159. As to the liability of claim or interest in public lands for debts contracted before issuance of patent, see note in 34 L. B. A. (N. S.) 405.

ROSS, J. This appeal is prosecuted from a judgment of conviction of the crime of extortion. Complaint is made of errors (1) in overruling a demurrer to the information for insufficient facts to constitute the offense of extortion; (2) the admission of evidence over objection; and (3) the giving of erroneous instructions to the jury. We will consider these assignments in their order. The charging part of the information is as follows: ‘ ‘ The said Robert E. Lee, on or about the 7th day of November, 1912, and before the filing of the information in the county of Graham, state of Arizona, did willfully, knowingly, unlawfully and feloniously obtain certain personal property, to wit, $1,600 lawful money of the United States, from one H. E. Smith, then and there being with his said H. E. Smith’s consent, which said consent was then and there induced by wrongful use of force and fear by and upon the part of said Robert E. Lee, defendant, to wit, by a threat then and there made and communicated to said H. E. Smith by said defendant, to accuse him, the said H. E. Smith, of having committed a crime, to wit, the crime of grand larceny in said county of Graham, and said personal property then and there being the' property of said H. E. Smith.” Extortion is defined by the Penal Code of 1913, section 512, as follows: “Extortion is the obtaining of property from another with his consent induced by wrongful use of force or fear or under color of official right.” The “fear” mentioned “may be induced by a threat ... (2) to accuse him ... of any crime.” Id. 513. The appellant contends that the information is defective in that it fails to describe sufficiently the crime of which accusation was threatened, and he insists that the information, to be good, should set forth the particulars of the crime threatened. In other words, he says that the allegation that defendant threatened to accuse Smith with the crime of “grand larceny” is a mere conclusion of law, and that it cannot be made to take the place of the facts constituting the accusation. The offense with which appellant is charged is extortion, and the gist of it is'the obtaining the property of another with his consent induced by fear of a threatened prosecution for a crime. For some cases the description of an offense by its generic name will indicate all the essentials of such offense. That is true of such well-known offenses as arson, burglary, larceny and murder. Fertig v. State, 14 Ariz. 540, 133 Pac. 99. If the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the rights of the case, and contains the formal allegations of jurisdictional facts, the information is sufficient. Section 943, Pen. Code 1913. Tested by this statutory rule, it seems to us that the information is sufficient. That it is not necessary in an indictment or information of extortion to give a technical description of the accusation threatened against the prosecutor is supported by Commonwealth v. Philpot, 130 Mass. 59; State v. Lewis, 96 Iowa, 286, 65 N. W. 295; Commonwealth v. Murphy, 12 Allen (Mass.), 449; State v. Stewart, 90 Mo. 507, 2 S. W. 790; Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; Cohen v. State, 37 Tex. Cr. 118, 38 S. W. 1005; State v. Robinson, 85 Me. 195, 27 Atl. 99. It is sufficient to charge that defendant threatened- to accuse the prosecutor of a specified crime. Commonwealth v. Goodwin, 122 Mass. 19; Commonwealth v. Moulton, 108 Mass. 307; Commonwealth v. Dorus, 108 Mass. 488; Commonwealth v. Murphy, 12 Allen (Mass.), 449; Commonwealth v. O’Brien, 12 Cush. (Mass.) 90; Moore v. People, 69 Ill. App. 398; People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072. See note, 9 Ann. Cas. 196. To properly understand the other two assignments of error, it is necessary to epitomize the facts as developed at the trial. The prosecuting witness Smith testified that defendant and three confederates enticed him, by representing to him that one of his cattle was down, to go to an out-of-the-way place near his ranch, and that upon his arrival there he was commanded by the defendant, who pointed a gun at him to enforce his orders, to take an ax that was given him and kill a cow that defendant and confederates had tied to a tree; that he did as directed; that after the animal was killed he asked defendant, “What he meant by pulling a gun on me and making me kill that cow.” The defendant answered, “He wanted a hundred head of cattle or $3,000.” “I told him I couldn’t give him $3,000, nor a hundred head of cattle.” “He said he would take the hide to Foster and Marshall (who were the owners), and.he and what others he had on the hill there would swear against me and stick me.” “I told him I couldn’t get him $3,000, and he says: ‘If you will give me what Foster and Marshall are giving me, $2000, I will let you off.’ ” That the defendant compelled him to help skin the animal, and said, taking the hide, “If I would pay him $200 the next morning he would keep the hide and not present it to Foster and Marshall.” The prosecutor paid the $200 the following morning by check at defendant’s home, and four days later gave defendant $1,600, and received the hide from defendant. The defendant’s testimony differs from that of the prosecuting witness, in that he says he knew the prosecutor was going to kill the animal at the time and place named, and that he knew that Foster and Marshall were offering a reward for the apprehension of persons stealing their cattle, and, knowing these facts, he laid for Smith and caught him; that Smith begged him not to divulge to Foster and Marshall Ms crime, and voluntarily gave Mm $1,800 to keep the crime a secret. The evidence objected to by defendant, and the admission of which he assigns as error, was evidence given by the prosecuting witness of the defendant’s pointing a gun at him,and of trades leading to where the animal was killed. He says he was charged with extortion induced by use of threats; that the information does not charge the wrongful use of force; and that the state was permitted by such evidence to prove another and different offense than the one alleged in the information. The rule invoked by the appellant is not applicable to the facts of this case. The state was entitled to prove all the facts of the transaction, even though they did disclose another and different crime than that laid in the information. In his case, on the theory of the prosecution, it was evidently the plan or scheme of appellant to compel the prosecuting witness, by the assault with a gun upon him, to kill the animal, and then charge him with larceny and by superior numbers prove the charge, unless silence was purchased by the payment of $2,000. Indeed, the plan or scheme, if true, embraced three crimes, larceny of the animal, assault with a deadly weapon, and extortion, all involved in the one transaction. Jones, Commentaries on Evidence, see. 145. People v. Molineux, 168 N. Y. 264, 62 L. R. A. 193, 61 N. E. 286. Proof of the tracks leading to the place where the animal was killed was also competent and relevant as corroborating the testimony of the prosecuting witness. The court in instructing the jury as to what constituted “fear,” instead of confining itself to the specific charge in the information, read all of section 513 of the Penal Code of 1913. It is contended by appellant that this was prejudicial error. Subdivisions 1, 3 and 4 of that section, defining fear induced by threats, should not have been read to the jury for the reason that the state did not rely upon the kinds of fear therein mentioned, but relied upon a fear induced by a threat to accuse the prosecuting witness of a crime. The definition given to the jury should have been restricted to the charge. The injection of the other circumstances constituting fear, under the facts of the case, were mere abstract propositions of law, and without place in the instruction. But as the evidence was all of the fear of being accused of grand larceny, it does not seem possible that the jury could have been misled or influenced in its verdict by this instruction in the form in which it was given, especially in view of the fact that the court in reading section 513, after subdivision 2, said: “This is the subdivision under which this action is brought.” Simons v. State (Tex. Cr. App.), 34 S. W. 619; Hargrave v. State (Tex. Cr. App.), 30 S. W. 444. The court submitted to the jury the question' as to whether what was said and done by defendant in his threat constituted a threat to accuse the prosecuting witness of the crime of grand larceny, and in that connection defined larceny by reading sections 481, 483 and 484, Penal Code of 1913. What we have said concerning the instruction before this is applicable to .this instruction. The court should have restricted its instruction to defining the kind threatened to be charged and proved on the trial. The appellant complains of the court’s instructions wherein the jury were told “that even though Smith was actually guilty of stealing the cow, and was caught in the act of butchering her, if the defendant, because of the fear that Smith had of being prosecuted, did use that as a means of frightening Smith into the payment of the money, and actually did frighten him into paying the money, and afterward did receive the money of Smith, the defendant would yet be guilty of extortion, and it would be your duty to so find him guilty.” This is a correct statement of the law. People v. Choynski, 95 Cal. 640, 30 Pac. 791; Kessler v. State, 50 Ind. 229; State v. Debolt, 104 Iowa, 105, 73 N. W. 499; State v. Waite, 101 Iowa, 377, 70 N. W. 596; People v. Eichler, 75 Hun, 26, 26 N. Y. Supp. 998; People v. Wickes, 112 App. Div. 39, 98 N. Y. Supp. 163. In People v. Eichler, supra, the court said: “The fact that the person who, in writing or orally, makes such a threat for such a purpose believes or even knows that the person threatened has committed the crime of which he is threatened to be accused, does not make the act less criminal. The moral turpitude of threatening, for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed is as great as it is to threaten, for a like purpose, an innocent person of having committed a crime. The intent is the same in both cases, to acquire money without legal right, by threatening a criminal prosecution. But .threatening a guilty person for such a purpose is a greater injury to the public than to threaten an innocent one, for the reason that the object is likely to be attained and the result .is the concealment and compounding of felonies to the injury .of the state.” The judgment of the trial court is affirmed, and it is accordingly so ordered. FRANKLIN, C. J., and CUNNINGHAM, J., concur. NOTE.—The question of the admissibility of evidence of other crimes in criminal eases is discussed in an extensive note in 62 L. B. A. 193.

CUNNINGHAM, J. The appellant summarizes the issues as follows: ‘ ‘ The real issues were: . . . How much water are appellees entitled to the use of, and when are they entitled to its use.” One fact is settled beyond dispute, and that fact is that the appellees are entitled as a right to the amount of flood waters needed for the irrigation of their lands, measured by the capacity of their ditch or canal to deliver to the lands for that purpose, and has delivered prior to and up to the date of appellant’s appropriation. Appellant concedes this right exists, and the right is otherwise clear. The difficulty lies, not in determining appellees’ rights, but in determining the extent of the right and the manner in which the form of a decree by which that right shall be protected to them. Appellant’s right to appropriate all of the flood waters not otherwise appropriated by plaintiffs is equally clear. Its right extends to the appropriation of all the flood waters that would not reach appellees’ lands by their normal flow, and all the surplus Avaters not needed or appropriated by appellees, although such surplus waters may by their normal flow reach appellees’ lands, for the reason appellees have not appropriated either of such Aoavs of water. Again, the difficulty does not lie in determining appellant’s rights, but in determining the extent of such rights and devising a plan by which such rights can be preserved. The local conditions entering into the matter cause the difficulties to arise. The plan or system adopted by the trial court was to determine the carrying capacity of appellees’ ditch at the point of diversion, and determine the length of time required to irrigate appellees ’ entire area of. lands from the capacity flow of the eanal. The court determined that the carrying capacity of the appellees’ canal is 168 second-feet of water, and the time required to irrigate appellees’ lands is 17 hours of a continuous flow of the canal at its full capacity. The trial court then found, in effect, that any obstruction of the channel of the river 10 miles above, by means of a dam such as appellants had constructed, has the effect to diminish the flow of water in appellees’ canal. Appellees’ rights extend only to the water that reaches their lands for distribution. Appellees can have no vested right to employ means to deliver water to their lands that in their nature are wasteful means. In water applied to a useful and beneficial purpose an appropriator acquires a vested right. To so handle water as to cause it to become lost any length of time would not create any rights in the person so causing its loss to continue such extravagant means. Appellees’ rights in the flood waters extend to no other of the flood waters than would reach the border of their lands by means employed to conduct it there, and at such point the measurements of the quantities of water to which they are entitled must be made under the peculiar circumstances of this case. When known, appellees are entitled to have this right enforced. In arriving at the amount of the flood waters appropriated by appellees, it is pertinent to inquire and determine the area of lands to which the water has been beneficially applied, the frequency with which the floods occur, the waters from which reached the lands of appellees, and any other facts that would bear upon the question of the quantity of water actually appropriated by appellees to a beneficial use. All such matters existing may be presumed to have been inquired into. The court finds that the entire area of appellees’ lands requires 168 second-feet running continuously for 17 hours. This must be construed as finding that appellees have applied the waters in question to irrigate all their lands, aggregating from the evidence 1,120 acres. The evidence of the amount of the entire area of land owned by appellees is that Manuel S. Rameriz owns 320 acres. He had 160 acres in cultivation up to 1908. The most this party ever had planted in the summer months was 80 to 90 acres. The 160 acres in pasture has been irrigated when water was not needed for the other lands. Henry J. Rameriz cultivated 150 acres of land. He owned 160 acres. P. A. Salazar testified that the Salazar family had in cultivation about 250 acres. They are alleged to own 480 acres. Angulo once owned 160 acres, and cultivated 30 acres; he has sold his lands to defendant. The plaintiffs’ evidence is that they cultivated 590 acres by use of the water and at times applied surplus water to 160 acres of pasture used for feed, making a total of 750 acres to which any claim supported by evidence is made that the water in question has ever been applied. The finding of the court is that the entire lands of plaintiffs require 168 second-feet to irrigate them. Such finding was without the issue, and not in accordance with the evidence. Taking plaintiffs’ evidence as true, the question to be determined was the quantity of water required and used to irrigate 750 acres of ground. The witnesses testifying as experts estimated the area of land in cultivation at from 250 to 600 acres, and, upon a basis of land in cultivation, they estimated the quantity of water necessary to irrigate that estimated area in 12 to 14 hours. Plaintiffs’ witness Seiboth gave as his expert opinion that 168 second-feet would spread over 550 to 600 acres in from 12 to 14 hours, running continuously. Witness Manning, for defendant, estimated that 250 acres were cultivated, and that 50 second-feet would be sufficient to irrigate that area of ground. Witness Woolf, for defendant, estimated that 300 to 350 acres are cultivated, and it would take 50 second-feet to irrigate 200 acres in 12 hours, or 50 second-feet would irrigate 6% acres an hour. The plaintiffs offered no testimony tending to show with exactness the length of time required to irrigate their lands from the full flow of the ditch, other than the testimony of Seiboth, and that had reference to the cultivated lands alone. He estimated the largest acreage, and estimated that 168 second-feet would irrigate from 550 to 600 acres running continuously for from 12 to 14 hours. That quantity of water running continuously for 17 hours would irrigate a much larger tract, and hence to that extent the finding is without support in the testimony. The subject matter of the action is the surplus water not required by plaintiffs to continue to irrigate their lands as has been their practice; such water as has been lost by reason of the means used by plaintiffs to convey the water to their lands and by reason of the amount of flood waters discharged being in excess of the requirements of the plaintiffs. Appellant does not, and cannot, claim any right to deprive plaintiffs of any part of the waters appropriated by them, but it does elaim a right to such of the flood waters as it may conserve, and save from running to waste—such water as plaintiffs have not appropriated to any useful or beneficial purpose. The fact is undisputed that large quantities of the flood waters are dissipated while passing in their natural flow from the dam to the lands of plaintiffs. Plaintiffs admit in their testimony, and it otherwise appears from the evidence, that at times great quantities of flood waters have passed over the lands in question to the injury of the crops growing thereon, and have covered a vast area of country beyond these lands. These facts establish a right in defendant to conserve, if it can, such waters, and apply them to a beneficial use. 'The decree enjoins it from diverting the waters or any part thereof which flow in the channel of the Santa Cruz river above the lands of plaintiffs, and between that certain point on the Santa Cruz river where the defendant’s dam is constructed and the point upon said river at which the plaintiffs divert the waters thereof upon -their lands. The effect of this part of the decree is to prevent defendant from conserving the waters shown by the undisputed evidence to be entirely lost by evaporation, absorption and other means that pass the dam, but never reach the point of plaintiffs’ diversion. In that respect the decree enforces a waste of the most valuable property. It gives nothing of value to plaintiffs, and, if defendant can save such water by means applied, it may apply such means for that purpose. The decree deprives it of the right to do so. Otherwise the decree recognized inferentially defendant’s right to retain the surplus flood waters after plaintiffs have received the amount appropriated to their entire area of lands. Plaintiffs cannot rightly insist upon the continuance of a means that causes a waste of the waters not used by them at any time. Their rights are fully protected when water has been delivered to their lands at the advantageous point now used for that purpose in quantities equal to the amount they have appropriated to a beneficial purpose. The defendant may, if it feels inclined, employ means at its own expense to deliver said quantity of water to plaintiffs’ boundary lines in its ditch there, and, if the means result in a saving of water that would otherwise be lost in the transportation by the means at present employed to deliver it to that point, such water so saved from loss would become as a right the property of the defendant. When plaintiffs have received their full share of the flood waters, defendant has a right to the surplus, and has the right to it in its dam. The evidence is not sufficient to support the decree rendered, in the particular that the quantities of lands to which the water has been beneficially applied by plaintiffs, as shown by the evidence, are not made the basis of the extent of the use of the water. The evidence is not otherwise sufficiently full upon which to base & proper decree protecting the equities of the parties, and such rights, to be protected, require further investigation and evidence of other facts. The decree appealed from is evidently erroneous in enjoining the defendant perpetually from diverting any of the waters from the Santa Cruz river between the dam and plaintiffs ’ point of diversion and until 168 second-feet has flowed 17 hours, or so much longer as is necessary to deliver to plaintiffs its equivalent. From the testimony of all the witnesses the quantity of water mentioned flowing 14 hours would serve plaintiffs’ purpose to irrigate the lands cultivated. How long the flow must continue to irrigate 160 acres of pasture is not the subject of any evidence. Equity would dictate a modification of the decree whereby the defendant company should be restrained from diverting only the waters to which plaintiffs are entitled by reason of their prior appropriation, and such restraining order should not prevent the defendant from providing other means of transporting the water to which plaintiffs are entitled to their lands, and delivering the water in the proper quantities at a point where the same may be distributed'by plaintiffs to their lands; such point of delivery to be the point at or near the boundary of the plaintiffs’ lands on their canal from which plaintiffs have distributed the water for irrigation, or to some other point from which the water may be distributed with equal advantage to plaintiffs. Such decree must provide for the protection of plaintiffs’ rights, but give to the defendant the privilege of furnishing other and different means of transporting the water to plaintiffs’ lands, so that plaintiffs may use the water when delivered in all respects as if their canal delivered the water from the river unobstructed by defendant at any point. If the defendant elects to exercise its privilege to furnish the means of transporting the water to the point indicated until such means are furnished and prove effective for the purpose, plaintiffs’ canal and the channel of the river should remain unobstructed, for the purpose of carrying the water to plaintiffs. 2 Kinney on Irrigation and Water Rights, sec. 801. The peculiar circumstances presented by this case require, however, that the lower court retain jurisdiction over the case until defendant has furnished and completed all means of carrying the water belonging to plaintiffs in the proper quantities as it may elect to undertake. The ordinary equity procedure in such cases is ample to accomplish the purpose, and the lower court is the proper tribunal to employ such procedure in effecting the object to be obtained, viz., the protection of the rights of all the parties to this litigation. Until all the essential facts and conditions are established and the court is convinced that all affirmative action hereafter permitted to be taken by the defendant has worked no injury to the plaintiffs’ rights, and the means employed are efficient for the purpose intended, no final decree should be entered so as to oust the lower court of jurisdiction to alter, modify or vacate any order made pending the adoption and installation of any means of transportation of the waters to plaintiffs’ lands. The decree is modified to the extent of enjoining and restraining defendant from diverting such waters of the Santa Cruz river as plaintiffs have appropriated, and from obstructing the flow of the flood waters in the channel of said river until the further order of the court, and until the court has determined the amount of lands to which the flood waters in question have been beneficially applied, and the quantity of water applied to irrigate the said lands, and until defendant has elected to provide another or different means of deliving the water to plaintiffs’ lands, and has actually completed such means, and such means so furnished are sufficient and efficient to accomplish the purpose for which they are intended and employed. The cause is remanded, with instructions to the lower court to enter such temporary decree, and take such further proceedings as equity and justice demand. FRANKLIN, C. J., and ROSS, J., concur. NOTE.—On the question of the right of prior appropriator of water, see note in 30 L. R. A. 665. Eor the correlative rights of upper and lower proprietors to use water for irrigation, see note in 41 L. B. A. 741. As to the care necessary to avoid waste in diverting water from stream under right of appropriation, see note in 15 L. B. A. (N. S.) 238.

ROSS, J. This is an action to try the title to personal property under the provisions of paragraphs 1648 et seq., ‘Civil Code of 1913. On the 24th day of May, 1912, and for some time theretofore, J. J. Nolte was the owner of and carrying on a bakery and confectionery business in the city of Tucson. On that day he transferred and assigned by an instrument in writing all of said business, including furniture, delivery- wagons and horses, and all stock in trade to Alexander Rossi in trust, with instructions that the trustee sell and dispose of the same on such terms and conditions as he should see fit and divide the proceeds of sale pro rata between Nolte’s creditors. Rossi thereafter on June 3, 1912, sold all said property to Marie Nolte for $750, and Marie Nolte on the same day caused her bill of sale to be recorded in the recorder’s office of Pima county. On June 5, 1912, appellee, as the assignee of the accounts of three of J. J. Nolte’s creditors, instituted suit against Nolte and caused all of said property to be levied upon by attachment. Marie Nolte took necessary steps under paragraph 1648, supra, to claim the property as hers. The other appellants, Donau and Hofmeister, were her bondsmen. Issues were formed as provided by paragraphs 1659 and 1660, Revised Statutes of Arizona of 1913 (Civil Code), the appellee asserting in his complaint that J. J: Nolte was the owner of and in the use and possession of said property, and the appellant Marie Nolte claimed title to the property in her answer by virtue of bill of sale from Rossi. The case was tried to the court upon an agreed statement of facts and is-' here upon the same statement of facts. From a judgment in favor of appellee, this appeal is prosecuted. In addition to the foregoing facts, it is stipulated that the bill of sale or deed of trust from J. J. Nolte to Rossi was not filed or recorded with the county recorder of Pima county, but that the trustee caused to be published in the “Arizona Daily Star,” a paper of general circulation, published in the city of Tucson, on May 30th, 31st and June 1st and 2d, a notice of the assignment to him by J. J. Nolte, and that he would receive bids at his place of business up to noon June 3, 1912, “for the purchase of all of the assets of the business of said J. J. Nolte.” None of the creditors had accepted the terms of the trust deed at the time of the attachment. The facts stipulated with reference to change of possession are as follows: “That during all the times herein mentioned, including the 24th day of May, 1912, and up to and including the 3d day of June, 1912, the said personal property remained in said building at Nos. 19-21 South Stone avenue, in the possession of said J. J. Nolte. Marie Nolte, who is and was at all times herein mentioned the wife of said J. J. Nolte, claims that upon receipt of said bill of sale from Alex Rossi on June 3, 1912, she immediately took possession of the said personal property herein referred to and continued from said date to conduct said bakery and confectionery business. Prior to June 3, 1912, said J. J. Nolte, who was a baker by trade, did the baking for said business, conducted as ‘Nolte Bakery and Confectionery, ’ but was assisted by his said wife, Marie Nolte, who spent the greater portion of each day in and about said bakery. After the execution of said bill of sale by Alex Rossi, the said bakery business was continued at 19-21 South Stone avenue, to all outward appearances, as formerly. J. J. Nolte continued to do the baking for said business, and said Marie Nolte continued to do the same work around said bakery as formerly. She claims, however, that from the time of the execution of said bill of sale by Alex Rossi she was in possession and control of said business and personal property herein referred to, and that her husband, J. J. Nolte, was working for her. Neither plaintiff, E. B. Winstanley, nor J. Ivaneovich Company, Breña Commercial Company, nor J. F. Barker Company (appellee’s assignors) had any notice of this claim on the part of Mrs. Nolte, other than may he implied from the fact that the hill of sale from Rossi to Mrs. Nolte was recorded in the office of the county recorder of Pima county on June 3, 1912. That for many months prior to the 24th day of May, 1912, J. J. Nolte had a large sign in front of his place of business 19-21 South Stone avenue, containing the words ‘Nolte.’ That after the 24th day of May, 1912, and up to and including the 5th day of June, 1912, at the time the attachment was levied upon the property herein described, the said sign was permitted to remain in front of the said building, and so remained at all times.” The bulk sales law, being chapter 47, Laws of 1909 (paragraphs 5249 and 5250, Civil Code of 1913), was not observed in the sale of J. J. Nolte to Rossi. The assignment to Rossi by Nolte did not conform with the requirements of the statutes as to assignments for the benefit of creditors. The deed of assignment does not show that the assignor was insolvent, nor that the property assigned was all of his property, and fails to give a list of the names of his creditors, and is otherwise defective as a statutory assignment for benefit of creditors. Such an assignment, however, is valid under the common law and is not forbidden by statute. Pomeroy, Equity Jurisprudence, section 994, says: “The doctrine is generally settled in this country that voluntary general assignments for the benefit of creditors, if otherwise valid, are not mere agencies of the debtor, they create true trust relations, and the creditors are true beneficiaries. When once duly executed, they are irrevocable, and the creditors, on being informed of their existence, may take advantage of the provisions in their own favor, and may enforce the trusts declared without making themselves parties or doing any act indicating their own acceptance or assent. . . . The doctrine generally prevails in the American states that, unless prohibited by statutes, voluntary general assignments by failing debtors for the benefit of their creditors, even when preferring individuals or classes among the beneficiaries, are valid.” It is contended by appellee that the assignment was not effective to pass title, as against creditors, for several reasons; First, he says that there was no change of possession from the debtor to the trustee, as required by paragraph 3276, Civil Code of 1913.- That paragraph reads as follows: ' • “Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of things sold or assigned, shall be prima facie evidence of fraud as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith. ’ ’ According to the stipulated facts, “the person (Nolte), making such assignment” remained in the possession of all of the goods and chattels from the date of the assignment, May 24th, until June 3, 1912. There was no delivery whatever and no change of possession from Nolte to the assignee. Such a state of facts is made prima facie evidence of fraud as against the creditors of the person making such assignment. The entire absence of a delivery to the assignee, and he never having taken possession, either actual or constructive, the appellee, as a creditor of the assignor upon such a showing has made out a prima facie ease entitling him to recover, unless the presumption of fraud is rebutted. In Gilpin v. Missouri, K. & T. Ry. Co., 197 Mo. 319, at page 325, 94 S. W. 869, at page '871, the court defines a prima facie case and prima facie evidence, as follows: “ ‘A prima facie ease is one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced on the other side.’ 2 Abbott’s Law Diet. 312. ‘A prima fade ease is that which is received or continues until the contrary is shown.’ 22 Am. & Eng. Ency. of Law, 2d ed., p. 1294. Prima facie evidence: ‘It is such as, in judgment of law, is sufficient to establish the fact and, if not rebutted, remains sufficient for the purpose.’ Kelly v. Jackson, 6 Pet. 632, 8 L. Ed. 523. ‘Prima facie evidence of a fact is such evidence as in judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for that purpose. ’ Smith v. Burrus, 106 Mo. 100, 13 L. R. A. 59, 27 Am. St. Rep. 329, 16 S. W. 881.” If it should be suggested that the deed of assignment on its face—it being for the benefit of creditors without any preference shown—is a refutation of any inference of fraud, still the fact exists that the assignor was left-in possession of the property' with the opportunity and apparent right of disposition. What was realized in this interim, if anything, out of the business does not appear as an asset of the assignee. From the conduct of both the assignor and assignee, it would seem that the latter was recognized and treated more as a medium of passing title to the property than as a trustee having certain and definite duties to his benefifeiaries, the creditors. It was the duty of the trustee, upon accepting the trust, to take all of the property into his possession and to preserve and hold the same and all of it for the creditors of the assignor. This he did not do, but, on the contrary, left the property in the possession of the debtor, who, as it appears, did not dispose of it all, but who could have done so, if he had so chosen. We conclude that the prima facie case of fraud arising because of no delivery followed by actual and continued change of possession of the things assigned has not been overcome or rebutted, and that, as to the noneonsenting creditors of the assignor, the assignment was ineffectual. - As between tbe assignor Nolte and the assignee Rossi, the instrument of May 24, 1912, passed title from the one to the other. It was ineffectual to pass title only as against creditors of the assignor. Had the attachment been levied on the property before the assignee sold it to the appellant Marie Nolte, and’while it was in the actual possession of the debtor J. J. Nolte, the attachment, lien, it would seem, could not have been successfully questioned. But the attachment was not levied upon the property until June 5, 1912, and two days after the assignee had sold the business to Marie Nolte, who paid therefpr the sum of $750. We think the transaction should be treated as one directly taking place between the N°ltes, and that the bill of sale from the assignee to Marie Nolte was in effect the act of the debtor J. J. Nolte, for the reason that there was no delivery or change of possession. In that view of the case, the title to the property passed to appellant Marie Nolte exempted from the claims of creditors of the seller, providing-there was an immediate delivery, followed by an actual and continued change of possession, as required by paragraph 3276, supra. This, it may be said, is especially true of all of the property, except such as is daily exposed for sale as merchandise in small quantities for profit. That J. J. Nolte continued in possession of the property during all the time consumed in this transaction there seems no question. The stipulation is that: “After the execution of said bill of sale by Alex Rossi, the said bakery business was continued at 19-21 South Stone avenue, to all outward appearance, as formerly.” There was no change of the personnel of the parties in. charge of the business. The sign in front of the place of business remained the same. As against the actual evidences of possession remaining unchanged is the bare claim of the purchaser that she took possession and control of the business' after the execution of the bill of sale to her. The change of possession should be open and unequivocal, carrying with it the usual marks and indications of ownership by the party purchasing the goods. It must be such as to give evidence to the world of the claims of the new owner, so that a stranger to the sale would be able at once to see that a change in the possession and ownership of the property had taken place. “The statute demands that, in order that such sale may be bona fide, it shall be accompanied by immediate delivery and such actual and continued change of possession as shall indicate by outward, open, and visible signs that can be seen and known to the public or persons dealing with the property that a change of ownership and possession has taken place.” Ellet-Kendall Shoe Co. v. Ross, 28 Okl. 697, 115 Pac. 892. In Wheeler v. Seldon, 63 Vt. 429, 25 Am. St. Rep. 771, 12 L. R. A. 600, 21 Atl. 615, it is said: “Where there is a joint possession by the vendor and the vendee, the property is liable to attachment upon the vendor’s debts, if a candid observer would be at loss to determine which of the two has the chief control and possession of it, and, in ease of doubt, the law resolves the doubt against the party who should make the change of possession open and visible. Flanagan v. Wood, 33 Vt. 332. The reason of the rule, which is to prevent fraudulent transfers of property, applies more strongly to transactions between husbands and wives than to those between other persons because of the greater facility for the commission of frauds of this character between the former.” This does not mean that the law forbids the husband selling his property to the wife, or the wife from purchasing property from her husband. Under the law, they have the same rights of purchase and sale of property between each other as they have to deal with total strangers, but in doing so they are required to observe the rules of law and evidence that are exacted of others, to effectually pass title from the one to the other, where the rights of creditors are involved. Under our statute, the failure to deliver goods and chattels sold or assigned and the failure of the purchaser to take actual and continued possession of the property is only “prima facie evidence of fraud as against the creditors of vendor” or assignor, and it is made the duty of the trial court or jury to decide that question in the first-place. Construing a statute of similar import to ours, the supreme court of Nebraska, in Densmore v. Tomer, 11 Neb. 118, 7 N. W. 535, said: “The mere retention of possession by the vendor is regarded as prima facie evidence of fraud against his creditors, and is void as to them, unless the vendee shall prove the transaction to have been bona fide—that is, it puts upon the vendee the burden of satisfying the jury that the sale was fair and entered into in good faith. The question of fraudulent intent is one of fact to be determined from the evidence in the case. In but few instances can fraud be established by direct testimony, and ordinarily it must be proved by circumstantial evidence.” In Stadtler v. Wood, 24 Tex. 622, the court said: “"Where the vendor of the property and the vendee live together, there should be the most indisputable evidence of good faith in the contract of sale, for from the very nature of things it is almost impossible to tell with whom the possession -of the property does in fact remain. ’ ’ There is nothing in the stipulation of facts to show that the $750 paid to Eossi was the separate property of the appellant Marie Nolte. True, the bill of sale to her from Eossi recites that it is her separate property, but that is only the declaration of Eossi, doubtless inserted at her suggestion, and therefore is 'no -evidence of her ownership of the money paid as against creditors of her husband. In Seitz v. Mitchell, 94 U. S. 580, 582, 24 L. Ed. 179, the court said: “Purchases of either real or personal property made by the-wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly, appears that the consideration was paid out of her separate estate.- Such is the community of interest between husband, and wife; such purchases are so often made a cover for a debtor’s property, are so frequently resorted to for the purpose of withdrawing his. property from the reach of his creditors and preserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and there-should be, a presumption against her which she must overcome by affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to-reduce into his possession' and ownership all her ehoses in. action. ’ ’ If a transaction of this kind may be sustained as against the creditors of the. seller of goods and chattels, it amounts, to an approval by the courts of an arrangement by which a. debtor, whéther solvent or insolvent, may place a value upon his property and for that value paid him by his wife transfer the property to her, and with the money thus paid him compel his creditors to prorate it upon their claims. -Having-done this, he may resume business, if, indeed, he has ever-suspended it, at the “old stand” without visible changes,, and, by a claim- of change of ownership to his wife, acquit: himself of his just debts. It was peculiarly the province of the trial court to determine if the transaction was bona fide and for a valuable consideration paid by the purchaser out of her separate property,, and, that court having resolved the question against the appellant, we are satisfied to let it stand. . Part of the goods .sold consisted of stock in trade. The-requirements of chapter 7, title 51, Civil Code of 1913, being-chapter 47, section 1, Laws of 1909, were not complied with. That chapter prohibits a person who makes it his business to buy commodities and sell the same in small quantities for the purpose of making a profit; from disposing of his stock in trade, or a large part thereof, in a single transaction, and not in the regular course of business, unless notice of intention to sell is filed with the county recorder not less than ten days before the sale. A sale made without complying with the formalities required is declared to be void as to all creditors of the vendor at the time of such transaction. This is what is known as the “bulk sales law,” and it, or ones very similar to it, have been adopted in many of the states. While their validity as police regulations and as being class legislation have been often questioned in the courts, we think it is now well settled that such acts are a proper exercise of the police power of the states, and that they are not class legislation. The most recent decision on the bulk sales law is by the-Nevada court in Boise Assn. etc. v. Ellis, 26 Idaho, 438, 144 Pac. 6, decided October 29, 1914. In that case the court sustains the law and cites many of the decisions of courts of other states and the United States supreme court upholding the law. .We are satisfied with the reasoning and conclusion of those courts. The terms of the statute, however, do not include much of the personal property described, such as fixtures, wagons, teams and implements of manufacture used in the trade and not daily exposed for sale and as to these articles, if the sale had been in other respects legal, the title would have passed to appellant. Finding no error, the judgment of the trial court is affirmed. FRANKLIN, C. J., and CUNNINGHAM, J., concur.

CUNNING-HAM, J. It is the duty of the trial court to declare the law applicable to the state of facts disclosed by the evidence upon the trial. The jury must decide the facts and render a verdict in accordance with the law as declared by the court applicable to the -facts found. In this case it became the duty of the court to instruct the jury that, before they could find for plaintiff, they must be satisfied from a preponderance of the evidence that plaintiff and defendant entered into a contract on the terms and conditions substantially as set forth in the complaint. This was declaring the elementary rule of law requiring the proof to correspond to the allegations of the complaint and the rule of quantum of proof to sustain the plaintiff’s burden justifying a verdict. It was likewise the duty of the court to declare the legal effect of the contract, if the jury determined the contract pleaded was entered into, and to instruct as to the liability imposed by the contract. The charge, as given, is to the effect that, if the jury believe from a preponderance of the evidence that the parties entered into the contract, then they must find for the plaintiff such damages as they determine he has suffered ; and, on the other hand, if they find that the weight of evidence of the making of the contract does not preponderate in favor of the plaintiff, they must find for the defendant. In fairness to the parties, the trial court should make clear to the jury the issues on trial and the rules of law applicable to the evidence, controlling their deliberations. The instruction, as given, may be criticised as approaching the limits in brevity, but it cannot be said that the charge was erroneous. Appellant does not complain of the charge as erroneous, but he does complain of its brevity; that is, of a failure or omission to instruct further. Appellant does not claim that he requested in writing further instructions, and that such request was refused. Such procedure is allowed by paragraph 516, Civil Code of 1913. Refusal by the court to give an instruction requested in writing is an adverse ruling, and becomes a part of the record of the case, and is deemed excepted to at the time, without formal exceptions, and is subject to revision by this court for error. Paragraph 601, Civ. Code 1913. Matters occurring at the trial not formally excepted to or deemed excepted to, at the time, are no part of the record, unless made such, nor subjects of review as a general rule. Certainly an instruction believed by counsel to be beneficial to a party’s cause, but not requested in writing, not made a part of the record of the case, and not excepted to formally or otherwise, brought to the attention of the trial court, could not be complained of for the first time on appeal. The matter complained of is no part of the record before this court, and the assignment of a failure to instruct further upon a particular question presents no record for consideration, nor question for review. The second assignment can he considered only in so far as it may be construed as an assignment to the effect that the evidence is insufficient to sustain the verdict of the jury. Por a decision of this ease we will concede that the assignment has that effect. The evidence of the plaintiff is to the following .effect: He owned ten acres of land. He fixed a price for which he was willing to sell. Defendant was introduced to him as a possible buyer. The matter was talked over, and defendant wanted plaintiff to take stock of the Overland Telephone and Telegraph Company in exchange for the land. Plaintiff required time to consider the matter of taking the stock. The defendant offered testimony that plaintiff said, “I am not in need of the money, if I can get something just as good as money, ’ ’ and that he said he would investigate the matter, and later let defendant know what he would do about accepting the stock. Plaintiff did not deny this statement attributed to him. Plaintiff testified that after a day or two he and defendant had a further talk about the matter at plaintiff’s house, where plaintiff said: “I will take bonds for this property, but I won’t want your stock.” Defendant replied: “I haven’t got but one bond; I will let you havejhat.” After an extended conversation, defendant returned to the subject, and said: ‘ ‘ This stock, Mr. Hanger, is worth 50 cents a share, and I will guarantee after the election is over that it will be worth 65 cents a share.” Plaintiff said: “If you will let me have the bond and the stock to the amount of $4,200, why, I guess we will call it a trade.” Plaintiff testifies: “So we made the trade, and it was made on his guarantee that the stock was now worth 50 cents, and it would be worth 65 cents after the election.” On further examination plaintiff was asked: “What was the inducement to you to make this trade, Mr. Hanger?” He answered: “It was simply I wanted to get rid of this property, and I wanted to get rid of it at what it was worth, . . . and he being one of the directors, and representing this company to be as he said it was, and then the talk that he had relative to the value of the stock at that time, and then the guaranty he put upon it that it would be worth 65 cents soon after the election—that was the inducement that caused me to take the stock.” The testimony of plaintiff’s wife in a measure corroborated plaintiff’s testimony of the conversation had at plaintiff’s house. Defendant’s version of the transaction is as follows: “I told Mr. Hanger I didn’t have enough money to buy that place, and if he eared to trade the place for Overland Telephone stock that we could probably come to terms. . . . He said he would consider it. He said: ‘I will look into it, examine into the stock, and try to post myself on it; and if I consider the stock a good value—I want to sell the land/ . . . Mr. Hanger was to meet me—No; it wasn’t the next day. ... It may have been the third day. . . . Mrs. Weatherford and I went out to Mr. Hanger’s residence, and we spent . . . some time . . . talking over the proposition, and came to an understanding with Mr. Hanger and Mrs. Hanger. . . . ” The understanding arrived at was that “he [appellee] was to trade me [appellant] the place for $4,250; $425 an acre was the price. He was trading me the place for $4,250 worth of Overland Telephone stock at 50 cents a share, that was the agreement. There wasn’t a word ever said about a guaranty or anything respecting it in any manner, shape or form.” Mr. Hanger was to come downtown and. close the deal the next day, but did not keep his appointment. “Later in the day I [appellant] went out and we talked the matter over, and he asked me if I had any bonds of the Overland Telephone Company, and I told him I had one. He asked me if I would as leave put in that bond, and I told him I would put the bond in to him at $750; then in signing over the stock to him that would leave $3,500. In signing over the stock to him I was short 231 shares of stock, unless I would go to the office and break another 5,000-share certificate. ... I said to him: ‘Mr. Hanger, rather than put myself to the bother, if it is agreeable to you I will pay you the $115.50 in cash, but if you say I shall go over to the office and break up the certificate, I will do that. ’ I never did turn Mr. Hanger over the 7,000 shares of telephone stock. ... I turned him over 7,000 shares, less 231 shares, and I paid him $115.50 in cash according to a mutual agreement between us. . . . There was never anything said about the guaranty for the stock. . . . There was no guaranty or warranty spoken of about the stock at any time. I believe I told Mr. Hanger I believed the stock was good stock; that it would- increase in value. I did believe it ... to the amount of a good many thousand shares that I bought myself.” The defendant’s testimony was intended as a contradiction, of plaintiff’s evidence upon the question of a promise to plaintiff that plaintiff would receive 65 cents per share for the stock. Defendant denied that anything was said about a guaranty or warranty, but, in effect, his evidence upon all other facts testified to by plaintiff closely agrees with that of the plaintiff. As to what defendant intended to mean hy a guaranty or a warranty in relation to a contract is a matter •of conjecture. Whether defendant intended to say that he did not, as an inducement to plaintiff to accept the stock, represent that the stock was worth 50 cents per share, and would he worth 65 cents a share after the election, does not appear. The statement that defendant did not guarantee nor warrant the stock is a statement of a conclusion of the witness’ understanding of the legal effect of what was said and done hy the parties at the time of closing the agreement. Defendant admits having said that the stock was then worth 50 cents per share, and that he believed it would increase in value. From such admission, in the light of plaintiff’s positive evidence upon that subject and the further fact that the parties intended that the property exchanged should be equal in value, the inference may be readily drawn that defendant, in fact, promised plaintiff that, if plaintiff would accept the stock with the bond as of equal value with the land in the event the stock should not prove of the value fixed, defendant would make good to plaintiff such deficiency. Such is the effect of the contract set forth-in the complaint. The evidence is therefore in support of the pleadings. The liability assumed by the defendant under the contract was to pay to the plaintiff such damages as plaintiff should suffer by reason of the failure of the stock to become of a value equal to $3,500, the value fixed by the parties as a basis of the exchange of property. It is conceded that plaintiff disposed of the stock under circumstances existing at the time to the best advantage, at a price of 15 cents per share. The evidence is that during the time plaintiff held the stock the stock sold for all kinds of prices, ranging from 15 cents a share to 60 cents a share, but that all the sales made were made by special contract, and no market for the stock existed. Under this evidence it was for the jury to determine the amount of damage suffered by the plaintiff. The jury evidently determined that defendant delivered to plaintiff 6,769 shares of stock under the contract as testified by the defendant, and that while plaintiff held the stock he suffered a loss of 20 cents a share—a total loss or damage of $1,353.80. The evidence is sufficient to sustain the verdict. The court committed no error in refusing a new trial. Upon the face of the judgment it appears that plaintiff is adjudged to have and recover of and from the defendant the sum of $1,353.80, “with legal .interest thereon from the 20th day of March, 1911.” The verdict of the jury must necessarily be regarded as determining the actual damages up to the time of its rendition, and this would include all the interest recoverable as a part of the damages. The judgment is modified so as to bear interest at the legal rate from its date, and, as modified, stands affirmed. ROSS, C. J., and FRANKLIN, J., concur. Application for rehearing denied.

CUNNINGHAM, J. The respondents’ return to the warrant issued in this case was deemed and treated by the parties and the court as denied, and the issues tried as-upon a return to the writ of habeas corpus. No question was raised upon the sufficiency of the denial to raise issues for trial. The petitioner, this appellant, does not controvert the alleged facts that the child Susie Bailey was a neglected child at the time of the filing of the original petition, June 20, 1911, nor at any subsequent date of the proceedings. The contested question is the effect to be given the order made February 19, 1913, and whether the order of the superior court made on that date is a valid order of adoption. The appellant contends that such order is invalid because the court making the order aequired no jurisdiction over the necessary parties to that proceeding, while respondents contend that the order was made with full jurisdiction, and is valid; also that they have the legal, exclusive right to the care, custody and control of the child, by reason of this and other orders of the juvenile court awarding the child to respondents. This contention is denied by petitioner. Upon the trial the “court or judge shall . . . proceed in a summary way, to hear such allegations and proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require.” Section 1356, Ariz. Pen. Code 1913. The appellant offered no proof against such detention, but relied upon the insufficiency of the proofs offered by the respondents in favor of such detention. The proofs so offered consist'of the entry made by the eourt commissioner under date of June 20, 1911, and June 27, 1911; the entries made by the clerk of the district court bearing date of June 27, 1911, November 30, 1912, December 27, 1912 and January 26, 1913; the petition presented to the court commissioner by Vernon L. Clark on June 20, 1911, and filed by the commissioner in the district eourt on June 27, 1911, and the order of adoption made on February 19, 1913. Clearly, the entry made by the eourt commissioner op. June 20, 1911, only expresses that officer’s understanding of the contents of the petition, and is incompetent for any purpose upon the production of the petition. The petition was produced and speaks for itself as to its contents. The entries made by the court commissioner and by the clerk of the district court, prove no fact, except they tend to prove that papers were filed and orders were made on the dates appear ing. They do not prove nor tend to prove the contents of either the papers filed nor the orders made. The contents of such papers and orders must he proven either by the documents themselves, if in existence, if not by. other secondary evidence. No effort was made to show the loss of the orders so as to admit secondary proof of their contents. The only competent evidence offered by respondents in support of their return consists of the petition of Vernon L. Clark filed in the district court June 27, 1911, and the order of adoption entered by the superior court, February 19, 1913. The petition is drawn under chapter 78, Laws of 1907, and seeks to bring before the court the children therein referred to, to be dealt with as neglected or dependent children as defined in section 1 of said act. The petition prays that the children be adopted by fit and proper persons. The question is whether the court upon such petition has power to decree the adoption of a neglected child without giving the parents or person standing in the place of the parents such as a guardian, a chance to be heard and consent to the order. To say that a child is a neglected child necessarily concedes that such child has been neglected by someone whose duty it is to care for the child, either as parent, custodian or guardian. Chapter 78, Laws of 1907, and amendments, confers upon the district court and its successor, the superior courts, exclusive original jurisdiction “in all proceedings which may be brought before them affecting the treatment and control of dependent, neglected, incorrigible and delinquent children under the age of sixteen years. ...” It was this jurisdiction that was invoked by the filing of .the petition in this cause. By section 5, chapter 78, Laws of 1907, the court is authorized after a hearing to “make such order for the commitment and custody .and care of the child as the child’s own good and best interests of the territory (state) may require; and may commit such child to the care of its parents, subject to the supervision of the probation officer, or to some suitable institution, or to the care of some association willing to receive it, or the care of some reputable citizen of good moral character, or to the care of some training school, or to the Territorial Industrial School. ...” By authority of section 6, chapter 78, supra, if the child is awarded to the care of any association or individual in accordance with that law, “unless other wise ordered, ’ ’ the child shall “become the ward and be subject to the guardianship of the association or individual to whose «are it is committed. ’ ’ Such association or individual may be made party to any proceedings for the legal adoption of the child, and may appear in any court where such proceedings are pending and assent to such adoption, and such assent shall be sufficient to authorize the court to enter the proper order or decree of adoption. The jurisdiction of the judge of the district court with regard to the neglected child over which it had acquired jurisdiction was extended by section 4 of chapter 57, Laws of 1909, so that in addition to the authority to make orders affecting the treatment and control of dependent, neglected, incorrigible and delinquent children, the further authority was conferred upon such court “to issue letters of adoption of any such child to any person of whose fitness to adopt the child the court shall be satisfied and when the court shall deem it to be for the best interest of the child so to be adopted. ’ ’ The authority to award .the care, custody and control of a neglected child is placed exclusively in the judge of the district court while acting as the judge of the juvenile court. The court’s jurisdiction is invoked by the filing of a petition by a citizen resident of the county alleging that the child is a neglected child. The jurisdiction extends to making orders for the care, custody and control of the child, and in the exercise of this jurisdiction the court may appoint some association or individual as the child’s guardian, subject to a change when the good of the child may require. The jurisdiction conferred upon the court by section 4 of chapter 57, Laws of 1909, to issue letters of adoption does not' intimate the procedure by which this jurisdiction shall be invoked. When the court has determined that the child is within the class defined as a neglected child, and thereby acquired jurisdiction over the person of the child and awarded the eustodj'’ of the child to some of the agencies mentioned in the statute, it is quite clear that the same procedure that invoked the jurisdiction for such purpose would not invoke .the jurisdiction to enter an order of adoption, because the party who is given the care, custody and control of the child ■under the first procedure is made the guardian of the child, and may be made a party to the proceedings for the legal adoption, and may enter the assent to the adoption necessary to authorize the court to make the proper order of adoption by the express words of section 6 of chapter 78, Laws of 1907, of which statute section 4 of chapter 57, Laws of 1909, is amendatory. The effect of the amendment becomes clear when the last clause of paragraph 3565, Revised Statutes of Arizona of 1913, is examined, which takes its place in the compiled laws. That clause in the compilation is a legislative construction of the statutes upon the subject as well as an enactment, and is as follows: “Authority is hereby conferred upon said court to issue letters of adoption of any such child in accordance with the laws of Arizona relating to adoption.” Section 6 of chapter 78, Law's of 1907, as amended by section 4, chapter 57, Laws of 1909, can stand no other interpretation than conferring upon the judge of the juvenile court authority to issue letters of adoption of any neglected child brought before him under chapter 78, Laws of 1907, in accordance with the laws relating to adoption. At the time the order of adoption was made the laws relating to adoption required that: “The person adopting a child and the child adopted and the other person, if within or residents of this territory, whose consent is necessary, must appear before the probate judge [in this ease the judge of the juvenile court] of the county where the person adopting resides; and the necessary consent must thereupon be signed and an agreement be executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the persons whose consent is necessary are not within or are not residents of this territory, then their written consent, duly proved or acknowledged, as deeds or conveyances are acknowledged, shall be filed in said probate court at the time of the application for adoption.” Paragraph 2041, Ariz. Rev. Stats. 1901. The persons whose consent to the ádoption of a child is necessary are: The parents of the child, except when either or both have been deprived or his or her civil rights, or adjudged guilty of adultery or cruelty and for either cause divorced, or adjudged to be habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect; or when the child has been kept and maintained by or within any regular established orphans’ asylum or other like establishment for more than two years; or at any time if the child has been relinquished to such institution by an instrument in writing (paragraph 2039, Ariz. Rev. Stats. 1901); or if the parents are unknown and the child has been domiciled within the state two years (chapter 21, Laws of 1907); or when the court has awarded a dependent child to the care of any association or individual in accordance with the provisions of chapter 78, Laws of 1907, and the child has thereby become the ward of such association or individual to whose care it has been committed (section 6, chapter 78, supra). If the matter falls within any of the exceptions, the consent of the person having the custody of the child must be had, whether the child has been judicially awarded or voluntarily assumed, whether such person be an association, society, individual or officer of the court; or the guardian of the child. The authority by which the court makes the order of adoption is the consent of the person adopting, of the person standing in the place of the parent having the custody of the child, and of the child if over 14 years of age. The consent of the parents or of the person standing in place of the parents must be in writing and filed, and all such persons must be present in court, or their written, acknowledged consent filed there. The proceeding must be a voluntary one in all respects, otherwise the court has no authority to make the order. The fact that such assent was given by any person authorized by law to give it was not alleged in the return, and does not appear in the evidence produced. The order of adoption recites as its basis that the child was a neglected child of the age of five years, that the parents are living and are not fit and proper persons to have the care, custody and control of the child, and that the respondents are fit and proper persons to have such care and training of the child, and thereupon orders that respondents adopt the child. Upon the face of the order it appears that the court has no authority to decree the adoption of the child, but its authority extended only to making an order awarding the care, custody and control of the child to respondents as that of guardian. Such effect only can be given, to the order introduced in evidence. Under such order, nothing further appearing, the respondents have the legal custody of the child as a ward and have shown a right to retain the child, not as an adopted child, but as a ward until further order of the court. The return and evidence in support thereof is sufficient to show that the respondents’ custody of the child as the custody by a guardian of his ward is legal and authorized by law, and therefore the judgment refusing to discharge the child must be affirmed. FEANKLIN, C. J., and EOSS, J., concur. NOTE.—On the validity of adoption without consent of natural parents, see note in 30 L. E. A. (N. S.) 146.

COOPER, J.—On the 29th of June, 1911, T. R. L. Daughtrey filed a complaint in the superior court of Yavapai county against Hermosa Lead and Zinc Company, a corporation, and others. His complaint, which is quite lengthy, sets forth, in substance, that at the special instance and request of defendants plaintiff undertook the sale of not more than 200,000 shares of the capital stock of the defendant Her mosa Lead and Zinc Company, upon a certain margin of profit; that he was induced to engage in the sale of the stock by numerous representations made by defendants regarding certain mining properties owned by them; that he did sell more than 100,000 shares of the said stock among his clients, and that subsequent to the sale of the stock he learned that all the representations made to him by defendants were false and untrue; that all of defendants knew at the time such representations were made that they were false and untrue; that they were made with intent to deceive plaintiff and the public generally, and did deceive plaintiff, and, through plaintiff, who repeated the false representations made to him by said defendants, also deceived plaintiff’s clients; that plaintiff relied upon said representations, believing them to be true, and, in consequence thereof, he was damaged in business and reputation, for which he seeks to recover. This, briefly, sets forth the claims of plaintiff. The defendants in the court below interposed demurrers to the complaint, both special and general, and the demurrers were sustained. Plaintiff refused to amend, but elected to stand upon his complaint, which was thereupon dismissed. By agreement of counsel for the respective parties, the sole question for this court to consider and determine is the sufficiency of the complaint as against general demurrer. As before remarked, the complaint is very voluminous and contains much that is immaterial and irrelevant—much that is in the nature of “trade talk,” promises to be fulfilled in the future, and mere expressions of opinion. Yet on demurrer the court should not pay. any attention to forms if it can find in the complaint any allegations which, under any view of them, may give the plaintiff the right to recover. In Amestoy v. Electric Rapid Transit Co., 95 Cal. 311, 30 Pac. 550, the court said: ‘ ‘ The demurrer is only on the general ground that the complaint does not state facts sufficient to constitute a cause of action. . . . Respondent states the rule to be that only those allegations of the complaint are admitted by the demurrer which are material, and which are well pleaded. As a general proposition, that is undoubtedly correct; but it must be taken in connection with the other well-established rules of pleading. A complaint which would be obnoxious to a general de murrer would not support a judgment. When the latter question arises, courts have always discriminated between insufficient facts and an insufficient statement of facts; and where the necessary facts are shown by the complaint to exist, ’ ’ etc. 1 Sutherland on Pleading, secs. 248-305. In argument counsel questioned the sufficiency of the allegations to constitute a charge of fraud. In Upton v. Weisling, 8 Ariz. 298, 304, 71 Pac. 917, 919, the court, commenting upon the sufficiency of the complaint as regards the allegations of fraud, used the following language: “It is sufficient if the main facts or incidents which constitute the fraud against which relief is desired shall be fairly stated, so as to put the defendant upon his guard and apprise him of what answer may be required of him.” This is the rule laid down in Story’s Equity Pleading, section 252, and is supported by numerous well-considered authorities. While the elements of plaintiff’s cause of action in the case here under consideration are very inartificially stated enough can be gathered from the allegations of the complaint to support a judgment if recovered. It follows in our opinion, therefore, that the demurrer should have been overruled. Judgment of the court below is reversed and the cause remanded for further proceedings. FRANKLIN, C. J., and CUNNING-HAM, J., concur. N. B.—ROSS, J., being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the Constitution, called in Hon. WM. F. COOPER, Judge of the superior court of the state of Arizona, in and for the county of Pima, to sit with them in the hearing of this ease.

CUNNINGHAM, J. The appellant was convicted of murder of the first degree, and the death penalty affixed. From the judgment of conviction, and from an order refusing a new trial, he appeals. He assigns the rejection of evidence offered hy appellant, the admission of evidence over the objection of appellant, the misconduct of the court in commenting upon the purpose for which evidence was offered and received, and the misconduct of the county attorney in his remarks to the jury in reference to the appellant, as errors justifying a reversal. The evidence offered and rejected, of which appellant complains, had reference to the plea of self-defense. The appellant admitted having fired the shots which caused the death of Albert Jones, but he claimed that the shots were fired in his necessary self-defense. Appellant testified that, as he entered a elubroom through a rear door, the deceased fired upon him from a revolver. Whereupon the accused returned the fire from a rifle he carried, firing three shots. From the evidence otherwise introduced the last of the three shots produced death. The prosecution contends that the deceased was unarmed when the shooting by the accused commenced. A woman, Clara Arlington, offered as a witness in behalf of accused, testified that the deceased had a gun in his possession before the shooting commenced, she was not permitted to state what he was doing with it, or his object in having it. This witness stated that four shots were fired. Another witness, Yergie Stewart, offered by defendant, was not permitted to state whether the deceased had a gun. This witness was not permitted to state what deceased was saying and doing in regard to Nelson a few minutes before the shooting commenced. This same witness was not permitted to state whether or not deceased made threats toward the accused. The accused then offered to prove as follows: “I desire to prove by the witness Nelson, the defendant, that prior to the time of the shooting, as testified by him, and when the deceased shot at him first, that the deceased, Jones, had on three different occasions, on the same evening, not exceeding three-quarters of an hour of the time Jones shot at Nelson, Jones threatened to kill Nelson; that twice the threats were made directly to the defendant, Nelson, and that when he made the last threat Jones had a gun; that when he made the threat next to the last threat was in Nelson’s hearing, to the woman, Clara Arlington, and that he heard, during the time that Clara Arlington was trying to get the gun away from him, or getting him to give 'it to her, that Jones sáid that he was going to kill him, Nelson, and that Nelson then immediately passed out of the building to the front, and that Jones followed him to the front of the building with the gun in his hand, threatening him; that Nelson passed on around the building and went away; that immediately after these threats Nelson procured a gun. . . . And I further offer Nelson for the purpose of proving, at the time he got the gun was immediately after these threats, and that he took the gun because he believed it was necessary to protect himself against Jones on account of the threat previously made. ’ ’. The ruling on this offer was: “The court refuses the offer of the evidence tendered by the defense, except in so far as has been admitted.” The further offer was made to prove by Clara Arlington: “That she was present; . . . that about a quarter of an hour before the shooting she saw Jones in the room next to the room where Nelson was, and that he had a pistol and threatened to kill Nelson with the gun; that she tried to persuade him not to, but to give her the gun, but he refused; that he was at that time very angry, and expressed his determination to kill Nelson two or three times, and went out of the room in the direction that Nelson had gone, still making the threats; and that Nelson at the. time was in an adjoining room. ’ ’ This offer was rejected. The appellant offered to prove by Virgie Stewart: “That she was present at the same time with Clara Arlington, and heard the same threats, and at the time saw Nelson pass the door of the room where they were, within four or five feet of where she was, and where Nelson was, and go out of the building.” This offer was rejected.- “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prose-' cution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Paragraph 1046, Ariz. Pen. Code 1913. The commission of the homicide by the defendant was not merely proven by other witnesses in this ease, but was admitted by the defendant. Under such a state of facts, the law above quoted permits the defendant the privilege of offering evidence of the circumstances surrounding the transaction tending to show that the homicide was less than murder of the highest degree, or that the homicide was justifiable or excusable. The accused contends that the homicide was justifiable, because it was committed by the accused in the necessary defense of his person, in resisting an attempt of the deceased to murder the accused, or to do accused a great bodily injury by shooting him. The evidence offered and rejected tended to show the state of mind of the deceased toward the accused immediately before and leading up to the commencement of the shooting that terminated in the homicide. The vital question was: Which of the principals was the aggressor—which fired the first shot? The accused claimed and testified that the deceased fired the first shot. The prosecution contends that the deceased was unarmed and that he fired no shot. The evidence offered and rejected tended to throw light upon the controversy. To reject such evidence, tending to place before the jury all the circumstances surrounding the transaction, was equivalent to denying to the accused, after he had admitted the commission of the homicide, the right of proving circumstances of mitigation, or that justified or excused his act, deprived him of making any defense, and was reversible error. The respondent contends that the facts in evidence bring this case within the rule announced in the ease of Campbell v. Territory, 14 Ariz. 109, 113, 125 Pac. 719, viz.: “Where the law of self-defense is not in the case, evidence of the hostile feelings or acts of the deceased, or of previous quarrels, is irrelevant and inadmissible on the part of the defendant.” We adhere to that rule, but it is not applicable to a case where there is any evidence of violence offered by the deceased toward the accused at the beginning of the affray which ended in the homicide, for then there is some evidence upon which to found the plea of self-defense, and the rule announced is not applicable. In this case the accused testified that deceased fired upon him before accused made any demonstration toward deceased. It was for the jury to determine, from all the facts and circumstances tending to throw light upon the question, the truth in that respect. The mental state exhibited by deceased, shortly prior to the affray, whether deceased was armed with a weapon from which he might have fired a shot at the accused, anything he might have said concerning the accused, or expression of his intention in the future carrying out of threats made, if he made threats, and such like matters, would tend to throw light upon what subsequently took place and which of the two combatants was the aggressor, and from which and other facts and circumstances in evidence the jury could more accurately arrive at the guilt or innocence of the defendant. The mental state of the deceased, as exhibited by threats made by him, his ability to carry out such threats, and his placing himself in a position to carry out such threats, are circumstances properly to be considered by the jury in determining who was the aggressor,. and the probability or improbability of the claim of accused. The accused offered to prove that he heard the threats made by deceased. The evidence offered and rejected, if believed by the jury, would justify an inference that the accused, in the light of such threats and other circumstances appearing to him, entertained a belief that the threats made would be carried out, and in order to protect himself from great bodily injury or the loss of his life at the hands of accused, and acting solely upon that belief, he committed the homicide. The circumstances under which he acted would tend to explain his intentions in respect thereto. To reject such evidence so tending to explain the acts of defendant is equivalent to denying to defendant a right to a defense given him by law in a case where the commission of the homicide by the defendant is proven, or, as here, admitted. The view we take of the case, makes a consideration of the other assignments unnecessary. Upon a new trial, we presume that the same, if erroneous, will not again occur. The judgment is reversed and cause remanded for a new trial. FRANKLIN, O. J., and ROSS, J., concur.

ROSS, J. The petitioner was tried and convicted in the justice’s court of Glendale precinct, Maricopa county, March 14, 1914, on four separate and distinct complaints charging him with four separate and distinct misdemeanors in selling intoxicating liquors in a local option district, to wit, Glendale. In each ease he was adjudged to pay a fine of $250, and, in default of the payment of said sum of money, to be imprisoned in the county jail of Maricopa county for sixty days. The application for writ of habeas corpus was first made to the superior court of Maricopa county, and by that court, on final hearing, dismissed as without merit. It is here on appeal. The petition for writ assigns several reasons why petitioner’s imprisonment is illegal, but he argues only three reasons in his brief: First, that the judgment of conviction is void, in that it fails to specify the number of dollars per day that defendant should be credited with for each day of his confinement; second, that the fine imposed was in the nature of a debt due from petitioner to the state, and that imprisonment therefor is in violation of section 18, article 2, Constitution, which prohibits imprisonment for debt except in eases of fraud; third, that the sentence is cruel and unusual. It is well-settled law that the writ of habeas corpus may not be substituted for writs of error and appeals. It is not one of its functions to correct mere errors or irregularities in procedure. If a court having jurisdiction of the. person and the offense charged commits errors in the procedure or the administration of the law, or if irregularities occur in the course of the trial, such errors and irregularities, if they affect the substantial rights of the prisoner to his prejudice, on ap^ peal, under the. laws of Arizona, may and should be corrected. In this proceeding, however, upon a determination that the trial court possessed jurisdiction of the person and the offense and power to inflict the particular judgment or sentence given, under the well-settled law, no relief can be afforded. We cannot correct errors or irregularities on a petition for a writ of habeas corpus. If any such occurred in the trials, an appeal was open to petitioner, and the remedy therein ample to protect his rights. Bailey on Habeas Corpus, sec. 30; Sennott’s Case, 146 Mass. 489, 4 Am. St. Rep. 344, 16 N. E. 448; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; State v. Klock, 48 La. Ann. 67, 18 South. 957, 55 Am. St. Rep. 259, and note at pages 264-275; Savin, Petitioner, 131 U. S. 267, 33 L. Ed. 150, 9 Sup. Ct. Rep. 699; 21 Cyc. 285. Section 3829, Civil Code of 1913, makes it a misdemeanor to sell, exchange or give away, with the purpose of evading the law, any intoxicating liquor whatsoever in a local option district, hut affixes no punishment. Section 19, Penal Code of 1913, provides that, in cases where no punishment is prescribed, every misdemeanor is punishable by imprisonment in the county jail not exceeding six months or by a fine not exceeding $300, or by both. The punishment of which petitioner complains was in each of the four cases considerably less than the law permitted. Section 1329, chapter 22, Penal Code of 1913, entitled “Proceedings in Justices’, Police and Recorders’ Courts,” provides that: “A judgment that a defendant pay a fine may also direct that he be imprisoned until the fine is satisfied in the proportion of one day’s imprisonment for every dollar of the fine.” It is the contention of petitioner, under this section, that the judgment should have recited a credit in dollars for each day’s confinement. It has been,decided by the California courts, from which this section is taken, that the trial court can, in its discretion, allow a larger credit per day than $1. He may allow as many dollars per day as he thinks right as a credit upon the fine. We quote from the syllabus in Ex parte Soto, 26 Pac. 530 (88 Cal. 624) : “Directing imprisonment until the fine be satisfied, at the rate of one day for $2 of the fine, does not render the judgment void, and therefore authorize the discharge of the prisoner on habeas corpus.” In the present case the fine imposed was $250, and, in de: fault of its payment, imprisonment for sixty days. The only difference in this sentence and the sentence in the Soto ease is that in the latter the provision was made that the prisoner should receive credit at the rate of $2 for every day he was confined, and in the former the credit allowed for each day’s imprisonment was left to calculation. It is quite definite, however, that the petitioner is entitled to $4.16% credit for each day of his imprisonment. Section 1308, Penal Code of 1913, provides that justice’s courts have jurisdiction of “all misdemeanors punishable by fines not exceeding three hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment.” By this section the jurisdiction of the justice of the peace to hear and determine the offenses charged against the petitioner is made plain. It is also clear that the punishment inflicted was within the terms of the law. The judgment may be subject to criticism in not more explicitly providing per diem, credit for each day’s imprisonment of the petitioner and for his discharge from custody upon full payment of fine with cash, or imprisonment credit, or both, but the judgment is not void entitling the petitioner to his discharge in this proceeding. The prohibition in the Constitution against imprisonment for debt only applies to debts arising from contract, either express or implied. It has no application to fines imposed in criminal proceedings for violations of the criminal laws of the state. 8 Cyc. 879, 881. The last point made by petitioner that his punishment is cruel and unusual does not appear to be entitled to consideration for two very good reasons: First, it is without merit; and, second, it cannot be raised in this proceeding. Judgment is affirmed. FRANKLIN, C. J., and CUNNINGHAM, J., concur.

PER CURIAM. This is an action brought to restrain the Secretary of State from certifying and causing to be printed ■on the official ballot at the election to be held on November 3, 1914, an initiated measure to create and organize Miami ■county. The complaint alleges: ‘ ‘ That the said proposed initiative bill is legally insufficient in this: That it purports and is intended to provide for the division of Gila county and to create the county of Miami, and that the said bill has no application in any other part ■of the state, and cannot operate at any other time than as provided in the said proposed bill and that the same can have no application to any other part of the state and cannot operate at any other time, and that it is local and special legislation, and is intended to divide a particular county and to create a particular county, without reference to any other counties, or to any other time, and that each of the matters and things intended, provided, and proposed to be enacted can be done by general law, and that the said proposed initiative bill is in conflict with subdivision 20 of section 19, of article 4 ■of the Constitution of the state of Arizona, in that it is a •special, local law in a case where a general law can be made applicable, and for these reasons the said proposed initiative bill is legally insufficient within the scope and meaning of paragraph 3327 of the Revised Statutes of Arizona.” A general demurrer to the complaint was sustained, and, the plaintiff refusing to amend, judgment was rendered in favor of defendant. The appeal is from this judgment. Paragraph 3327, Civil Code of 1913, provides that: “ ... On a showing that any petition is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and number of the measure or proposed amendment to the Constitution set forth in such petition. ...” It is conceded that the petition in this instance is regular in form, and is signed by the requisite number of legal voters, the only objection to the measure going on the official ballot being that it is special legislation, and therefore, when tested by subdivision 20 of section 19, article 4, of the Constitution, is “legally insufficient.” It is claimed that the Secretary of State should look beyond the mere form of the petition and into its substance with a view of determining if the proposed law is in conflict with the Constitution; that he should determine if the measure should be enacted whether it would be a valid law or not, and if in his judgment an invalid law, it is his duty to refuse to certify it for a place on the official ballot. The Constitution makes the petition an indispensably necessary thing and step in the process of legislation directly by the people. It is as much so as the drawing and introducing of a bill in the legislature by one of its members. Whether-the voters in taking this step are acting ministerially or in their legislative capacity is immaterial. In either event the step is essential, made so by the Constitution and by legislation. Chapter 1, tit. 22, Civ. Code 1913. The government of the state is divided into three separate departments, the legislative, the executive, and judicial, and it is provided by the Constitution (article 3) that: “Such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.” In Allen v. State, 14 Ariz. 458, 44 L. R. A. (N. S.) 468, 130 Pac. 1114, we said: “The people did not commit to the legislature the whole law-making power of the state, but they especially reserved in themselves the power to initiate and defeat legislation by their votes. In this state the legislature and the people constitute the law-making power.” The appellant concedes that the courts are powerless to restrain a member of the legislature from introducing any measure, valid or invalid, for the reason that the courts cannot interfere with the action of the legislative department. What legal warrant has a court to enjoin the Secretary of State from certifying a measure whether valid or invalid? Is not the initiative petition also a step in the process of legislation ? For the Secretary of State, or the courts, to assume in advance the power and right to decide whether the proposed measure was invalid would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other law-making body, the legislature, would go nntrammeled as to the legal soundness of its measures. Such differentiation of powers is expressly prohibited by section 14, article 22, Constitution, which says: “Any law which may be enacted by the legislature under this Constitution may be enacted by the people under the initiative. Any law which may not be enacted by the legislature under this Constitution shall not be enacted by the people.” This certainly means that the power of the people to legislate is as great as the power of the legislature to legislate, and for the courts to assume a supervision of one of the lawmaking bodies, and require that measures proposed by it must first receive judicial sanction before action by that body, while the other may proceed without let or hindrance, is not in accordance with the letter or spirit of the Constitution. We conclude, following Oklahoma and Oregon, whose Constitutions on the initiative are like ours, that the words “legally sufficient” as used in paragraph 3327, Civil Code of 1913, mean that the petition shall conform with the requirements of the law as to form and signature. It is not a legal petition if not regular in form, and does not contain the signatures of legal voters as required. Of course, this requires that the petition shall be genuine. If it is fraudulent or if the- signatures are forged, it is not legally sufficient. As the court said in State v. Olcott, 62 Or. 277, at page 279, 125 Pac. 303, at page 304: “We are of the opinion that by the term ‘legally sufficient’ the legislature meant to describe a valid petition, signed by legal voters, and complying substantially, not necessarily technically, with the requirements of the law.” The petition here attacked is not irregular, but in form conforms with the requirements of the law. In Threadgill v. Cross, 26 Okl. 403, 138 Am. St. Rep. 964, 109 Pac. 558, the court said that the secretary, in an action like this one, “may not defend against this proceeding by questioning the validity of the proposed amendment.” The last court further said: “In the procedure for amending the Constitution of this state (the same is true as to initiated laws), which can only be effected by an election thereon, it becomes necessary for the people of the state to call into their service certain of their executive officers, and require them to perform certain ministerial duties. If the placing of, such duties upon such ministerial officers gives in turn to them the right and power to question the validity of any or all the amendments proposed, and to refuse to act when they decide that any such proposed measure will be invalid, then the most subordinate ministerial officer of the state having any duties to perform in connection with such an election may himself do indirectly that which he could not have, nor any other citizen of the state have the courts do by proceeding instituted for that purpose, to wit, pass upon the validity of the proposed measure and stay the election by a judicial decree, if it be determined that the proposed measure is invalid.” In State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L. R. A. 582, 68 N. W. 202, it was said: “Power to amend the Constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the Constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the Constitution; but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whéther any statute has been legally enacted, or whether any change in the Constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. ’ ’ Whether or not the proposed law if enacted by the people will be a valid exercise of the legislative power reserved by them in their fundamental law is not in this case, and, of course, cannot now be determined by this court. What we do hold is that the appellant is precluded in this proceeding from questioning the constitutionality of such proposed law. If the people do enact such proposed law when submitted to them at the polls, as well said in Threadgill v. Cross, supra: “That question can and will be determined only when it is presented to this court in the course of litigation by some litigant whose rights are involved.” In deciding this case, we are not concerned with questions of policy, or as to whether it is right and proper that the whole people of the state should be permitted to vote on the question of the division of Gila county and the creation of Miami county. The question of policy in thus allowing the whole people of the state to vote on what is concededly a local matter is one that belongs to another department. It is for us to declare the law as we find it. Judgment affirmed.

CUNNINGHAM, J. The record here on appeal consists of an agreed statement of the case, and such of the proceedings'therein as in the opinion of the parties is sufficient to enable this court to determine whether there has been any error in the judgment. The judge before whom the cause was tried has approved the same, and such statement has been duly filed all in substantial conformity with the provisions of paragraph 1257, Civil Code of Arizona of 1913. The action was authorized to be commenced by the superior court of Yuma county by an order made on the application of John M. Hess, granting him leave to commence an action in quo warranto against the appellee, C. Louise Boehringer, to determine the right and title to the office of school superintendent of Yuma county. The record does not contain other of the complaint than its title, viz., “John M. Hess, Plaintiff, v. C. Louise Boehringer, Defendant,” and its number 2042.-It is stipulated that the complaint alleged, in effect: “That on June 10, 1913, the plaintiff was the duly elected, qualified, and acting school superintendent of Yuma county, Arizona, and on said day the defendant unlawfully intruded into said office and ousted plaintiff therefrom.” Citation was issued, but was not served on defendant. On July 7, 1913, one of the attorneys for Hess moved the court for permission to amend the title of the action in respect to the party plaintiff, and for an order to change upon the records of the court such title, so being prosecuted in the name of the state upon the relation of said Hess, and that leave be given to file an amended complaint in conformity to such change, and that an alias summons be issued. The court granted the motion, and ordered that the title of the cause be changed upon the register of actions and the records of the court to “The State of Arizona, upon the Relation of John M. Hess, Plaintiff, v. C. Louise Boehringer, Defendant,” and leave was granted to file an amended complaint, and the clerk was ordered to issue an alias summons upon such amended complaint. The amended complaint was filed in the original case, No. 2042, containing the amended title of parties, and substituting the word “relator” for “plaintiff” where it occurred in the complaint originally filed. No other amendments appear to have been made to the original complaint so far as the stipulation shows. The alias summons was issued and served upon the defendant. The defendant answered September 22, 1913. The answer consisted of a demurrer upon the grounds of insufficient facts alleged; and upon the ground that relator had another plain, speedy and adequate remedy at law, and other grounds. An answer upon the merits set up title in defendant to the office in controversy by virtue of defendant’s having received a plurality of votes at a certain recall election held in said county on May 31, 1913, for said office, whereby the relator was recalled from said office; and defendant pleaded an estoppel on the grounds' that relator had demanded and accepted $200 from the county allowed him under the provisions of chapter 12, Laws of 1912, first special session. On September 26, 1913, the defendant filed a verified additional plea as follows: “Comes now the defendant above named, and files this her answer supplemental to the answer already filed by her in this action, and as a further defense thereto alleges that the plaintiff in this action, at the time of the bringing of this action, had no authority or power to bring this action; that this action was not brought by the county attorney of Yuma county, nor by any officer or person having authority or lawful power to bring this action on behalf of the state of Arizona. ’ ’ The prayer is that the action be dismissed and all pleadings stricken from the files. On October 20, 1913, the court granted the motion, and ordered the action dismissed as prayed. The appellant thereupon moved the court for leave to amend the complaint as to the original allegations, making John M. Hess plaintiff therein, and prayed for leave to prosecute the action in the name of John M. Hess as plaintiff. This motion was denied. The court rendered judgment dismissing the action without prejudice, upon the grounds that the action cannot be maintained in the name of the state of Arizona at the relation of a private party, but the action must have official approval before the name of the state can be used as a party. This appeal is prosecuted from the order dismissing the action, and from the order refusing leave to amend. A bond on appeal was furnished by plaintiff relator. He assigns as error the order of dismissal and the order refusing leave to amend. The second assignment, the order refusing plaintiff leave to amend and prosecute the cause in the private capacity, presents no question affecting this action. The cause was dismissed at the time the motion was made. If the order of the court dismissing the action was permitted to remain effective, and was effective at the time the appellant’s motion to amend was made, nothing existed to amend. No action was pending the pleading in which could be amended. The motion was made after the order of dismissal was made. If such motion could be effective for any purpose, it could be effective only as an application for leave to bring an action in quo warranto in the name of the claimant. To so consider the motion, this •court would be assuming to go far beyond the parties. The other assignment presents a question decisive of the controversy. The order dismissing the cause without prejudice was made on October 20, 1913, and thereafter this appeal was perfected. An order of dismissal without prejudice is not a final determination of the controversy on its merits, and is no bar to the prosecution of another suit timely commenced, founded upon the same cause of action. An appeal from such order may be prosecuted, however, under subdivision 5 of paragraph 1227, Civil Code of Arizona of 1913, when such order in effect determines the action and prevents final judgment from which an appeal might be taken. Such appears to be the effect of this, order of dismissal. “An action may be brought by the district attorney, in the name of the territory, upon his own information or upon the verified complaint of any person, in the district court sitting for the county for which he is district attorney, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within said county j and it is his duty to bring the action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised: Provided, that any person claiming such office or franchise may bring such action in his own name by first applying for and obtaining the leave of said court so to do.” Paragraph 3794, Ariz. Rev. Stats. 1901. This statute names the parties that are necessary to maintain the action to try the title to a public office. Since statehood the suit to try the title to a county office must be brought by the county attorney of the proper county in the name of the state upon his own information, or upon the verified complaint of any other person presented to the county attorney, informing him of the facts justifying the bringing of the action. In either ease the suit must be brought in the name of the state. When the county attorney brings the suit upon his own information, or upon the verified complaint of any other person, the only condition the law makes to his bringing the action is that he, as such officer, must legally believe that a public county office has been usurped, intruded into, or is being unlawfully held. When he so believes, the law makes the bringing of the suit in the name of the state the officer’s public duty. Under such circumstances, no leave of the court to bring the suit is required. Such suit is a publie action, and the public is the real party in interest. The publie prosecutes its suits in the name of the state to redress all public wrongs, civil as well as criminal. If, however, any person is claiming the right to such office, and is deprived thereof by such usurpation or intrusion, he may bring such action in his own name, by first applying for and obtaining the leave of the court to do so. Such right is granted a party by the statute. The evident purpose of the statute is to permit the person, who has suffered a special injury by reason of the usurpation of, or intrusion into the office, to recover the rights personal to him and not suffered by the public. If he has been deprived of an office rightfully belonging to him, the public generally has suffered a wrong thereby, and he who> is deprived of the office has suffered a wrong done especially to him individually and independently from the public wrong, and the law furnishes such person with this remedy for a. redress of his personal wrong suffered. This remedy may be employed by such person and prosecuted in his own name upon the performance by him of a condition precedent, viz., upon the condition that he first apply to the superior court of his county for, and obtain leave from such court to bring the action for his special relief. 'The action, when commenced by a claimant of a public office to recover the office from one who intrudes into or usurps such office, is a very different action from one commenced by the public to remove a person who has intruded into, or ■usurped, such office. The first is by the alleged rightful officer to recover possession of the office and the accompanying profits. The other is to remove one from, and prevent such person from performing public duties without public authority to do so. In the first, the person claiming the office must show his rights thereto which give him an especial interest in the remedy as well as the fact of usurpation or intrusion. In the other, the state must only show in its complaint the fact of usurpation or intrusion. No special injury need be alleged by the state. The evident purpose of the statute requiring the claimant to apply for leave to bring the action in his own name is that the court may first become satisfied that the claimant has suffered an injury special to himself, not suffered by the public as a whole. The statute is silent as to the manner in which the claimant shall apply to the court for such leave, whether by a verified petition alone, or accompanying it with affidavits setting forth facts, or by a simple petition unverified and unsupported by accompanying affidavits. It is clear that the application must present a prima facie state of facts to the court that would permit the applicant to recover for the special injury done him by reason of the usurpation or intrusion complained of, in order to grant the petition. It would seem that the law contemplates’ a verified application. The application of any person made to the county attorney to start that officer in action must be by verified complaint, and the usual policy of the law is to require all ex parte applications to be verified before any action be taken thereon. That question is not raised in this record, and we do not decide it. The record shows that the application for leave to bring the action was made by John M. Hess, and that such leave was granted, and he brought the action, alleging that he was the duly elected, qualified and acting officer on June 10, 1913, and on that day the defendant unlawfully intruded into the office in question and ousted him therefrom. These allegations certainly are sufficient to show prima facie that the plaintiff has sustained a special injury, and, if they satisfy the court, the applicant is entitled to the order granting him leave to bring the action in his own name and in that name maintain the same, as the real party in interest. If the record stopped at this point no difficulties would present themselves. Plaintiff did not desire to stand upon his original complaint, but before service upon the defendant he applied for, and obtained leave to amend his original complaint by adding to the title of the parties the words “The State of Arizona, upon the Relation of John M. Hess, ’ ’ and in the body of the complaint amended by stating “relator,” instead of “plaintiff,” when referring to John M. Hess. So far as the record discloses, no other amendments were made. When the amendments had been made, an alias summons was issued and served. The defendant appeared' and answered to the merits. Later an additional answer was filed, challenging the plaintiff’s authority to maintain the action as presented by the amended complaint, that is, that the state had no authority to prosecute the action at the relation of John M. Hess, the claimant of the office in question, and the court was without authority to grant such leave upon the application of such person. The court and the parties treated and considered the pleading as a motion to dismiss, and as such the court granted the motion. Orderly procedure would direct that a motion to quash the writ should be made before pleading to the information or complaint; and a complaint filed by a person having no right or authority to do so will be dismissed. 32 Cyc. 1459. The motion in question, although filed out of time, goes in effect, not to the complaint and its sufficiency, as supposed by counsel, but it directly attacks the original application for leave to bring the action, and challenges the sufficiency of the application made to authorize the court to make the order authorizing the bringing of the action. The sufficiency of the complaint is attacked by a demurrer. In this ease the original order granting leave to John M. Hess to bring the suit in his own name was in effect amended by the subsequent order permitting the amendments of the title as it affects the party plaintiff, and the two orders must be considered the authority for bringing the action. Then the application for leave to bring the action must be considered as an application to bring the action in the name of the state upon the relation of Hess for the purpose of determining the right and title of John M. Hess to the office in question, and so the orders of the court granting leave must be considered as an order to so bring the action for such purpose in the name of the state. Otherwise, the change in the title and the change in the original complaint would not amount to an amendment, but would amount to the commencement of a new suit. The citation or summons to the defendant would not then be an “alias,” but it would be an “original” summons or citation. The court and counsel treated the matter as an amendment, and so it should be treated by this court upon this, the stipulated, record. The motion to dismiss directly attacks the authority of the court to grant such leave upon such petition for such purpose. The order of the court' granting leave to bring the action in the name of the state at the relation of a claimant was clearly erroneous and voidable. The court has an inherent power over its orders made pending the litigation, and if the court is satisfied that an erroneous order has been made at an earlier stage of the proceeding, it becomes the duty of the court to correct such error even after judgment. The court is given no power under title 59, Revised Statutes of 1901, to grant to a private person the privilege of using the name of the state at his relation as a party to a lawsuit to redress a private wrong. The legislative authority has granted to the designated public officers the exclusive privilege and discretion to use the name of the state to redress a public wrong, to try the title to a public office. The designated officer may so use the name of the state for said purpose in two instances: First, “upon his own information or belief”; or, second, “upon the verified complaint of any person.” Paragraph 3794, Ariz. Rev. Stats. 1901. If the officer is without personal information upon the subject, and a verified complaint is filed with him, and he has reasons therefrom to believe that any office or franchise is being usurped or intruded into, it becomes the duty of the officer to bring the action for the state. No leave of the court is necessary under such circumstances. The court may, how ever, permit the claimant of the office to bring the action in his own name, by showing to the satisfaction of the court that such claimant has a cause of action in his own right; that the claimant has suffered a special injury. The leave to be granted by the court extends only to grant the applicant the privilege to bring the action in the name of the applicant, and does not extend to the privilege to bring the suit in the name of the state—the county attorney is given that privilege, it is made his duty to do so, and he may be compelled to perform that duty in a proper case. Duffield v. Ashurst, 12 Ariz. 360, 100 Pac. 820. That the result may be practically the same is no reason that the actions are not different in material respects. The claimant of the office usurped or intruded into may have his rights thereto adjudicated either in an action by the state upon the initiative of the county attorney if a county office is involved, or upon the initiative of the attorney general if a state office is involved, or he may proceed for that purpose in his own name, by leave of the court first obtained. In this cause the appellant has followed neither course pointed out by the statute, but he applied to the court for leave to bring the action in the name of the state upon his relation. That leave was granted in the first instance, but later the leave was refused, and correctly so. No other course was open to the court but to order the action dismissed, when it was made to appear that leave had been improvidently granted. This order did not have the effect to close to the appellant either of the other modes provided. The claimant is not excused from following some course not recognized by the statute because the county attorney represents the defendant in the case. He is nevertheless the county attorney, and if any person files with him a sufficient verified complaint and presents such reasons which induce him to legally believe that any office is being usurped or intruded into, he must bring the suit in the name of the state. Appellant is not forced to resort to that line of procedure, however, but may proceed otherwise to obtain leave to bring the suit in his own name, and the court must grant the leave upon a proper showing made. The court cannot arbitrarily refuse to grant the leave when proper application is made therefor. To permit a claimant to bring the action in the name of the state would be for the courts to establish a third method not recognized by the legislative power of the state, by which the title to a public office may be tried by the action of quo warranto at the suit of the state. Such a course is judicial legislation, and is not to be recognized as within the province of the judiciary. The order appealed from is affirmed.

HAYS, Chief Justice. The defendant, Richard Allen Rogers, pleaded guilty to the crime of possession of dangerous drugs for sale. He was sentenced to not less than four nor more than seven years in prison. The only issue raised in his brief is whether the sentence was excessive. The only things that appear in the record in his favor are the facts that he is only 20 years of age and that he is an indigent. He has had one year of college. There is a strange contradiction between the record and the briefs. At the preliminary hearing, the officer who executed the search warrant testified that he found two or three hundred “small white tablets with a cross on the face of the tablets,” encased in a number of plastic baggies. He also found, with the tablets, in the same dresser drawer, “a hypodermic syringe partially homemade, and a roach holder.” In the “Statement of Facts” in defendant’s brief in this court, he states that he pleaded guilty to “Unlawful Possession of Marijuana for Sale.” We have never heard of marijuana in tablet form. The record shows a stipulation that the chemist’s report be accepted without the chemist’s presence, but the report is not in the record. All of the instruments and minute orders refer to a plea of guilty to possession of “dangerous drugs” for sale. The judge, in sentencing defendant, pointed out to him that he had been previously convicted of aggravated assault, at which time the probation officer recommended no probation, but the judge gave the defendant probation anyway, and defendant was still on probation when he committed the crime in the instant case. The judge also pointed out that defendant was selling or attempting to sell the drugs to high school students. The judge also explained to the defendant that with good behavior he might “expect to get out of there on a three for one basis, so your time is not so long.” In addition, we note that at the time of sentencing he had already been in jail for five months, presumably because of inability to make bond, and this period was to count against tne sentence. Defendant’s lawyer, in his brief before us, argues that leniency ought to be given because defendant “had not used drugs for approximately three months prior to his sentencing.” This is not surprising, since he was in jail during that period. What is surprising is that the statement implies that he was on drugs for the first two months of his jail confinement. We have recited the facts at some length to explain why we think that defendant’s sentence was not excessive. Furthermore, we have repeatedly held that the trial judge has the best opportunity to study the defendant, and his discretion will not be disturbed, save in unusual circumstances, as long as it is within the statutory limits. Judgment affirmed. CAMERON, V. C. J., and STRUCK-' MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

HAYS, Chief Justice. Pursuant to a plea bargain, the defendant, James Montgomery, pleaded guilty to possession of heroin, and received a sentence of not less than five nor more than seven years, to run concurrently with the sentence which defendant was then serving in another case. His appeal raises only one issue — namely, whether the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, were met. Defendant argues that the states must comply with the “spirit” of Federal Criminal Rule 11 and that the trial judge’s interrogation of the defendant fell short of that spirit by not ascertaining that there was a factual basis for the plea of guilty. Defendant contends that the crime of possession of heroin involves three elements: (1) proof of possession of some substance, (2) proof that the substance is heroin in a usable quantity, and (3) proof that defendant knew it was heroin. It is our opinion that the record shows sufficient factual basis for the plea. The trial judge conducted an extensive interrogation of the defendant, who was 28 years old, had a high school education, and did carpenter work. The record shows that he had discussed the case with his attorney; that he knew that the charge of sale of heroin had been dropped as a consideration for the guilty plea; that he fully understood the nature of the crime to which he was pleading; that he understood that by a guilty plea he was admitting that he committed the crime of possession of heroin. In addition, the judge asked defense counsel whether he had discussed the plea with his client and whether he was satisfied that the latter fully understood the consequences of the plea. The answer was in the affirmative. Sentencing was set for five days later, at which time the judge asked defendant whether he wished to change his plea, and got a negative answer. The judge then announced that on the basis of the answers to his questions and the report of the probation officer, he was satisfied that there was a factual basis for the guilty plea. This is one of the longest and most complete interrogations that has come before us. In addition, defense counsel stated to the court that “[ajpparently a lot, if not all, of the defendant’s problems are related to his addiction to heroin.” We are satisfied that the trial court made a record sufficient to comply with the “spirit of Rule 11.” Defendant nevertheless argues that although he repeatedly told the trial judge that he understood the charge, his “conclusory responses in no way indicate that he understood the tripartite elements of the crime.” In State v. Kuhlman, 15 Ariz.App. 359, 488 P.2d 996, the Court of Appeals held that it was not necessary for the trial judge to recite the elements of the offense charged. In State v. Phillips, 108 Ariz. 332, 498 P.2d 199, we cited Kuhlman with approval, and in State v. Ferrell, 108 Ariz. 394, 499 P.2d 109, we cited both Kuhlman and Phillips with approval. We affirm the judgment of the Superior Court. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, TJ., concur.

CAMERON, Vice Chief Justice. This is an appeal from a judgment of guilty to the crime of offering to sell a narcotic drug, § 36-1002.02 A.R.S., and a sentence of not less than five nor more than seven years thereon. Although defendant raises several questions on appeal, we feel it necessary to consider only one and that is whether a defendant’s attorney with the defendant voluntarily absent from the trial may waive the jury and submit the matter to the court without a jury. The facts necessary for a determination of the matter on appeal are as follows. Information was filed on 4 August 1967 charging the defendant, Reginald Cochran, and codefendant, Bob Anthony Beall, with the crime of offering to sell a narcotic drug, a felony. Trial was set for 19 October 1967, reset for 11 December 1967, and finally reset for 18 January 1968. Both defendant Cochran and his codefendant Beall were represented by the same counsel. At the start of the trial the following transpired: “THE COURT: This is the case of the State of Arizona versus Bob Anthony Beall and Reginald Cochran, No. 52529. Are the parties ready ? “MRS. BAILEY: The State is ready, your Honor. “MR. CHOISSER: The defendants are ready. The record may show that the defendant Bob Anthony Beall is present in court and represented by counsel, and that Reginald Cochran is represented by counsel. He is. unable to be here this morning but the record may show he is voluntarily absent and we are ready for trial. “THE COURT: Very well. Does the County Attorney want to make any opening statement? “MRS. BAILEY: No, your Honor. I will simply call my first witness, Officer Watson. May the record also reflect, your Hon- or, that by stipulation of counsel, this is being tried to the court without a jury. “THE COURT: The record may so show.” At the trial the codefendant Beall testified and while exculpating himself, implicated the defendant Cochran. The court found the codefendant Beall not guilty and the defendant Cochran guilty. Defendant was apprehended in 1971 and was resentenced on 19 January 1971. At this resentencing defendant contended that he did not voluntarily absent himself from the trial from 18 January 1968 until January 1971 when he was apprehended. The trial court found that he did voluntarily absent himself and we agree. A defendant who voluntarily absents himself from trial may be tried in absentia. State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971), petition for cert. dismissed, Tacon v. Arizona, 351 U.S. 410, 93 S.Ct. 998, 35 L.Ed.2d 346 (1973) (a case in which the defendant voluntarily absented himself from trial and a jury trial was held in his absence). Our Constitution states: “* * * The right of jury trial as provided by this constitution shall remain inviolate, but trial by jury may be waived by the parties in any civil cause or by the parties with the consent of the court in any criminal cause. * * *” Arizona Constitution, Art. 6, § 17, A.R. S. And we have stated that a waiver of a jury trial is valid only if expressly and intelligently made by the defendant. State v. Little, 104 Ariz. 479, 455 P.2d 453 (1969). And: “The trial court has the duty to see that an accused person’s election to waive a jury trial is knowingly and understandingly made. Such a duty cannot be perfunctorily discharged. We are not persuaded, however, that defendant Jelks did not understand what was happening. By permitting his attorney, in his presence and without objection on his part, to waive his right to a jury trial, defendant must be held to have knowingly acquiesced in that decision. “In view of the importance of the right of a trial by jury as a fundamental right, it is doubtful that a written waiver signed only by the attorney or an oral waiver by counsel out of the defendant’s presence would be sufficient waiver without something of record to show authorization or ratification by the defendant.” State v. Jelks, 105 Ariz. 175, 178, 461 P.2d 473, 476 (1969). We do not believe that a waiver of a jury trial is a right that can be waived by counsel without the express permission or ratification by the defendant and therefore the waiver was ineffective. Judgment reversed and the matter remanded for new trial. HAYS, C. J., and STRUCICMEYER, LOCKWOOD and HOLOHAN, JJ., concur. . It is noted that the cited cases, Little and Jelks, were decided after the trial court had ruled in this matter.

HOLOHAN, Justice. The defendant, Thomas Bowling Tyree, was charged by an indictment in 5 counts for the sale of narcotics and dangerous drugs and possession of dangerous drugs for sale. As a result of a plea bargain two counts of the indictment which charged the sale of heroin and the unlawful possession of a dangerous drug were dismissed, and the defendant Tyree pled guilty to the remaining three counts of the indictment which charged the unlawful sale of cocaine, the unlawful sale of a dangerous drug (amphetamines) and the unlawful possession of dangerous drugs for sale (amphetamines). The trial court examined the defendant fully to determine the voluntariness of the plea, and thereafter he accepted the plea of guilty by the defendant to the remaining three counts of the indictment. Subsequently the trial court sentenced the defendant to confinement for a period of 5 to 7 years for the unlawful sale of cocaine and 1 to 3 years on each of the remaining counts. The terms of the sentence were ordered to run concurrently. The only question raised by the defendant on appeal is whether the sentence imposed was excessive. A conviction for the unlawful sale of a narcotic such as cocaine leaves the trial court with very little discretion. A. R.S. § 36-1002.02, subsec. A provides that such an offense “shall be punished by imprisonment in the state prison from five years to life . . . .” Instead of confinement, the trial court may suspend the imposition of sentence and place a defendant on probation. Counsel for the defendant urge that the defendant should have been granted probation rather than confined. Counsel for the defendant argued to the trial court that the only rehabilitation for the defendant which could occur would be under a program which is not available in the prison system. The defense noted that the defendant was 22 years of age and addicted to narcotics. A local facility had agreed to accept the defendant in their program and he was willing to submit himself to its program. The question of whether the sentence imposed by a trial court is excessive has been considered by us on many occasions. In State v. Fischer, 108 Ariz. 325, 498 P.2d 147 (1972), we had occasion to review the cases on the subject and to again hold that the matter of sentencing is within the discretion of the trial court and will not be disturbed unless there is a clear abuse of discretion. The very important factor which counsel' for the defense passes over in this case is the fact that the conviction is not for possession of the narcotic, but the conviction is 'for the unlawful sale of narcotics and also the unlawful sale of dangerous drugs. The defendant had involved himself in the traffic of drugs, and this supplies ample basis upon which the trial court could conclude that it was more important that the defendant should be prevented from further activity in the sale of drugs and narcotics rather than free on probation in a program of rehabilitation where his movements would not be controlled. Additionally, the defense conceded to the trial court that it was very possible that the program would not work, but the defense urged that it was a better alternative than confinement. With the options available to the trial court of either probation or the term of confinement provided by law, and considering the circumstances, the court acted with sound discretion. The sentence imposed by the trial court was imposed prior to our decision in State v. Hays, 109 Ariz. 123, 506 P.2d 254 (1973). The defendant was convicted of violating A.R.S. § 32-1970, subsection B and subsection C. As we pointed out in State v. Hays, supra, the penalty provided for a violation of the above sections is found in A.R.S. § 32-1996, subsec. C which is “imprisonment in the state prison for a term of one year to life.” If confinement is imposed by the trial court pursuant to A.R.S. § 32-1996, subsec. C the term that must be imposed is one year to life. The minimum and maximum are provided by the statute and there is no discretion in the trial court to make any sentence other than the one year minimum and the maximum of life imprisonment. Similarly, A.R.S. § 36-1002.02, subsec. A which prescribes the punishment for the unlawful sale of narcotics provides “imprisonment in the state prison from five years to life.” The statute leaves no discretion as to minimum or maximum, and the legal sentence is 5 years as a minimum and the maximum is life imprisonment. Trial judges have no discretion to impose any other kind of sentence when confinement is adjudged. The legislature has seen fit to limit the discretion of the trial court in this area, and if there is to be a change the decision is for the legis-^ lature — not the courts. . _ The issue of the legality of the sentence was not raised by the state although it could have done so by taking an appeal. A.R.S. § 13-1712, subsec. 6. Before the acceptance of the plea of guilty the defendant was advised by the court that the maximum punishment was life imprisonment, but the defendant is certainly not urging that the sentence be increased. Since the sentence imposed was not challenged by the state we deem the issue waived. We do not condone the sentence and continue to adhere to our interpretation of the limits required by the statute set forth in State v. Hays, supra. The judgment of conviction and sentence of the trial court is affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ„ concur.

LOCKWOOD, Justice: Petitioners, employees of the Department of Public Safety as law enforcement officers, brought suit against the acting director of the Department, James J. Hegarty and the State of Arizona. The Pima County Superior Court denied a motion by the State to dismiss the complaint for failure to state a claim for relief. The State, in a special action proceeding, obtained its objective in the Court of Appeals, which directed the lower court to enter an order dismissing the complaint. Arizona v. Boykin, 18 Ariz.App. 365, 502 P.2d 166 (1972). From this decision, the petitioners sought relief in the nature of a special action as well as a direct appeal. We granted the petition for special action in order to have all issues presented. We therefore consider both the special action and petition for review together. In their complaint in the Superior Court, the petitioners requested payment for overtime worked in the preceding year. They alleged that they were required to work in excess of eight hours per day without receiving compensation for the “overtime” work performed. It was also contended that employees of the Department of Public Safety cannot refuse to perform services at the end of eight hours since the inherent nature of the services requires work beyond an eight hour day and respondents require performance of duties which commence after the end of the eight hour day. Furthermore, it was stated in the complaint that if the petitioners failed or refused to perform these services or if they stopped at the end of eight hours, they would be subject to dismissal or other disciplinary action. The complaint included the allegation that the employees of the Department of Public Safety submitted verified claims for overtime to Hegarty and all were either rejected or refused. The petitioners contend that they are still required to work “overtime” and would like to be compensated therefor. The first issue presented is whether a petition for special action is the appropriate mode of appeal. The respondents contend that special action does not lie. We agree with respondents under the special circumstances of this case. It is true that the alternative methods of petition for review and petition for special action are available to the petitioners, 17 A.R.S. Rules of Procedure for Special Actions (1972); Gamet v. Glenn, 104 Ariz. 489, 455 P.2d 967 (1969). For special action to be appropriate, however, it must also comply with Rule 1. That rule provides in part: “(a) * * * Except as authorized by statute, the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal; * * *." In the instant case, petitioners have failed to show why a petition for review pursuant to 17 A.R.S. Rules of the Supreme Court 47(b) is not a “plain, speedy and adequate remedy” justifying extraordinary relief under a special action. The petitioners waited a year to bring this action and when their complaint was filed in Superior Court extraordinary relief was not then requested. The numerous affidavits showing apparent confusion on the state of the law do not warrant extraordinary relief. Moreover, petitioners still have not asked for relief which could not be obtained as a result of a vacation of the decision of the Court of Appeals. We, therefore, conclude that special action is not the appropriate means of appeal in this case, and it is therefore dismissed. The issue raised by the employees of the Department of Public Safety in their petition for review of the Court of Appeals’ decision is whether they are entitled to overtime compensation. We hold this is properly a class action. 16 A.R.S. Rules of Civil Procedure Rule 23(a). Both the petitioners and respondents rely on Article 18 § 1 of the Arizona Constitution which provides that: “Eight hours and no more, shall constitute a lawful day’s work in all employment by, or on behalf of, the State or any political subdivision of the State. The Legislature shall enact such laws as may be necessary to put this provision into effect, and shall prescribe proper penalties for any violations of said laws.” Petitioners contend that “eight hours and no more” means that eight hours is a lawful or normal day’s work; any time spent on work over eight hours is “overtime” and must be compensated accordingly. They do not contend, however, that this provision is self-executing. See City of Phoenix v. Yates, 69 Ariz. 68, 208 P.2d 1147 (1949). Neither do they contend that they come within the statutory implementation of Article 18, § 1 found in A.R.S. § 23-391, subsec. A (1956) which pertains only to manual and mechanical laborers: “A. Eight hours, and no more, shall constitute a lawful day’s work for any person doing manual or mechanical labor, employed by or on behalf . of the state or a political subdivision thereof, except in an extraordinary emergency, in time of war, or for the protection of property or human life, in which instance every person working in excess of eight hours in any day shall be paid time and one-half for all time in excess of eight hours.” Nevertheless, the petitioners do contend that Article 18, § 1 confers the “right” to an eight hour day and that the lack of implementing legislation only fails to provide a remedy. We do not agree. The language of Article 18, §. 1, supra, indicates that there is no right to an eight hour day. It provides: “The Legislature shall enact such laws as may be necessary to put this provision into effect, * * From this wording it is apparent that without legislative enactment the constitutional provision was not “put into effect” and hence cannot confer any right. The second clause of that sentence further supports this view. It says “ * * * and [the Legislature] shall prescribe proper penalties for any violation of said laws.” This specifically indicates that the remedy must also be provided by the Legislature. If a right had already been given to governmental employees by the Constitution, only this latter clause would have been needed to instruct the Legislature to supply a remedy. Howevex-, the first clause also directing the Legislature, cannot be overlooked. In order to give effect to the whole sentence, the first clause could only mean that the Legislature must act to provide the right as well as the remedy. So far, the Legislature has only complied with Article 18, § 1 regarding manual and mechanical laborers. See A.R.S. § 23-391, subsec. A supra. As a result, we hold that Article 18, § 1 does not confer a “right” to an eight hour day without implementing legislation. Nonetheless, the petitioners suggest that the foregoing constitutional provision is implemented by either A.R.S. § 28-235 or A.R.S. § 41-1741. However, A.R.S. §§ 28-235 and 41-1741, do not support the petitioners’ contention. In discussing the duties of the Law Enforcement Merit System Council, A.R.S. § 28-235, subsec. C provides in part: “5. The council shall prepare an annual recommendation to the legislature and joint legislative budget committee of a salary plan and adjustments thereto for employees subject to the jurisdiction of the law enforcement merit system council. Such recommendation shall be made on or before December 1 of each year. The recommendation when completed shall be transmitted to the legislature and joint legislative budget committee through the state personnel commission.” The petitioners allege that the Law Enforcement Merit System Council has adopted rules providing for payment of non-scheduled overtime compensation. Nevertheless, the rules fail to provide the requisite authority for payment of overtime compensation since the statute itself quite clearly relegates to the Legislature the final decision regarding the salary plan for employees subject to merit system council jurisdiction. There is no allegation in the complaint or the petition that the Legislature has ever adopted a salary plan authorizing payment to employees of the Department of Public Safety of any overtime compensation nor do we find any. As a result, the authority for overtime compensation does not come from either A.R. S. § 28-235 or the rules adopted thereunder by the Law Enforcement Merit System Council. The provisions of A.R.S. § 41-1741 enumerate the duties of the Director of the Department of Public Safety regarding the compensation of employees. It provides in part: § 41-1741 ****** “D. The compensation of employees of the division [Arizona Highway Patrol] shall be determined by the director, and shall, together with expenses of the division, be budgeted and paid from the state highway fund.” This statute, read with A.R.S. § 28-235, supra, places the Department of Public Safety employees within the jurisdiction of the Law Enforcement Merit System Council regarding salary recommendations. Therefore, the director’s budget and salary responsibilities under A.R.S. § 41-1741 are subject to the approval of both the Council and the Legislature, and A.R.S. § 41-1741 provides no authority to the director to pay any amounts as compensation which have not been approved by such bodies. Again there is no evidence that the Legislature has ever adopted a salary plan. As a result, we hold that no authority is conferred either directly or by implication from the provisions of A.R.S. § 41-1741 for the payment by the respondents of overtime compensation to the petitioners. In support of their position, petitioners claim that overtime compensation is within the contractual powers of the governing body. However, it must be remembered that their complaint sounded in quasi contract or quantum meruit — no actual contract was alleged. We have consistently denied quantum meruit recovery when no statute authorized the allowance of such a claim against the county. See Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 157 P.2d 698 (1945); Ward v. Frohmiller, 55 Ariz. 202, 100 P.2d 167 (1940); Maricopa County v. Norris, 49 Ariz. 323, 66 P.2d 258 (1937); Rouse v. Pima County, 10 Ariz. 218, 85 P. 1075 (1906). We therefore hold that recovery is also denied in the instant case, since no statute authorizes overtime compensation. Furthermore, the Legislature in A.R.S. § 38-601 (1956) has prohibited payment to state employees of any salary or emolument in excess of the salary provided by law. It states: “State or county officers, employees, members of boards and commissions, and deputies, stenographers, clerks and employees of any such officer, board or commission, or of any institution, shall receive the salary provided by law, and shall not, under any pretext, receive any salary or emolument in excess of the salary so provided.” Since petitioners’ salary has already been provided, payment of overtime would violate A.R.S. § 38-601. However, we interpret the term "emolument” as used in A.R.S. § 38-601 to mean only a pecuniary profit. See State ex rel. Pennick v. Hall, 26 Wash.2d 172, 173 P.2d 153 (1946) (overruled in part on another point in State ex rel. O’Connell v. Dubuque, 68 Wash.2d 553, 413 P.2d 972 (1966)); State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173 (1938). At one time emolument meant an advantage. See McLean v. United States, 226 U.S. 374, 33 S.Ct. 122, 57 L.Ed. 260 (1912); Scharrenbroich v. Lewis, 33 Mont. 250, 83 P. 482 (1905). But, that definition no longer applies. See State ex rel. Pennick v. Hall, supra; State ex rel. Todd v. Reeves, supra. We feel that vacation or compensatory time does not come within the definition of emolument and therefore does not violate § 38-601. Furthermore, compensatory time is in accord with the spirit of the Arizona Constitution. We read Article 18, § 1 as meaning that eight hours constitutes a normal day’s work, but does not prohibit an employee from working longer. Nevertheless, it seems clearly unfair to require the law enforcement officers to work longer without some compensatory measure. To do so unfairly enriches the state without benefit to the officers affected thereby. Compensatory time, like vacation time, is not a gratuity but is compensation granted for services rendered. Cf. Temple v. Pennsylvania Dept. of Highways, 445 Pa. 539, 285 A.2d 137 (1971); Ramey v. State, 296 Mich. 449, 296 N.W. 323 (1941). We hold that the law enforcement officers are entitled to compensatory time under A.R.S. § 41-1741, subsec. D. It is therefore ordered that the officer charged with the duty of fixing salaries for law enforcement officers is directed to ascertain the time in excess of the normal eight hour work day which each of the plaintiffs and all other employees of the Arizona Department of Public Safety have worked from May 24, 1971 and to grant them compensatory time off, at regular salary. It is further ordered that a practical schedule for the granting of similar compensatory time off in the future be prepared and put into effect. Because there is no statute authorizing pecuniary overtime compensation, however, we cannot < grant the relief expressly sought by the petitioners. As we said in City of Phoenix v. Yates, supra: “ * * % jf other employees than those doing manual or mechanical labor might, under the Constitution, be granted the benefits of the act, it is the duty of the Legislature to so provide, and, until it does so, the beneficiaries are limited to those mentioned in the statute.” 69 Ariz. at 73, 208 P.2d at 1150. As a result, this remains a matter for the Legislature and not for the courts. The Court of Appeals decision of Arizona v. Boykin, 18 Ariz.App. 365, 502 P.2d 166 (1972) is hereby vacated. The case is remanded to the trial court for proceedings consistent with this opinion. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur. . See also A.R.S. § 38-1001 et seq. on the Law Enforcement Officers Merit System.

HOLOHAN, Justice. The defendant, Joseph Nathan Evans, was found guilty, after a jury trial, of assault with intent to commit robbery, with a prior conviction. He was sentenced to ten years’ probation conditioned upon serving eight to ten years in the state prison. The facts necessary for determination of this appeal are that on September 11, 1970, one Paul Tovar was making a telephone call from a public booth at the corner of Van Burén and 20th Streets in Phoenix, Arizona. The defendant, Evans, approached and asked to borrow a match.’ Tovar gave him one, then continued his telephone conversation. During the telephone conversation Tovar took out his wallet to find a telephone number which he had on a paper in the wallet. The defendant Evans pushed into the booth, and a struggle ensued. Tovar testified that the defendant hit him and tried to take his wallet from his hand. In the course of the struggle the defendant demanded that To-var give him money. Two men pulled up to the scene in an automobile, and they came to Tovar’s assistance. Evans fled, but he was apprehended by the men and a police officer who had also arrived on the scene. The defendant urges that the trial court erred in two respects, namely: (1) failing to instruct the jury on all the elements of the offense and (2) imposition of a sentence not authorized by statute. The trial court in instructing the jury did not advise it that a necessary ele ment of robbery was the intent to deprive the owner permanently of his property. State v. Brown, 106 Ariz. 453, 478 P.2d 77 (1970). Counsel for the defendant did not request an instruction on the element of intent nor did counsel object to the instructions given by the court. Generally, the failure to give an instruction which has not been requested is not error. State v. Ganster, 102 Ariz. 490, 433 P.2d 620 (1967); State v. Randolph, 99 Ariz. 253, 408 P.2d 397 (1965). Counsel now urges that the failure to instruct the jury on the issue of specific intent was fundamental error. The trial judge has the duty to instruct the jury upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence. In matters vital to the case the trial judge is required to instruct the jury on his own motion even if not requested by the defense. If the trial court fails to instruct the jury on a matter vital to the rights of the defendant, such an omission creates fundamental error. In State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960) this Court defined fundamental error as “ . such error as goes to the foundation of the case, or which takes from a defendant a right essential to his defense.” The question then becomes, did the failure to instruct on the issue of specific intent deprive the defendant of a right essential to his defense? The charge against the defendant was assault with intent to rob. The evidence presented by the state clearly supported the charge. The defendant presented as his defense that the event was simply a fight between himself and the victim which had been pi'ovoked by the victim. The defendant denied any attempt to take or remove the victim’s wallet, and it was his position that he was merely trying to protect himself from the attack by the victim, Tovar. Under the facts-of this case, and considering the defense offered by the defendant, it was not fundamental error for the court to fail to give an instruction on specific intent. In State v. Gomez, 102 Ariz. 432, 432 P.2d 444 (1967), this Court held that the failure to give an instruction on the need for specific intent in the crime of robbery was not fundamental error when there was no issue as to the intent with which the defendant acted. In Gomez the defendant defended on the basis that he was present at the scene but not connected with the actual robbery. In State v. Gomez, supra, this Court pointed out that specific intent becomes an essential part of the defendant’s case in those instances in which the defendant takes or attempts to take property based upon the consent of the owner, a claim of right or some similar reason. In such instances the intent with which the defendant acts is an essential element of the case, and the trial court would be required to give an instruction on the meaning and need for specific intent to permanently deprive a person of his property to constitute the crime of robbery. When the evidence makes intent the battleground of the case, full and explicit instructions on the issue are required. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965). On the other hand, when no evidence is offered to raise a direct issue as to intent, and the defendant does not contend or develop any issue that a taking was under a bona fide claim of right or was without any intent to steal, the failure to instruct the jury on the need for specific intent to steal is not reversible error. State v. Spratt, supra; Thomas v. State, 54 Ga.App. 747, 189 S.E. 68 (1936). In the case at issue, the defense presented was that the defendant did hot attempt to take the victim’s property. There was no evidence offered by the defense on the issue of specific intent, for the defendant’s contention remained that he did not do the act. The evidence presented by the state through the victim was that the defendant both demanded and attempted to take the wallet and money of the victim. Under the facts and circumstances presented - in this case the failure to instruct on the specific intent required in the crime of robbery was not fundamental error. Following his conviction, Evans was originally sentenced to imprisonment for a term of eight to ten years. The trial court had overlooked the fact that a prior conviction had been alleged as a part of the information, and the defendant had admitted the prior conviction. Under A.R.S. § 13-1649 the prior conviction would require a sentence of “not less than ten years.” In an attempt to make the sentence comply with the statute, defense counsel suggested that ten years’ probation be given conditioned upon completion of the defendant serving eight to ten years in prison. The state did not object to such a procedure, and the trial court ordered eight to ten years to be served in prison as a condition of a ten-year probationary term. Defendant now challenges this sentence. In State v. Van Meter, 7 Ariz.App. 422, 440 P.2d 58 (1968), a similar conditional probation was ordered. There the defendant was placed on probation conditioned upon his serving four months in county jail. The court said: “The incarceration of a person in the county jail is the passing of a sentence and not the suspension thereof. The fact that the court terms it as a condition of probation does not render it any the less a sentence of imprisonment. No authority existing for the dual sentence imposed, it is illegal and must be set aside.” 7 Ariz.App. at 428, 440 P.2d at 64. After Van Meter, A.R.S. § 13-1657 was amended to allow up to one year to be served in county jail as a condition of probation. No provision was made for longer periods to be served in state prison. We believe the reasoning of Van Meter is controlling here. There is no statutory authorization for an eight to ten year prison sentence as a condition of probation. The trial court had no authority to impose the type of sentence given in this case. Defendant urges that we should sever the condition and allow the probation to stand. It certainly was not the trial court’s intention to grant absolute probation, and the sentence actually imposed is not a legal sentence; therefore, the sentence must be vacated and the cause remanded so that a proper sentence can be imposed. In all other respects, no error appearing, the judgment of conviction is affirmed, but the sentence is vacated and the case is remanded to the trial court for the purpose of imposing a proper sentence. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

HAYS, Chief Justice. The defendant, Charles Wesley Roach, appeals from a judgment of guilt on two separate counts: (1) unlawful sale of a dangerous drug, seconal, in violation of ARS §§ 32-1970, subsec. B, as amended, and 32-1996, subsec. C, and (2) unlawful sale of marijuana, in violation of ARS § 36-1002.07. Defendant waived his right to a jury trial and was tried by the court. He was given two concurrent sentences of five to six years in the state prison. Roach presents one question on appeal: Could he, acting solely as a procuring agent for the buyer, be convicted of selling dangerous drugs and marijuana? The pertinent facts are as follows: About 2:00 A.M. on August 20, 1970, as Roach was walking along a Tucson street, he was called over to an unmarked police car which was parked nearby. The officers said they were from out of town and one asked Roach where he could purchase some marijuana. Roach made a call for the officers but was unable to get any marijuana. The officers then tried a telephone number defendant gave them, but got no response. Roach then directed the officers to 14th and Convent where he went into a building and returned about three minutes later. Defendant indicated that he could buy four barbiturates and one marijuana cigarette at $1.00 per pill and $1.00 for the cigarette. The officers said they wanted the dope and sent Roach back in to get it. When defendant returned with the four pills and the cigarette, one of the officers gave him a $5.00 bill. Roach took the money into the building and returned to the car. One officer had previously told the defendant they were going to Nogales and he asked if he could go along. He got into the car and some blocks later was informed that the other men in the car were police and he was under arrest. Defendant argues that while acting as agent for the buyer, and not as agent for the seller, he cannot be convicted of sale. “Sale” is defined in ARS § 36-1001(10) as including: “[Bjarter, exchange or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.” We must disagree with defendant’s contention. Although we are aware that some states are committed to the proposition that an agent for the buyer is not a seller, Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Smith v. State, Tex.Cr.App., 396 S.W.2d 876 (1965), Arizona has consistently aligned itself with those states which hold that a procuring agent can be convicted of a sale. State v. Russell, 108 Ariz. 549, 503 P.2d 377 (1972); State v. Galvan, 108 Ariz. 212, 495 P.2d 442 (1972). Conviction affirmed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

LOCKWOOD, Justice: The appellant in this case was charged with commission of first degree rape and with two counts of having been previously convicted of other felonies. After a jury trial, the appellant was found guilty of the rape count only. The other two counts of prior felony convictions had not been urged before the jury and no evidence had been presented. Appellant was sentenced to serve a term of from twenty-five years to life in the Arizona State Prison. A complaint was filed against the appellant on September 9, 1968, in the Flagstaff Precinct, Justice of the Peace Court, Coconino County, Arizona, alleging first degree rape, with no prior convictions showing. After a preliminary hearing, appellant was bound over on a charge of rape, with two prior convictions. The matter was thereafter set for trial on May 21, 1969. Appellant failed to appear for trial and bail was forfeited. Appellant was apprehended in Hawaii and returned to Coconino County in April, 1971. Due to a mistake or misunderstanding appellant was held without bail from April 26, 1971 until June 14, 1971 at which time bail was set at $500,000.00 cash. At the trial the appellant offered no defense. His attorney objected to certain portions of the investigating officer’s testimony concerning statements made to him by the victim of the rape approximately four and one-half hours after the alleged rape occurred. The court allowed the testimony under the res gestae exception to the hearsay rule. In his appeal the appellant argues that he was denied due process of law when the court deliberately set the bail at an unreasonably high figure. He also complains that the failure of the court to abide by the requirements of Rule 180 of the Rules of Criminal Procedure by asking whether appellant had been previously convicted, amounted to a denial of due process. Finally the appellant contends that the trial court erred in admitting portions of the investigating officer’s testimony under the res gestae doctrine. Taking the last claimed error first, the record shows as follows: The assault took place sometime between 4:30 p. m. and 5:00 p. m. at the appellant’s housetrailer. After the assault, the appellant made the victim take a shower with him and help clean up the floor and walls of the room where the assault took place in order to remove any traces of the attack. After that, the victim was left alone for a period of fifteen minutes while the appellant disposed of the bloody sheets and certain items of apparel. The appellant then took the victim and her younger brother to a nearby bar where they secured a ride to another bar where the mother was working. While at the second bar, the victim was given a soft drink by her mother before she went to the restroom. Her mother followed her to the restroom a short time later. At that point she informed her mother what had happened. From there, after a hostile exchange between the mother and appellant who was the step-father of the victim, they all rode back to the housetrailer where the appellant got out of the car. After the appellant left the car, the victim was driven by the mother to the apartment of a friend of the mother in order to seek the friend’s advice. She then proceeded to the hospital. The investigating officer interviewed the victim at the hospital at approximately 9:15 p. m. Thus a period of four and one-half hours had elapsed between the time of the attack and the making of the declarations by the victim. This court, in reviewing fact situations involving the excited or spontaneous utterance exception to the hearsay rule has followed the test laid down by Wig-more. The test is composed of three requisites. The first requisite is that there must be a startling event. Second, the words spoken must be spoken soon after the event in order to prevent the speaker from having an opportunity to fabricate the story. Finally the words spoken must relate to the startling event. State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971). It is uncontested that the instant case involves an occurrence sufficiently startling to justify the admission of statements made at the time of the event as res gestae. It is also clear from the record that the words spoken related to the startling event. However the second requisite —that the words be spoken soon after the event — has not been satisfied. The record reveals that there was an overly long period of time in which there was ample opportunity for reflection and contemplation. The declarations were not part of the startling event but pertained to a past and completed occurrence. They could in no way be considered contemporaneous with the attack by the appellant on the declarant. Furthermore, there is nothing in the record to indicate that the statements were of a spontaneous character and logically related to or growing out of the main event. We must conclude that the declarations made by the victim did not meet the requirements of spontaneous utterances but were mere narratives made long after the event itself. We believe that it was error to admit the statements of the victim made to the investigating officer. This does not require reversal however, since the evidence against the appellant is so ample that we can conclude that the jury would only have reached the same verdict without the testimony in question. At the trial the victim testified what had occurred to her. A neighbor testified that he heard the victim screaming at the time the attack was to have taken place. Another neighbor testified that she saw the appellant leave the trailer and dispose of bloody sheets and articles of clothing belonging to the victim and the defendant. Medical testimony and laboratory tests indicated that a rape had occurred and the appellant had committed it. Finally there was no defense offered by the appellant. On the facts of this case it can only be concluded that the error was harmless. Appellant also argues that the trial court abused its discretion when it arbitrarily set the bail in an extremely high amount for the purpose of causing the appellant to remain in jail because of his known inability to provide such a large bail. The issue is whether the judge’s action constitutes a denial of due process. This court has previously stated that: “It is apparent that § 22 of Article II of our Constitution does not guarantee bail as a matter of absolute right but is conditioned upon the giving of ‘sufficient sureties’. We are of the opinion that the words ‘sufficient sureties’ mean, at a minimum, that there is reasonable assurance to the court that if the accused is admitted to bail, he will return as ordered until the charge is fully determined.” Rendel v. Mummert, 106 Ariz. 233 at 237, 474 P.2d 824 at 828 (1970). In Rendel, supra, this court held that when determining the amount of bail, the judge should take into account the record of the defendant’s arrests and convictions, his record of appearances at court proceedings, his record of flight to avoid prosecution, and his failure to appear at court proceedings. Based on the facts of this case and the previously stated legal principles, it is apparent that the appellant was an extremely poor bail risk. The appellant had been arrested at least thirty-five times. He had a record of seven convictions including two felonies and he had been sent to prison three times for a total period of seven years. The appellant had failed to appear at the previous trial date. He had been arrested in Hawaii on a bench warrant issued after he failed to appear for his trial on the same charge. He had to be extradited from Hawaii after he refused to waive extradition. Based upon these considerations, the judge certainly did not abuse his discretion in setting the bail at $500,000.00 cash even though it was known the appellant was indigent. Thus we find that appellant’s argument is too feeble to merit any attention by this court. The final issue raised by the appellant in his brief is that the trial court failed to abide by the mandatory requirements of Rule 180 of the Rules of Criminal Procedure, 17 A.R.S. Rule 180 provides that: “When a defendant who is charged in the indictment or information with a previous conviction pleads either guilty or not guilty of the offense with which he is charged, he shall be asked whether he has been previously convicted. * * * If he answers that he has not, his answer shall be entered by the clerk in the minutes of the court, and the question whether or not he has been previously convicted shall be tried by the jury which tries the issue upon the plea of not guilty, * * *. If the defendant pleads not guilty and answers that he has been previously convicted, the charge of the previous conviction shall not be read to the jury, nor alluded to on the trial.” Appellant alleges that the court treated the matter as if it required only one element; the taking of a plea of not guilty, but that the Rule expressly states that if the defendant pleads not guilty, the court must additionally ask the defendant whether he has previously been convicted. The transcript of the arraignment proceedings of April 26, 1971 reveals that the judge did ask the defendant whether he had been previously convicted and that his answers were recorded in the minutes as required by the provisions of Rule 180. Thus we find appellant’s contention to be wholly without merit. Judgment affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur.

CAMERON, Vice Chief Justice. This is an appeal from a judgment entered on defendant’s plea of guilty.to the crime of theft from the person, § 13-661, subsec. A A.R.S., and a sentence thereon of three to five years. We are asked to answer only one question on appeal and that is: Was there a sufficient factual basis for the plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The facts necessary for a determination of the matter on appeal are as follows. After a preliminary hearing, the defendant was held to answer to the charge of armed robbery, § 13-641 A.R.S. On 11 January 1971, defendant withdrew a previous plea of not guilty and entered a plea of guilty to the amended information charging theft from the person. After hearings on 25 January 1971 and on 4 February 1971, defendant was sentenced to serve three to five years in the Arizona State Prison. Defendant timely filed notice of appeal on 10 February 1971. At the time defendant changed his plea, the court questioned him briefly as to the factual basis of the plea: “THE COURT: * * * In Cause No. 64621 it is alleged that on or about August 21, 1970, and before the filing of this information in Maricopa County, Arizona, that in said county and state you stole from the person of Richard Renden, personal properly; to wit, money of the value of more than $100.00, all in violation of A.R.S. Sections 13-661 and 13-663 as amended. Now, do you understand that is the charge contained in this information number 64621 ? “THE DEFENDANT: Yes, sir.’- At the time of the hearing, the trial court had before it the reporter’s transcript of the preliminary hearing which provided a complete factual background of the crime. The reporter’s transcript is a part of the record for the purposes of satisfying the “factual basis of the plea” requirements of Boykin, supra. See State v. Darling, 109 Ariz. 148, 506 P.2d 1042, filed this day. We have reviewed the entire record as required by § 13-1715 A.R.S., State v. Burrell, 96 Ariz. 233, 393 P.2d 921 (1964) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no fundamental error. Judgment affirmed, LOCKWOOD, J., and JACOBSON, Judge of the Court of Appeals, Division One, concur.

HAYS, Chief Justice. The Yuma County Attorney filed a petition for special action with this court, alleging that the Honorable John A. McGuire had improperly granted a motion to suppress in the rape prosecution of Oscar Charles Williams, Jr. Williams is charged with forcible rape with a prior conviction for the October, 1972, rape of a 17-year-old girl. The Yuma County Attorney seeks an order vacating the order granting the motion to suppress. We accept jurisdiction of the petition for special action and grant the relief requested. The facts relevant to this petition are as follows: On October 8, 1972, the victim reported to the Yuma Police Department that she had been raped by a black male just before midnight on October 7, 1972. She described her assailant and the clothes he wore. On October 9, 1972, she viewed a photographic lineup and identified a photograph of Oscar Charles Williams, Jr., as the man who had raped her. The police then determined Williams’s address. On October 12, 1972, Detective John Gross and the Yuma County Attorney’s Office drew up a search warrant for the search of Williams’s residence. The object of the search was to seize the clothes worn by the accused at the time of the assault. A justice of the peace was unavailable, so Detective Gross contacted the Honorable William Nabours, Judge of the Superior Court, for the issuance of the search warrant. Judge Nabours reviewed the search warrant and supporting affidavit, put Detective Gross under oath and had him sign the affidavit. Judge Nabours signed the affidavit but, through accident or oversight, failed to sign the search warrant itself. Later that same day, Detective Gross and some other officer served the search warrant on Williams’s residence and found highly incriminating evidence. The defendant filed a motion to suppress on the grounds that the warrant was invalid because it lacked the issuing judge’s signature. At the hearing on the motion before Judge McGuire on June 18, 1972, Judge Nabours testified that he recalled when the search warrant was presented to him, that he reviewed the affidavit, that he was satisfied there was probable cause for the warrant, and that he intended by his actions at the time to issue a warrant. Judge McGuire granted the motion to suppress. We are asked to decide if Judge Nabours’s inadvertent failure to sign the search warrant affects the warrant’s validity. The statute in question is A.R.S. § 13-1441, the relevant part of which reads as follows: A search warrant is an order in writing issued in the name of the State of Arizona, signed by a magistrate, directed to a police officer . Although the language of the statute appears to require the issuing judge’s signature, we hold that Judge Nabours’s failure to sign in the instant case did not invalidate the warrant. Warrants and the affidavits on which they are based must be read in a common-sense way rather than technically. Commonwealth v. Wilbur, 353 Mass. 376, 231 N.E.2d 919 (1967). The case in question is one of mere technical oversight and a technical error does not invalidate a warrant under our state constitution nor under our case law, Ariz. Const, art. 6, § 22, A.R.S., State v. Allen, 9 Ariz. App. 196, 201, 450 P.2d 708, 713 (1969). The key element in the issuance of a search warrant is the consideration by a neutral and detached magistrate. The Ari zona Legislature recognized this fact when it authorized the use of telephonic search warrants where the warrant is signed by the police officer signing the warrant in the name of the issuing magistrate. A.R.S. § 13-1445. Judge Nabours signed the affidavit in support of the search warrant and intended by his actions to give legal effect to the issuance of the warrant. Judicial consideration was given to the question of the existence of probable cause, probable cause for the issuance of the warrant was found, and the affidavit was signed by the judge. We hold that the inadvertent failure to sign the warrant did not invalidate the warrant. The order granting the motion to suppress is vacated, and the case is remanded for further proceedings. STRUCKMEYER and HOLOHAN, JJ., concur. Note: Vice Chief Justice CAMERON and Justice LOCKWOOD did not participate in the determination of this matter.

CAMERON, Vice Chief Justice. This is an appeal from a jury verdict and a judgment of guilt to the crime of assault with a deadly weapon, § 13-249 A.R. S., and a sentence of not less than six years nor more than nine years in the Arizona State Prison. We are asked to answer the following questions on appeal: 1. Was the defendant denied his right to a speedy trial as guaranteed by the Arizona and United States Constitutions ? 2. Should the indictment have been quashed because the members of the Grand Jury had not been properly instructed as to the meaning of “probable cause” ? 3. Should the trial court have granted a new trial because of the withholding of evidence by the County Attorney? The facts will be set out in some detail and as near as possible in chronological order. On 5 June 1970, George Brannin “picked up” a plainclothes undercover agent of the Phoenix Police Department outside a bar in Phoenix, Arizona. After driving several blocks and engaging in conversation with homosexual overtones, Brannin grabbed the officer’s private parts and tried to unbutton the officer’s trousers. The officer reached into his back pocket, showed the defendant his badge, and attempted to arrest Brannin for an indecent act. Brannin testified he thought his passenger was reaching for a gun to “roll” him, though the testimony of the police officer indicated that Brannin saw the badge and knew he was being arrested. In any event, Brannin reached for a gun he kept in the car and pointed it at his passenger. A struggle ensued in which the officer was shot once and Brannin was shot three or four times after the officer gained control of the gun. Brannin was then arrested and charged by complaint with assault with intent to commit murder. On 22 June 1970, a preliminary hearing was set for 29 June 1970. On 23 June 1970, Brannin was released on bond. On 29 June 1970, the preliminary hearing was continued until 14 August 1970, at the request of Brannin. On 7 August 1970, Brannin requested a continuance due to the death of his son. It was continued to 19 August 1970. On that date, the preliminary hearing was set over pending the outcome of a polygraph examination. Due to the court’s calendar the preliminary hearing was next scheduled for 4 November 1970. On 22 October 1970, it was continued on motion of the court to 29 January 1971, because the court’s calendar was backed up and because the Justice of the Peace was leaving office 1 January 1971 and the court felt it should be heard by the newly elected Justice of the Peace. On 18 January 1971, the court granted ex parte continuance upon request of the County Attorney for the reason that the preliminary hearing was scheduled for a time during a County Attorney’s convention. The preliminary hearing was then continued to 1 April 1971. On that date, Brannin moved to dismiss for failure of the State to promptly prosecute. But the court on its own motion continued the matter until 19 April 1971, due to illness of the judge. There was one further continuance before the preliminary hearing was held on 2 June 1971, and the complaint subsequently dismissed. On 28 June 1971, the State filed a complaint charging Brannin with assault with a deadly weapon. The preliminary hearing was set for 1 July 1971, and then continued by stipulation to 29 July 1971. On that date, the preliminary hearing was again continued due to the failure of the court reporter to prepare a previously requested transcript and because the Justice of the Peace disqualified himself and referred the case to another magistrate. On 1 September 1971, the preliminary hearing was held and Brannin held to answer. On 15 October 1971, Brannin’s motion to quash was granted and the matter referred back to the Justice of the Peace for completion of the preliminary hearing. It was reset for 17 December, but was never held since the State filed an indictment against Brannin on 9 November 1971, and dismissed the complaint the next day. Brannin moved to quash the indictment and to dismiss on speedy trial grounds. The trial was held on 4 January 1972. Among the witnesses endorsed on the indictment was a John Newhouse who was passing the' area in his truck after the shooting had taken place. He had presumably left the State at the time of the trial and was not called by the State. The defense did not become aware of John New-house’s possible testimony until the last day of the trial when a report containing a summary of what Newhouse had observed was made available to defense counsel. The defense moved for a new trial alleging misconduct on the part of the County Attorney in concealing this information though he did not ask for a continuance. The jury returned a verdict of guilty, the court sentenced Brannin to a term of from six to nine years, and he timely appealed. SPEEDY TRIAL The right to speedy trial has been guaranteed in Arizona by the Arizona Constitution Art. 2, §§ 11 and 24; § 13-161, subsec. 1 A.R.S.; and Arizona Rules of Criminal Procedure, Rule 240, 17 A.R.S. Federal speedy trial standards under the Sixth Amendment of the United States Constitution were made applicable to the states by Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). See Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) and Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). This court has held that “ * * * in Arizona the right to a speedy trial as that term is defined in Rule 236 commences at the time an accused has been ‘held to answer’ by a magistrate,” State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962), or after indictment is returned, Boccelli v. State, 109 Ariz. 287, 508 P.2d 1149 (1973). In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the United States Supreme Court defined when the Sixth Amendment speedy trial right attaches: “ * * * The Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused’ * * *. * * * * * * “ * * * it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. “Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge, [footnote omitted] But we decline to extend the reach of the amendment to the period prior to arrest.” 404 U.S. at 313, 320-321, 92 S.Ct. at 459, 463-464. Arizona appears to have stricter speedy trial requirements than the requirements set by the United States Supreme Court, but the time limits set by Arizona law may be waived by the defendant, Bowman v. State, 103 Ariz. 482, 445 P.2d 841 (1968); State v. Greer, 7 Ariz.App. 155, 436 P.2d 933 (1968); Application of Hitchcock (D.C.1961), 199 F.Supp. 228, cert. den. 369 U.S. 857, 82 S.Ct. 944, 8 L.Ed.2d 15 (1962), cert. den. 376 U.S. 924, 84 S.Ct. 684, 11 L.Ed.2d 619 (1964), as was done in the instant case under the Rules of Criminal Procedure in effect at the time this case was commenced. Under these rules, the time began to run when the indictment was returned or when the defendant was held to answer. Boccelli v. State, supra, and State v. Maldonado, supra. It is apparent from United States v. Marion, supra, however, that for federal constitutional purposes, the time commences at the point of arrest, information, or indictment whichever comes first. In the instant case, Brannin’s speedy trial rights under the Sixth Amendment to . the United States Constitution as interpreted by the United States Supreme Court, commenced at the time of arrest, or 5 June 1970, some 19 months before the trial in the matter. This is true even though two informations and one indictment were had as a result of the same act, and the indictment upon which the trial was held was returned less than 60 days prior to trial. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set out the criteria by which the speedy trial right is to be judged: “ * * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed, [footnote omitted].” 407 U.S. at 530, 92 S.Ct. at 2191. Although not excluding other factors, the court identified four as pertinent: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. All these factors and others which may be pertinent must be weighed by the court together and no one factor is conclusive. The length of delay is perhaps the least conclusive of the factors, and where, as here, is substantial, acts merely as a triggering mechanism necessitating analysis of the other factors. Barker v. Wingo, supra. See United States ex rel. Stakes v. Shovlin, 464 F.2d 1211 (3rd Cir. 1972). Although it would appear that the majority of this delay is attributable to the County Attorney and the Justice of the Peace, it is not apparent from the record before us that Brannin objected to any of the continuances or demanded an immediate hearing or trial. He did file a motion to dismiss for failure of the State to promptly prosecute on 1 April 1971, prior to the first preliminary hearing on the assault with intent to commit murder complaint, and he raised the same issue once more just prior to the trial. We will therefore look primarily to the prejudice to the defendant (and to the trier of fact) occasioned by the delay. Brannin cannot claim that the delay caused a loss of his memory since he knew immediately after the offense that charges were being brought against him. State v. Mendoza, 109 Ariz. 445, 511 P.2d 627 (1973) It is apparent from a reading of the record that the delay may be responsible for the failure of some of the witnesses to testify as clearly and completely about the events prior to, during, and after the incident as would be desired. We do not find that this was critical to the case of the defendant or that it impaired the ability of the trier of fact to determine the issues. The two participants were shot, the police officer and Brannin. These facts were readily apparent from the hospital records and the circumstances of the apprehension after the shooting were well documented. The trial boiled down to the credibility of these two participants, the officer and Brannin, and there is no indication that this testimony, diametrically opposed as it was on some points, would have been any different 19 days after the arrest or 19 months after. The County Attorney has the primary responsibility in seeing that the speedy trial requirements of the State of Arizona and the United States Constitution are met, and it is no defense that the defendant asked for some of the delays and acquiesced in others. In failing to vigorously pursue this prosecution, he risked losing the case. If the defendant is innocent, he is entitled to go free as soon as possible; if he is not, the public is entitled to have him convicted. While we deplore the actions of the County Attorney’s office in failing to bring such a serious case quickly to trial, under all the circumstances in the case, we find no prejudice and therefore no violation of defendant’s right to a speedy trial. INSTRUCTING THE GRAND JURY The defense made a timely motion to quash the grand jury indictment because of the alleged failure of the empaneling judge to charge the grand jury with respect to their official duties and particularly with respect to probable cause. Defendant cites Rule 92 of the Rules of Criminal Procedure, 17 A.R.S., which reads as follows: “After the grand jurors are sworn, the court shall charge them concerning the offenses that may be considered by them and concerning their duties in respect thereto.” Rule 92, Rules of Criminal Procedure, 17 A.R.S. And also the statute which reads: “The grand jury shall return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence taken together, it is convinced that there is probable cause to believe the person under investigation is guilty of such public offense.” § 21-413 A.R.S. Even assuming that the failure of the court to instruct the grand jury as to the elements of probable cause is a valid ground for granting a motion to quash an indictment, especially in a case wherein it is obvious that there was probable cause to return the indictment, we do not find the record deficient in this regard. The State points out in its brief, and the defendant does not contradict, that the grand jury had been instructed as to probable cause in the following words: “It is your duty to return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence gathered, taken together, you are convinced that there is probable cause to believe the person under investigation is guilty of such public offense. “Your primary function is to decide whether or not sufficient evidence has been produced to indicate that a crime probably has been committed by the person accused or stated another way, is upon credible evidence which you have heard, absent any explanation by the defendant, you’re willing to indict, you should indict. If the evidence produced does not meet the standard necessary for an indictment, because you are convinced that you cannot conclude that a crime probably has been committed by the accused, you should have no hesitancy in refusing to vote an indictment.” It would appear that for the purposes of charging the grand jury, there was adequate instruction as to probable cause, if indeed the statute and rules require this, and we find no error. DENIAL OF MOTION FOR NEW TRIAL John Newhouse was endorsed upon the indictment, filed 9 December 1971, as required by the Rules of Criminal Procedure in effect at the time this action was commenced. Rules of Criminal Procedure, Rule 153, 17 A.R.S. John Newhouse had also been endorsed upon the previous information filed on 10 September 1971. No attempt was made by the defendant to locate this witness, and the defendant was not aware of the possible testimony of the witness until the report was filed the last day of the trial. After the trial the defendant attempted to locate Newhouse and based his motion for new trial in part upon the failure of the County Attorney to reveal the testimony of the witness Newhouse and upon the testimony that Newhouse would present if located for a second trial. We have held: “ * * * that a new trial for newly-discovered evidence is required if the introduction of the evidence at the trial would probably have changed the verdict, and if the defendant could not, with reasonable diligence, have discovered and produced it upon the first trial. State v. Sneed, 98 Ariz. 264, 403 P.2d 816 (1965). See also, State v. Schroeder, 100 Ariz. 21, 409 P.2d 725 (1966). * * *’’ State v. Thurston, 100 Ariz. 297, 302, 413 P.2d 764, 767 (1966). And: “* * * Rule 310 of the Rules of Criminal Procedure requires a new trial for newly discovered evidence (1) if its introduction at the trial would probably have changed the verdict, and (2) if the defendant could not, with reasonable diligence, have discovered and produced it upon the first trial. State v. Hill, 88 Ariz. 33, 352 P.2d 699.” State v. Sneed, 98 Ariz. 264, 270, 403 P.2d 816, 820 (1965). In the instant case, in addition to the lack of due diligence on the part of the defendant, the testimony of the witness New-house, consisting of observations of events which occurred after the shooting took place, would probably not have changed the verdict, and we do not believe it was an abuse of the trial court’s discretion to deny the motion for new trial. Defendant further contends, however, that it was misconduct on the part of the County Attorney in failing to make favorable evidence available to the defendant upon his request, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and also State v. Fowler, 101 Ariz. 561, 422 P.2d 125 (1967), which held that fundamental fairness requires that evidence favorable to the defense be disclosed even though not requested by the defendant. Although admittedly we do not know what the further testimony of the witness Newhouse would be, it would appear that the defendant obtained, however belatedly,all the evidence that the prosecution had concerning the witness Newhouse, and unlike the knife in State v. Fowler, supra, there was not an apparent effort to conceal this evidence. In fact, even though the contents of the statement were not known until the last day of the trial, a report made available to defendant earlier in the trial for the purpose of cross-examination of two officers who testified for the State contained information concerning the witness John Newhouse and what he observed. We find no error under the facts in the .instant case. Judgment affirmed. HAYS, C. J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur.

LOCKWOOD, Justice: Defendant Andrew Noble was convicted of armed robbery and sentenced to a term of not less than ten nor more than twelve years in the Arizona State Prison. From this he appeals. The pertinent facts are as follows: The defendant was charged with the armed robbery of the Dana Brothers Gas Station, of which Ed Moran was in charge. Several minutes after the incident, the defendant was picked up by the police as a suspect and driven back to the scene of the robbery for identification. The victim Ed Moran identified the defendant as one of the robbers, including the grey striped pants he was wearing at the time of the robbery and at the on-the-scene identification. At the trial defense counsel attempted to introduce as evidence certain articles of clothing (including some green pants) allegedly belonging to the defendant and which he was wearing at the time he was booked into Maricopa County Jail approximately twenty hours after his arrest. The State objected on the grounds that it was irrelevant, immaterial, and lacking proper foundation. The court sustained the objection although some of the State’s case regarding identification of the defendant hinged upon the victim’s recollection that, at the time of the robbery, the defendant was wearing grey striped pants. After both sides had rested, and after the opening portion of the State’s summation, the court recessed. During the recess, the defendant made a demand to testify on his own behalf to a Deputy Sheriff. The matter was brought to the attention of the Deputy County Attorney who disclosed the situation to the Court and defense counsel. At this time a hearing was had without the defendant’s presence, where the court tried to determine from defense counsel whether the defendant waived his right to testify. The court then proceeded with the closing arguments, instructions and submission of the case to the jury. The defendant first claims that the trial court erred in its failure to have the defendant present at the hearing regarding the voluntariness of his waiver of his right to testify. It is well established that in criminal prosecutions an accused has the right to testify in his own behalf. Ariz.Const. Art. 2 § 24, A.R.S.; State v. Tillery, 107 Ariz. 34, 481 P.2d 271 (1971); State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967). The facts in the instant case are similar to those in State v. Galbreath, 97 Ariz. 361, 400 P.2d 842 (1965). In Galbreath,. the record contained a certificate wherein the defendant’s attorney stated the reason why he did not permit the defendant to take the stand, as well as the fact that the defendant had two prior felony convictions and had served sentences in the Arizona. State Prison. In the present case, Noble’s attorneys, at the hearing on this matter, testified as follows : “MR. WORTMAN: Your Honor, during our preparation for the trial of this, case, discussing with the defendant the effect of his taking the stand in his own behalf or not taking the stand in his own behalf, and that was by way of passing, the defendant until the conversation with the jailer, which we then had just a. brief moment to discuss with the defendant after court recessed this morning but before counsel came into chambers at the Judge’s behest, it had not become known to us prior to that time that the defendant bore a deep feeling with regard to testifying in this case, and so it had just come up upon the Court taking its recess, and that being just this morning. * * * * * * “I’d say we talked to him for approximately 10 minutes, and the result of that conversation was to the effect that the defendant withdrew his request to us-that he be allowed to take the stand and give testimony in his own behalf, and acquiesced, if not agreed, with the advice of counsel that he not. * * * * * * “MR. HARRELL: I think the record ought to reflect as well, since Mr. Wort-man and I have spoken to him separately on numerous occasions, that what he has-said to me goes as well, and no representations about him taking the stand have been made prior to those being made immediately preceding this hearing. “THE COURT: Then I understand, from defense counsel that in your trial preparation and up until this time that you have discussed the right of the defendant to testify in this case, is that correct ? “MR. WORTMAN: That’s correct, Your Honor. “THE COURT: You have advised him of what might possibly happen if he did or didn’t is that correct ? “MR. WORTMAN: Yes. We discussed the implications for and against his taking the stand. “THE COURT: Did the defendant at any time during the trial and prior to the close of the case, the evidence in this case, express any desire to counsel that he wished to testify ? “MR. HARRELL: Not to me. “MR. WORTMAN: Nor to myself, Your Honor.” (Emphasis added.) Noble did not voice his wish to testify until after the opening portion of the county attorney’s closing argument to the jury. Apparently, he expressed no desire to testify prior to this time. Noble never told the judge but rather informed a guard. As we said in State v. Tillery, supra: “Were defendant’s desires to testify in his own behalf as strong and unrelentless as he now claims they were,, he would not have maintained his silence throughout the entire trial. He might very easily have directed his request to the court or made motion to have his attorney removed.” 107 Ariz. at 37, 481 P.2d at 274. Furthermore, the county attorney filed a “Motion to Add Allegation of Prior Conviction as an Addendum to the Information” in which is found the allegations that the defendant was convicted on two counts of perjury, both felonies. If the defendant testified this could certainly have been used to impeach his testimony. Therefore, the facts before the judge were sufficient for him to deny Noble’s request to testify at this stage of the proceedings. However, the defendant only claims that the court erred, not in refusing to let him testify, but in not allowing him to be present at the hearing on this matter. Fundamental constitutional rights such as the right to testify should not be deemed waived by an independent determination on the part of defendant’s counsel and the matter should be subj ect to the defendant’s consideration before the waiver is made part of trial strategy. Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Furthermore, waiver has been defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). The issue of whether one voluntarily waives his right to testify is subjective. Certainly the best means of demonstrating the defendant’s state of mind are his own declarations rather than his attorney’s impressions based upon hearsay. Although not enumerated as a stage of the proceedings at which the presence of the defendant is required under Rule 231, Rules of Criminal Procedure, 17 A.R.S., we still feel that a defendant has a right to be present at the hearing determining the voluntariness of his waiver to testify. Therefore the court erred by not having the defendant present at the hearing in chambers regarding the waiver of his right to testify. However, under the circumstances of this case, this constituted harmless error. There was no evidence of a continuous disagreement between the defendant and his attorneys on this matter. The fact that Noble had two prior convictions for perjury certainly would be one reason for his attorneys to advise him against testifying. The defendant also contends that the court erred in refusing to admit the defendant’s clothing in evidence for the purpose of impeaching the testimony of the victim. It is well established that the trial court should be allowed reasonable discretion in determining relevancy and admissibility of evidence. State v. Turner, 92 Ariz. 214, 375 P.2d 567 (1962). The trial court sustained the prosecutor’s objection to the admission of the clothing allegedly worn by the defendant when he was booked. The grounds were the lack of foundation, materiality, and relevancy. We have said that the foundation for the introduction of an object into evidence may be laid either through its identification by witnesses or through the establishment of a chain of possession. State v. Rascon, 97 Ariz. 336, 400 P.2d 330 (1965). In the present case, neither criterion is satisfied. The record does not show that the officers could identify the clothing as that worn by the defendant; the officers only testified to the fact that the clothing was found in the locker assigned the defendant. Furthermore, a link in the chain of possession is missing in that from the time the defendant was picked up to the time he was booked, a period of nineteen or twenty hours had elapsed where the defendant could have changed clothes with another prisoner in the holding tank. See State v. Hunt, 91 Ariz. 149, 370 P.2d 642 (1962). The foregoing facts indicate that the trial judge did not abuse his discretion by sustaining the objection for lack of proper foundation. Judgment affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur.

HOLOHAN, Justice. Petitioners seek intervention in a lawsuit filed by the City of Nogales and two of its taxpayers, which lawsuit sought to have the act creating the Public Safety Personnel Retirement System declared unconstitutional. All parties to the original action objected to the intervention of petitioners, and the trial court denied intervention. The sole question presented here is whether petitioners should have been allowed to intervene. In view of the importance of the issues raised in the main action and the need for prompt resolution of the question of intervention we accepted jurisdiction. The Public Safety Personnel Retirement System provides for pension benefits for policemen, firemen and law enforcement officers employed by the state. A.R.S. § 38-841 et seq. The system is to be funded by contributions from the employers of public safety personnel. The City of No-gales, as one of the employers in the System, challenged the constitutionality of the act, and asked for a declaration of its rights under the act as well as an injunction against operation of the act. According to petitioners’ motion to intervene: “Applicant B. PAUL SAUNDERS is a full-time paid employee of the Fire Department of the City of Phoenix, Arizona, and is a member of the Public Safety Personnel Retirement System. Applicant ARIZONA STATE LODGE FRATERNAL ORDER OF POLICE is a [sic] incorporated association of law enforcement officers, having a membership in this state of approximately 2000 members. Applicant PROFESSIONAL FIREFIGHTERS ASSOCIATION OF ARIZONA is an association of firemen with a membership of approximately 1500 members in the State of Arizona. The applicants claim an interest relating to the subject of this action, and they and others similarly situated are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest.” In reviewing a denial of intervention, we will accept as true the allegations of the motion. Twitchell v. Home Owners’ Loan Corp., 59 Ariz. 22, 122 P.2d 210 (1942). Petitioners urge that they are entitled to intervene as a matter of right under Rule 24(a), Rules of Civil Procedure, 16 A.R.S. “Rule 24. Intervention “24(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest.” Petitioners claim the right of intervention under both the conditions provided in Rule 24(a). Of course, if they can bring themselves within the terms of either of the conditions of the rule, they are entitled to intervene in the action. Petitioners argue that two sections of the Declaratory Judgment Act (A.R.S. §§ 12-1832 and 12-1841) give them an unconditional right of intervention. The reliance on the Declaratory Judgment Act is misplaced. A.R.S. § 12-1841 provides in part that “ . . . no declaration shall prejudice the rights of persons not parties to the proceeding.” While the statute speaks of requiring that interested parties “shall be made parties,” the section has been construed in the light of the Rules of Civil Procedure, to apply the procedural rules of joinder which would mean that petitioners are not necessary parties to the action. Anthony A. Bianco, Inc. v. Hess, 86 Ariz. 14, 339 P.2d 1038 (1959). The petitioners do have a right to intervene under the conditions set forth in Rule 24(a)(2). Their interest in the litigation is apparent. A valuable right of petitioners is at issue, and they desire to have the act upheld. As a practical matter if the Public Safety Personnel Retirement System is declared unconstitutional in the proceeding below, the beneficiaries under the act would have no chance in future proceedings to have its constitutionality upheld. The principles of stare decisis would effectively dispose of their interest without any opportunity for them to he heard. This practical disadvantage to the protection of their interest in the retirement fund warrants their intervention as of right. Martin v. Travelers Indemnity Co., 450 F.2d 542, 554 (5th Cir. 1971). Respondents argue that the Attorney General adequately represents the interests of the beneficiaries under the act; therefore intervention should not be allowed, citing Mitchell v. City of Nogales, 83 Ariz. 328, 320 P.2d 955 (1958). This case held that a taxpayer could not intervene in a suit brought upon his complaint as long as his interests were adequately protected. The case deals with Rule 24 prior to its amendment. The 1966 amendment to Rule 24 consolidated two distinct tests for intervention as of right into the single provision found in part (a) (2) of the Rule. The Arizona amendment was identical to the Federal revision except that the Federal Rule states that intervention will be allowed when interest and impairment are shown “unless the applicant’s interest is adequately represented by existing parties.” It is not necessary for us to decide the effect of the omission concerning adequacy of representation in the amended Rule 24, nor is reliance on Mitchell v. City of Nogales, supra, well founded. In Mitchell this Court pointed out that the action was being prosecuted by the officer who had a statutory duty to file and conduct the action. The proper administration of government required that those upon whom the statutes had placed a duty be allowed to perform their function, and there is no right to intervene unless the official is not adequately representing the taxpayers. In the instant case the Attorney General represents the named state officials in the action, but the petitioners have a vested economic interest in the fund, the subject of the action. The interest of petitioners is not common to other citizens in the state. Respondent City of Nogales alleges in its original complaint that the retirement provisions of the act will impose an “additional added tax burden” which may bankrupt the city. In a sense the interests of the taxpayers and petitioners are in conflict, and each should be entitled to their own legal representation. While intervention should have been allowed another question is presented as to whether petitioners should be allowed to intervene in their various capacities. Clearly, B. Paul Saunders as a fireman and a member of the System should have been allowed to intervene. The problems lie in determining whether the Police and Fire Associations can intervene, and also whether intervention can be had for “others similarly situated.” In Arizona Fence Contractors Association, Inc. v. City of Phoenix Advisory & Appeals Board, 7 Ariz.App. 129, 436 P.2d 641 (1968), an incorporated association of fence contractors was allowed to bring a declaratory judgment action to represent the views of individual contractors. We agree with the view that an association “whose members are injured may represent those members in a proceeding for judicial review.” Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636, 645 (1972). However, in the present case it appears that representation is intended to be for others as well as for the members of the association. The petitioners should be allowed to intervene to protect their interest and those of their members, but the trial court need not allow the intervention as a class action under Rule 23, Rules of Civil Procedure, 16 A.R.S. This determination is left to his sound discretion. One issue remains. Under Rule 24(c), Rules of Civil Procedure, 16 A.R.S., every motion for intervention is to be accompanied with a proposed pleading. Respondents contend that new issues cannot be raised in such a pleading, and the intervenor takes the case as he finds it at the time of intervention. Pintek v. Superior Court, 78 Ariz. 179, 277 P.2d 265 (1954); Arizona Real Estate Department v. Arizona Land Title & Trust Co., 9 Ariz.App. 54, 449 P.2d 71 (1968). The petitioners are nevertheless entitled to intervene, and the trial court may rule on the matter of whether petitioners may raise the additional issues in their answer. Roosevelt v. Beau Monde Co., 152 Colo. 567, 384 P.2d 96 (1963). An intervenor certainly has the right to contest plaintiff’s claim and to assert any legal defense allowed under the Rules of Civil Procedure. It is well to note that there are limitations to the language of Pintek v. Superior Court, supra. See Jenney v. Arizona Express, Inc., 89 Ariz. 343, 362 P.2d 664 (1961); Skurski v. Gurski, 329 Mich. 474, 45 N.W.2d 359 (1951). The relief sought is granted, and the superior court is directed to allow petitioners to intervene as parties in the action. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER, and LOCKWOOD, JJ., concur.

STRUCKMEYER, Justice. This matter comes to us on a motion for review of an opinion of the Court of Appeals, Department B, which affirmed in part and reversed in part a decree of divorce. Opinion of the Court of Appeals, 17 Ariz.App. 280, 497 P.2d 396 (1972), approved as supplemented herein. Since every question raised on this appeal is dependent upon the facts of the case, consistent with our invariable rule the evidence will be stated in the light most favorable in support of the judgment of the trial court. Domenic Becchelli and Mary Becchelli were married in Phoenix, Arizona on October 19, 1966. Both parties were elderly, although Mary was some years younger than Domenic. He had retired in 1960, had a small pension and social security, and had accumulated a small estate in Colorado and Indiana. He came to Arizona with his former wife and acquired a home in joint tenancy with right of survivorship, which passed to him at the time of her death. He had children by this former marriage. In the course of the instant marriage, which lasted a little over three years, Domenic invested and re-invested funds from his separate estate in properties in Arizona. The re-investments of separate funds were usually, but not invariably, made in the joint names of himself and his wife. At the time of marriage, Mary was in debt. She had possibly $200.00 in cash, which she kept on her person, and a new Buick automobile on which she had made two payments and on which she made the payments when she worked. She worked for about one year after the marriage. Separate income tax returns were filed by Mary for the three years of the marriage in order to take advantage of losses in investments she had incurred prior to marriage. The evidence does not establish any significant commingling by Domenic of his separate property with that of her community earnings. In 1969, Domenic brought this suit for divorce, and Mary counterclaimed for separate maintenance. The trial court awarded Domenic a divorce, finding that Mary had been guilty of excesses and cruel treatment in constantly arguing with Domenic and inducing him to use his separate funds to enhance her estate. A reading of the transcript of testimony of the trial convincingly establishes that Mary entered this marriage with the principal objective of obtaining security and strongly suggests that she constantly harassed Domenic in attempting to induce him to change the character of his separate property to joint ownership. The entire record of their married life tends to support the court’s finding, but several examples from the testimony are specifically noted. At one time during the course of the marriage, Domenic took $5,000.00 of his separate funds and placed it in a joint account with a son by his first marriage. Domenic testified concerning this: “Q When she saw that, what did she say to you? A She just raised the roof; why all to the son ? Why not me ?” Mary’s testimony corroborated Domenic. She told the court that before their marriage he promised to give her the home which he and his former wife had acquired and in which Mary and Domenic lived after their marriage: “Q Just one minute. Tell me what promise was made. A Before we got married the promise was made that he would give me the house. ****** Q Now, was that statement ever repeated at a later date ? A. Oh, yes. Q How many times? A Hundreds of times. Any time I asked. Q And then I will ask you if there was any specific time that you can remember that he made that statement? A The specific time was when I signed the contract that he sold the house [in Indiana] for six thousand and some dollars. I told him that I wouldn’t sign that paper unless he keep the promise on the house and the rest of the things * * Mary urges that the trial..court erred in setting aside certáin property to Domenic on the grounds, first, that there was not sufficient evidence to show that the funds which went into these properties were the separate property of the plaintiff. Mary testified concerning the house located at 3820 W. Avalon, taken by a joint tenancy deed with right of survivorship, that Domenic made the down payment of $500.00 from his separate funds, and that after its acquisition the property was rented for $100.00 a month. The rental payments came by checks payable to both Domenic and Mary. She endorsed the checks and he then made the mortgage payments of $77.00 a month. Mary complains of a mortgage taken in their joint names on property described as Lot 42, Arizona Rancheros, which the court decreed was Domenic’s sole and separate property. As to this, Domenic testified that money from the sale of separate property in Colorado was used to make a loan of $2,000 secured by a note and mortgage payable to himself and Mary with right of survivorship. Mary complains of the disposition of certain property in Yuma County. Domenic accepted a deed which transferred the property to the parties as tenants in common. Mary was asked: “Q Well, that is separate funds, that $5,000? A The $5,000, yes. Q And where did that $5,000 come from? A Well, you ask him that. I don’t— Q I am asking you, Ma’am. A I don’t know. Q You don’t know? A No, I know that nothing. * * * . * * * Q You don’t know of any money taken out of this book to pay for the property that was up there, located in Yuma County, is that right ? A Yuma County? Q Yes. A The first I heard, the first part of the money that he gave, $5,000, he say he pay $6,000, I don’t know. I don’t know how much he gave for, $4,00 [iic] or something. It was first done, I didn’t see the book [bank passbook]. * * * * * * Q You seem to know quite a bit about this transaction so tell the Court what money was paid, how many payments were made' to make up this $12,000? A Well, the first part of it was a deposit of $500. Q Where did that come from? A I don’t know where he got. He is the one that just answers your questions. Q What is the next item of payment? A The next item was, let me see, seven, I think $5,000. Q Where did that come from ? A Ask him. Q All right. The next item of payment? A The next item of payment, 7,000 something in the vicinity that he gave the mortgage. Sold the mortgage to a friend of his. The second payment, the last part, but the first part it could have been my money. Q It could have been? A I don’t know. I don’t know. You ask him that.” (Emphasis supplied.) The plaintiff, Domenic, testified: “Q This property you bought in Yuma your wife testified cost $12,000? A Yes, that’s right. Q O. K. Now, that was paid by certain means, was it not? A I paid, I got $4,000 from the east. ****** Q And how much credit did you get for that mortgage? Or did you borrow money— A- I borrowed the money fo this fel-’ low. I gave him that mortgage for the transaction. Q O. K. You borrowed how much from him? A Eight thousand dollars. Q Was ■ that the other part of the $12,000? A Yes. ****** Q All right. Then all that went into the Yuma property was your money? A That’s right.” We think the evidence is sufficient to establish that these properties were acquired from the separate funds of the plaintiff. Mary next urges that the court erred in setting aside these properties to Domenic as his sole and separate property for the reason that the evidence wholly fails to rebut the presumption of a gift of one-half interest in the properties to her. The facts substantiate her position. As stated, both parties were elderly and the marriage was entered into rather hastily, being about two weeks after they first became acquainted. It was seemingly understood that he would take care of her. She testified: “* * * he told me, I should work, he’d give me security and things.” It is the general rule of law that where property is paid for by one and taken in the name of another or jointly in both their names, a presumption arises that the property was taken in trust for the benefit of the one paying for the property. But as between husband and wife, the presumption as to real property is to the contrary. The law presumes a gift from the husband resting upon the proposition that the husband is discharging his legal duty to provide support for his wife. The decisions recognize that this is a rebuttable presumption, with some courts holding that evidence to rebut the presumption of a gift must be clear and convincing. Osuch v. Osuch, 146 Conn. 90, 148 A.2d 138 (1959); Walker v. Walker, 369 Ill. 627, 17 N.E.2d 567 (1938), cert. denied, 306 U.S. 657, 59 S.Ct. 774, 83 L.Ed. 1054 (1939); Frank v. Frank, 335 Mass. 130, 138 N.E.2d 586 (1956); Alexander v. Alexander, 44 S.W.2d 872 (Mo.App.1932); Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162 (1942), overruled on other grounds, Cook v. Cook, 495 P.2d 591, 593 (Mont.1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); Carberry v. Carberry, 137 N.J.Eq. 9, 43 A.2d 215 (N.J.Chancery Ct.1945); Hall v. Bone, 210 Or. 98, 146-148, 309 P.2d 997 (1957); Christy v. Christy, 353 Pa. 476, 46 A.2d 169 (1946). Nor is Arizona an exception to the rule. In Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945), a case in which the husband purchased property with his separate funds and took the title jointly with his wife, we said: “The defendant had the right to use this method in making a gift of one-half of the property to plaintiff.” 63 Ariz. at 111-112, 159 P.2d at 791. We also said: ■ “The presumption that a conveyance so taken constitutes a gift may be rebutted. The burden of proof is upon the husband to establish a resulting trust rather than that the transaction amounted to a gift. This can only be done by evidence showing a clear intention of the trust.” 63 Ariz. at 112, 159 P.2d at 791. Domenic did not at any time say that he did not intend to give an interest in these properties to Mary, and there is no evidence whatsoever in this case that Domenic intended by these conveyances to do other than provide for his wife when he took title jointly with her. That he may have been incautious or imprudent is not the concern of the court. Nor may a court set aside a transaction merely because one or the other to a marriage contract has made a poor bargain. Prior to 1962, by A.R.S. § 25-318, subsec. A, the Superior Court on dissolution of a marriage was required to: “order such division of the property of the parties as to the court seems just and right, according to the rights of each of the parties and their children, without compelling either party to divest himself or herself of title to separate property.” Under this language, it has long been held that a divorce court is without jurisdiction to award either party the separate property of the other. Schwartz v. Schwartz, 52 Ariz. 105, 109, 79 P.2d 501, 503, 116 A.L.R. 633, 636 (1938); Brown v. Brown, 38 Ariz. 459, 463, 300 P. 1007, 1008 (1931). In 1962, the Legislature added this clause to § 25-318, subsec. A, supra: “except that as to property held by the parties either as joint tenants with right of survivorship, as tenants in common, or as tenants by the entirety, the court may in the same action, on its own initiative or on petition of either party, order division of such property, or enter an order directing partition of such property * * *.” In Needel v. Needel, 15 Ariz.App. 471, 489 P.2d 729 (1971), Division Two of the Court of Appeals held that the 1962 amendment empowered the Superior Court in a divorce proceeding to divide property held by the parties as joint tenants with right of survivorship, as tenants in common, or tenants in entirety in the same manner as community property, — that is, as to the court seems just and right. Thereafter, in Saxon v. Riddel, 16 Ariz.App. 325, 493 P.2d 127 (1972), Division One of the Court of Appeals came to a contrary conclusion; namely, that where there was separate property of the parties to a divorce proceeding, the amendment only permitted the court to enter a judgment in the divorce proceeding dividing or partitioning their jointly held property. We do not agree with the construction placed upon § 25-318 as amended in Needel v. Needel. A reading of the original statute together with the amendment discloses no ambiguity arising out of the language used. The statute before amendment only directed that the court on enter iñg a judgment'of divorce order such a division of community property of the parties as it deems just and right without compelling either party to divest himself of title to separate property. The amendment of 1962 simply empowered the divorce court to, in the same action, either partition or divide the joint property. But we think it significant that the words were retained requiring the court to do so “without compelling either party to divest himself or herself of title to separate property.” Any apparent ambiguity is resolved when it is understood that the title which is the evidence- of ownership is joint but that the legal consequence is that each has a separate estate or interest. Collier v. Collier, 73 Ariz. 405, 411-412, 242 P.2d 537, 541 (1952). We conclude that the amendment is a procedural device which permits the court to settle- all rights in the property of the parties to the divorce in one action, and find nothing in the language of the amendment which gives the Superior Court the authority to divide as seems just and right jointly held property. . Nor do we find anything in the language of Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968), relied on by the court in Needel v. Needel, supra, to ‘ suggest the contrary. Nace was a case of an asserted commingling of separate property with community which the wife urged destroyed its identity as the husband’s separate estate. We said: “The issue before this Court is whether the trial court made a proper division of the community property. In deciding this question, the trial court first had to determine what was separate property and what was community property, and then make an equitable distribution of the community property.” 104 Ariz. at 22, 448 P.2d at 78. (Emphasis supplied.) We found that the facts supported the husband’s claim that the commingling was not sufficient to stamp the whole of his property with community status and held that the division of the community property by the trial court was just and equitable. So much of the opinion in Needel v. Needel, 15 Ariz.App. 471, 489 P.2d 729 (1971) as is contrary to the views herein set forth is expressly disapproved. We find no merit in the assertion that the court erred in failing to grant a new trial on the grounds of newly discovered evidence. Since we have concluded that the court erred in setting aside to the plaintiff, Domenic Becchelli, the property we have herein discussed as his sole and separate property, and since there may be other property which is affected by this decision and by the decision in O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 (1973), the court below is directed to vacate its judgment except insofar as that part granting to Domenic Becchelli a divorce, and is further directed to reconsider all of the property interests, both separate and community, of the parties and upon doing so to enter an appropriate judgment in accordance with views expressed herewith. CAMERON, V. C. J,, and LOCKWOOD, J., concur.

HAYS, Chief Justice. Fred Anthony Boccelli petitions this court for a special action to prohibit the State of Arizona and the Superior Court of Pima County from proceeding with his trial. Petitioner’s motion to dismiss in Superior Court was denied on January 8, 1973, and his writ of special action in the Court of Appeals was denied on January 17, 1973. We accepted jurisdiction of the special action brought in this court. Boccelli contends that the prosecution against him must be dismissed for failure to comply with Rule 236 of the Arizona Rules of Criminal Procedure, 17 A.R.S.: When a person has been held to answer for an offense, if an information is not filed against him for the offense within thirty days thereafter, or when a person has been indicted or informed against for an offense, if he is not brought to trial for the offense within sixty days after the indictment has been found or the information filed, the prosecution shall be dismissed upon the application of such person, or of the county attorney, or on the motion of the court itself, unless good cause to the contrary is shown by affidavit, or unless the ac tion has not proceeded to trial because of the defendant’s consent or by his action. When good cause is shown, the action may be continued, in which event the defendant if bailable shall be released on bail either on his own recognizance or on the undertaking of sureties. Petitioner allegedly sold L.S.D. to a Tucson undercover agent on July 2, 1971. He was indicted on November 9, 1971, and was arrested on a warrant for the indictment on August 30, 1972. Officer Anaya’s testimony shows that no action was taken on the grand jury’s warrant for approximately three months because Detective Pershing, the agent who made the alleged buy from petitioner, was dealing with individuals known to petitioner during that time. Anaya testified that had Boccelli been arrested immediately on the November 9, 1971, warrant, Detective Pershing’s safety and well-being would have been jeopardized. Officer Anaya went to Tucson Blueprint Company, Boccelli’s employer during February, 1972, in search of defendant. The owner said he was not working there and directed the officer to what she believed to be his residence. When the officer went to the residence, a man at Boccelli’s address told him that Boccelli was back East. After contacting other agencies, the police placed the warrant on their Records Division to notify other policemen of the outstanding warrant, should Boccelli be stopped. No other effort was made. Boccelli contends that his right to a speedy trial under the sixth amendment to the United States Constitution and under Criminal Rule 236 has been denied. As Justice Burger stated in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970): If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution’s case, as is the defendant’s right, the time to meet them is when the case is fresh. . . . Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. 398 U.S. at 37-38, 90 S.Ct. at 1568-1569. Under Arizona Criminal Rule 236, the indictment must be dismissed if the defendant is not brought to trial within 60 days unless the State, by affidavit, shows good cause. Yucupicio v. Superior Court, 108 Ariz. 372, 498 P.2d 460 (1972). In the instant case, Officer Anaya filed an affidavit after the defendant filed his motion to dismiss, pursuant to Rule 236. His affidavit shows only the facts already discussed and asserts, without explanation, that “[ajfter this approximate three month period, I and fellow police officers at the Tucson Police Department Narcotics Squad exercised every available investigative means to find defendant Boccelli.” At the motion to dismiss hearing, Officer Anaya frankly admitted that no effort was made to locate Boccelli after March, 1972. Boccelli, at all times during this nine-month period, lived in Tucson and during all but a few weeks was employed in Tucson. The record shows that no affirmative steps to locate Boccelli were taken after March of 1972, and therefore compliance with Criminal Rule 236, supra, is lacking. We hold that the State’s affidavit does not demonstrate good cause why defendant was not brought to trial within 60 days after the indictment was found. It is ordered that the State of Arizona and the Superior Court of Pima County are prohibited from proceeding with the trial of this cause. Case remanded for proceedings not inconsistent with the foregoing. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

LOCKWOOD, Justice: This case is before us on a petition for review of a Court of Appeals opinion reported at 16 Ariz.App. 533, 494 P.2d 733 (1972). The opinion of the Court of Appeals is vacated;' the judgment of the Superior Court is reversed; and the case is remanded for a new trial consistent with this opinion. The defendant Harry Kaiser appealed from a jury verdict of guilty based upon an information charging assault with a deadly weapon under A.R.S. § 13-249, as amended. At the trial, the defendant did not take the stand but attempted to call a character witness, Edythe Reichard. The trial court refused to allow her to testify unless the defendant took the stand. No offer of proof was made by the defendant regarding what trait the witness’ testimony would concern, but only that it involved the defendant’s character. The defendant assigns as error the fact that the trial court refused to allow a character witness to testify for him, when the defendant himself did not and was not going to take the stand. It is well established that the accused when presenting his case, may offer evidence of his good character as substantive evidence from which the jury may infer that he did not commit the crime charged. Macias v. State, 39 Ariz. 303, 312, 6 P.2d 423, 426 (1931); Singh v. State, 35 Ariz. 432, 441-442, 280 P. 672, 675 (1929); Apodaca v. State, 21 Ariz. 273, 279-280, 187 P. 581, 583 (1920); McCormick on Evidence, § 191 (2d ed 1972); M. Udall, Arizona Law of Evidence § 114 (1960); 1 J. Wigmore, Evidence § 56 (3rd ed. 1940). Further, good character is a fact that the accused may offer in his defense, so long as it pertains to the trait involved in the charge. State v. Van Winkle, 106 Ariz. 481, 478 P.2d 105 (1970); Strickland v. State, 37 Ariz. 368, 294 P. 617 (1930); United States v. Chung Sing, 4 Ariz. 217, 36 P. 205 (1894). It is also well known that because this evidence is substantive, the defendant may offer it whether or not he takes the stand and testifies in his own behalf. M. Udall, Arizona Law of Evidence § 114, at 222 (1960). Because of the foregoing, we agree with the defendant that Edythe Reichard should have been allowed to testify about the defendant’s character in spite of his refusal to take the stand. Nevertheless, this is not dispositive of the case, since no offer of proof was made regarding what the witness would testify to, except the general category of the defendant’s character. It is for us to determine whether an offer of proof should be made under Rule 43(h), Rules of Civil Procedure, 16 A.R.S., regarding what the witness’ testimony would be. As a general rule evidence cannot be reviewed on appeal in the absence of an offer of proof showing that the excluded evidence would be admissible and relevant. Peterson v. Sundt, 67 Ariz. 312, 195 P.2d 158 (1948); Woodmen of the World Life Ins. Soc. v. Velasquez, 60 Ariz. 457, 139 P.2d 766 (1943); Sulpher Springs Valley Elec. Co-op., Inc. v. Verdugo, 14 Ariz.App. 141, 481 P.2d 511 (1971). There are, however, some well-recognized exceptions to this rule. It is said that: “ 'Notwithstanding the general rule above stated it is often held that an offer of evidence is not necessary to preserve an objection to a ruling of exclusion for review, where the purpose and purport of the testimony expected to be elicited is obvious, * * * where the court has ruled broadly that no evidence is admissible in support of the theory or fact which the party is seeking to establish.’ (Emphasis added.)” Peterson v. Sundt, 67 Ariz. 312, 318, 195 P.2d 158, 162 (1948). See also Murphey v. Brown, 12 Ariz. 268, 100 P. 801 (1909); Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co., Inc., 46 Cal. 2d 517, 297 P.2d 428 (1956); Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604 (1944); Caminetti v. Mainerre, 23 Cal.2d 94, 142 P.2d 741 (1943). In the instant case, the charge stemmed from a fight between the defendant and the victim. The defendant asked for a cigarette and asked about the “Van Wagner girls.” But the victim admitted that there was nothing hostile in the way the defendant asked these questions. The victim also testified that: “Q. Now, did Harry Kaiser strike you before you struck him? “A. No, I [the victim] struck him first. “Q. Now, that is not the first time you [the victim] have ever been in a fight, is it? “A. No. “Q. As a matter of fact, you have been in fights at the Van Wagner house before, haven’t you? “A. I was in one fight out there, but it wasn’t really a fight. “Q. And you have been in other fights around Tucson, haven’t you? “A. Yes. “Q. You don’t run away from a fight, in other words, do you? “A. No. “Q. Now, did Harry Kaiser challenge you to a fight? “A. Well — as I say, he just stepped toward me and I started hitting. I didn’t know whether he was coming at me. “Q. He didn’t challenge you to a fight, in other words, did he? “A. No. “Q. He didn’t say, ‘Let’s fight,’ or ‘Put your dukes up,’ or any of that stuff? “A. No.” As a result, the “purpose” of Edythe Reichard’s testimony was “obvious”; it would relate to defendant Kaiser’s reputation for peaceable disposition, quiet demeanor and even temper. It is therefore evident that the court was advised about which character trait the information elicited from the witness would concern. We feel that the trial court could judge the type of testimony to be elicited. Moreover, the disallowance of Edythe Reichard’s entire testimony by the trial court constituted a broad ruling that no evidence was admissible in establishing the defendant’s peaceful nature. Since this comes directly within the scope of the exception, we feel that there was an abuse of discretion when the trial court sustained the objection to calling the character witness. Further, this Court has held that no offer of proof is required where evidence is excluded, the relevancy and materiality of which is apparent. Litzkuhn v. Clark, 85 Ariz. 355, 360, 339 P.2d 389, 392 (1959). The character of the defendant Kaiser relating to his temper and disposition is certainly relevant and material to his defense against the charge of assault with a deadly weapon. We agree with the Court of Appeals in State v. Kaiser, supra, when it states that under Rule 43(h) an offer of proof was not strictly necessary where the court understood that it was going to be a character witness and that the defendant was not going to testify. Nevertheless, contrary to the Court of Appeals, we hold that no offer of proof was required here since the trial court could judge the type of testimony that would be elicited and that by sustaining the objection to calling the character witness, it abused its discretion. Reversed and remanded to the Superior Court for further proceedings consistent with this opinion. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur.

OPINION PATTERSON, Judge. ¶ 1 Under Arizona Revised Statutes (A.R.S.) § 43-1001(2) (1998 and Supp.2000), the Arizona gross incomes of state and local employees, like those of federal employees and all other Arizona individual income taxpayers, are deemed to be the same amounts that are calculated as their adjusted gross incomes for the purpose of federal income taxation. As permitted by 26 U.S.C. § 414(h)(2), Arizona has elected to “pick up” most state and local governmental employees’ mandatory contributions to their retirement plans. Those contributions are therefore excluded from their federal adjusted ■ gross (Arizona gross) incomes. A.R.S. § 43-1001(2). Congress, however, has not authorized the United States Government to “pick up” federal employees’ mandatory contributions to their retirement plans. The effect of A.R.S. § 43-1001(2) on federal employees who reside in Arizona is to sweep all such contributions into their Arizona gross incomes. ¶ 2 Thus, for tax years from 1991 onward, Arizona law subjects to Arizona individual income taxation those portions of federal employees’ compensation that they are required to contribute toward federal employee retirement plans, while leaving untaxed the corresponding mandatory contributions of most state employees to state employee retirement plans. This results in similarly situated and similarly earning taxpayers paying differing amounts. The superior court held that this statute, A.R.S. § 43-1001(2), violated the Public Salary Tax Act of 1939, 4 U.S.C. § 111. The Arizona Department of Reve nue and its director, Mark J. Killian (ADOR), appeal. ¶ 3 Plaintiffs Clark R. Kerr and Billie Sue Kerr, together with Plaintiffs Susan Moran, Steve Allen, and John Udall (the plaintiff taxpayers), cross-appeal from the superior court’s orders denying certification of a plaintiff class consisting of all current or former federal employees who paid Arizona income taxes on mandatory contributions to federal retirement plans during one or more years from 1985 to the present, and of an alternative, smaller class consisting of all such federal employees who also filed timely refund claims with ADOR for one or more of the years 1991 to the present. The appeal and cross-appeal present these issues: 1. Whether Arizona’s income taxing scheme violates 4 U.S.C. § 111 by taxing federal employees’ mandatory contributions to retirement plans, but not those of state employees; 2. Whether the superior court erred or abused its discretion in denying the plaintiffs’ motions for class certification; and 3. Whether equal protection principles preclude ADOR from demanding compliance with an administrative claim requirement for taxpayers who initially paid the challenged taxes, while at the same time declining to pursue tax enforcement against other taxpayers who subtracted their mandatory federal retirement contributions on their Arizona returns and hence did not pay the challenged taxes. ‘ FACTS AND RELEVANT PROCEDURE ¶ 4 Until former A.R.S. § 43-1022(2) was amended in 1989, 1989 Ariz. Sess. Laws. Ch. 312, § 12, that statute subtracted from Arizona gross income: Contributions made to the state retirement system, the corrections officer retirement plan, the public safety personnel retirement system, the elected officials’ retirement plan or a county or city retirement plan. Arizona law provided no corresponding subtraction for contributions made to federal employee retirement plans. ¶ 5 Since 1979, A.R.S. § 43-1001(2) has defined a resident individual’s “Arizona gross income” as his or her federal adjusted gross income for the taxable year, computed under the Internal Revenue Code. See 1978 Ariz. Sess. Laws Ch. 213, § 2, eff. Jan. 1, 1979. Federal adjusted gross income is thus the starting point for determining an individual taxpayer’s Arizona taxable income and ultimate income tax liability. ¶ 6 Effective in 1985, Arizona enacted provisions authorized by 26 U.S.C. § 414(h) that permitted state and local governmental employers to “pick up” mandatory contributions that them employees would otherwise have made. This enabled those state employees to exclude the amounts of their retirement plan contributions from their federal gross income. Congress has not chosen to make this benefit available to federal employees. ¶ 7 Consequently, under A.R.S. § 43-1001(2), the Arizona gross incomes of federal employees include all sums they are required to contribute to their respective retirement plans, while the Arizona gross incomes of state and local employees whose employing units “pick up” their required contributions to retirement plans necessarily exclude the amount of those contributions. See Kerr v. Waddell, 183 Ariz. 1, 12-13, 899 P.2d 162, 173-74 (App.1994) (Ken* I), vacated on other grounds, 185 Ariz. 457, 916 P.2d 1173 (App. 1996) (Kerr II). ¶ 8 In Davis v. Michigan Department of Treasury, 489 U.S. 803, 816, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), the Supreme Court invalidated certain Michigan income taxing provisions that taxed retirement benefits paid by the United States Government while exempting retirement benefits paid by state and local governmental entities. The Court determined that the Michigan taxing scheme violated 4 U.S.C. § 111. The Court later held that Davis was to be applied retroactively. Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). ¶ 9 In 1989, the plaintiff taxpayers brought an earlier action, Tax Court Cause No. 89-01153, challenging the differential taxation of A.R.S. § 43-1001(2) and former A.R.S. § 43-1022(2). In Kerr I this court held that their state-law claims for refunds were barred by their failure to exhaust their administrative remedies before bringing the action, but that their claims for declaratory and injunctive relief under 42 U.S.C. § 1984 could proceed. Kerr I held that former sections 43-1022(2) and 43-1001(2), as applied to state and federal employees, violated 4 U.S.C. § 111. 183 Ariz. at 14-17, 899 P.2d at 175-78. ¶ 10 On petition for review our supreme court remanded for further consideration in light of National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995). On remand this court held that Arizona’s administrative process for challenging the denial of tax refunds provided an adequate state remedy within National Private Truck Council, and that the plaintiffs’ claims under 42 U.S.C. § 1984 were barred because plaintiffs failed to resort to and exhaust those remedies. Kerr II, 185 Ariz. at 464-67, 916 P.2d at 1180-83. We remanded the action to the tax court with directions to dismiss it in its entirety. Id. ¶ 11 Simultaneously with the filing of their 1989 action in the tax court, the plaintiff taxpayers filed corresponding administrative refund claims with ADOR. In 1993, a hearing officer for ADOR determined that ADOR had no authority to rule on the legality of A.R.S. § 43-1001(2) and former A.R.S. § 43-1022(2) or to recognize a class refund claim. Kerr v. Killian, 197 Ariz. 213, 3 P.3d 1133 (App.2000) (Kerr III). In 1994, during the pendency of Kerr I in this court, the Arizona Board of Tax Appeals heard the plaintiff taxpayers’ administrative appeal from the ADOR hearing officer’s adverse ruling. The matter remained under advisement with the Board until 1997, the year following the dismissal of the plaintiff taxpayers’ first action pursuant to Kerr II. Kerr III, 197 Ariz. at 215-16, 3 P.3d at 1135-36. The Board ruled that the plaintiff taxpayers were entitled to refunds for 1985 through 1990 because former A.R.S. § 1022(2) violated the intergov- ernmental tax immunity doctrine codified in 4 U.S.C. § 111. The Board also held that A.R.S. § 43-1001(2) did not violate that doctrine and that no refunds for tax years after 1990 would be awarded. The Board also agreed with the ADOR hearing officer that neither ADOR nor the Board could entertain a class refund claim. ¶ 12 The plaintiff taxpayers and ADOR commenced the instant actions in April and May 1997 to appeal the Board’s ruling. In mid-1997, the Governor of Arizona directed ADOR “to make refunds for the tax years 1985 through 1990 to all taxpayers who had filed timely refund claims, whether they were parties to the administrative action or not.” Kerr III, 197 Ariz. at 216, 3 P.3d at 1136. In June 1998 the tax court entered a judgment awarding the plaintiffs’ attorneys an award of 20% of each such refund for fees under the common fund doctrine. We affirmed that judgment. Kerr III, 197 Ariz. 213, 3 P.3d 1133. ¶ 13 During the pendency of the appeal in Kerr III, the superior court denied plaintiff taxpayers’ motion to certify a class consisting of all current and former federal employees who paid Arizona income taxes on contributions they made to United States Government retirement plans from 1984 to the present who have not received refunds of such taxes. Following the analysis of our opinion in Kerr I, vacated in Kerr II, the court later held that the application of A.R.S. § 43-1001(2) violated 4 U.S.C. § 111 to the extent it caused discriminatory state taxation of federal employees as compared to state and local governmental employees. Finally, the court denied the plaintiff taxpayers’ alternative motion to certify a class of all federal employees who filed timely refund claims for one or more years from 1991 to the present. ¶ 14 From judgment entered in accordance with the superior court’s rulings, ADOR appeals and the plaintiff taxpayers cross-appeal. ANALYSIS A. Differential Taxation of Retirement Plan Contributions 1. Standard of Review ¶ 15 On appeal from summary judgment, the trial court’s rulings on questions of law are reviewed de novo. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990). 2. A.R.S. § 43-1001(2) and 4 U.S.C. § 111 ¶ 16 As calculated for tax purposes in Arizona, the amount on which taxes are paid is the adjusted gross income for federal taxation purposes. According to A.R.S. § 43-1001(2), the gross incomes of state and local employees, like those of federal employees and all other Arizona taxpayers, constitutes this amount. Further, Arizona’s individual income tax statutes contain no provision that adds back the sums representing state and local government employees’ mandatory retirement contributions in the process of calculating their Arizona taxable incomes. They also contain no provision that subtracts the sums representing federal employees’ mandatory retirement contributions in that process. The net result is that federal employees pay Arizona income taxes on the amounts representing their mandatory retirement contributions, while some state and local governmental employees do not. ¶ 17 In Kerr I we determined that the Arizona income taxing scheme thereby violated 4 U.S.C. § 111. We stated: Both the tax court and the defendants err in relying upon “the source of the pay or compensation” to extricate Arizona’s scheme for taxation of federal, state, and local retirement contributions from the prohibited category of discrimination. The thrust of defendants’ reasoning is found in their statement that “[t]he only obstacle to the exclusion of federal plan contributions [from Arizona income taxation] is the federal employer, who has refrained from acting to ‘pick up’ contributions.” Their implicit major premise, which is incorrect, is that Arizona was helpless other than to adopt federal adjusted gross income without modification as part of the state income tax scheme. Contrary to the tax court’s ruling and appellees’ reasoning, it was ultimately Ari zona legislative action that imposed the discriminatory tax scheme. In other words, it was not federal legislative action, but state legislative action that caused state and local retirement contributions to be exempted from Arizona income taxation while federal retirement contributions were not. No provision of law to which we are cited required Arizona to adopt federal adjusted gross income in determining Arizona taxable income. 183 Ariz. at 14-15, 899 P.2d at 176-77. ¶ 18 The reasoning of Kerr I is incomplete and ultimately incorrect. As we have observed, 4 U.S.C. § 111 consents to state and local taxation of federal employees’ pay or compensation as long as “the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.” The Kerr I court focused on whether the differing Arizona tax treatment of state and local governmental employees as compared to that of federal employees actually resulted from the operation of Arizona income tax statutes. Kerr I accordingly never directly addressed the more fundamental question whether the differential Arizona tax treatment was actually “based on” the federal or state source of the pay or compensation. ¶ 19 The seminal modem decision under 4 U.S.C. § 111 and the intergovernmental tax immunity doctrine is Davis. 489 U.S. 803, 109 S.Ct. 1500, 103 L.Ed.2d 891. In Davis, a Michigan statute expressly excluded from state taxable income all retirement benefits received from the state and its political subdivisions, but included most other forms of retirement benefits. The Court stated: “The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.” 489 U.S. at 806, 109 S.Ct. 1500. ¶ 20 In Jefferson County v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999), the Supreme Court demonstrated its approach to identifying circumstances in which, unlike the situation in Davis, 4 U.S.C. § 111 is simply inapplicable. In Jefferson County, two federal judges who held court in Jefferson County, Alabama, challenged a county “license tax” on persons who engaged in business activities that were not subject to any other license or privilege tax under Alabama law. The judges’ theory was that as applied to them, the county tax directly burdened the federal government or its instrumentalities in violation of the intergovernmental tax immunity doctrine. The Supreme Court disagreed and held that the tax operated as a nondiscriminatory tax on employee compensation and was permissible under that doctrine as codified in 4 U.S.C. § 111. The Court explained: In Davis, the Court held that a state tax exempting retirement benefits paid by the State but not those paid by the Federal Government violated the Public Salary Tax Act’s nondiscrimination requirement. See 489 U.S.,[sic] at 817-818 [109 S.Ct. 1500]. Jefferson County’s tax, by contrast, does not discriminate against federal judges in particular, or federal officeholders in general, based on the federal source of their pay or compensation. The tax is paid by all State District and Circuit Court judges in Jefferson County and the three State Supreme Court justices who have satellite offices in the county. 527 U.S. at 442-43, 119 S.Ct. 2069. ¶ 21 From Davis and Jefferson County, we derive the principle that a state income taxing scheme may be said to discriminate between federal employees and state or local employees “because of the source of [their] pay or compensation” if it gives state or local employees an income tax advantage over federal employees, regardless of whether other state or local taxpayers are in the same position as federal employees, or the state taxing scheme imposes an income tax disadvantage on federal employees but not on state or local employees, regardless of whether other state or local taxpayers are in the same position as state or local employees. The discrimination found in Davis, and also that which resulted from the application of former A.R.S. § 43-1022(2) in this case, is of the first variety — in both situations the state taxing scheme conferred a tax benefit exclusively on some state and local employees to the exclusion of federal employees and all other state and local taxpayers. ¶22 The plaintiff taxpayers in this case seek to analogize the second variety of discrimination to A.R.S. § 43-1001(2). Then-attempt fails. Section 43-1001(2) disadvantages all Arizona resident individual taxpayers, private or governmental, who make mandatory retirement plan contributions that are not “picked up” or paid directly by then-employers, over all Arizona resident individual taxpayers whose private or governmental employers pick up or directly pay their mandatory retirement contributions. Either of these groups may contain both state or local government employees and federal employees. The Arizona taxing scheme does not single out all or any subgroup of state or local governmental employees for advantageous treatment as against all others. It likewise does not single out all or any subgroup of federal employees for disadvantageous treatment as against all others. Under those circumstances, despite the fact that some state and local employees are taxed more favorably than federal employees and other Arizona income taxpayers by virtue of A.R.S. § 43-1001(2), we conclude as a matter of law that Arizona law does not discriminate against the plaintiff taxpayers or their putative class “because of the source of [their] pay or compensation” in violation of 4 U.S.C. § 111. ¶ 23 The Supreme Judicial Court of Massachusetts similarly analyzed an analogous situation in Cooper v. Commissioner of Revenue, 421 Mass. 557, 658 N.E.2d 963 (1995). In that case a Massachusetts statute exempted from state taxation all retirement benefits paid by annuity, pension, endowment, or retirement plans of the United States government or the state or governmental employers to which the recipient employee had contributed. Under this statute, state, local, or federal employees who had not contributed a portion of their salary to their retirement funds were required to pay state income taxes on their retirement benefits. ¶ 24 The plaintiff taxpayers in Cooper were military retirees whose retirement plan was funded entirely by the federal government. They claimed refunds of Massachusetts income taxes that they paid on their military retirement benefits. The Appellate Tax Board dismissed their claims. ¶ 25 The Supreme Judicial Court affirmed. The court reasoned: Massachusetts tax law distinguishes between contributory and noncontributory retirement plans, not between State and Federal retirees. “The determining factor for the Massachusetts exemption is whether the retirement fund is a ‘contributory fund to which the employee has contributed.’ ” Technical Information Release (TIR) 89-6 (May 10, 1989), 2 Official MassTax Guide at 369 (West 1995). “Any Federal retirement income is exempt from Massachusetts tax if the system is contributory and the employee actually contributed,” id., and, on the other hand, “[a] non-contributory government pension, received by a retired employee of [a political subdivision of the Commonwealth] ... is includable in the Massachusetts gross income of the employee ... in the taxable year in which the pension is paid.” Letter Ruling 81-51 (June 11, 1981), supra at 576. In sum, the statutory provisions treat retirement benefits paid by the Commonwealth and the Federal government in precisely the same way. 658 N.E.2d at 964. ¶ 26 Arizona’s taxing scheme similarly distinguishes not between state and federal employees, but rather between all those whose employers make or pick up their mandatory retirement contributions and all those whose employers do not. The Arizona taxing scheme, like that of Massachusetts, does not discriminate “because of the [federal or state] source of the pay or compensation.” Cf. Witte v. Director of Revenue, 829 S.W.2d 436, 439 n. 4 (Mo.1992) (rejecting analogous challenge to non-deductibility of federal civil service retirement system contributions, stating: “The appellants have not shown the existence of a line of demarcation between those who benefit from § 143.141 [allowing state deduction of FICA, railroad retirement, and self-employment taxes paid to federal government] and those who do not, based on a classification scheme that is, indeed, ‘intergovernmental’ ”). ¶ 27 The plaintiff taxpayers cite Memphis Bank & Trust Co. v. Garner, 459 U.S. 392, 103 S.Ct. 692, 74 L.Ed.2d 562 (1983), for the proposition that federal law does not permit “piggybacking” to excuse discriminatory state taxation. They are mistaken in believing that Memphis Bank & Trust supports their position in this case. That case involved a state income tax system that adopted federal adjusted gross income as state gross income but made no provision for excluding interest on federal notes and bonds from state taxation. Because interest income from state and local notes and bonds is excluded from federal gross income, it never became a part of the state gross income. The Court found that the state system violated the intergovernmental tax immunity doctrine because it discriminated between holders of state and federal obligations “by including in the tax base income from federal obligations while excluding income from otherwise comparable state and local obligations.” 459 U.S. at 398, 103 S.Ct. 692. ¶28 The beneficiaries of the state taxing scheme challenged in Memphis Bank & Trust were defined by no broader principle or characteristic than them status as holders of state and local obligations. Here, in contrast, the beneficiaries of the challenged Arizona taxing scheme are all those persons whose employers, whether state, local, federal, or private, either make or pick up their employees’ mandatory retirement plan contributions. Similarly, the persons who are disadvantaged by the challenged Arizona taxing scheme are all those whose employers, again whether state, local, federal, or private, choose to leave to their employees the obligation to make their own mandatory retirement plan contributions with after-tax dollars. ¶ 29 The superior court erred in determining that A.R.S. § 43-1001(2) and the Arizona resident individual income taxing scheme violated 4 U.S.C. § 111 and the intergovernmental tax immunity doctrine as applied to the plaintiff taxpayers. B. Denial of Class Certification ¶30 The plaintiff taxpayers cross-appeal from the denial of their motions to certify two alternative plaintiff classes. The sole legal theory on which the plaintiff taxpayers based their claim for refunds for tax years after 1990 was that taxation of their mandatory contributions to federal retirement plans by dint of A.R.S. § 43-1001(2) violated the intergovernmental tax immunity doctrine codified as 4 U.S.C. § 111. We have rejected this theory. The plaintiff taxpayers’ appeal is thus moot to the extent it challenges the tax court’s orders denying their motions to certify plaintiff classes for tax years 1991 through the present. See McNutt v. Dep’t of Revenue, 196 Ariz. 255, 268, ¶ 51, 995 P.2d 691, 704 (App.1998). We accordingly consider the plaintiff taxpayers’ appeal from the denial of class certification only to the extent it pertains to tax years 1985 through 1990. 1. Standard of Review 1131 We review the trial court’s ruling on a motion for class certification for abuse of discretion. Godbey v. Roosevelt Sch. Dist. No. 66 of Maricopa County, 131 Ariz. 13, 16, 638 P.2d 235, 238 (App.1981); Markiewicz v. Salt River Valley Water Users’ Ass’n, 118 Ariz. 329, 341, 576 P.2d 517, 529 (App.1978). 2. The Trial Court’s Order ¶32 In June 1997, two months after the plaintiff taxpayers commenced this litigation, the Governor of Arizona directed ADOR to make refunds for tax years ■ 1985 through 1990 to all taxpayers who had filed timely refund claims, whether or not they had been parties to any administrative proceedings on those claims. Kerr III, 197 Ariz. at 216, ¶ 8, 3 P.3d at 1136. It is undisputed that ADOR took action to implement that order, though disputes arose concerning ADOR’s refunding decisions in particular claimants’ cases. ¶ 33 The plaintiff taxpayers later moved unsuccessfully to certify a class consisting of all current and former federal employees who paid Arizona income taxes on contributions they made to United States Government retirement plans from 1984 to the present who had not been paid refunds of such taxes. The relevant class would have encompassed all current or former federal employees who paid Arizona income taxes on their mandatory contributions to federal retirement plans and either (1) filed a refund claim that ADOR denied, or (2) filed no refund claim at all. The plaintiff taxpayers fail to convince us that the trial court abused its discretion by denying that motion as to tax years 1985 through 1990. ¶ 34 The trial court could reasonably have concluded that certification of a class of those whose refund claims had been denied would have not been “superior to other available methods for the fair and efficient adjudication of the controversy.” Ariz. R. Civ. P. 23(b)(3). Each member of the prospective class would already have invoked the process contemplated by Arizona Individual Income Tax Ruling ITR 98-1 and would have been entitled to appeal the denial of their claims administratively and judicially. See A.R.S. §§ 42-1101, -1104, -1106, -1118, -1119, - 1122, -1251 through -1254 (1999 and Supp. 2000). The trial court might understandably have been reluctant to overlay a second, redundant level of judicial supervision on the individual claims payment process that ADOR had already undertaken for tax years 1985 through 1990. ¶ 35 As we have mentioned, the putative class would also have encompassed refund ‘claimants’ who had filed no written refund claims with ADOR in any form. In Arizona Department of Revenue v. Dougherty (Ladewig), 198 Ariz. 1, 6 P.3d 306 (App.2000), review granted January 9, 2001, this court held that a tax refund action may be brought and maintained as a class action, but that membership in the putative class is restricted to those taxpayers who have exhausted applicable statutory administrative remedies before the Department of Revenue and the Board of Tax Appeals. The Arizona Supreme Court’s opinion on that issue will be controlling. We do not propose to revisit the issue while it is under advisement in that court. We elect instead to follow our own opinion in Ladewig. ¶ 36 We assume arguendo that ADOR would be estopped to deny that the bare filing of amended income tax returns, refund claims, or protective claims as contemplated by ADOR Arizona Individual Income Tax Ruling ITR 98-1 constituted sufficient exhaustion of administrative remedies within the contemplation of the court in Ladewig. See Valencia Energy Co. v. Arizona Dep’t of Revenue, 191 Ariz. 565, 575-79, ¶¶ 29-41, 959 P.2d 1256, 1266-70 (1998) (ADOR may be subjected to equitable estoppel under limited circumstances). However, a person who files no refund claim of any description cannot be said to have complied with the exhaustion requirement no matter how loosely it may be interpreted. The trial court was within its discretion in declining to certify a class consisting of current or former federal employees seeking refunds for years between 1985 through 1990 for which they had failed to file any form of administrative refund claim. ¶ 37 Because of our analysis, we need not address the question of adequacy of the plaintiff taxpayers’ representation of the putative class, the typicality of the plaintiff taxpayers’ claims as compared to those of the putative class members, or the numerosity of the putative class. See Ariz. R. Civ. P. 23(a). We decline to consider the plaintiff taxpayers’ contention, made for the first time in its Reply Brief on Cross-Appeal, that the orders denying class certification must be reversed because the superior court failed to make sufficiently specific findings under Rule 23. C. ADOR Enforcement of Claim/Exhaustion Requirements ¶ 38 Finally, we consider the plaintiff taxpayers’ contention that equal protection principles bar ADOR’s argument that only persons who filed timely administrative claims may receive refunds. They point out that in 1998 ADOR’s Enforcement Division stated in writing that it would abate and refrain from enforcing any unpaid assessments of Arizona individual income taxes attributable to federal retirement contributions made from 1984 through 1990, and that such an abatement was granted in at least one case. Citing Gosnell Development Corp. v. Arizona Department of Revenue, 154 Ariz. 539, 541, 744 P.2d 451, 453 (App.1987), and Smith v. State, 349 N.C. 332, 507 S.E.2d 28 (1998), the plaintiff taxpayers argue that “DOR’s refusal to provide refunds to those who paid the illegal tax but did not file a claim form, while simul taneously giving the full benefit of Davis and Kerr I to those who did not pay in the first place (and so obviously filed no claim form),” contravened equal protection principles. ■ ¶ 39 We disagree. Unlike the situation in Gosnell and Smith, the persons to whom the plaintiff taxpayers contend relief was unfairly granted were not in the same position as those taxpayers who filed no administrative claims. In Gosnell, the plaintiffs competitors had mistakenly calculated and paid contracting taxes on a tax base that excluded non-deductible sums, while the plaintiff had made no such exclusions and paid the correct amounts. ADOR adopted a policy that upon any future audit of the competitors, no deficiency assessments would be made, but at the same time declined to grant any refund to the plaintiff. Similarly, in Smith the taxing authority had made refunds of illegal taxes to some but not all taxpayers who had faded to file notices of refund claims. In contrast, all taxpayers here against whom ADOR determined not to enforce deficiency assessments had previously filed individual returns that affirmatively claimed deductions for sums contributed to mandatory federal retirement plans. Those returns did not differ in substance from the administrative claims filed by those who had initially paid the disputed taxes. The taxpayers whose deficiency assessments ADOR abated were not situated similarly to taxpayers who filed no administrative refund claims at all. No violation of equal protection rights appears. CONCLUSION ¶ 40 Arizona’s income taxing scheme applicable to tax years 1991 to the present does not violate 4 U.S.C. § 111 to the extent it taxes federal employees’ mandatory contributions to retirement plans, but not those of certain state and local employees. The trial court did not err or abuse its discretion in denying the plaintiff taxpayers’ motions for class certification. Equal protection principles do not bar ADOR from denying refunds for tax years 1985 through 1990 to those who filed no administrative refund claims at all for those years, while abating past deficiency assessments, against taxpayers who deducted their federal retirement contributions for the same years and calculated their taxes accordingly. ¶41 The judgment and orders on appeal are affirmed in part and reversed in part, and the matter is remanded with directions to enter judgment in accordance with the views expressed in this opinion. CONCURRING: REBECCA WHITE BERCH, Judge, NOEL FIDEL, Judge. . The pertinent text of 4 U.S.C. § 111 is: The United States consents to the taxation of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation. This legislation is effectively a codification of the constitutional intergovernmental tax immunity doctrine. See Davis v. Michigan Dep’t of Trea stay, 489 U.S. 803, 810-15, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989). . ADOR's opening brief also challenged the superior court's determination that the amended Arizona income tax return filed by Plaintiffs Clark R. Kerr and Billie Sue Kerr for tax year 1984 sufficiently specified a claim for refund of Arizona income taxes they paid on Plaintiff Clark Kerr’s mandatory contributions to a federal employee retirement plan during that year. ADOR also challenged the court's decision to declare that the Kerrs’ attorneys were entitled to an award of attorney's fees under the "common fund” theory. See Kerr v. Killian, 197 Ariz. 213, 218-20, 3 P.3d 1133, 1138-40 (App.2000). ADOR withdrew the common fund award challenge, however. The plaintiff taxpayers also informed us that ADOR had withdrawn its contention that the Kerrs did not sufficiently claim a refund for tax year 1984 and that the plaintiff taxpayers had agreed to limit their appeal from the denial of class certification to tax years 1985 to the present. We therefore do not address these contentions. . The 1989 amendment eliminated the subtraction for contributions to the state retirement system, and county and city retirement plans. A later amendment, 1991 Ariz. Sess. Laws Ch. 155, § 8, eliminated the remaining subtractions. For tax years 1984 through 1986, A.R.S. § 43-1022(2) also permitted subtraction of contributions to the judges' retirement fund. Effective July 1, 1986, that subtraction was repealed and the subtraction for contributions to the corrections officers’ retirement fund was added in its place. See 1986 Ariz. Sess. Laws Ch. 325, § 3, 5. . Section 414(h) provides: Tax treatment of certain contributions (1) In general Effective with respect to taxable years beginning after December 31, 1973, for purposes of this title, any amount contributed— (A) to an employees' trust described in section 401(a), or (B) under a plan described in section 403(a), shall not be treated as having been made by the employer if it is designated as an employee contribution. (2) Designation of units of government For purposes of paragraph (1), in the case of any plan established by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing, where the contributions of employing units are designated as employee contributions but where any employing unit picks up the contributions, the contributions so picked up shall be treated as employer contributions. . The fund managers of the Public Safety Personnel Retirement System and the Corrections Officer Retirement Plan have the power to authorize state and local employers to "pick up" the retirement contributions of members of those plans. A.R.S. §§ 38-843.01 through 38-843.04 (Supp. 2000) and 38-891 (1996). As of 1999, neither fund manager had done so.

OPINION JONES, Vice Chief Justice. ¶ 1 We granted review and consolidated these cases in order to resolve a conflict between Divisions One and Two of the court of appeals concerning the sentencing provisions of Proposition 200, an initiative measure adopted by the voters of Arizona in 1996. The question is whether the probation eligibility provisions of the statute should be applied not only to convictions for possession or use of drugs, but also to convictions for possession of drug paraphernalia. We have determined that Proposition 200 does apply to paraphernalia convictions where the presence of paraphernalia is associated only with personal use by individuals simultaneously charged, or who could have been simultaneously charged, with personal possession or use under Proposition 200. PROCEDURAL HISTORY AND BACKGROUND Proposition 200 ¶ 2 Proposition 200 is officially designated the “Drug Medicalization, Prevention, and Control Act of 1996.” This ballot initiative, codified as Arizona Revised Statute (“A.R.S.”) section 13-901.01, substantially altered applicable sentencing statutes for drug offenders by mandating probation and treatment for the first and second offenses committed by nonviolent defendants. “Briefly stated, the purpose was to change Arizona’s drug control policy by treating drug abuse as a medical problem best handled by treatment and education, not by incarceration.” Foster v. Irwin, 196 Ariz. 230, 231, 995 P.2d 272, 273 ¶ 3 (2000). ¶3 Immediately following its enactment, the legislature amended the statute to narrow the range of eligibility for probation, to limit those subject to mandatory probation, and to permit incarceration as a condition of probation. In 1998, however, in a second ballot measure, these amendments were repealed without ever taking effect. The voters rejected the legislative changes-and again endorsed Proposition 200 as originally enacted. See Calik v. Kongable, 195 Ariz. 496, 990 P.2d 1055 (1999) (examining the history of A.R.S. § 13-901.01). THE FACTS Estrada ¶ 4 Police stopped the car in which Angelita Estrada was a passenger and searched the vehicle after arresting the driver. In a purse containing Estrada’s driver’s license and social security card, officers found methamphetamine in two plastic “baggies” and a single glass tube commonly used for smoking the drug. ¶ 5 The jury convicted Estrada of possession of a dangerous drug, a class 4 felony, and possession of drug paraphernalia, a class 6 felony. For the drug possession, she initially received a three-year term of probation pursuant to Proposition 200, but the court later concluded that a prior conviction made her. ineligible for probation and sentenced her to 2.25 years in prison. The trial court also found the mandatory probation provision inapplicable to the paraphernalia conviction and sentenced Estrada to 0.75 years on that charge. ¶ 6 Estrada appealed her sentence to the court of appeals, Division One, arguing that Proposition 200 forbade imprisonment both on the drug count and the paraphernalia count. The court vacated the prison sentence on the drug count for independent reasons as stated in its opinion. Our review is limited to the paraphernalia question. ¶7 The appeals court,noted correctly that the statute, on its face, does not apply to paraphernalia convictions. However, the court declined to apply a technical construction of the statute that would lead to the questionable result that while Proposition 200 offenders could not be imprisoned for possessing drugs, they could nevertheless be imprisoned for the less serious crime of possessing even simple paraphernalia items commonly employed in the personal use of those drugs. ¶ 8 The court concluded that the voters did not intend this result, as it would fully defeat the stated purpose of Proposition 200 — that prison space should be reserved for violent offenders by diverting drug users from prison to treatment. The court thus vacated Estrada’s prison sentence, holding that the mandatory probation provisions of Proposition 200 do apply to the possession of paraphernalia where the paraphernalia is associated solely with personal possession or use of drugs. See State v. Estrada, 197 Ariz. 383, 388, 4 P.3d 438, 443 ¶ 23 (App.2000). Hatton ¶ 9 Police approached Hatton, who was riding his bicycle at 2:30 a.m. When the officer checked Hatton’s identification, he discovered that Hatton was the object of an outstanding warrant. He was arrested and subjected to a search which produced methamphetamine, marijuana, a set of scales, baggies, a ledger, and glass pipes presumably for smoking methamphetamine. ¶ 10 Hatton was charged with one count of possession of methamphetamine for sale, one count of possession of marijuana, and one count of paraphernalia possession. On both the drug possession and possession for sale counts, he was convicted of the lesser included offense of simple possession of methamphetamine and possession of marijuana. Both are probation eligible. He was also convicted of possessing drug paraphernalia, a class 6 felony. The court imposed concurrent three-year probation sentences for the drug convictions, but, finding Proposition 200 inapplicable to the paraphernalia conviction, gave Hatton a prison sentence of 1.75 years on that count. ¶ 11 On appeal, also in Division One, the court of appeals applied Estrada and found Hatton’s paraphernalia prison sentence improper. In its memorandum decision, the court vacated that sentence and remanded for sentencing under Proposition 200. <State v. Holm ¶ 12 In an earlier case, State v. Holm, Division Two held that possession of paraphernalia is not a lesser included offense of personal drug possession or use and, in contrast with Estrada and Hatton, affirmed Holm’s convictions and sentence of imprisonment. 195 Ariz. 42, 985 P.2d 527 (App.1998). The court appears to have concluded that all drug paraphernalia charges necessarily fall outside Proposition 200. While we may agree that a paraphernalia charge is not a lesser included offense, it does not follow that every paraphernalia charge, regardless of circumstance and the nature of paraphernalia, falls beyond the reach of the statute. ¶ 13 Holm was not convicted of actual possession or use of drugs but only possession of drug paraphernalia. The nature of the paraphernalia is not discernable from the court’s opinion. Review by this court was not sought by Holm. ¶ 14 Because of the apparent conflict between Holm and the instant cases, we granted the State’s petitions for review to determine the applicability of Proposition 200’s mandatory probation provision to drug paraphernalia convictions. We address solely the circumstance in which the defendant is, or could have been, simultaneously charged with the dual crimes of (a) personal possession or use of a controlled substance, and (b) possession of associated paraphernalia. We have jurisdiction under article VI, section 5(3) and (4) of the Arizona Constitution. DISCUSSION ¶ 15 Whether Proposition 200 applies to drug paraphernalia convictions is a question of statutory construction subject to de novo review. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., Inc., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). Our primary objective in construing a ballot initiative is to place a reasonable interpretation on “the intent of the electorate that adopted it.” Foster v. Irwin, 196 Ariz. 230, 231, 995 P.2d 272, 273 ¶ 3 (2000) (quoting Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994)) (internal quotations omitted). I. Statutory Text ¶ 16 We begin the inquiry with the language of the statute: A. Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance as defined in § 36-2501 is eligible for probation. The court shall suspend the imposition or execution of sentence and place such person on probation. C. Personal possession or use of a controlled substance pursuant to this section shall not include possession for sale, pro duction, manufacturing or transportation for sale of any controlled substance. A.R.S. § 13-901.01 (2000). A separate statute defines “controlled substance” by reference to extensive lists of drugs, drug compounds, and chemical precursors. A.R.S. § 36-2501 (2000) (citing controlled substance schedules at A.R.S. §§ 36-2511 to 2516 (2000)). Because these statutes do not specifically include paraphernalia, the State is correct that Proposition 200 does not expressly mandate probation for paraphernalia convictions. From time to time, however, we encounter circumstances in which the plain text of a statute, because of ambiguity or outright silence, fails to give effect to the legislature’s obvious intent. As importantly, we interpret and apply statutory language in a way that will avoid an untenable or irrational result. II. The Statute Produces an Absurd Result ¶ 17 The State argues that our inquiry into voter intent must end with the statutory text because it is unambiguous and produces neither an absurd nor an irrational result. A result is “absurd ‘if it is so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion.’ ” Perini Land Dev. Co. v. Pima County, 170 Ariz. 380, 383, 825 P.2d 1, 4 (1992) (quoting Bussanich v. Douglas, 152 Ariz. 447, 449-50, 733 P.2d 644, 646-47 (App.1986), finding absurd a construction that would result in disparate treatment between public and private employees under the State’s workers’ compensation scheme, despite statutory use of the phrase “private employment”); see also, e.g., Wheeler v. Yuma Sch. Dist. No. One, 156 Ariz. 102, 107, 750 P.2d 860, 865 (1988) (finding that limiting the statutory term “classroom performance” to a teacher’s conduct in the classroom would produce the irrational result that a teacher who mistreats students on the playground would not be entitled to the same notice and opportunity to cure as a teacher whose misconduct takes place in the classroom). The statute in Wheeler, as here, was entirely silent as to the specific actions charged against the defendant. ¶ 18 In both Estrada and Hatton, the court of appeals justifiably found it irrational to permit incarceration for possession of minor paraphernalia and to prohibit incarceration for the more serious crime of actual drug possession or use. The State has suggested no rationale for this inconsistent result, nor do we perceive any reasonable basis for it. See State v. Rodriguez, 153 Ariz. 182, 186-87, 735 P.2d 792, 796-97 (1987) (finding it “inconceivable” that the legislature could have intended the result that greater punishments attend less serious crimes). III. Results Contrary to the Voters’ Intent ¶ 19 In addition, though we most commonly examine legislative history due to statutory ambiguity or absurdity, it is also well established that even where statutory language is “clear and unambiguous,” we will not employ a “plain meaning interpretation [that] would lead to ... a result at odds with the legislature’s intent.” Resolution Trust Corp. v. Western Techs., Inc., 179 Ariz. 195, 201, 877 P.2d 294, 300 (App.1994) (McGregor, J.); see also, e.g., Calik v. Kongable, 195 Ariz. 496, 501, 990 P.2d 1055, 1061 ¶ 20 (1999) (“Courts should avoid hypertechnical constructions that frustrate legislative intent.” (internal quotations omitted)); Mail Boxes, Etc., U.S.A. v. Industrial Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995) (“Where language is unambiguous, it is normally conclusive, absent a clearly expressed legislative intent to the contrary.”); Corbin v. Pickrell, 136 Ariz. 589, 592, 667 P.2d 1304, 1307 (1983) (“[I]t is a basic ‘tenet of statutory construction that where the statutory language is unambiguous, that language must ordinarily be regarded as conclusive, absent a clearly expressed legislative intent to the contrary.”). ¶20 Proposition 200’s intent provisions, which explicitly call for treatment rather than incarceration of first time drug offenders in order to reduce drug use and preserve prison space for more dangerous criminals, make it clear that the electorate, acting in the role of the legislature, did not intend to incarcerate for the lesser offense and yet mandate probation for the more serious. Text of Proposed Amendment § 3(C),(E),(F), Proposition 200, 1996 Ballot Propositions. ¶ 21 Under the State’s interpretation, the overwhelming majority of first time drug users would be subject to imprisonment despite Proposition 200’s mandate that, “[n]otwithstanding any law to the contrary,” qualifying defendants convicted of “personal possession or use of a controlled substance” shall receive probationary treatment. A.R.S. § 13-901.01(A) (2000). The court of appeals, Division One, found this construction directly at odds with the stated purposes of Proposition 200: The voters who insisted on probationary treatment for drug users could not have meant to mandate probation for possessing methamphetamine but permit prison for possessing a tube to smoke it in. The voters who sought to reserve prison space for violent offenders could not have intended, when a defendant is caught with a joint of marijuana, to require probation for the drug, yet permit prison for the rolling paper wrapped around it. Estrada, 197 Ariz. at 388, 4 P.3d at 443 ¶ 21. ¶22 Most importantly, the State’s approach compels an irrational result. The term “drug paraphernalia,” broadly construed, includes virtually all devices or objects used or intended for use in connection with the possession, use, production, or sale of illegal drugs. A.R.S. § 13-3415(F)(2) (2000). The possession of otherwise innocuous items, such as “[bjlenders, bowls, containers, [or] spoons,” would thus become criminal, simply by their regular association with drugs. A.R.S. § 13-3415(F)(2)(h) (2000). Yet, as a practical matter, a person will rarely, if ever, possess or use a controlled substance without also possessing these associated paraphernalia. Accordingly, there exists a conspicuous gap in the statute because it is silent as to paraphernalia. This is not the first time such a phenomenon has occurred. In City of Scottsdale v. McDowell Mountain Irrigation & Drainage Dist., this court declined to read the statutory phrase “resident owners of real property” as meaning owners who physically reside on the real property, where doing so would require a “practical impossibility” and thereby “defeat” the statutory objective. 107 Ariz. 117, 122-23, 483 P.2d 532, 537-38 (1971). In the instant case, the “practical impossibility”— drug use occurring absent paraphernalia— arises because, in actual practice, drug possession routinely requires a container of some sort, such as a plastic bag or an envelope. And similarly, drug use is regularly facilitated by a delivery device of some kind, such as a syringe, a wrapper, or a smoking pipe. ¶ 23 To interpret Proposition 200 as mandating probation for the crime of smoking marijuana but permitting incarceration if the State charges the user for possessing paraphernalia because the shredded marijuana was wrapped in paper, produces a transparently absurd result. ¶ 24 We hold, therefore, that the probation eligibility provisions of Proposition 200 apply to convictions for the possession of items of drug paraphernalia associated solely with personal use by individuals also charged or who could have been charged with simple use or possession of a controlled substance under the statute. To find otherwise would permit the State to circumvent the manifest purpose of the statute and render Proposition 200 a practical nullity. ¶ 25 We emphasize that Proposition 200 does not make all drug paraphernalia convictions probation eligible. The protec tions of the statute apply only to clearly defined individuals engaged in “personal possession or use of a controlled substance.” The protections do not apply to individuals engaged in the “sale, production, manufacturing or transportation for sale of any controlled substance” or to paraphernalia associated with those activities. A.R.S. § 13-901.01(C) (2000). See Foster, 196 Ariz. at 233, 995 P.2d at 275 ¶7 (“Proposition 200 differentiates non-commercial possession or use from the commercial or potentially commercial trafficking in controlled substances.”). This important distinction can be made by an appropriate instruction to the jury and the essential factual determination can be resolved by a simple interrogatory. CONCLUSION ¶ 26 Estrada’s and Hatton’s sentences of incarceration for possession of paraphernalia were properly vacated by the court of appeals. Accordingly, we affirm both decisions. Further, we expressly disapprove the analysis and result in State v. Holm. CONCURRING: Frederick J. Martone, Justice, Ruth V. McGregor, Justice. . For a second drug offense, section 13-901.01(F) permits the imposition of up to one year in jail as a condition of probation. See also Calik v. Kongable, 195 Ariz. 496, 499, 990 P.2d 1055, 1058 ¶ 13 (1999). . The concurring opinion urges the court to extend the application of Proposition 200 to include persons found exclusively in possession of paraphernalia but without the presence of illegal drugs. This argument raises the separate question whether the probation eligibility provisions can be applied to a "stand-alone” paraphernalia charge. We decline to address the question for two reasons. First, the stand-alone case is not presented on this record inasmuch as drugs were actually possessed by both Estrada and Hatton. Second, and more importantly, Proposition 200, by its own terms, depends on the actual presence of drugs. Accordingly, we have no authority to expand the Proposition to cover circumstances in which drugs are not present. Further extension is necessarily a matter for the legislature.

OPINION ZLAKET, Chief Justice. ¶ 1 The Honorable Alfredo C. Marquez of the United States District Court for the District of Arizona has certified two questions of Arizona law to this court, reformulated as follows: 1. Whether a claim for punitive damages survives the death of a tortfeasor and may be pursued against his or her estate? 2. Whether a corporate defendant can be held vicariously liable for punitive damages arising out of the tortious conduct of its now-deceased employee? ¶ 2 We have jurisdiction pursuant to Arizona Constitution art. 6, § 5(6), Arizona Revised Statutes § 12-1861 (1994), and Supreme Court Rule 27(a). Background ¶ 3 Timothy Fisher was the president and chief executive officer of Fisher Surveying, Inc. On December 10, 1996, he was driving southbound on Highway 191 in Graham County while in the course and scope of his employment. Several motorists- witnessed Fisher cross the road’s center line and tried unsuccessfully to warn him with horns and flashing headlights. Unfortunately, he continued on his way, eventually colliding with a truck in which Haralson was a passenger. Fisher was killed in the accident and Haralson was injured. Fisher’s body subsequently tested positive for the presence of amphetamines, benzodiazepine, and marijuana metabolites. Defendants admit that the deceased was at fault. Discussion 1. Estate Liability. ¶ 4 We first address whether punitive damages can be assessed against the estate of a deceased tortfeasor. The court of appeals confronted this issue thirty-one years ago in Braun v. Moreno, 11 Ariz.App. 509, 466 P.2d 60 (1970). In that case, both drivers were killed in the underlying collision. In refusing to permit an award of punitive damages against the wrongdoer’s estate, the court noted that such damages “are not to compensate an injured person for the loss sustained, but to punish a defendant for his conduct. Since the deceased tortfeasor can in no way be punished by the award of punitive damages, we see no reason for allowing such damages to be assessed.” Id. at 511-12, 466 P.2d at 62-63 (citation omitted). ¶ 5 We are not bound by the court of appeals’ opinion. Wilderness World, Inc. v. Department of Revenue, 182 Ariz. 196, 200, 895 P.2d 108, 112 (1995). Moreover, because Braun failed to adequately consider the larger societal effects of punitive damage awards, we decline to follow its reasoning. ¶ 6 The purpose of punitive damages has never been limited to punishment. At their inception, such damages were awarded “not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter any such proceeding for the future, and as proof of the detestation of the jury to the action itself.” Wilkes v. Wood, 98 Eng.Rep. 489 (C.P.1763). Punitive damages have always served to set an example; hence, the terms “punitive” and “exemplary” are used interchangeably in our law. See, e.g., Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330, 723 P.2d 675, 679 (1986); 22 Am. Jur.2d Damages § 731 (1988). ¶ 7 Punishment, societal condemnation, deterrence, and public policy have been recognized in Arizona as valid grounds for assessing punitive damages. See, e.g., Wyatt v. Wehmueller, 167 Ariz. 281, 285, 806 P.2d 870, 874 (1991) (stating that such awards “punish reprehensible conduct”) (citation omitted); Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073, 1080 (1987) (finding that exemplary damages are designed “to express society’s disapproval of outrageous conduct and to deter such conduct by the defendant and others in the future”); Linthicum, 150 Ariz. at 330, 723 P.2d at 679 (stating that such damages are “to punish the wrongdoer and to deter others from emulating his conduct”); Acheson v. Shafter, 107 Ariz. 576, 578, 490 P.2d 832, 834 (1971) (declaring that “[pjunitive damages are allowed on grounds of public policy”). ¶ 8 We recognize that a majority of jurisdictions do not permit such damages to be awarded against a deceased tortfeasor’s estate. See G.J.D. v. Johnson, 552 Pa. 169, 713 A.2d 1127, 1129 (1998) (surveying state statutes and cases); see also Restatement (Second) of Torts § 908 cmt. a (1977) (“Punitive damages are not awarded against the representatives of a deceased tortfeasor nor, ordinarily, in an action under a death statute.”). Like the dissent, these courts argue that the primary purpose of punitive damages — punishment — is not advanced when the tortfeasor is deceased. Doe v. Colligan, 753 P.2d 144, 146 (Alaska 1988); Thompson v. Estate of Petroff, 319 N.W.2d 400, 408 (Minn.1982); Allen v. Anderson, 93 Nev. 204, 562 P.2d 487, 489-90 (1977) (quoting Braun, 11 Ariz.App. at 511-12, 466 P.2d at 62-63). They also suggest that, in allowing punitive damages against the deceased’s heirs, innocent parties are punished. Lohr v. Byrd, 522 So.2d 845, 846 (Fla.1988); State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M. 568, 761 P.2d 446, 449 (Ct.App.1988), aff'd by Jaramillo v. Providence Washington Ins. Co., 117 N.M. 337, 871 P.2d 1343, 1352 (1994). Finally, they claim it is speculative to conclude that such an award has a deterrent effect on others. Colligan, 753 P.2d at 146; Lohr, 522 So.2d at 846. 119 There are, however, jurisdictions allowing recovery of exemplary damages from a deceased tortfeasor’s estate. In Alabama, the state’s wrongful death statute was long ago interpreted to permit punitive damages based on a general deterrence rationale. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77, 85 (1954). Relying on that reasoning, the Fifth Circuit has held that recovery of punitive damages against estates in Alabama is not limited to wrongful death actions. Ellis v. Zuck, 546 F.2d 643, 644-45 (5th Cir.1977). If 10 Texas permits the imposition of punitive damages for many reasons besides punishment — to set an example for others; to reimburse for inconvenience, attorneys’ fees, and other losses outside the normal realm of compensatory damages; and to serve the overall public good. Hofer v. Lavender, 679 S.W.2d 470, 474-75 (Tex.1984). In addition to punishment and deterrence, West Virginia utilizes exemplary damages to provide additional compensation for victims of reckless and wanton conduct. Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8, 12-13 (1982). ¶ 11 In Tillett v. Lippert, 275 Mont. 1, 909 P.2d 1158 (1996), the Montana Supreme Court sustained a punitive award against an estate, relying on both case law and a statute which provides that “a judge or jury may award ... punitive damages for the sake of example____” Id. at 1162 (quoting Mont. Code Ann. § 27-1-220). The Pennsylvania Supreme Court has similarly upheld the imposition of exemplary damages against an estate based on principles of fairness and general deterrence. G.J.D., 713 A.2d at 1131 (“To allow a tortfeasor’s estate to escape payment of punitive damages would be comparable to the injustice of allowing a defendant to transfer his wealth to his prospective heirs and beneficiaries prior to the trial of a case in which punitive damages are sought against him.”). ¶ 12 An Illinois appellate court enforced an award of punitive damages against a deceased’s estate in Penberthy v. Price, 281 Ill.App.3d 16, 216 Ill.Dec. 902, 666 N.E.2d 352 (1996). Like the instant case, Penberthy dealt with an intoxicated driver who crossed the center line and collided with the plaintiffs’ vehicle. The Illinois court permitted survival of the punitive damage award based on general deterrence and the “strong public policy against mixing alcohol and automobiles.” Id., 216 Ill.Dec. 902, 666 N.E.2d at 356-57. ¶ 13 We find the reasoning in these cases to be most persuasive. We also recognize the obvious — that it is impossible to punish or deter the decedent in this case, and that his acts resulted in a far more serious penalty than any court or jury could mete out. Nevertheless, without making a judgment concerning the advisability of exemplary damages here, we conclude that there are situations in which it would be appropriate, and perhaps even necessary, “to express society’s disapproval of outrageous conduct” by rendering such an award against the estate of a deceased tortfeasor. Hawkins, 152 Ariz. at 497, 733 P.2d at 1080; see also Caron v. Caron, 577 A.2d 1178, 1180 (Me.1990) (stating, in a spousal and child abuse case, that the “primary purpose of punitive damages is to ‘express society’s disapproval of intolerable conduct and to deter such conduct where no other remedy would suffice’ ”) (internal punctuation and citation omitted); Linscott v. Rainier Nat'l Life Ins. Co., 100 Idaho 854, 606 P.2d 958, 961 (1980) (finding that the purpose of exemplary damages “is not to compensate the plaintiff, but to express the outrage of society at certain actions of the defendant”). Examples such as terrorist attacks or bombings, mass murders, and serial killings immediately come to mind. It is difficult to understand why the assets of those who perpetrate such atrocities and then die should be shielded from punitive damage liability. ¶ 14 We do not suggest, however, that today’s holding is limited to such extreme conduct. We rely on the good sense and wisdom of judges and juries to decide which fact situations are serious enough to call for punitive awards against an estate, subject always to the narrow guidelines we have previously established with respect to such damages. See Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 555-57, 832 P.2d 203, 208-10 (1992) (demanding clear and convincing evidence); Rawlings v. Apodaca, 151 Ariz. 149,161-63, 726 P.2d 565, 577-79 (1986) (requiring, as a predicate, an “evil hand” being guided by an “evil mind” which “either consciously sought to damage the [victim] or acted intentionally, knowing that its conduct was likely to cause unjustified, significant damage”). ¶ 15 While a punitive award cannot punish a deceased wrongdoer for his or her reprehensible conduct, it may “deter its future occurrence” by others. Wyatt, 167 Ariz. at 285, 806 P.2d at 874 (quoting International Bd. of Elec. Workers v. Foust, 442 U.S. 42, 48, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (citation omitted)). The rule we embrace sends a forceful message that a person’s assets may not be insulated by the happenstance of death. Although ordinarily earmarked for the decedent’s heirs, such assets may be required to satisfy both compensatory and punitive damage awards flowing from his or her wrongdoing. We see nothing unjust in this principle. ¶ 16 There is no logical reason why courts should allow a punitive award against a defendant who survives a judgment, but deny it where death occurs earlier. Suppose, for example, two individuals commit equally culpable and outrageous acts. One is comatose and, for all practical purposes, has no reasonable chance of recovery. The other is dead. Is there a way to explain why the unconscious tortfeasor would have his assets exposed to punitive liability, while the deceased’s estate would be immunized from it? Surely the answer does not lie in our inability to punish the dead wrongdoer. ¶ 17 If there is to be a difference in legal treatment, it should be established by the legislature. Just as that body expressly terminated recovery for pain and suffering upon the death of tort victims, see Ariz.Rev.Stat. § 14-3110 (“Every cause of action ... shall survive the death of the person entitled thereto or liable therefor ... provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.”), it could have spoken directly to the damages issue before us. However, it has not done so. ¶ 18 The dissent’s suggestion that we should interpret the legislature’s silence as approval of the holding in Braun, infra ¶ 33, is off the mark and ignores our own well-established precedent. As Justice Martone explained in Southwestern Paint & Varnish Co. v. Arizona Dep’t of Envtl. Quality, 194 Ariz. 22, 25, 976 P.2d 872, 875, ¶¶ 20-21 (1999), The dissent contends that the legislature’s acquiescence in Herzberg[ v. David, 27 Ariz.App. 418, 555 P.2d 677 (1976)] is suggestive of legislative intent. The argument is without merit for two independent reasons. First, the principle of legislative acquiescence applies only where a statute has been construed by the court of last resort, not an intermediate appellate court. Calvert v. Farmers Ins. Co. of Arizona, 144 Ariz. 291, 297, 697 P.2d 684, 690 (1985) (“Owens and progeny, however, were decided by the Court of Appeals, and not the court of last resort in this state, the Arizona Supreme Court. Thus, this principle has no application to the case at bar.”). Similarly, Herzberg and its progeny were decided by the court of appeals and not this court. As noted, this is a case'of first impression for us. Second, even if the principle were applicable, it is limited to instances in which the legislature has considered and declined to reject the relevant judicial interpretation. Lowing v. Allstate Ins. Co., 176 Ariz. 101, 106, 859 P.2d 724, 729 (1993). We have squarely rejected the idea that silence is an expression of legislative intent. Id. (Emphasis added); see also, Summerfield v. Superior Court, 144 Ariz. 467, 478, 698 P.2d 712, 723 (1985) (“While legislative inaction following an authoritative opinion by this court may militate in favor of defendant’s position, the same is not true when the matter in question has never been before this court.”). ¶ 19 The tortfeasor’s estate is entitled only to what the law affords — nothing more. Whatever the heirs may hope to inherit is generally contingent upon the obligations incurred by the deceased during his or her lifetime. See Ariz.Rev.Stat. § 14-3101 (1995); In re Estate of Foreman, 99 Ariz. 147, 150, 407 P.2d 102, 104-05 (1965) (stating that the “interest of the heirs is subject to the payment of the debts of the estate”). The legislature has never said that liability for exemplary damages arising from a decedent’s outrageous behavior is an exception to this rule, or that such exposure is automatically terminated upon the death of the tortfeasor. ¶ 20 Because punitive damages can serve as both an example and a deterrent to others in the community, we hold that there is no per se prohibition against their imposition upon a decedent’s estate. Such an award is peculiarly within the province of the trier of fact. Acheson, 107 Ariz. at 579, 490 P.2d at 835. Adequate safeguards exist, and should be utilized, to protect against arbitrary, exorbitant, or otherwise improper verdicts. Jurors should be instructed to consider all aspects of fairness and justice in deciding whether, and in what amount, to award punitive damages. This would include the value of the estate and hardship to the heirs. Hawkins, 152 Ariz. at 497, 733 P.2d at 1080. The jury should also be reminded of its right to decline a punitive verdict altogether. Moreover, the parties are free to argue the reasonableness and advisability of such an award. Thus, an estate is placed in the same position as any other defendant against whom a punitive award is sought. ¶ 21 Finally, if a verdict is “so manifestly unfair, unreasonable and outrageous as to shock the conscience of the Court,” the judge can grant a remittitur or new trial. Acheson, 107 Ariz. at 579, 490 P.2d at 835 (quoting Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 (1962)); see also Sheppard v. Crow-Barker-Paul No. 1 Ltd. P’ship, 192 Ariz. 539, 549, 968 P.2d 612, 622 (Ct.App.1998). 2. Employer Liability. ¶ 22 We now turn to whether a corporate defendant can be held vicariously liable for exemplary damages arising from the acts of a deceased tortfeasor-employee. In Wiper v. Downtown Dev. Corp. of Tucson, 152 Ariz. 309, 732 P.2d 200 (1987), this court granted review “to clarify the relationship between punitive damages and the doctrine of respondeat superior.” Id. at 310, 732 P.2d at 201. We held that when both an employer and employee are named as defendants in a lawsuit, “an award of punitive damages against an employer is improper where no punitive damages have been awarded against the employee and the employer’s liability is based solely on the doctrine of respondeat superi- or.” Id. at 312, 732 P.2d at 203. In other words, “[i]f an employee’s conduct does not warrant recovery of punitive damages against himself, it can not serve as a basis for such recovery against an employer.” Id. at 311, 732 P.2d at 202. ¶ 23 When a judge or jury finds for an employee on the issue of punitive damages, as in Wiper, the employer may only be held liable if its own independent tortious conduct is involved. Wiper, 152 Ariz. at 312, 732 P.2d at 203; see also Ford v. Revlon, Inc., 153 Ariz. 38, 42, 734 P.2d 580, 584 (1987); Torres v. Kennecott Copper Corp., 15 Ariz.App. 272, 274-75, 488 P.2d 477, 479-80 (1971). There is, however, no allegation of independent misconduct by Fisher Surveying in this case. Therefore, if this employer is to be held liable, it must be solely upon principles of respondeat superior. ¶ 24 Under the Restatement, the absence of independent wrongdoing on the part of the employer would generally prevent any recovery of exemplary damages. Restatement (Second) of Torts § 909 (1977); Restatement (Second) of Agency § 217C (1957); see, e.g., Smith’s Food & Drug Ctrs., Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208, 1214 (1998); Brashear v. Packers, 118 N.M. 581, 883 P.2d 1278, 1280 (1994). However, “Ari zona has specifically rejected the Restatement view in favor of a rule allowing punitive damages against an employer for acts of its employees ‘so long as committed in the furtherance of the employer’s business and acting within the scope of employment.’ ” Wiper, 152 Ariz. at 310, 732 P.2d at 201 (quoting Western Coach Corp. v. Vaughn, 9 Ariz.App. 336, 338-39, 452 P.2d 117, 119-20 (1969)); see also Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 502, 647 P.2d 629, 633 (1982); Boyce, 26 Ariz. at 174, 223 P. at 120. ¶ 25 This rule governing vicarious punitive liability is not predicated on the employee being alive when a lawsuit is brought; it is sufficient that, when the tort was committed, the employee was performing his or her job. Such a result is justified because “an employer receives some economic benefit from the employee’s labor and specifically, defines for the employee the scope of employment.” Jacobson v. Superior Court, 154 Ariz. 430, 432, 743 P.2d 410, 412 (Ct.App.1987). ¶ 26 We therefore answer both questions posed by the District Court in the affirmative. CONCURRING: STANLEY G. FELDMAN, Justice. . The present case does not involve a claim for wrongful death. But because Braun was a wrongful death action, the dissent initially focuses on Ariz.Rev.Stat. § 12-613. Infra ¶¶ 33-34. Five years before Braun was decided, we held that punitive damages are recoverable under that statute, which permits the judge or jury to consider "aggravating circumstances attending the wrongful act, neglect or default." Boies v. Cole, 99 Ariz. 198, 202, 407 P.2d 917, 920 (1965) (quoting Ariz.Rev.Stat. § 12-613). Nothing in our wrongful death statutes expressly prohibits a punitive award against a deceased tortfeasor’s estate. See Ariz.Rev.Stat. §§ 12-611 to -613. Thus, Braun rests on case law from other jurisdictions, primarily Barnes v. Smith, 305 F.2d 226 (10th Cir.1962) (reasoning that because punishment is no longer possible when a tortfeasor is deceased, punitive damages are inappropriate). See Braun, 11 Ariz.App. at 511-12, 466 P.2d at 62-63. . “[Ajlthough we generally follow the Restatement absent statutes or cases to the contrary, we will not do so blindly.” Barnes v. Outlaw, 192 Ariz. 283, 285, 964 P.2d 484, 486 (1998); see also Villareal v. State Dep't of Transp., 160 Ariz. 474, 479, 774 P.2d 213, 218 (1989) (recognizing child’s consortium claim despite Restatement rule that does not); infra ¶24 (reflecting Arizona’s rejection of the Restatement view limiting respondeat superior liability for punitive damages). . We note, for example, that Arizona's “public policy of deterring drunk driving,” Del E. Webb Corp. v. Superior Court, 151 Ariz. 164, 170, 726 P.2d 580, 586 (1986), denounces the type of conduct described in this case. See Ariz.Rev. Stat. § 28-1381 (Supp.2000). . This statute is patently indifferent to the adverse financial effect it may have on a victim’s clearly innocent estate and heirs by extinguishing what could be a significant damage claim. Thus, the dissent’s concern for the estate and heirs of an evil wrongdoer who causes considerable harm, infra ¶ 38, may not accurately reflect the thinking of a legislature which has chosen to remain silent on the subject. . The dissent claims that the estate is at a disadvantage because the tortfeasor is dead. Infra ¶ 38. But that disadvantage exists any time a party is deceased, and applies equally to claims for compensatory and punitive damages. Moreover, because both compensatory and punitive awards have the clear potential of diminishing an estate and depriving “innocent" heirs of their inheritance, a difference in treatment on such a ground is difficult to justify. . It is important to note that Wiper does not prevent an award of punitive damages against an employer when the employee’s behavior merits such liability, nor does it preclude vicarious liability in cases where only tire employer is sued. See, e.g., Southern Pac. Co. v. Boyce, 26 Ariz. 162, 223 P. 116(1924). . Even the Restatement, however, would allow an employer to be found liable for punitive damages if the decedent was “employed in a managerial capacity and was acting in the scope of employment.” Restatement (Second) of Torts § 909(c).

OPINION HATHAWAY, Chief Judge. Appellant operates The Owl Bookstore, an adult bookstore on Grand Avenue in Phoenix, Arizona. It wishes to relocate the business to another address on the opposite side of Grand Avenue. Both sites are zoned C-3, a general commercial zoning designation for intensive commercial uses. Phoenix’s adult use zoning ordinance, § 417(B)(2), does not allow an adult business to be located within 500 feet of a residential zoning district. The proposed new site is within 500 feet of such a residential zoning district which, in this case, is the Arizona State Fairgrounds. Appellant’s present location is a nonconforming use established prior to the enactment of the adult business provisions of the zoning ordinance, entitling it to stay at that location indefinitely despite § 417(B)(2). On July 10, 1980, appellant sought an interpretation from the city zoning administrator claiming that § 417(B)(2) was not applicable to its proposed location because of the existence of the state fairgrounds on the residentially zoned site. The zoning administrator found in appellant’s favor. On October 8, 1980, a special public hearing was held before the board of adjustment to consider the city’s appeal of the zoning administrator’s decision. The board reversed the zoning administrator and held that § 417(B)(2) applies to appellant. Book-Cellar filed a petition for special action in superior court seeking reversal of the board’s decision. Originally the trial court held that a special action was not the proper vehicle to test the board’s decision. The court ruled that a petition for special action cannot be granted when it alleges only an abuse of discretion rather than alleging that the board acted in excess of its jurisdiction. That issue was appealed and the Court of Appeals held that special action proceedings were appropriate in Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 678 P.2d 517 (App.1983). Upon remand, the trial court ruled against appellant on the merits and affirmed the board. This appeal followed. Appellant raises three issues on appeal: (1) the municipal zoning ordinance does not apply to governmentally owned property upon which is located a governmentally owned facility such as the fairground; (2) the adult use ordinance is a restriction on speech and must be narrowly tailored to reach legitimate state interests and since the ordinance was designed to protect residential neighborhoods, not areas that happen to be zoned residential, it cannot be applied to the fairgrounds; (3) the board’s application of the fairgrounds’ residential zoning only to Book-Cellar and not to any other commercial activities conducted at the fairgrounds denies equal protection and abridges rights of free expression guaranteed to Book-Cellar under the First and Fourteenth amendments to the United States Constitution. I. EXHAUSTION OF ADMINISTRATIVE REMEDIES Appellees argue that regardless of the merits of appellant’s claim, it has not exhausted its administrative remedies and therefore we should dismiss this appeal. The thrust of appellees’ argument is that appellant, not having sought a waiver of the 500-foot limitation pursuant to § 418-(B)(2) through the proper administrative channels, has failed to exhaust its administrative remedies. The doctrine of exhaustion of administrative remedies does not force alternate elective procedures upon a party. Rather that doctrine requires a party, before turning to the courts, to exhaust all potential administrative remedies in order to obtain the relief originally sought. In the current situation, appellant is not seeking a waiver of the 500-foot limitation. Appellant’s claim is that that limitation cannot be applied to it, in other words, appellant contends that it is not subject to the ordinance and there is no reason to apply for a waiver. We agree and find the cases cited by appellees requiring administrative ex haustion are inapposite. See e.g., Minor v. Cochise County, 125 Ariz. 170, 608 P.2d 309 (1980). II. GOVERNMENTAL v. PROPRIETARY FUNCTION Appellant argues that the City of Phoenix has no right to zone the land owned by the state government and used as the Arizona State Fairgrounds. Appellant concludes that since the city cannot legally zone that area, it is not zoned residential and the 500-foot rule does not apply. Appellant is correct that a governmental body is generally not subject to zoning restrictions in its use of property for governmental purposes. Board of Regents of the Universities and State College v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960). The Arizona Coliseum and Exposition Center Board, which operates the state fairgrounds, is a subdivision of the State of Arizona. See A.R.S. § 3-1001, et seq. The general rule which bars municipal zoning of state functions does not apply to proprietary operations of the state. Therefore, if the state fairgrounds constitutes a proprietary operation, it can be properly zoned by the city. See Board of Regents of Universities and State College v. City of Tempe, supra; City of Scottsdale v. Municipal Court of the City of Tempe, 90 Ariz. 393, 368 P.2d 637 (1962). The Arizona Attorney General opinion number 59-117, issued July 6, 1959, advised that the State Fair Commission, now the Coliseum and Exposition Center Board, does act in a proprietary capacity. In Mills Music, Inc. v. State of Arizona and Arizona Coliseum and Exposition Center Board, 591 F.2d 1278 (9th Cir.1979), the Ninth Circuit held that the operation of the state fairgrounds was essentially a commercial activity. We agree. The operation of the fairgrounds is not a fundamentally inherent function of or encompassed within the basic nature of government. It is more a commercial activity which directly competes with other commercial activities in the city. Indeed, it is not funded directly by state taxes but rather through bonds issued by the Arizona Coliseum and Exposition Center Board. These bonds are payable through revenues derived by operation of the fair. A.R.S. § 3-1008. Therefore, the city can properly zone the area used as the state’s fairgrounds. Because the fairgrounds operated well before the enactment of the residential zoning ordinance, the nonconforming use by the state is protected. A.R.S. § 9-462.02. III. CONSTITUTIONALITY OF 500-FOOT LIMITATION ON ITS FACE AND AS APPLIED Appellant does not facially challenge the constitutionality of zoning ordinance § 417(B)(2). To challenge this ordinance on its face would be a fruitless effort since such ordinances have been uniformly held constitutional. City of Renton v. Playtime Theaters, Inc., — U.S. -, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, reh. den. 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976); Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978), cert. den. 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979). See also, Validity of “War Zone” Ordinances Restricting Location of Sex-Oriented Businesses, 1 A.L.R.4th 1297 (1980); but see Avalon Cinema Corporation v. Thompson, 667 F.2d 659 (8th Cir. 1981). In Renton, the court held that statutes such as Phoenix’s are content neutral, as opposed to content based speech restrictions. This is an important distinction. If the statute is found to be content based, it would presumptively violate the first amendment and would be subject to strict constitutional scrutiny. If, however, the statute is content neutral, as the city’s is, it is constitutional as long as it serves a substantial state interest and is reasonable as to time, place and manner of imposition. See Renton. The city’s statute clearly, on its face, meets the above standard. A statute, however, curtailing free speech may not only be found void on its face, but even if not void on its face, may be challenged because it is invalid as applied. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, overruled on other grounds (1928); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Therefore, in order for the Phoenix zoning ordinance to be valid, it must not only be reasonable in time, place and manner, but also not arbitrary in operation. Hill v. City of Manhattan Beach, 6 Cal.3d 279, 98 Cal.Rptr. 785, 491 P.2d 369 (1971); Walnut Properties, Inc. v. Long Beach City Council, 100 Cal.App.3d 1018, 161 Cal.Rptr. 411 (1980). We find that the current application of the Phoenix zoning ordinance is not arbitrary in operation. Appellant argues that § 417 was intended to protect residential concentrations and its application in this case would not achieve that objective. That statement may only be temporarily valid. We do not have independent knowledge and cannot take judicial notice that the land upon which the fairgrounds are located will be perpetually used for commercial enterprises. The location of the fairground is determined by the state. The city has no control over the eventual disposition of the property and it may be developed for residential purposes in the future. To follow appellant’s reasoning would require the city to permit adult establishments within 500 feet of vacant lots or empty buildings zoned residential. This would place the city in the untenable position of being unable to institute long-range planning. Additionally, the presence of these establishments may impede planned residential development. It is not arbitrary for the city to protect areas it intends as residential in the future. The ordinance is constitutional as applied. IV. EQUAL PROTECTION The Fourteenth Amendment of the United States Constitution provides that states are forbidden to deny any person within their jurisdiction equal protection of the laws. Appellant argues that the city only treats the fairground property as residentially zoned when applied to appellant. The gist of appellant’s argument is that since the fairgrounds has been zoned residential, the city has permitted new non-conforming commercial uses such as the Phoenix Suns, ice shows, rock concerts, etc. Appellant ignores the nature of equal protection. It guarantees that persons in like circumstances and like conditions be treated equally. See e.g., Hartford Steam Boiler Inspection & Insurance Company v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223 (1937). Appellant complains about others not similarly situated. The activities appellant complains of take place on the fairgrounds property in a residentially zoned area. Appellant is attempting to locate in a commercial zone and is being affected by the fairgrounds zoning. The constitution does not require situations which are different in fact to be treated as though they were the same. See e.g., Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). The equal protection clause does not apply to this situation. In any event, the uses complained of are protected nonconforming uses. Affirmed. HOWARD, P.J., and FERNANDEZ, J., concur.

CAMERON, Justice. The defendant (petitioner), David T. Hinson, is charged with four counts of driving while intoxicated (DWI) and three counts of driving with a blood alcohol content in excess of .10 percent. A.R.S. § 28-692. The charges were all class 5 felonies, as petitioner has two prior DWI convictions. A.R.S. § 28-692.01(F). From a denial of defendant’s motion to dismiss, defendant petitioned this court for a special action which we granted. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and Rule 8, Arizona Rules for Special Actions, 17A A.R.S.. The issues to be resolved are: 1. Whether the application of A.R.S. § 28-692.01(F) to petitioner offends the fundamental fairness concept of due process of law. 2. Whether the delay in prosecuting the defendant was a violation of our speedy trial rules. Rule 8, Rules of Criminal Procedure, 17 A.R.S.. The facts follow. In 1980, defendant was twice convicted of driving while intoxicated with a suspended license. The first conviction arose from an incident occurring on 4 January 1980, the second from an incident on 11 May 1980. In 1984, defendant was arrested for DWI on four occasions: on 26 February, on 5 April, on 17 May, and on 8 June. On each occasion, defendant was booked, instructed to appear at a preliminary hearing and released without being required to post bond. The defendant alleges that when he appeared for each of the preliminary hearings at the time indicated, he was either told that there was no record of the charges or that they had been “scratched”. On 1 July 1985, defendant was indicted by the grand jury for seven counts of driving while intoxicated, or driving with a blood alcohol level in excess of .10 percent with two prior DWI convictions. Defendant filed a motion to dismiss the indictments. The motion was denied. We granted the petition because an issue of statewide importance in the prosecution of drunk driving cases is raised. THE APPLICATION OF A.R.S. § 28-692.01(F) In 1983, the Legislature amended A.R.S. § 28-692.01(F) to read: If a person is convicted of a third or subsequent violation of § 28-692 within a period of sixty months, the person is guilty of a class 5 felony and shall not be eligible for probation, pardon, parole, commutation or suspension of sentence or release on any other basis except as specifically authorized by § 31-233, subsection A or B until the person has served not less than six months in prison. The dates of the commission of the offense are the determining factor in applying this subsection.... Laws 1983, Chapter 279 (emphasis added). This amendment, which was effective 26 July 1983, expanded the time period for consideration of prior DWI convictions under this section from thirty-six to sixty months. Defendant claims that the thirty-six month period during which his prior DWI convictions could be considered under the former § 28-692.01(F) expired on 14 January 1983, and 11 May 1983, respectively. Since both of these dates are before the effective date of the 1983 amendment changing the period in A.R.S. § 28-692.-01(F) to sixty months, defendant argues that it is fundamentally unfair and a violation of due process to resurrect his prior convictions and use them against him. To determine if the application of the sixty month time period to defendant is fundamentally unfair or a violation of due process, we must look to see if this is an ex post facto law. The case of State v. Yellowmexican, 142 Ariz. 205, 688 P.2d 1097 (App.1984) (approved 142 Ariz. 91, 688 P.2d 983 (1984)), is instructive on this issue. In that case, on a similar set of facts, the court of appeals construed legislation adding a penalty for a third DWI violation within 36 months of previous conviction and stated: It is clear that no greater or additional penalty is imposed upon defendant for his earlier offenses by virtue of A.R.S. § 28-692.01(F). Defendant was simply put on notice that if he committed a third DWI offense within thirty-six months, his punishment for the third offense would be enhanced because of his prior convictions. Conversely, if the defendant did not commit a third offense within the thirty-six month period he would suffer no greater punishment for having committed the two prior offenses. Thus, it is the defendant’s conduct in committing the third offense which triggers the recidivist feature of A.R.S. § 28-692.01 (F). For that reason, the statute is not an ex post facto law. State v. Yellowmexican, 142 Ariz. at 208, 688 P.2d at 1100. The appeals court held that the application of A.R.S. § 28-692.-01(F) to defendant was not an ex post facto law despite the fact its enactment occurred subsequent to his two previous DWI convictions. Id. Similarly, we do not believe that the application to petitioner of the extended sixty month period, now contained in A.R.S. § 28-692.01(F), was an ex post facto law. By the sixty month statute, defendant was merely informed that if he committed another DWI offense within sixty months of his previous offenses, his punishment would be enhanced. This is the law at the time of the later offense. The Legislature may enhance punishment for a second offense based upon previous conduct by the defendant even though the enhancement provisions were not present at the time of the previous offense. State v. Yellowmexican, supra. It is the range of punishment in force at the time of the later offense, and of which the defendant had notice when he committed the later offense, that controls. See also State of Arizona ex rel. Collins v. Udall, 149 Ariz. 199, 717 P.2d 878 (1986). We find no error. DELAY Defendant contends that he was denied due process of law by the state’s allegedly egregious and unjustified delay. The conduct of defendant at issue occurred on 26 February 1984, on 5 April 1984, on 17 May 1984, and on 8 June 1984. Four separate preliminary hearings were “scratched”. The grand jury indictment was returned 1 July 1985, which was seventeen (17) months, fifteen (15) months, fourteen (14) months, and thirteen (13) months respectively, after the four arrests. Trial was finally set for 5 November 1985, which was twenty-one (21) months, nineteen (19) months, eighteen (18) months, and seventeen (17) months respectively, after each arrest. Defendant argues that this is the type of conduct we found to be a violation of due process when we stated that: In closing we note with concern the amount of time that elapsed between the petitioner’s arrest and release, the time the charges were filed, 25 July, 1983, almost four months later, and the petitioner’s arrest on 24 December, 1983. Trial was not set until 6 March, 1984, almost a year after his original arrest and release. If punishment is a deterrent in a criminal case, it must be imposed as near to the offense as reasonably possible. Having arrested a person, the state has the obligation to proceed forthwith to bring formal charges against that person or drop them. Though the procedure followed here does not violate the letter of our speedy trial rule, Rule 8, Arizona Rules of Criminal Procedure, 17 A.R.S., it does violate the spirit of the rule and is a fact we will consider when determining whether a defendant has been denied due process of law. Oshrin v. Coulter, 142 Ariz. 109, 113, 688 P.2d 1001, 1005 (1984). The state contends that this is a case of pre-indictment delay and that there has been no denial of due process. The test for a denial of due process by reason of preindictment delay, the state asserts, is: (1) did the prosecutor intentionally delay the proceedings in order to gain a tactical advantage or to harass the defendant and (2) is the defendant actually prejudiced. U.S. v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971); State v. Torres, 116 Ariz. 377, 378, 569 P.2d 807, 808 (1977). There is no allegation that the prosecution herein either sought to harass or gain a tactical advantage over the defendant. Indeed it would appear from the record before this court that it was the failure of the state to provide sufficient personnel for the processing of DWI cases that was the main cause of the delay. Further, the only specific allegations of prejudice made by the defendant are: that he made no notes or recorded recollections about any of the incidents; defendant does not know if there were witnesses to any of the incidents; and defendant’s personal recollection of the events has been affected by the delay. Such minimal prejudice, the state contends, has already been deemed insufficient. State v. Van Arsdale, 133 Ariz. 579, 581 n.2, 582, 653 P.2d 36, 38 n.2, 39 (App.1982). Therefore, the state maintains, there is nothing in the delay that requires dismissal as a violation of due process. We do not believe however that this is a case of pre-indictment delay. This is a case of delay under Rule 8.2(a) of the Rules of Criminal Procedure, 17 A.R.S. which mandates that a defendant must be tried within 150 days from the date of arrest. We believe that DWI cases are unique in three aspects. First, they are matters in which the evidence is often fleeting. The “shelf life” of breath and blood samples, for example, is short. Also, evidence of defendant’s guilt or innocence is in many cases based on subjective opinions and impressions of the cause of defendant’s conduct. Such opinions and impressions are often dimmed by time. Second, the informal matter in which DWI cases appear to be handled frequently leads defendants to believe that they do not have to take any action to preserve evidence, make notes, or contact witnesses who might be available for their defense. The defendant is usually arrested, taken to jail and then released. The indictment follows much later. As we have stated: In the instant case, the officers told the defendant that the charges were dropped and the petitioner was free to go, but failed to inform him that charges could and most likely would be filed later. The petitioner was thus led to believe that no further action would be taken against him and he did not attempt to obtain the sample for analysis or have other tests taken upon his release. A person in custody, upon being released under these circumstances, can reasonably be expect ed to rely upon the statement that the charges are dropped or scratched and assume that no further action will be taken by the state. It is not then unreasonable to fail to take the sample for testing. By the time formal charges are filed, the sample is destroyed and it is impossible to test the reliability of the first sample with the second sample. We find this a violation of fundamental fairness raising a question of denial of due process contrary to the Fourteenth Amendment to the United States Constitution. Oshrin v. Coulter, 142 Ariz. at 111, 688 P.2d at 1003 (citations omitted). Third and most importantly, the legislature’s clear intention in enacting the new DWI statutes was to remove from the streets and highways of the state the drunken driver who poses a clear threat to the safety of the public. When enacting the statutes in 1982, the legislature included the following statement: Section 1. Purpose By this act the legislature recognizes that alcohol-impaired drivers are a danger to the people of this state. It is therefore the purpose of this act: 1. To insure that any person who operates a motor vehicle within this state while affected by alcohol will be prosecuted to the full extent of the law by those who administer the criminal justice system. 2. To maintain public records of the dispositions of these cases for public scrutiny. 3. To provide that driving while having a .10 or higher blood alcohol level is a criminal offense. 4. To deter persons from driving while affected by alcohol by providing for penalties that are commensurate with the seriousness of this offense. Law 1982, Ch. 234. Delay in the prosecution of these cases such as occurred here is not prosecution to the “full extent of the law”, does not “deter persons from driving while affected by alcohol” and does not provide “penalties that are commensurate with the seriousness of the offense.” The public perceives, quite correctly, that drunk drivers are being allowed to continue to drink and drive unprosecuted and unpunished. Further, there is no deterrent effect to the drunken driver if it appears that there is no timely penalty for his conduct. In the instant case, petitioner was arrested four times in five months and yet was still not indicted for over one year. We have previously observed: Society, also, has an interest in knowing who is guilty as soon as possible. Assuming that the guilty will be punished, society is then able to take from its midst, if imprisonment is indicated or to have under supervision if probation is granted, those persons who might otherwise be committing crimes. In addition, if there is a deterrent value in conviction and punishment as we believe there is, the swifter the punishment the greater the deterrent; and conversely, the longer criminal trials are prolonged the less deterrent value there is in trial and punishment. State ex rel. Berger v. Superior Court, 111 Ariz. 335, 340, 529 P.2d 686, 671 (1974). Had defendant herein been promptly tried and convicted of the 26 February 1984 offense, he might not have been in a position to commit the later offenses on 5 April, 17 May and 8 June of 1984. We find this situation intolerable. It should not be impossible to prosecute a suspected drunk driver within a reasonable time after arrest. The cases do not require long investigative delays, as most of the evidence is gathered contemporaneously with arrest. The prosecutor cannot hide behind the rule that defendants must show that the prosecutor intentionally delayed the proceeding in order to gain a tactical advantage or to harass the defendant. Indeed, unjustified delay can ripen into intentional delay when the state fails to prosecute diligently. We believe that because of the unique nature of the offense of driving while under the influence of intoxicants or with a blood alcohol reading of more than .10, that Rule 8.2(a) of the Rules of Criminal Procedure must be strictly followed and that the accused must be tried within 150 days of arrest regardless of whether the offense has been “scratched” or “dismissed” after arrest and release. In light of the age of many cases before this court, this rule may appear to be harsh but our previous statements have been ignored and it appears to be the only means this court has to ensure that the intent of the legislature is followed and that drunk drivers are removed from the streets. If this does not result in speedier disposition, this court is prepared to amend the rules to provide for an even stricter application of speedy trial requirements in DWI cases. We wish to make clear what we are saying here. After the police have arrested and removed a drunken driver from the highway as the statute and caselaw contemplates must be done, the prosecutor must proceed to charge or indict as well as try the defendant within the 150 day limit mandated by Rule 8.2(a) of the Rules of Criminal Procedure if not in custody and 120 days from arrest if in custody pursuant to Rule 8.2(b), Ariz.R.Crim.P., 17 A.R.S.. Failure to proceed promptly will result in a dismissal with prejudice, unless the exceptions contained in Rule 8 apply. In any event, the defendant must be tried within 150 days of arrest as provided in Rule 8.2(a), Ariz.R.Crim.P., 17 A.R.S.. This holding is prospective only and applies to those arrested after the mandate in this case. The matter is remanded to the trial court with directions that if the state still wishes to prosecute, that the trial on each case shall commence within sixty days of the issuance of the mandate herein. Rule 8.2(d), Ariz.R.Crim.P., 17 A.R.S.. If the state moves to dismiss and the trial court agrees, the dismissal shall be with prejudice. Remanded. GORDON, V.C.J., and FELDMAN, J., concur. HAYS, J., did not participate in the determination of this matter.

OPINION FERNANDEZ, Judge. Appellants Harry, Helen and Mark Sullivan appeal from the trial court’s ruling that they are entitled to actual damages only, contending that the Arizona Racketeering Act, and specifically A.R.S. § 13-2314(A), requires that they be awarded treble damages. Appellees Metro Productions, Inc., Producers’ Liaison Corporation, Michael and Patricia Miller and Ralph and Jean Smith (hereafter “Metro”), have cross-appealed, contending that the trial court erred in denying their motion to dismiss for lack of jurisdiction and in granting partial summary judgment in favor of the Sullivans because disputed issues of material fact exist. In November 1978, Mark Sullivan entered into a production service agreement with Metro Productions under which Metro produced a 30-minute master videotape of one episode of a 65-program series called “The Sam Diego Show.” Shortly thereafter, Harry and Helen Sullivan signed a production service agreement for the purchase of two videotape episodes of “The Sam Diego Show.” Each tape was sold at a cost of $100,000. For each tape, the Sullivans paid $8,000 down and signed a promissory note for the balance of $92,000. The notes called for interest-only payments of $2,400 per year for five years and for certain payments on the principal to be made from income generated by distribution of the tapes to various television stations and TV cable networks throughout the world. The promissory notes were due in five years, but with the payment of $1,000 in the fifth year, the promissor could extend the note and convert it to a non-recourse note so that any additional principal payments could be obtained only from revenues earned from distribution of the tape. The agreement provided that the master videotape was to be stored at the purchaser’s expense in a vault to be obtained by Metro Productions. The purchaser signed a financing statement which created a security interest in the tape. The vault stor age master agreement provided that the purchaser could not remove the tape from storage without Metro Production’s written consent until the promissory note was paid in full. The production service agreement also provided that the purchaser would contact a management consulting firm within 14 days of signing the agreement to “help Owner [purchaser] in the selection of a distributor for the purpose of exhibiting the Tapes in all media.” It further provided: “Owner also warrants that he will engage a management consulting firm within thirty (30) days of contract date.” Metro Production’s brochure stated as follows: “After determining which tapes you desire to have produced for you, and after you have executed a Production Services Agreement, it will then be necessary for you to take the initiative to engage a Management Services Group, which will act as your agent to obtain a Distributor to market your television video tapes. There is a Management Service Group specializing in handling the placement and exploitation of video tape masters, which is accessible by telephone.” The Sullivans signed a management and service agreement with Investors Management Services, Inc., a Connecticut corporation, as did all the other purchasers of Metro’s tapes. Neither Metro Productions nor its officers and shareholders hold an interest in Investors Management Services. The management agreement was for a period of five years. There was no provision for any earlier termination date. The agreement refers to the production service agreement between the Sullivans and Metro Productions and directs all payments to be made to Metro Productions. It also states: “Owner acknowledges that Manager did not solicit Owner’s business but that the Owner sought the services of the Manager.” To date no revenues have been received from the Sullivans’ tapes nor have any episodes of “The Sam Diego Show” been televised. Metro Productions apparently sold in the same manner nearly 1,000 episodes of various programs on subjects such as sewing, cooking, diet and health, coping with life and game shows. The Sullivans learned of the investment from their accountant, James Allen, who in turn had learned of it from another client. Allen spoke to the salesman, Duane McCleary, about the investment, and McCleary agreed to pay Allen’s expenses for the two of them to travel to Los Angeles to discuss it with Miller and Smith, the sole shareholders and officers of Metro Productions and Producers’ Liaison. McCleary is apparently an employee of Rennert Investment Company of Utah, a company which entered into an agreement with Producers’ Liaison to solicit purchasers for Metro’s tapes. McCleary agreed to pay Allen $400 for each person Allen introduced to McCleary who entered into a production service agreement. Six of Allen’s clients, including the Sullivans, entered into agreements with Metro Productions. The Sullivans purchased the investment as a tax shelter. Included in the brochure on the investment were projected tax savings over the life of the promissory note and various comments about depreciation and investment credits to be taken by the purchasers. After the Internal Revenue Service disallowed their deductions, the Sullivans sued. The complaint was filed in January 1983, and sought rescission of the agreements and return of the Sullivans’ money because of violations of Arizona securities laws in the sale of unregistered securities by unregistered salesmen, damages for fraud and violations of the Consumer Fraud Act, and treble damages under the Arizona Racketeering Act (RICO). A partial summary judgment was entered in September 1984 in favor of the Sullivans on the racketeering act violations, with the court finding that the agreements are securities that are not exempt from registration. It is undisputed that neither Metro Productions nor Producers’ Liaison is a licensed broker/dealer and that neither McCleary nor Allen is a licensed securities salesman. The Sullivans were awarded actual dam ages of $48,485, pre-judgment interest, costs and $25,000 attorney’s fees. The remaining causes of action were then dismissed, and this appeal and cross-appeal followed. We address the cross-appeal issues first. SUMMARY JUDGMENT MOTION Metro contends the trial court erred in granting summary judgment to the Sullivans on their RICO count, insisting that fact issues exist. The trial court found that the investment is a security. Since there was no dispute that the investment was not registered and that no salesman was licensed to sell securities, the court determined there had been a RICO violation. The only question on appeal then is whether the trial court was correct in its determination that the investment is a security or an investment contract. The United States Supreme Court has established a three-prong test for determining whether the purchase of an interest is the purchase of an investment contract, S.EC. v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), and that test applies in Arizona. Rose v. Dobras, 128 Ariz. 209, 624 P.2d 887 (App.1981). “The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” 328 U.S. at 301, 66 S.Ct. at 1104. Metro contends there are factual issues as to the existence of a common enterprise. “A common enterprise is one in which the fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment or of third parties.” S.E.C. v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 482 n. 7 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). Metro contends that, since Metro Productions’ only obligation under the production service agreement was to produce a one-half hour videotape program, there can be no common enterprise between it and the Sullivans. Appellees argue that, once the tape was delivered, Metro Productions’ obligations ended. Although that statement is correct, it does not end the matter. The trial court observed in its minute entry ruling on the motion that “[bjecause of the nature of the financing through which the programs were sold by Metro to the investors, profits would also flow to Metro, once the show was marketed.” As we noted earlier in our statement of the facts of this case, the promissory note provided that payments on the principal would be paid to Metro from revenues earned by distribution of the tape. After the fifth year of the note, if the promissor paid $1,000, the note became a non-recourse instrument, so that the only way Metro would then receive full payment of the principal would be if distribution of the tape produced revenues. Hence, the fortunes of the Sullivans were interwoven with Metro’s. This case is not like that of De Luz Ranchos Investment, Ltd. v. Coldwell Banker & Co., 608 F.2d 1297 (9th Cir.1979). There the purchaser assumed control over the parcels of land, and the seller retained no interest other than a deed of trust to secure payment. The court noted that the seller’s contractual obligation ended with the transfer of title. In this case, the Sullivans did not have full control over the tape, since it was placed in storage and could not be removed until the promissory note was paid in full. In addition, any revenues received from distribution of the tapes were required to be paid directly to Metro Productions. The Sullivans thus lacked full control over any revenues received from the tapes. The trial court correctly found that appellees raised no genuine issue of material fact with regard to the existence of a common enterprise. Metro also contends that a factual issue exists as to the third prong of the Howey test, that the buyer must have entered into the agreement with the expectation that any profits would come solely from the efforts of the seller or others. Appellees insist that the Sullivans did not make a passive investment, since the promotion brochure informed purchasers that they would have to distribute the tapes them selves or engage an agent to distribute them. The brochure makes several references to a purchaser’s need to show he is not relying on a third party to make income for him. The Ninth Circuit, in Turner Enterprises, supra, noted that the word “solely” in the Howey test is not to be read as a literal limitation on the definition. That court held “we adopt a more realistic test, whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” 474 F.2d at 482. The emphasis in determining whether an investment is a security is on economic reality. Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). Realistically, the only effort the purchasers made was to select an agent to handle distribution of the tapes. No other act was required nor expected of them. Although the brochure speaks in terms of the purchasers distributing the tapes themselves as though that were truly an option, the production service agreement requires the purchasers to hire an agent to handle distribution within 30 days of signing the agreement. Any revenues the purchasers realize from their investments would thus be the result of essential managerial efforts of others. The trial court found that the “investments were offered without regard to the experience or sophistication of the investors in the television industry. It was not intended or expected by Metro or its salesmen that the typical investor would attempt to market his tapes himself.” Again, the trial court was correct in finding that no fact question existed on the third prong of the Howey test, and we affirm the summary judgment entered in favor of the Sullivans. PERSONAL JURISDICTION Metro Productions moved to dismiss the complaint for lack of personal jurisdiction. Metro Productions initially filed an answer which did not contain an affirmative defense of lack of jurisdiction. It later filed a motion to dismiss and moved to amend its answer to include the defense. The motion to amend was granted after no opposition was filed. The motion to dismiss was denied after the court heard oral argument on the .issue. We find that the evidence presented to the trial court supports its determination. The Sullivans’ accountant, James Allen, testified at his deposition that he met in Los Angeles for a couple of hours with Miller and Smith, the sole shareholders and officers of both Metro Productions and Producers’ Liaison, and discussed the investment in great detail. The Sullivans executed their contracts in Arizona and transmitted their down payment to Allen in Arizona who in turn transmitted it to either Metro Productions or to a salesman who represented Metro. Since Miller and Smith clearly acted with the intent to induce Allen to obtain purchasers of the tapes in Arizona, and since that inducement resulted in six agreements with Arizona residents, we find no error in the court’s ruling. See Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Meyers v. Hamilton Corp., 143 Ariz. 249, 693 P.2d 904 (1984). RIGHT TO TREBLE DAMAGES The Sullivans sought treble damages in the trial court, claiming that they are mandated by A.R.S. § 13-2314(A). The trial court declined to award treble damages, citing no reason for its decision. Metro contends that the matter is discretionary with the trial court. The Attorney General has filed as amicus curiae in support of the Sullivans’ position. The statute provides as follows: “A. A person who sustains injury to his person, business or property by racketeering as defined by § 13-2301, subsection D, paragraph 4 or by a violation of § 13-2312 may file an action in superior court for the recovery of treble damages and the costs of the suit, including reasonable attorney’s fees. The state may file an action in behalf of those persons injured or to prevent, restrain, or remedy racketeering as defined by § 13-2301, subsection D, paragraph 4 or a violation of § 13-2312.” The issue presented is apparently one of first impression in this state. Subsection A of the statute permits a person who is injured by racketeering activity to file a civil action for damages. The word “may” is an auxiliary verb to the verb “file” and serves to permit the private cause of action. The statute does not read “may file an action and may recover treble damages,” an inference Metro would have us draw. It clearly indicates that a successful plaintiff is entitled to treble damages, costs of suit and reasonable attorney’s fees. Metro also contends that the language of subsection D, authorizing the trial court to issue any of a number of enumerated orders, renders an award of treble damages discretionary, since one of the enumerated orders is the payment of treble damages to injured persons. The introductory language of subsection D, however, states that the court “may” issue orders because orders that are appropriate in one case may not be appropriate in others. The court is thus granted discretion to determine which of the listed orders is appropriate in a given case. That language does not affect the requirement that a successful plaintiff be awarded treble damages. Finally, Metro contends the award of treble damages is discretionary because a similar statute, A.R.S. § 23-355, has been held to confer discretion as to the award of treble damages. Abrams v. Horizon Corporation, 137 Ariz. 73, 669 P.2d 51 (1983). That statute permits an employee to recover treble damages from an employer who fails to pay wages due the employee. Contrary to appellees’ assertion, however, the statutes are not that similar. A.R.S. § 23-355 provides that an employee “may recover” treble damages. Thus, the award is discretionary with the court. There is no such wording in the statute before us. We hold that the trial court erred in awarding the Sullivans only actual damages. The judgment is modified to include treble damages and is otherwise affirmed. The appellants will be awarded attorney’s fees on appeal as requested upon filing a statement of costs pursuant to Rule 21(c), Rules of Civil Appellate Procedure, 17A A.R.S. (1985 Supp.), and Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). HATHAWAY, C.J., and HOWARD, P.J., concur.

CAMERON, Justice. Defendant, Terry Lynn McCutcheon, was convicted of armed burglary, A.R.S. § 13-1508, seven counts armed robbery, A.R.S. § 13-1904, and nine counts of kidnapping, A.R.S. § 13-1304. He was sentenced to serve fifteen years on the armed burglary count; life on each armed robbery count; and twenty-one years on each kidnapping count. The sentences are to run concurrently. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. § 13-4031. We consider only one question on appeal and that is considering the totality of the circumstances, were the comments and questions of the trial judge to the jury so coercive as to require a mistrial? The facts follow. During the early morning of 1 May 1984, two men armed with guns entered a Phoenix restaurant. The faces of the gunmen were covered by bandanas. They forced the restaurant personnel and patrons to lay on the floor and then robbed them. While the robbery was in progress, a policeman arrived at the restaurant. Apparently, one of the robbers, realizing the police had arrived, attempted to escape by jumping through a glass window. He was immediately arrested. The police identified him as Charles McDonald. Upon searching the restaurant, however, police were unable to locate the other robber. Later, the police came to suspect defendant who resided with McDonald and McDonald’s girlfriend, Shirley Erickson. While waiting outside Erickson’s apartment, the police saw someone drive up in Erickson’s car. A few minutes later, they saw defendant walk up to the apartment. They then arrested him. In the car, the police found bandanas and items taken in the restaurant robbery. Defendant and McDonald were tried jointly. While McDonald chose to testify, defendant did not take the stand. After many days of testimony and a trip to the crime scene, the jury eventually returned a verdict of guilty on all counts as to each defendant. Defendant McCutcheon now appeals. The jury began deliberations on 21 December 1984. After deliberating for nine hours over two days, the jury sent the trial judge a note stating that it could not agree on a verdict. The court responded with a written instruction urging that the jury reach an agreement. Later, the jury sent to the trial judge another note, which stated: “If we declare a hung jury, will we have to each present our individual views in open court? Two jurors believe there is not enough conclusive physical evidence and circumstantial evidence on all counts for both defendants. signed, [Foreman].” (emphasis added). The trial court called the jury into open court and questioned the foreman. THE COURT: We have called you back into the courtroom to discuss whether or not you can reach a verdict. Mr. Chavez, [foreman] I need to know whether you believe on behalf of the members of the jury whether or not there is any reasonable possibility or probable that the jury will be able to reach a verdict in a reasonable time? Before you answer that, I don’t want you to tell me how many ballots you have taken. I don’t want you to tell me what the split is or anything. Just whether or not you feel there is a reasonable probability the jury can reach a verdict within a reasonable period of time. Whether it be tonight or some other time. MR. CHAVEZ: Now, on this answer, this question, when you say reasonable time, you are talking about tonight or a future— THE COURT: * * * But my question right now, within a reasonable period of time, do you think this jury can reach a verdict on the various counts on the two defendants? MR. CHAVEZ: Well, from what I have determined, this jury cannot come to a unanimous decision. THE COURT: On any? MR. CHAVEZ: On any counts. That is, unanimous on all counts. We can’t come to an unanimous— THE COURT: —decision on any one? MR. CHAVEZ: Not even on one. I have gone over all the jurors and I have gone over this to—I have asked that question, if there is even any single count on what we can all agree. THE COURT: On either of the defendants? MR. CHAVEZ: On either defendant. THE COURT: All right. * * * * * THE COURT: Can this jury, in your opinion, reach a verdict on one count against one defendant? MR. CHAVEZ: I can’t answer that question. I would have to go back into the room and ask that question. I have asked that question before. THE COURT: You didn’t have this case very long last night, I think just an hour or so. Was it not a couple of hours at the most? You have been at it all day long today. We have had a two week trial. We have had six days—twelve days—how many days? We have had, I think, four days one week and five days —six, okay. Do you think it’s a probability that the jury, if you could recess now and come back some time in the future, you can then start again with your notes and read the jury instructions once again and perhaps reach one verdict on one count against one defendant? (emphasis added). The trial court then held a bench conference during which the state asserted that he thought the judge’s last statement suggested that the jury should find one defendant guilty on one count. The judge disagreed with the state’s assertion, and further discussion at the bench followed. Then, in open court the judge said, Ladies and gentlemen, I am in no way attempting to put any pressure on you to reach any verdict. I’m only trying to determine whether or not you have deliberated as far as you think you can go in order to reach a verdict. The trial judge again asked the foreman whether the jury could return a verdict within a reasonable time. The foreman expressed a willingness to return to deliberations; however, when the judge asked the entire panel that question, the two holdout jurors individually asserted they did not intend to change their minds. The judge again asserted that she was not trying to pressure the jury but that she needed to determine whether further deliberations would be helpful. By a show of hands, the jury unanimously asserted it could not. The trial judge then called the attorneys to the bench. Counsel for McDonald asserted that the jury should continue to deliberate and if necessary, the jury could break for the holiday and return the day after Christmas to continue their deliberations. Counsel for defendant McCutcheon, however, asserted that a mistrial should be granted. Nevertheless, the judge told the jury she believed they had not had sufficient time to deliberate and therefore, she was not going to declare a mistrial. The trial judge ordered the jury to return 26 December 1984. On 26 December 1984, the jury deliberated almost six more hours and returned verdicts of guilty on all counts as to each defendant. From the denial of his motion for new trial, defendant appeals. We have no quarrel with the attempt by the trial judge to urge the jurors to reach a verdict if they were able to do so without giving up their conscientious convictions. A trial judge does not, however, have free rein in attempting to get the jury to agree on a verdict. A trial judge must be careful not to appear to influence a jury into making a particular decision or coerce a jury into a verdict that the jury would not otherwise reach without compromising the beliefs of one or more jurors. As we have noted: A trial judge is often presented with a dilemma in situations involving long deliberation by juries. If he insists on prolonging the deliberation after the jurors have expressed the feeling that they cannot reach a verdict, the trial judge may then be accused of trying to coerce a verdict. State v. Moore, 108 Ariz. 532, 536, 502 P.2d 1351, 1355 (1972), cert. denied, 412 U.S. 906, 93 S.Ct. 2292, 36 L.Ed.2d 971 (1973). The test of coerciveness is whether the trial court’s actions or remarks, viewed in the totality of circumstances, displaced the independent judgment of the jurors. See State v. Roberts, 131 Ariz. 513, 642 P.2d 858 (1982). Influence and coercion has often been found where trial judges encourage a deadlocked jury to reach a verdict. See Pfeiffer v. State, 35 Ariz. 321, 278 P. 63 (1929) (where a judge’s statement that the jury ought to be able to agree on some verdict amounted to comment on weight of evidence and his statement that he would give jury plenty of time to decide and he would stay the rest of the week amounted to coercion). When the numerical division is known, particularly if the division is lopsided, encouraging the jury to decide can amount to coercion. In State v. Roberts, supra, we addressed the propriety of a trial judge’s inquiry into the numerical division of the jury. The trial judge in Roberts knew the division but not whether the majority was for or against acquittal. 131 Ariz. at 514-515, 642 P.2d at 859-860. We held that under the totality of the circumstances the inquiry into the numerical division was not coercive. Id. at 516, 642 P.2d at 861. However, we condemned the use of such inquiry because “there is more danger of possible prejudice than any possible good which may result in employing the practice.” Id. at 515, 642 P.2d at 860. The California courts have also addressed the issue of inquiry into numerical division. The California Supreme Court held that when a trial judge knows how many jurors stand on each side of the ultimate issue and urges the jury to return a verdict, it “creates in the jury the impression that the court, which has also heard the testimony in the case, agrees with the majority of jurors. Coercion of the jurors in the minority clearly results”. People v. Carter, 68 Cal.2d 810, 814, 69 Cal.Rptr. 297, 301, 442 P.2d 353, 357 (1968) (citations omitted). In the instant case, there were two examples of coercion by the trial court. The first resulted from the fact that the judge knew the division of the jury. Admittedly, the trial judge inadvertently discovered that two jurors were in favor of acquittal. These two jurors adamantly asserted in open court that they did not intend to change their verdicts. In spite of the jury’s assertion that it was deadlocked, the trial judge repeatedly asked whether the panel could reach a verdict on “one count against one defendant”. Since the jury knew that the trial judge was aware the majority had voted for conviction, her repeated questions sent an inference that she agreed with the majority. We believe she implicitly communicated to the dissenters the message that she thought they should change their views, since that would be the only way, in all likelihood, a verdict could be reached. Any pressure to decide then was pressure to decide against the defendant. Second, the form of the two questions could only indicate that the judge desired a conviction. The court asked on two occasions “Can this jury ... reach a verdict on one count against one defendant?” and Do you think it’s a probability that the jury, if you could recess now and come back some time in the future, you can then start again with your notes and read the jury instructions once again and perhaps reach one verdict on one count against one defendant? (emphasis added). The impact of these questions is that the jury must go back and find at least one defendant guilty on at least one count before they could be released. As such, it was coercive. It was, therefore, error for the trial judge not to declare a mistrial or grant a new trial. The matter is reversed and remanded for new trial. HOLOHAN, C.J., GORDON, Y.C.J., and HAYS and FELDMAN, JJ., concur.

OPINION RICHARD M. DAVIS, Judge Pro Tern. The plaintiff-appellant in this litigation seeks to enforce a former employee’s covenant not to use employment-derived customer information, a covenant not to compete, and a provision specifying liquidated damages for breach. One of our tasks is to apply principles expressed by our supreme court in Olliver/Pilcher Insurance, Inc. v. Daniels, 148 Ariz. 530, 715 P.2d 1218 (1986). I. FACTS The plaintiff-appellant corporation, Amex Distributing Co. Inc. (Amex), is in the produce brokerage business. At the time of hearing in July 1984, its principal shareholder, Charles Ciruli, had been a produce broker for twenty years. In late 1975 or early 1976, the defendantappellee, Frank Mascari, had finished high school and was working in the produce department of a Los Angeles supermarket. Ciruli had known Mascari’s father for 15 to 18 years. He offered Mascari a job with Amex. Mascari, then 19, started as a “bird-dog,” or produce inspector, working under produce broker Joe James in appellant’s offices in Nogales, Fresno and Chula Vista. In 1977, Joe James quit Amex and took with him two important Michigan accounts. In the confusion which followed Mascari necessarily assumed larger responsibilities. In the next year or so one of Amex’s important East Coast customers decided to go into the lettuce business. Although Amex had never previously brokered lettuce on a large scale, Ciruli decided to set up such operations in Yuma and Salinas. He groomed Mascari to manage these. Ciruli hired an experienced broker, Austin Rinella, to introduce Mascari to lettuce shippers and to some customers. As described by the evidence, the produce brokerage business is a highly competitive economic arena in which each new day brings fresh opportunity and challenge for a broker to put together transactions for shippers and buyers. There are no exclusive dealing arrangements, and on any given day a buyer may be working through more than one broker for a supply of a single commodity. There is an industry “Blue Book,” listing both brokers and buyers. Ciruli’s testimony is generally to the effect that Amex owed its success in the business to an in-depth knowledge of its customers’ needs and predilictions and an assiduous pursuit of serving those needs by frequent contacts. There was also evidence that any interested and energetic broker could visit a buyer and thereby learn its individualized needs and buying habits. In early 1979, Ciruli presented to Mascari an “Employment Agreement” for signature. While the agreement contained a number of provisions subject to specification on a to-be-determined basis, it referred to the possibility of Mascari being the general manager of a possible new “specifically designated” operation and further provided that in respect to such operation Mascari would be compensated at the rate of 20% of the profits for the first year, 35% for the second year, and 50% for the third year. After the third year, the agreement gave Mascari the option to have the opera tion be a partnership with Amex with a 50/50 division of the profits and obligations. Though advised by Ciruli to see a lawyer about the agreement, Mascari did not. There was a close relationship between the two, which was described by both in familial or near-familial terms. Mascari was 22 years old when he signed the agreement in February 1979. The critical substantive provisions in this litigation are paragraphs 6 and 10 of the employment agreement. Paragraph 6 reads as follows: Confidential Information: Employee acknowledges that by reason of this position and employment with Employer that Employee will be entrusted with information relating to the customers of the Employer, as well as to Employer’s means and methods of handling and servicing the business and affairs of said customers. Employee agrees with Employer that at all times during this employment with Employer, and at all times after termination of employment with Employer, if such termination occurs, that Employee shall, consistent with duties to Employer’s customers, and duties to the Employer, keep and maintain this information confidential and shall not utilize any of said information to compete against the Employer, either directly or indirectly. The heading and introductory clause of paragraph 10 and subparagraph 10a are as follows: Agreement not to Compete or to do Business for or With Employer’s Customers; Injunction; Damages: In the event that the employment of the Employee by the Employer is terminated at some future time, then, and in such event, regardless of whether the Employee or the Employer initiated or caused such termination, and regardless of the reasons, grounds, or cause for such termination, Employee then expressly contracts and agrees with the Employer that: a. Employee will not, for a period of 36 months after said date of termination, compete with Employer in any way, either directly or indirectly, or with or through any other person, corporation, firm or other legal entity, nor do business with or for any customer of the Employer, which the Employer had as a customer as of the date of termination, or, had as a customer during the 36 months prior to the said date of termination. In other portions of paragraph 10, subparagraph 10b provides Amex with the remedy of injunction and/or liquidated damages at the rate of 75% of Mascari’s billings of Amex customers during the first year, 60% the second year, and 50% the third year. It further provides for the payment of attorney’s fees to Amex in the event of breach. Subparagraph 10(2)d is an acknowledgment by Mascari of the reasonableness of all of the terms of the contract and is set forth in the margin. Mascari ran the new Amex lettuce operation, and it prospered. In 1984 Ciruli learned that Mascari had helped set up a relationship between a shipper and a competitor. He terminated Mascari. Mascari set up a brokerage business in Winterhaven, California, and sooner or later called or in any event transacted business with a number of the customers he had been dealing with for Amex. At the time of hearing all of his customer-clients had been Amex customers. One of his major customer-buyers was his father. There is no evidence in this case that Mascari took or copied any Amex customer list. While there is a full Amex customer list in evidence (Exhibit 4), it was prepared for purposes of litigation. Amex also submitted a list of certain key customers in Exhibit 16 in connection with a request that Mascari be specifically barred from doing business with those, if not others. Amex sought injunctive relief and damages under paragraphs 6 and 10 of the employment agreement. The trial court first denied injunctive relief and later granted Mascari’s motion for summary judgment on the entire complaint. In its final dispositive minute entry, the trial court stated, in part: The Court concludes as a matter of law based on the undisputed facts that Defendant acquired no trade secret or confidential information during his employment by Plaintiff. Further, that the non-compete provisions of the contract (paragraph 10a) are unreasonable in scope (no direct or indirect competition, no doing business with or for any customer of Plaintiff); they are unreasonable in duration (three years) and they are unreasonable in territory (none is specified, it is argued that the territory is the entire United States). The contract between the parties, insofar as it pertains to Counts I and II of the Complaint is therefore contrary to public policy and unenforceable. Appellant contends on appeal that the trial court erred both in respect to its ruling on the prohibition in paragraph 6 against using customer information, and the noncompetition provisions of paragraph 10. In doing so, appellant focuses on a narrowed claimed right to relief in respect to the 57 customers which are the subject of exhibit 16, and also stresses in view of the passage of time its claim for damages pursuant to subparagraph 10b. In its pleadings and in Ciruli’s testimony at the hearing, however, Amex sought relief according to the full terms of paragraphs 6 and 10. II. LEGAL BACKGROUND From the Dyers’ Case in 1414 to Mitchel v. Reynolds in 1711, judicial policy ran strongly against a bond or covenant not to compete. Mitchel v. Reynolds, a business transfer case, ushered in the common law “rule of reason” now generally applied in America with or without attendant judicially-tailored modification as practiced in some jurisdictions, or “blue-penciling”—eliminating grammatically severable unreasonable provisions—as practiced in others, including Arizona. The courts in these cases seek to accommodate (1) the right to work, (2) the right to contract, and (3) the public’s right to competition. Valiulis, Covenants Not to Compete: Forms, Tactics and the Law, (John Wiley & Sons, 1985), p. ix; and see generally Blake, Employment Agreements Not to Compete, 73 Harvard L.Rev. 625 (1960). Restrictive covenants which tend to prevent an employee from pursuing a similar vocation after termination of employment are disfavored. Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 398 N.Y.S.2d 1004, 369 N.E.2d 4, 6 (1977). Such contractural provisions are strictly construed against the employer. Grant v. Carotek, 737 F.2d 410, 411-412 (4th Cir.1984, applying Virginia law). This is to be contrasted with a covenant given in connection with the sale of a business. There the courts are more lenient because of the need to see that goodwill, which is usually sold, is effectively transferred. See Gann v. Morris, 122 Ariz. 517, 596 P.2d 43 (App.1979); Esmark, Inc. v. McKee, 118 Ariz. 511, 578 P.2d 190 (App. 1978). Reasonable restraints—those no broader than the employer’s legitimately protectable interests—will be enforced in Arizona. American Credit Bureau, Inc. v. Carter, 11 Ariz.App. 145, 147, 462 P.2d 838 (App. 1969), and cases cited; cf. Lessner Dental Laboratories, Inc. v. Kidney, 16 Ariz.App. 159, 492 P.2d 39 (App.1971). Olliver/Pilcher Insurance, Inc. v. Daniels, supra, involving an “anti-pirating provision” for damages without a covenant prohibiting competition, makes it clear that Arizona will follow the blue-pencil rule adopted by the Restatement of Contracts. See Donahue v. Permacel Tape Corp., 234 Ind. 398, 127 N.E.2d 235, 41 (1955), Eastern Business Forms, Inc. v. Kistler, 258 S.C. 429, 189 S.E.2d 22, 24 (1972), and Annot. 61 A.L.R.3d 397, 410 (1975), cited in Olliver/Pilcher, supra. III. ANTITRUST LAW Appellee advances two preliminary positions which warrant comment. First, appellee suggests that the subject covenants violate Section 1 of the Sherman Act, 15 U.S.C. § 1, and its Arizona analog, A.R.S. § 44-1202. Appellee argues that the covenants either are per se violative of the Sherman Act or that they violate the “rule of reason” applied in Section 1 cases since Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). These particular assertions are clearly wide of the mark under the evidence adduced in this case and it further appears that appellee confuses two similar—but not identical—rules of reason. Employee covenants not to compete are not per se violative of Section 1 of the Sherman Act. Consultants & Designers, Inc., v. Butler Service Group, Inc., 720 F.2d 1553, 1560-1562 (11th Cir.1983); Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 264-269 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); United States v. Empire Gas Corp., 537 F.2d 296, 307-308 (8th Cir.1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977); see also United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir.1898), modified and affirmed, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), cited in Three Phoenix Co. v. Pace Industries, Inc., 135 Ariz. 113, 659 P.2d 1258 (1983); and compare Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1082 (2nd Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). Antitrust rule of reason analysis requires the showing of adverse market impact—injury to competition. Consultants & Designers, supra at 720 F.2d 1562; Lektro-Vend, supra at 660 F.2d 269. No evidence was adduced in this case remotely tending to show that the covenants adversely impacted upon any market. The common law rule of reason, which has its source in Mitchel v. Reynolds, supra, and the antitrust laws’ rule of reason focus on protecting different interests, and they are not precisely identical. See Bork, Ancillary Restraints and the Sherman Act, 15 A.B.A. Section of Antitrust Law Proceedings 211, 215-216 (1959). IV. ANCILLARITY Appellee also preliminarily argues that the subject covenants were so manifestly the dominant purpose of the employment agreement that they cannot be considered ancillary. An ancillary agreement is one subordinate to the main lawful purpose of the transaction. Three Phoenix Co. v. Pace Industries, Inc., supra at 135 Ariz. 117, 659 P.2d 1262. It is true that the courts will not enforce a covenant not to compete given without consideration or which is not incidental to another lawful agreement. See American Credit Bureau, Inc. v. Carter, supra at 11 Ariz.App. 147, 462 P.2d 840. It is also true that Ciruli testified that the covenant not to compete was dominant in his mind because of Joe James’ departure. The employment agreement, however, clearly contemplated a substantial promotion for Mascari. Specific rates of increased compensation were defined. The covenants were accordingly supported by consideration and they were ancillary. Annot, 51 A.L.R.3d 825, 841-842 (1973). V. UTILIZATION OF CUSTOMER INFORMATION Appellant argues first that appellee is in violation of paragraph 6 of the agreement. The charge is not disclosure of confidential information to others, but solely the use by appellee of confidential information to compete, assertedly unfairly, against appellant. Arizona law on this subject is sparse. Many courts, including the United States Supreme Court, have used the working definition of a trade secret set forth in § 757 of the Restatement of Torts (1929), Comment b: A trade secret may consist of any formula, pattern, device, or compliation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. The Restatement Comment goes on to say: It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list or customers. Two basic types of information are involved in the present case. The first encompasses basic general principles for the aggressive pursuit of success in a highly competitive field of business (Exhibit 7). The essentials of these (know the customer, be constantly aware of his concerns, keep in regular frequent contact, limit conversations to relevant business, etc.), are clearly in the public domain. They are the subject of books at a public library. When we say that, we do not in any sense minimize their value. On the contrary, we take it as established that assiduous application of these general principles is largely responsible for appellant’s success over the years and high rating in the trade. We merely hold that Amex’s general (and generally recognized as sound) methods and principles of doing business could not be the subject of misappropriation by Mascari, as long as he did not misrepresent his identity, which was not alleged or shown. See the well-known opinion in Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 709 (Ohio Common Pleas 1952). The more important body of information concerns knowledge of particular customers accrued by Mascari as an employee of Amex. If customer information is truly confidential, and to a substantial degree inaccessible, it may be given a measure of the protection accorded true trade secrets, 1 Milgrim on Trade Secrets, (Matthew Bender 1985), § 3.05[1]. The relevant basic policy considerations are well stated in ILG Industries, Inc. v. Scott, 49 Ill.2d 88, 93-94, 273 N.E.2d 393, 396 (1971): Conflicting social and economic policy considerations are present in each trade secret case. A business which may invest substantial time, money and manpower to develop secret advantages over its competitors, must be afforded protection against the wrongful appropriation of confidential information by a prior employee, who was in a position of confidence and trust. At the same time, the right of an individual to follow and pursue the particular occupation for which he is best trained is a most fundamental right. Our society is extremely mobile and our free economy is based upon competition. One who has worked in a particular field cannot be compelled to erase from his mind all of the general skills, knowledge and expertise acquired through his experience. These skills are valuable to such employee in the market place for his services. Restraints cannot be lightly placed upon his right to compete in the area of his greatest worth. See also Reed, Roberts Associates Inc. v. Strauman, 40 N.Y.2d 303, 386 N.Y.S.2d 677, 353 N.E.2d 590 (1976); Jager, Trade Secrets Law (Clark Boardman 1985) §§ 3.01[2] and 13.01[2]; and Epstein, Modem Intellectual Property (Harcourt Brace Jovanovich 1985) pp. 13-14.2. As another court has rather memorably put it, absent a special and enforceable duty, an alert salesperson is not required to undergo a prefrontal lobotomy. Fleming Sales Co., Inc. v. Bailey, 611 F.Supp. 507, 514 (N.D.Ill.1985, applying Indiana’s version of the Uniform Trade Secrets Act in the absence of covenant). In appropriate circumstances, a particular use of specific customer information may constitute a violation of a former employer’s protectable interest. See, e.g., Klamath-Orleans Lumber, Inc. v. Miller, 87 Cal.App.3d 458, 151 Cal.Rptr. 118 (1978). We doubt such a violation exists here. Our doubt is based upon the principle expressed in a line of Illinois cases holding that customer information is not proprietary and its use not unlawful when the customers characteristically did business with more than one source so that the customer was known to the competition. Jefco Labs, Inc. v. Carroo, 136 Ill.App.3d 793, 91 Ill.Dec. 513, 516, 483 N.E.2d 999, 1002 (1985); Lincoln Towers Ins. Agency v. Farrell, 99 Ill.App.3d 353, 54 Ill.Dec. 817, 821, 425 N.E.2d 1034, 1038 (1981), noted in Jager, supra, at § 13-05; and Image Supplies, Inc. v. Hillmert, 71 Ill.App.3d 710, 28 Ill.Dec. 710, 713-714, 390 N.E.2d 68, 71-72 (1979). See also Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d 636 (1972); Altana, Inc. v. Schansinger, 111 App.Div.2d 199, 489 N.Y.S.2d 84 (1985); and Cambridge Filter Corp. v. International Filter Co., Inc., 548 F.Supp. 1301 (D.Nev.1982, applying California law). But we need not determine that particular issue. While a true trade secret is entitled to protection of indefinite duration, Jager, supra at § 13-03, pp. 13-14; Epstein, supra at pp. 31-32, the same is not true of customer information, especially in a field where customers are known and generally accessible to competitors. Here, paragraph 6 of the Employment Agreement simply boils down to a noncompetition covenant, which is wholly without temporal limitation. It is accordingly invalid. Wright v. Palmer, 11 Ariz. App. 292, 464 P.2d 363 (1970); Sermons v. Caine & Estes Ins. Agency, Inc., 275 S.C. 506, 273 S.E.2d 338 (1980); Annot. 41 A.L. R.2d 15, 218 (1955); and see generally 1 Milgrim on Trade Secrets §§ 3.02[2] and 3.05. VI. THE NONCOMPETITION COVENANT The subject agreement included a sever-ability clause reading as follows: Severability: If any court of competent jurisdiction rules that any portion of this Agreement is invalid for any reasons, the remainder of the Agreement shall remain in full force and effect and shall not be affected thereby. Subparagraph 10a of this agreement is a keystone. The provisions regarding damages in subparagraph 10b are dependent upon it and, if it is eliminated, nothing remains to be enforced in this action. The first question, then, is whether subparagraph 10a is overbroad as written. If it is, the remaining question is whether the over-broad portion or portions may be severed so that what remains is intelligible and enforceable. Plainly, appellant can have no protectable interest in denying Mascari the right to compete for a customer it last serviced 35 months ago, and which Mascari never knew. To argue to the contrary would be frivolous, and we do not understand appellant to do so. It is clear that the subparagraph, as a whole, is overbroad. The next question is whether, with the last clause deleted, the remainder of the subparagraph can stand. We note in passing that, with respect to the activities proscribed, recent cases raise a substantial question as to whether Mascari could be prohibited from servicing Amex customers other than those with which he did business, or concerning which he acquired significant customer information. These cases limit the employer’s protectable interest to those customers to whom the employee represented the employer’s goodwill. NCH Corp. v. Share Corp, 757 F.2d 1540, 1543 (5th Cir.1985, Texas law); USAchem, Inc. v. Goldstein, 512 F.2d 163, 168 (2nd Cir.1975, New York or Texas law); NCR Corp. v. Rotondi, 88 App.Div.2d 537, 450 N.Y.S.2d 198 (1982); and see Barnes Group, Inc. v. Harper, 653 F.2d 175 (5th Cir.1981, Georgia law) and UARCO, Inc. v. Eastland, 584 F.Supp. 1259, 1262 (D.Kan.1984), upholding restrictions as so limited. We read James S. Kemper & Co. Southeast, Inc. v. Cox & Associates Inc., 434 So.2d 1380 (Ala.1983), discussed at length in Olliver/Pilcher, supra, as essentially in accord, because the employee Tillery in Kemper was in charge of all Alabama operations and received commissions for all business written in the state, and the injunction issued was limited to “signed customers and the quoted prospects; that is, only those people and companies, and the information about them, obtained by the very work Tillery was paid to do while employed to do by Kemper.” 434 So.2d at 1383. As to these customers in which Tillery was involved, the court stated that Kemper had a “work product investment.” 4343 So.2d at 1384. We pass that issue, however, and focus upon the first part of subparagraph 10a, which prohibits Mascari from competing with Amex for 36 months. Mascari argues that the prohibition is invalid because there can be no legitimately protectable interest in eliminating competition per se, because the duration of the covenant is too long, and because there is no spatial limitation. The proposition that one may not merely seek to eliminate competition per se is valid, see 6A Corbin on Contracts § 1394, p. 100 (1962), but what the principle means in practice is that a noncompetition covenant cannot stand when there is no other, valid interest of the employer to protect. The point is well made in Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. S.Ct.1984). The principle has no relevance here because close customer contact with the attendant ability to divert customer trade has traditionally been one of the strong justifications for a noncompetition covenant from one through whom the goodwill of the enterprise is developed and exercised. See Silver v. Goldberger, 231 Md. 1, 188 A.2d 155 (1963); Lassen v. Benton, 86 Ariz. 323, 346 P.2d 137 (1959), opinion modified, 87 Ariz. 72, 347 P.2d 1012 (1959). In our opinion, the duration of this covenant—36 months—has no justification in the evidence. As background, we quote from Professor Blake’s widely cited article: (2) Time restrictions.—In determining whether a restraint extends for a longer period of time than necessary to protect the employer, the court must determine how much time is needed for the risk of injury to be reasonably moderated. When the restraint is for the purpose of protecting customer relationships, its duration is reasonable only if it is no longer than necessary for the employer to put a new man on the job and for the new employee to have a reasonable opportunity to demonstrate his effectiveness to the customers. If a restraint on this ground is justifiable at all, it seems that a period of several months would usually be reasonable. If the selling or servicing relationship is relatively complex, a longer period may be called for. Courts seldom criticize restraints of six months or a year on the grounds of duration as such, and even longer restraints are often enforced. 73 Harvard L.Rev. at 677. We cannot treat this case as if the covenant had been signed when Mascari first went to work for Amex. By the time Mascari signed the covenant, or even by the earlier date of the agreement, he was not only an experienced “bird-dog,” but he had been doing substantial brokering as well. He had been doing some brokering even while Joe James was still with Amex. Ciruli testified that Mascari had received “ex tensive” training from himself and Joe James. Mascari’s counsel at the hearing clearly sought to ascertain the nature of the information which was disclosed to Mascari as a result of his signing the employment agreement. The responses elicited included various general examples but in their totality and in their substance they could not justify a prohibition approaching 36 months. Ciruli testified that the training period under Rinella was to be two years. Other evidence indicated that Rinella’s teachable experience was basically limited to the shipper end of the business, and that Mascari’s learning period could scarcely have taken two years. Customer credit information is not an issue in this case. Cf. Klamath-Orleans Lumber Co. v. Miller, supra. Other evidence, some elicited from Amex’s witnesses, indicated that the broker who had been Mascari’s assistant was competently meeting the requirements of Amex customers, for example, the Independent Grocers Association of Arizona. This was some five months after Mascari’s departure. Amex had no covenant not to compete with either that broker, Sue Ann Harvey, or with Rinella. Certainly, a covenant of some duration with Mascari was justifiable. Hardship to the employee, however, is one of the factors to be considered in determining reasonableness. Annot., 41 A.L.R.2d 15 at 34, 39-40 (1955). Here, under any reasonable view of the evidence, a covenant could not have extended for three years. Severance is of no avail to appellant, and the entire subparagraph fails. We comment briefly on three lines of appellant’s argument not explicitly treated above. Appellant has argued that Mascari’s acknowledgment of the reasonableness of the provisions should be controlling, that the law should encourage the expansion of enterprise, and that it should at least be entitled to protection in respect to the 57 customers in Exhibit 16. In respect to an employee restrictive covenant the burden is cast upon the employer to prove the extent of its protect-able interest. That does not mean that an acknowledgment of reasonableness could not be substantial evidence, and in effect conclusive, in appropriate circumstances. It is not here. The expansion of enterprise is consistent with public policy within any limits visible here (see Part III above), but for six centuries the law in these restraint of trade cases has sought to protect the individual and society against an improvident relinquishment of the individual’s greatest utility. See Donahue v. Permacel, supra at 127 N.E.2d 240. Finally, the blue-pencil rule clearly adopted or reaffirmed in employment cases in Olliver/Pilcher precludes the alternative request for relief sought with reference to Exhibit 16. VII. THE CROSS APPEAL Mascari seeks by his cross appeal to reverse the trial court’s order denying him attorney’s fees in the superior court. Mascari relies upon A.R.S. § 12-341.01, and the six factors set forth in Associated Indemnity Co. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985). He stresses that he prevailed in the trial court because the Amex agreement was contrary to public policy. Prior to Olliver/Pilcher, and notwithstanding the opinion on rehearing in Lassen v. Benton, supra at 87 Ariz. 73, 347 P.2d 1012, there were some indications that Arizona might permit judicial modification of this kind of restrictive covenant. See Esmark, Inc. v. McKee, supra; Snelling & Snelling v. Dupay Enterprises, Inc., 125 Ariz. 362, 364, 609 P.2d 1062 (App.1980); and Three Phoenix Co. v. Pace Industries, Inc., 135 Ariz. 126, 131-132, 659 P.2d 1271 (App.1981), vacated and reversed on other grounds by the supreme court in Three Phoenix Co. v. Pace Industries, Inc., supra. Even though these were business transfer cases, we believe they provided some basis for Amex to believe that the provisions in the agreement might be pared where unreasonable and enforced pro tanto. Since the trial court’s discretion with respect to attorney’s fees is broad, Autenreith v. Norville, 127 Ariz. 442, 622 P.2d 1 (1980), we believe that the foregoing provides a basis for upholding the trial court’s decision, and we do so. VIII. ATTORNEY’S FEES ON APPEAL Mascari seeks attorney’s fees on appeal. Our attention is accordingly directed to Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025, 1049 (1985), where the supreme court indicated that the Associated Indemnity v. Warner criteria is also applicable in the appellate court. Here, however, our task is different from that of ascertaining whether a basis existed for the trial court’s exercise of discretion. We must at this point exercise our own discretion based upon the factors enumerated in Warner and Wagenseller. Running through the criteria as it is enumerated in Wagenseller at 147 Ariz. 394, 710 P.2d 1049, we respectively observe that (1) Amex at best had a tough legal row to hoe with provisions of either unlimited or very generous backward and forward duration in its agreement; (2) Mascari could not have avoided the appellate litigation, which he offered to settle with a stipulated dismissal with each party bearing its own attorney fees; (3) there is no indication of extreme hardship in assessing fees against Amex; (4) Mascari prevailed in respect to all of the relief he sought except in respect to his cross-appeal; (5) prior to Olliver/Pilcher, rendered after the briefing in this case, a critical aspect of this litigation may have been considered in some doubt; and (6) employers should not be discouraged in the future from litigating legitimate claims arising out of agreements drawn with a clear view to their validly protectable interests and with restraints no greater than necessary to protect those interests. Here, it must be acknowledged that appellant has presented a generally well-argued brief on appeal, including some authorities in support of its position in a field as fraught as any with conflicting decisions rendered over the years. A large number of those authorities are from California, one of a handful of jurisdictions where covenants not to compete have been prohibited by statute, and the leading jurisdiction in finding trade secret violations in the “route” cases. 1 Milgrim on Trade Secrets § 2.09[7] at pp. 2-188 and 2-203. Many of appellant’s cases are of 1940s and 1950s vintage. Weighing all of the factors, including an arguable lack of a definitive recent adjudication on modification or blue-penciling prior to Olliver/Pilcher (Warner-Wagenseller criterion No. 5), we believe that justice is served by granting appellee’s request for attorney’s fees in this court. The prospect that this jurisdiction would firmly adopt or adhere to and apply a covenant-destroying blue-pencil rule was a clearly appreciable risk of appellate litigation. The amount of attorney’s fees will be determined pursuant to ARCAP Rule 21(c) and Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). CONCLUSION The judgment of the trial court is in all respects affirmed and appellee shall recover his attorney’s fees on appeal. GRANT, P.J., and BROOKS, J., concur. RICHARD M. DAVIS, J. Pro Tem., of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Ariz. Const. art. VI, § 31. . "Employee hereby acknowledges and agrees with the Employer that the provisions of this paragraph 10 are fair and reasonable; that the same are reasonably necessary to provide Employee with greater responsibility, greater trust and an opportunity for increasing Employee’s knowledge and experience, as part of the employment relationship between Employee and Employer; that the same are reasonably necessary in order to protect the goodwill and business interest of the Employer relating to the business customers of the Employer, which business interests and goodwill has been developed over many years at a substantial cost and expense to the Employer; and that the terms and conditions hereof are not unreasonable as to time, limitation, or purpose.” . Mascari did not contest his termination beyond testifying that he received no remuneration for helping set up the shipper/competitor relationship. Mascari testified that he earlier sought to exercise the option given him in the employment agreement to have the Yuma/Salinas lettuce operation be a partnership in which he would have an equal voice, because he felt that savings could be effectuated, but that this had been rejected by Ciruli. . Y.B.Mich. 2 Hen. 5, f. 5, pl. 26 (C.P. 1414). . 1 P.Wms. 181, 24 Eng.Rep. 347 (Q.B. 1711). . Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-01, 104 S.Ct. 2862, 2872, 81 L.Ed.2d 815, 831 (1984). . While some courts have moved away from the blue-pencil rule, some of the reasons for doing so seem debatable. See Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544 (1975). Professor Blake appears to take the view that the blue-pencil rule encourages covenants of "truly ominous” in terrorem effect, 73 Harv.L. Rev. at 682-683, but it would seem that the rule requires an employer’s counsel to focus upon a bottom line of post-serverance validity and that the burden is placed upon counsel rather than the court to fashion a legitimate restriction. A covenant exacted other than in good faith would be subject to attack on that basis alone. See Lassen v. Benton, supra at 86 Ariz. 328, 346 P.2d at 140. . The contract itself provided for attorney’s fees only for Amex.

GORDON, Vice Chief Justice. This special action raises novel and complex questions with regard to grandparents’ rights in the disposition of their parentless grandchildren. The particular issues that we must address are: did the juvenile court commit reversible error by denying the grandmother’s motion to intervene in her grandchild’s dependency hearing; and by denying the grandmother’s petition for appointment as her grandchild’s guardian and conservator? The factual background giving rise to this case is not in dispute. The infant around whom swirls this controversy was born in March, 1985. In September, 1985, when the infant was six months old, his mother was killed in an auto accident. Immediately thereafter, the Department of Economic Security (“DES”) assumed care and custody of the infant pending permanent resolution of his case. On October 2, 1985, a dependency commitment hearing was held concerning the infant. On that occasion, the maternal grandmother appeared through counsel but was advised that she had no standing in the matter but could move to intervene at a later time. The dependency hearing was continued until January 29, 1986, and the infant was ordered to remain a temporary ward of the juvenile court and committed to the custody of the DES until that time. The grandmother’s request to review the dependency file was denied. On November 21, 1985, the father of the infant formally relinquished his parental rights to the child. Six days later the grandmother filed a motion to intervene pursuant to Rule 24(b), Arizona Rules of Civil Procedure, 16 A.R.S. The motion was accompanied by a proposed Petition for Appointment as Guardian and Conservator of the Minor. Oral argument was requested but denied. On December 5, 1985, the court denied the motion to intervene, and on January 15, 1986, denied the petition for appointment as guardian. On January 24, 1986, the grandmother filed this special action seeking relief from the denial of her motion to intervene and petition for guardianship. On the same day we entered a stay of all proceedings and ordered “that the respondent court not conduct any pro ceedings in this matter which award the minor child to any person or institution until further order of this court.” I. As a preliminary matter we must address the jurisdiction of the Court to entertain this special action. The state contends that Rule 25(a), Rules of Procedure of the Juvenile Court, 17A A.R.S., grants to petitioner the right to appeal the denial of intervention and guardianship since they constitute final orders. Moreover, the state argues that not only is the avenue of appeal available, but that Rule 24(c), Rules of Procedure of the Juvenile Court, gives priority to juvenile appeals and thereby provides an “equally plain, speedy and adequate remedy.” See Rule 1, Rules of Procedure for Special Actions, 17A A.R.S. In response the petitioner argues that denial of a motion to intervene is a nonappealable order, citing Cobre Grande Copper Co. v. Greene, 8 Ariz. 98, 68 P. 524 (1902). In truth Cobre Grande does hold that “[the] right of appeal is manifestly only for parties to the suit....”, 8 Ariz. at 101, 68 P. at 525, and obviously a movant denied intervention is simultaneously denied party status. However, the vitality of Cobre Grande has debilitated with the passage of time and it is now woefully out of step with modern civil procedure. For example, Cobre Grande would deny appeal to intervenors of right, even though “[i]t is thoroughly settled that one who has sought intervention of right may appeal from a denial of his application and the appellate court will reverse if it concludes that he was entitled to intervene of right.” 7A C. Wright and A. Miller, Federal Practice and Procedure (1972) § 1923, p. 628 (citations omitted). In addition, with regard to permissive intervention, Wright and Miller posit that “[i]t is clear enough what the rule ought to be. Any denial of intervention should be regarded as an appealable final order—as it surely is so far as the would-be intervenor is concerned.” 7A Federal Practice and Procedure § 1923, at 627. See also Spangler v. Pasadena City Bd. of Education, 552 F.2d 1326, 1329 (9th Cir.1974) (“Although a district court’s discretion in this regard [permissive intervention] is broad, it is nevertheless subject to review on appeal.”) The mere fact that denial of permissive intervention is an appealable order does not mean, however, that appeal in this instance is an “equally plain, speedy, or adequate remedy”. We must be mindful that we are dealing with the care and custody of a very young child and vigilant to protect his right to a suitable and speedy placement. “When the urgent and agonizing nature of the numerous proceedings affecting custody is taken into consideration, with the resulting detriment to the [child] involved, it is apparent that the ultimate remedy available to petitioner by way of appeal is neither plain, speedy, nor adequate.” Silver v. Rose, 135 Ariz. 339, 343, 661 P.2d 189, 193 (App.1982). Where the facts of a case so compel, we have not hesitated to grant extraordinary relief. See, e.g., Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966) (writ of prohibition appropriate where natural father sought to prevent adoption of his illegitimate son). The facts of this case equally compel exercise of our judicial discretion. The infant is now more than one year old, and has already spent one-half of his life bereft of family. An appeal might involve unconscionable delay, and even then “the very question before us now would be before us then, only months or perhaps years later.” Silver v. Rose, 135 Ariz. at 343, 661 P.2d at 193. As we noted in Caruso, “[i]t is clear that the propriety of granting the writ depends upon the facts of each case. The guiding principle must be our obligation to see that essential jus tice is done.” 100 Ariz. at 172, 412 P.2d at 466. Moreover, the issues raised by this case are clearly of significance. Few tasks are more delicate and demanding than the permanent placement of parentless children, and the role that grandparents may play in this process surely implicates statewide concerns. Accordingly, we have assumed jurisdiction in this special action in order “to see that essential justice is done” and a crucial issue addressed. II. The petitioner asserts that the juvenile court’s denial of intervention was an abuse of discretion. Petitioner sought intervention under Rule 24(b) of the Rules of Civil Procedure, which provides that a movant “... may be permitted to intervene in an action ... [w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.” Rule 24(b)(2). Permissive intervention is well within the discretion of the trial court, but is nonetheless subject to appellate review. Spangler v. Pasadena City Bd. of Education, supra. It is well settled in Arizona that Rule 24 “is remedial and should be liberally construed with the view of assisting parties in obtaining justice and protecting their rights.” Mitchell v. City of Nogales, 83 Ariz. 328, 333, 320 P.2d 955, 958 (1958). Under this liberal standard, “the intervenor-by-permission does not even have to be a person who would have been a proper party at the beginning of the suit....” Usery v. Brandel, 87 F.R.D. 670, 677 (W.D. Mich.1980), citing 7A C. Wright and A. Miller, Federal Practice and Procedure § 1911, at 539. When determining whether permissive intervention should be granted, the trial court must first decide whether the statutory conditions promulgated in Rule 24(b)(1) or 24(b)(2) have been satisfied. If any of the conditions for intervention have been satisfied, then the trial court may consider other factors in making its decision: “These relevant factors include the nature and extent of the intervenors’ interest, their standing to raise relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case. The court may also consider whether changes have occurred in the litigation so that intervention that was once denied should be reexamined, whether the intervenors’ interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.” Spangler v. Pasadena City Bd. of Education, 552 F.2d at 1329 (footnotes omitted). In the present case there is absolutely no indication that the juvenile court considered these factors; indeed, there is no indication at all as to why the motion was denied. The paucity of the record before us makes it difficult to indulge the discretion of the trial court, but in any case we need not make that endeavor since this particular appeal raises a legal, not factual, issue. The legal issue raised is: should grandparents, as a general rule, be allowed to intervene in the dependency determination of their parentless grandchildren under Rule 24(b)? We answer in the affirmative, and conclude that the juvenile court abused its discretion by summarily denying the petitioner’s motion to intervene. We must premise our discussion of grandparents’ intervention rights with the observation that this area of the law involves a complex amalgam of probate law, domestic relations law, and the juvenile code. The provisions of each have a bearing on the outcome of this case, yet none disposes of the issue. Nevertheless, we may be guided by the one rule common to each statutory scheme: that the best interest of the child shall govern. We are convinced that the best interest of a parentless child is usually served by allowing his grandparents to intervene in a dependency hearing. If a child is adjudged dependent by a juvenile court, the juvenile court acquires the power to place the child in a wide range of statutorily prescribed homes outside the family. A.R.S. § 8-241(A)(1); Silver v. Rose, supra. It is therefore apparent that grandparents, who are invested with a natural and abiding love for their grandchildren, should be allowed to intervene in the dependency process unless a specific showing is made that the best interest of the child would not be served thereby. Such intervention would not “unduly delay or prejudice” the process, Rule 24(b), Rules of Civil Procedure, and would almost certainly shed valuable light on the best placement for the child and the grandparents’ own suitability for custody, should they desire it. Since the lodestar of the juvenile court must be “to provide individualized justice for children....”, Application of Gault, 99 Ariz. 181, 188, 407 P.2d 760, 765 (1965), rev’d on other grounds, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), grandparents should normally be allowed to intervene. Indeed, intervention by grandparents willing and able to assume control and custody of the child might obviate the need for a non-familial placement of any duration. We have always placed a high value on the integrity of the family. In one of our earliest decisions we noted that, “The voice of nature ... cannot be silenced. ‘The law does not fly in the face of nature, but rather acts in harmony with it.’ ” Harper v. Tipple, 21 Ariz. 41, 44, 184 P. 1005, 1006 (1919) (citation omitted). It has been repeatedly emphasized that “courts should bend over backwards, if possible, to maintain the natural ties of birth.” Anonymous v. Anonymous, 25 Ariz.App. 10, 11, 540 P.2d 741, 742 (1975). See also In the Matter of the Appeal in Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982) (the right to raise one’s family is an essential, basic right). Moreover, in Arizona we have long been solicitous of grandparents’ role in the family. See, e.g., Koehler v. Koehler, 121 Ariz. 592, 592 P.2d 788 (App.1979). In fact, where it has been determined that the best interests of the child so demand, grandparents have been awarded custody of their grandchildren despite parental objections. See Dickason v. Sturdavan, 50 Ariz. 382, 72 P.2d 584 (1937); Gowland v. Martin, 21 Ariz.App. 495, 520 P.2d 1172 (1974). Recognition of the important role in the family played by grandparents is not limited to the judiciary. Grandparents are among those people eligible to become guardian of a child found to be dependent. A.R.S. § 8-241(A)(1)(g). In 1983 our legislature specifically provided for visitation rights for grandparents and great-grandparents. A.R.S. § 25-337.01. Indeed, A.R.S. § 25-337.01(A)(2) provides that where “[a] parent of the child has been deceased for at least three months, and the grandparents were the parents of the deceased parent of the child....” the court may grant visitation rights. Should the infant at issue here be adjudged dependent and eventually be placed for adoption, then the petitioner would automatically lose all visitation rights, A.R.S. § 25-337.01(D)—yet another reason why intervention is appropriate. We recognize that there is a split among the states on the very question we now address. In P.W. v. A.W., 670 S.W.2d 563 (Mo.App.1984) the Missouri Court of Appeals upheld the juvenile court’s denial of Baby Paul’s grandparents’ motion to intervene in a neglect proceeding. The court noted that the grandparents’ visitation rights (granted by the juvenile court) were “sufficiently protected in the hearing.” 670 S.W.2d at 566. The court went on to conclude, however, that “our decision is limited to the circumstances of this case.” Id. Hamel v. Seekell, 404 So.2d 1144 (Fla. App.1981), involved a dependency hearing wherein the grandmother sought to intervene. The mother opposed the motion. The trial court denied the motion and the Court of Appeals denied the grandmother’s petition for a writ of certiorari. The appeals court noted that grandparents, “though eligible to receive custody, [have] no right to custody should the child be adjudged dependent.” 404 So.2d at 1146 (emphasis in original). In contrast, the Iowa Supreme Court reached precisely the opposite conclusion. In In Interest of J.R., 315 N.W.2d 750 (Iowa 1982), the Iowa court held that the mere fact that grandparents have a legal right to be considered as guardians and custodians of children following termination of parental rights grants to them the right to intervene in the proceedings under Iowa law. The Court then concluded that it was “unnecessary to consider ... the grandparents’ assertion that they have a statutory right to intervene pursuant to ... [grandparents’ visitation rights].” 315 N.W.2d at 752 (statutory citation omitted). In Arizona grandparents are also eligible to be considered as guardians for their dependent grandchildren. A.R.S. § 8-241(A)(1)(g). However, we do not hold that mere eligibility for consideration automatically confers a right to intervene in dependency proceedings. Our holding today is that grandparents should be allowed to intervene in their parentless grandchildren’s dependency proceedings unless it would not be in the child’s best interest. Although no explicit statutory standing to intervene is granted to grandparents qua grandparents, the tenor of Arizona’s legislative and judicial decisions, as well as sound public policy, demands that grandparents be accorded this right. In this case there has been no showing that intervention would be adverse to the best interest of the child. Indeed, we must assume that intervention would be appropriate, since “[i]n reviewing a denial of intervention, we will accept as true the allegations of the motion.” Saunders v. Superior Court In and For County of Maricopa, 109 Ariz. 424, 425, 510 P.2d 740, 741 (1973). Before ruling on a motion to intervene, the juvenile court should consider and weigh the relevant factors identified today, and only if they show that intervention would not be in the best interest of the child should intervention be denied. Because there is no evidence that the juvenile court made an individualized determination of the petitioner’s motion to intervene, based upon the rule enunciated today, we must conclude that the juvenile court abused its discretion by summarily denying intervention. III. The petitioner also appeals from the juvenile court’s decision to deny her petition for guardianship and conservator-ship. At the time of the petition no dependency hearing had been held and no adjudication of dependency made. It is the law in Arizona that “[b]efore the Juvenile Court can consider what disposition it can make in the best interest of the child, it must have jurisdiction. Jurisdiction in the juvenile court does not attach until there has been an adjudication based upon evidence that the child is dependent, neglected, incorrigible, or delinquent.” Caruso v. Superior Court, 100 Ariz. at 173, 412 P.2d at 467. See also Silver v. Rose, supra; A.R.S. § 8-241(A)(1). Because the dependency determination is a factual and legal predicate to the exercise of juvenile court subject matter jurisdiction over the permanent disposition of minors, and one has not yet been made, the juvenile court was without authority to grant petitioner’s petition for guardianship. The juvenile court could only have granted the petition by acting in excess of his jurisdiction and legal authority. Consequently, the denial of the petition was not an abuse of discretion. However, the juvenile court does have the power to make temporary orders regarding the welfare of a child awaiting a dependency determination. A.R.S. § 8-223. The petition for guardianship, while premature as a petition for permanent placement, could have been treated by the juvenile court as a petition for temporary custody. Where the welfare of children is at stake we should liberally construe pleadings to promote justice. Cf. In re the Matter of Pima County Juvenile Action No. 18635 v. Fisher, 125 Ariz. 430, 610 P.2d 64 (1980) (minor sought writ of habeas corpus for return to foster parent custody although special action was actually appropriate; nonetheless “this court will consider the case and grant appropriate relief”). By treating the petition as one for temporary custody, the juvenile court could begin the process of investigating the grandparents for fitness to assume custody and thereby expedite the child’s placement. See Rule 16, Rules of Procedure of the Juvenile Court. Indeed, we expect the juvenile court to do this, for otherwise he will be unable to determine if a grandparents’ motion to intervene may be denied. The ultimate determination of whether the petition for temporary custody should be granted remains, of course, the province of the juvenile judge and his decision will not ordinarily be disturbed. In this case we cannot say that the juvenile court abused its discretion, particularly since no investigation of the petitioner has been conducted. However, the petitioner is free to recast her petition for guardianship as a petition for temporary custody and renew her application to the court, at which time a proper evaluation of her petition should be made. The relief sought as to the motion to intervene is granted, and the respondent is ordered to reconsider the motion in accordance with this opinion; the relief sought as to the petition for guardianship and conservatorship is denied with leave to seek temporary custody; and the stay of proceedings entered January 24, 1986, is dissolved. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur. . The petitioner has, in fact, appealed the denial of her petition for guardianship "out of an abundance of caution.” . A.R.S. § 14-5206 (probate code) provides in part that, "The Court shall appoint as guardian a person whose appointment would be in the best interests of the minor." A.R.S. § 25-332(A) (domestic relations) provides in part that, "The Court shall determine custody ... in accordance with the best interests of the child.” Finally, "[t]he welfare of the child is the prime consideration of a juvenile code." In re Pima County Juvenile Action No. J-31853, 18 Ariz.App. 219, 220, 501 P.2d 395, 396 (1972). . We emphasize that intervention merely allows the grandparents to be heard; it does not confer any right to custody upon them. That decision remains the province of the trial judge. Nor do we necessarily limit our decision today solely to grandparents; other relatives might also be accorded intervention should the need and propriety of their intervention be demonstrated. . Nor would the petitioner have benefited by directing her petition to the probate or domestic relations courts. While these courts’ powers overlap those of the juvenile court to some extent, see A.R.S. § 14-5204 (appointment of a guardian); A.R.S. § 25-331 (child custody proceedings); and A.R.S. § 25-335 (court may order investigation and report concerning custodial arrangements for child), the juvenile court remains the forum for resolving questions of dependency and concomitant placement. When adjudicating the dependency of a child, the juvenile court’s orders take precedence over the orders of any court save the court of appeals and supreme court. A.R.S. § 8-202(D). This includes matters of temporary custody preceding the actual dependency determination.

OPINION FIDEL, Judge. ¶ 1 Appellant Gary Martin McKeon, convicted of two counts of first-degree murder and one count of first-degree burglary, claims on appeal that the trial court erred in instructing the jury that his asserted intoxication from the use of prescribed medication was “not a defense for any criminal act or requisite state of mind.” ¶ 2 The trial court, in our opinion, improperly stated the law because involuntary intoxication, when it arises from the non-abusive use of prescribed medication, may be relevant to the question whether a person accused of a criminal act had the requisite state of mind. We affirm McKeon’s conviction and sentence, however, after finding the error harmless in the context of the evidence. Background ¶ 3 In the fall of 1996, after McKeon’s wife, Kerry, left him and their children, McKeon became acutely depressed. His depression subsided somewhat when his psychiatrist prescribed Zoloft, an anti-depressant, and Klonopin, an anti-anxiety medication. McKeon attempted a reconciliation, but Kerry divorced him and married George Hild in the summer of 1997. ¶4 On August 16, 1997, McKeon killed Kerry and George at the home of Kerry’s sister and brother-in-law. The next day, he turned himself in to thé police. ¶ 5 Tried before a jury, McKeon defended in part on the ground that a combination of prescribed medications had rendered him unaware of his actions. He testified that on the day of the shootings, he had taken Zoloft and Klonopin, drugs prescribed by his psychiatrist, and Roxicet, a pain medication prescribed for complications from a hernia operation. He also testified that, with the exception of “little snippets or Polaroids or whatever of my memory,” he could not remember where he was, what he did, or whom he was with that day. These “snippets,” which McKeon described as things that his memory “told,” “said,” or “would have said” to him, included little more than being in his former in-laws’ backyard, “seeing [George] pull a gun and shoot at me,” and shooting back. McKeon also testified that he decided to turn himself in when a television news broadcast caused him to realize what had occurred. ¶6 According to the testimony of three medical witnesses, including McKeon’s psychiatrist, McKeon’s medications in combination could cause delirium or severe cognitive impairment. The medical witnesses also testified that McKeon’s medications should be taken regularly. McKeon admitted that he took the medications only intermittently but testified that he had not been advised that he must take them regularly. ¶ 7 At the close of evidence, the trial court gave the jury the following instruction: Temporary intoxication resulting from the voluntary ingestion or consumption of Zoloft, Klonopin, or Roxicet, or any other drug is not a defense for any criminal act or requisite state of mind; nor is the abuse of any prescribed medication. Requisite state of mind includes intentionally, knowingly, premeditation, or with intent to. You may not consider any evidence of defendant’s drug use in determining whether he acted intentionally, knowingly, or with premeditation. ¶ 8 The jury returned guilty verdicts on two counts of first-degree murder, for which the trial court sentenced McKeon to consecutive terms of incarceration for his natural life. The jury also found him guilty of one count of first-degree burglary, for which the trial court sentenced him to prison for seven and one-half years, to be served concurrently with the first of his two natural life terms. McKeon timely appealed. ¶ 9 We independently review whether a trial court has properly instructed the jury on the law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). When a jury instruction has incorrectly stated the law, we consider whether the error was harmless. Error is harmless if we can conclude beyond a reasonable doubt that it did not influence the verdict. State v. Rodriguez, 192 Ariz. 58, 63, ¶27, 961 P.2d 1006, 1011 (1998). Intoxication Due To Prescribed Medication ¶ 10 In 1993, the legislature changed the law regarding the defense of voluntary intoxication. See 1993 Ariz. Sess. Laws, ch. 256, § 3. Before this change, the law read: No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act. A.R.S. § 13-503 (1989). ¶ 11 Section 13-503 now reads: Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol, an illegal substance under chapter 34 of this title or other psychoactive substances or the abuse of prescribed medications does not constitute insanity and is not a defense for any criminal act or requisite state of mind. A.R.S. § 13-503 (2001) (emphasis added). ¶ 12 Despite substantial differences, each version of the statute addresses intoxication resulting from the consumption of prescribed medications, and each, by different means, implicitly distinguishes between medically authorized consumption and misuse. ¶ 13 Before the 1993 amendment, the 1989 version of § 13-503 addressed these subjects in conjunction with a related definitional statute. Section 13-503 itself provided, as we have indicated, that an act was not less criminal by reason of having been committed “in a state of voluntary intoxication.” “Voluntary intoxication” was defined as “intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the person knows or ought to know, unless the person introduces them pursuant to medical advice or under such duress as would afford a defense to an offense.” A.R.S. § 13-105(38) (emphasis added). By reasonable implication, the abusive consumption of prescription medication would not qualify as consumption “pursuant to medical advice.” Thus, the two statutes, read in tandem, excluded intoxication arising from the non-abusive use of prescription drugs from the definition of voluntary intoxication and permitted a defendant to assert such a state as one of involuntary intoxication that might be considered to negate the requisite state of mind for committing a crime. ¶ 14 The more recent version of § 13-503 approaches the subject of prescription medication from a different angle, but arrives at the same end. It provides that temporary intoxication is not a defense for a criminal act or requisite state of mind if it results from the abuse of prescribed medications. The statute by implication does not preclude a criminal defendant from asserting temporary intoxication arising from the non-abusive use of prescription medication — a use pursuant to medical advice — to negate a requisite state of mind. ¶ 15 Before settling on this interpretation, we address an ambiguity that arises from the differential use of overlapping categories in § 13-503. The statute, as now worded, speaks preclusively of temporary intoxication that results from the voluntary consumption of “an illegal substance ... or other ,psychoactive substances or the abuse of prescribed medications.” The statute uses the qualifying words “abuse of’ to narrow its provision concerning prescribed medications but does not use these qualifying words to narrow its provision concerning psychoaetive substances. Yet “prescribed medications” include some “psycho-active substances.” A “psychoaetive” substance is one “affecting the mind or behavior.” Webster’s Ninth New Collegiate Dictionary (1985). And some prescription drugs obviously have that purpose and effect. ¶ 16 The question thus arises whether (1) the consumption of a prescription drug, if also a psychoaetive drug, is statutorily precluded as a basis for a defense without regard to whether the prescription was properly taken or abused, or (2) whether the consumption of a psychoaetive drug, if pursuant to medical prescription, is only precluded as a basis for a defense if the prescription drug was abused. ¶ 17 In our view, the second interpretation gives meaning and purpose to the statute. This is so because the statute applies only to substances that have a capacity to induce a state of temporary intoxication. Thus, any prescribed medication that could fall within the scope of the statute must necessarily have such a capacity, and any medication with the capacity to induce a state of temporary intoxication is by definition a psychoaetive substance, one that can affect the mind or behavior. To hold that a defense may not arise from the consumption of a prescribed psychoaetive medication, even one properly taken and not abused, would render superfluous the statutory provision regarding the abuse of prescription medication. Whenever possible, we construe statutes so as not to render any clause, sentence, or word superfluous. State v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App.1992). The legislature plainly sought to distinguish abuse of prescribed medication from the proper, non-abusive consumption of such medication pursuant to medical advice. We can only give meaning to this distinction by concluding that the legislature intended by its reference to prescribed medications to encompass all forms of prescribed medications, including those with psychoaetive properties, and that the legislature intended by its reference to “other psychoaetive substances” to include those that are neither illegal substances nor prescribed medications. ¶ 18 Although we interpret our statute by reference to its terms, other jurisdictions have characterized intoxication resulting from the proper use of prescribed medication as involuntary intoxication and recognized it as a defense to criminal charges. See Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976); State v. Gardner, 870 P.2d 900, 902 (Utah 1993) (murder defendant who presented evidence of intoxication resulting from use of prescription anti-depressant, Prozac, was entitled to instruction on involuntary intoxication); Brancaccio v. State, 698 So.2d 597, 600 (Fla.Dist.Ct.App.1997) (murder defendant who presented evidence of intoxication resulting from use of Zoloft entitled to involuntary intoxication instruction). ¶ 19 Our legislature has recognized that the performance of a voluntary act is a minimum requirement for criminal liability. See A.R.S. § 13-201. This principle has been codified in Arizona since 1901. See Revised Statutes of Arizona Territory, Penal Code § 24(5), (6) (1901) (exempting from criminal liability “[p]ersons who committed the act charged without being conscious thereof’ and “[plersons who committed the act or omission charged through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence”). ¶ 20 In summary, we hold that A.R.S. § 13-503 does not preclude the assertion of temporary intoxication arising from the non-abusive use of prescription medication to negate the requisite state of mind for a criminal act. We adopt this holding because the statute refers preclusively to intoxication resulting from the abuse of prescribed medications, and to punish for an involuntary act would offend a fundamental principle of justice well recognized in Arizona. ¶ 21 We thus conclude that the trial court’s instruction misstated the law, and we turn to the question whether the error was consequential. Specifically, we consider whether the evidence permitted the conclusion that McKeon lacked the requisite state of mind as a consequence of temporary intoxication arising from the non-abusive consumption of prescribed medication. See State v. Averyt, 179 Ariz. 123, 130, 876 P.2d 1158, 1165 (App.1994) (“Preventing the jury from considering evidence which might negate the mens rea of the crime would seriously undermine the protections embodied within the sixth amendment’s jury trial provision.”). Harmless Error ¶22 The State contends that even if the trial court’s instruction misstated the law of temporary intoxication, the misstatement was inconsequential because the trial court found that McKeon’s intermittent use of his medications was abusive. The record, however, contains no such finding. Moreover, because the question of abuse of medications turned on the resolution of disputed facts and inferences, the question was one within the province of the jury, not the trial court, to resolve. See, e.g., State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984) (holding that defendant’s truthfulness and the credibility of and weight to be given expert medical testimony are issues of fact for jury). ¶ 23 The question remains, however, whether the jury, if permitted to consider the subject of temporary intoxication resulting from the ingestion of McKeon’s medicines, might reasonably have found that McKeon was so intoxicated from his medication that he lacked the requisite state of mind to be guilty of the crimes with which he was charged. ¶ 24 We answer that question in the negative. If not precluded by the court’s instruction from considering the subject, the jury might have concluded from McKeon’s testimony and from that of Drs. Parker, Best, and Miller, that at the time of the shootings McKeon was experiencing some cognitive impairment, but the jury could not have reasonably concluded that McKeon was sufficiently deprived of his reason that he did not intend the natural results of his actions. ¶ 25 Dr. Parker testified that the combination of R'oxicet and Klonopin could cause delirium, a state of mind that “changes rapidly” and is defined as “brain failure.” Dr. Best confirmed that the combination of Zoloft, Klonopin, and Roxicet might induce delirium. Dr. Best testified that a possible side effect of both Zoloft and Klonopin is “cognitive impairment,” the altering of a person’s ability to know “person, place, [and] time.” Indeed, Klonopin alone, she testified, may cause “severe” cognitive impairment. Dr. Miller testified that delirious persons “generally [are] not competent and tend not to know what they’re doing.” Dr. Miller further testified regarding delirious persons that: [I]f they have a gun, they might shoot themselves in the head. They couldn’t carry out a carefully calculated plan to enter this building with a gun and do all kinds of things and get somebody____But a simple thing, they could do, like shoot themselves in the head, and they might not know what they’re doing. ¶26 McKeon’s testimony, if accepted by the jury, might establish an altered ability to know person, place, and time. See supra ¶ 5. Overall, however, the evidence is contrary to Dr. Miller’s description of delirium, for McKeon did not engage at the time of the murders in a “simple” act. Instead, as he hunted down, cornered, and killed his ex-wife and her husband, he carefully executed a complex series of acts, some of which he had forecast in multiple prior threats. ¶27 McKeon telephoned his ex-in-laws’ house and warned them that he intended to kill George and Kerry. He collected weapons and ammunition, which he had stored and hidden in various locations throughout his house. He drove nine miles from his house to the scene of the shootings. He reached over and opened a six-foot tall gate that was latched with a pin. He walked along a side yard and approached George and Kerry, who were on her sister’s back patio. He repeatedly shot George, who had retreated with Kerry to the far corner of the backyard. At some point during the melee, he shot Kerry. And before departing, he climbed over or around a three-foot tall wrought iron fence and, at close range, fatally shot George in the face. He then ran back to his car and drove away, “burning rubber” as he left. ¶28 When McKeon shot George in the face, he accomplished precisely what he had long been threatening to do. One of George’s former co-workers testified that sometime around the end of 1996, McKeon had threatened to “blow George’s head off.” Kerry’s sister testified that at about the time the divorce was final, McKeon told her that “[h]e was going to shoot [George] between the eyes.” Kerry’s brother-in-law testified that eight days before the shootings, McKeon had told him that he would “right in front of Kerry ... blow George’s brains away.” McKeon also telephoned his ex-in-laws several times shortly before the shootings. During one of these conversations he again threatened to “put a bullet through George’s head.” ¶29 McKeon made good on his threat to shoot George between the eyes. Dr. Philip Keen, the Maricopa County medical examiner, testified that George received non-fatal gunshot wounds to the left hand, arms, back, hip, and abdomen, and a fatal gunshot wound that entered between George’s left eye and the left side of his nose. Dr. Keen further testified that gunpowder burns indicated that the fatal shot was fired from “within a couple of feet” from George’s face. His other wounds, which were not inflicted from such close range, did not cause gunpowder burns. ¶ 30 In short, the evidence establishes that McKeon’s actions were systematic and deliberate before the shootings, during the shootings, and during his flight. Given the deliberateness of McKeon’s conduct, we are satisfied beyond a reasonable doubt that the trial court did not affect the verdict by erroneously instructing the jury regarding prescription drug-related intoxication. Had the jury been properly instructed on the subject, it could not have reasonably found that, at the time of the shootings, McKeon was so cognitively impaired that he did not know what he was doing or did not intend the natural consequences of his acts. Thus, the jury could not have found that, due to intoxication, McKeon lacked the requisite intent required for a first-degree burglary or first-degree murder conviction. See A.R.S. §§ 13-1508 and 1506 (a person commits first-degree burglary by entering or remaining within a fenced residential yard with the intent to commit a felony and possesses a deadly weapon); A.R.S. § 13-1105 (a person commits first-degree murder by knowingly or intentionally killing another with premeditation, or by killing another during the commission of burglary); see also State v. Jamison, 110 Ariz. 245, 248, 517 P.2d 1241, 1244 (1974) (lack of knowledge may disprove intent), overruled on other grounds by State v. Mikels, 118 Ariz. 495, 578 P.2d 174 (1978). Conclusion ¶ 31 The trial court’s jury instruction on temporary intoxication misstated the statutory standard. An erroneous instruction is harmless, however, if we can conclude beyond a reasonable doubt that it did not affect the verdicts. See Rodriguez, 192 Ariz. at 63, ¶ 27, 961 P.2d at 1011. Because we draw that conclusion in this case, McKeon’s convictions and sentences are affirmed. CONCURRING: WILLIAM F. GARBARINO, Judge. . Indeed, the categories of voluntary and involuntary intoxication have been historically distinct. In Montana v. Egelhoff, 518 U.S. 37, 51, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), the Supreme Court held that the affirmative defense of voluntary intoxication is not a fundamental principle of justice and may be abrogated without violating the federal Due Process Clause. The Court based its holding on the historical practice of English common law. “By the laws of England, ... the intoxicated defendant 'shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses.’ " Id. at 44, 116 S.Ct. 2013 (quoting 1 Hale, Pleas of the Crown 32). Involuntary intoxication, in contrast, was a well-recognized affirmative defense at common law. See, e.g., City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851, 855-56 (1976) (quoting Hale, supra) ("That if a person by the unskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causeth such a temporary or permanent phrenzy, as aconitum or nux vomica, this puts him into the same condition, in reference to crimes, as any other phrenzy, and equally excuseth him.”). This differential treatment arises from the fundamental principle that one may be punished only for the results of one’s voluntary acts or omissions. " ‘[I]f a person that is drunk kills another, this shall be Felony, and he shall be hanged for it, and yet he did it through Ignorance, for when he was drunk he had no Understanding nor Memory; but inasmuch as that Ignorance was occasioned by his own Act and Folly, and he might have avoided it, he shall not be privileged thereby.’ ” Egelhoff, 518 U.S. at 45, 116 S.Ct. 2013 (quoting Reniger v. Fogossa, 1 Plowd. 1, 19, 75 Eng. Rep. 1, 31 (1550)) (emphasis omitted). . Judge Hall states in concurrence that our conclusion is inconsistent with A.R.S. § 13-103(A) and State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997), but we find no inconsistency. In § 13-103(A), the legislature abolished common law affirmative defenses, but it neither abolished the State’s burden of proving that a defendant possessed the requisite state of mind at the time of the offense, nor abolished the defendant's opportunity to introduce evidence to counter the State’s evidence of requisite state of mind. And in Mott, the supreme court declined to allow psychiatric testimony to establish that a defendant’s mental capacity was too diminished, as a result of a mental disorder, to form the requisite mental state. The court stated, “Arizona does not allow evidence of a defendant’s mental disorder short of insanity ... to negate the mens rea element of a crime.” 187 Ariz. at 541, 931 P.2d at 1051. Mott did not address, however, whether a defendant may attempt to negate the element of culpable mental state by demonstrating involuntary intoxication resulting from the proper use of prescription drugs. Thus, it does not resolve the question presented here. . In support of its assertion, the State cites the transcript of the hearing at which counsel settled jury instructions with the court. Though the court raised the issue at that hearing and took it under advisement, the record contains no indication that the court made a later finding that McKeon abused the drugs that he had been prescribed.

CAMERON, Justice. This is a petition for review of a decision and opinion of the court of appeals which affirmed a jury award of compensatory damages for bad faith against Nationwide Life Insurance Company, but reversed the award of two million dollars in punitive damages. Linthicum v. Nationwide Life Insurance Company, 150 Ariz. 354, 723 P.2d 703 (1985). We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We granted oral argument on the petition for review and asked that counsel direct their attention to the following questions: 1. Assuming that indifference to or failure to consider the interests of the insured is sufficient grounds for award of tort damages in a bad faith case, what additional requirement or standard is appropriate to justify an award of punitive damages? 2. Does the evidence in this case meet or fail to meet that standard? After oral argument we granted the petition for review as to the issue of punitive damages only. We affirm the decision and opinion of the court of appeals as to the other issues considered by that court. The facts follow. In September 1979, Jerry Linthicum (Jerry) was hospitalized by his family physician, Dr. James Skinner. A tumor on one of his parathyroid glands was surgically removed by Dr. Robert A. Brock on 28 September 1979. At that time, Jerry’s physicians, Dr. Skinner and Dr. Brock, plus the pathologist at Phoenix General Hospital, Dr. Voit, determined based upon tissue samples that it was parathyroid adenoma, ie. a benign tumor. However, as these tumors can be differently interpreted, some representative slides were sent to the Mayo Clinic for verification. A pathologist at the Mayo Clinic, Dr. Edward Soule, also diagnosed it as parathyroid adenoma. The final diagnosis in the summary addendum of Phoenix General Hospital, prepared by Dr. Vericolli, also states parathyroid adenoma. Following his surgery, Jerry was required to see Dr. Skinner monthly to have his blood tested for any surgery induced hypocalcemia (low blood calcium) or a reoccurrence of his prior symptoms. He also returned to work, gained twenty-five pounds, and resumed his active lifestyle. Effective 1 April 1980, Sandra Linthicum (Sandra) obtained medical insurance from Nationwide Life Insurance Company (Nationwide) through a group insurance policy issued to her employer, Arizona Optical Company. The policy was also to include coverage for her husband, Jerry, as a dependent. Sandra never received a copy of this policy, but instead was simply added as a certificate-holder of the policy issued to Arizona Optical Company. Both the group policy and the certificate contained the following limitation as to preexisting illness: Eligible expenses do not include any charges incurred ... (7) for an illness for which the Insured Person received medical care or treatment within the 90 days preceding the effective date of his insurance hereunder.... The term “treatment” includes the taking of any drug prescribed by a physician. During the ninety day period prior to Sandra’s insurance becoming effective, Dr. Skinner saw Jerry on 16 January, 25 February and 18 March 1980, for blood tests. The March blood test revealed that his blood pressure and calcium level were both slightly elevated (hypertension and hypercalcemia). Dr. Skinner prescribed a blood pressure medication, Enduronyl Forte. Jerry also received treatment from a Dr. Emerson, during February, for a shoulder injury. On 12 June 1980, Jerry became ill while playing softball. Dr. Skinner had Jerry admitted to Phoenix General Hospital and later transferred him to the Hospital of the Good Samaritan in Los Angeles, California, under the care of Dr. Leonard Rosoff. At both hospitals, Sandra gave the Nationwide policy number as part of the requested insurance information. On 11 July 1980, Dr. Rosoff operated on Jerry and discovered extensive metastatic carcinoma (cancer) of the parathyroid glands. Dr. Rosoff removed the entire thyroid gland, including the three remaining parathyroid glands, but he was unable to remove all the cancer as it had spread throughout the neck and into the chest area. Dr. Rosoff and Dr. Roger Terry, a Los Angeles pathologist, examined the records and tissue samples from Jerry’s 1979 surgery. They disagreed with the previous diagnosis and concluded that the tumor discovered in 1979 had been malignant and not benign. The bills from Phoenix General Hospital and the Hospital of the Good Samaritan were submitted to Nationwide. The claim was processed by Ms. Georgia Nihoff, senior claims examiner. Ms. Nihoff testified that she followed Nationwide’s normal procedure concerning claims by new insureds and initiated an investigation to determine if the claim was valid or excludable as a preexisting illness. Mr. Richard Schlade, another claims examiner, testified that one of the first bills submitted to Nationwide was from a radiologist and referred to the earlier surgery for parathyroid adenoma. A form letter was sent to Arizona Optical requesting the names and addresses of all doctors that had seen Jerry since 1 January 1980, and' further requesting the Linthicums to give authorization for Nationwide to obtain medical information from these doctors. This letter did not state that the medical information sought was part of an investigation concerning whether the claim should be denied as a preexisting illness. Upon receipt of the authorization and list of doctors, Nationwide sent each physician a “Dear Doctor” letter. These form letters requested information concerning any contact the doctor had with Jerry, either in person or by telephone. The letters also sought: any symptoms Jerry exhibited, diagnosis by the doctor, medications prescribed or services rendered, fees charged and finally any information on treatment rendered by any other doctors. Dr. Skinner responded to such a letter by stating that he had moved his practice and that all Jerry’s medical records were in the possession of his former employer, Dr. Luke. Dr. Luke, however, claimed that he did not have the records. Ms. Nihoff then sent another form letter to Dr. Skinner for “reconsideration”. Dr. Skinner again stated that Dr. Luke had the medical records. Dr. Skinner also stated that Jerry’s case was “complicated” and that Nationwide should call him if they had any questions. Dr. Luke, in response to a second letter, provided dates, diagnosis, (hyperparathyroidism with hypercalcemia, hypertension), medication and charges for Jerry’s monthly office visits during January, February and March 1980. Dr. Luke also indicated that these visits were follow-up care from his 1979 surgery and that Jerry was a patient of Dr. Skinner’s during this time, not his. Dr. Rosoff responded to a similar inquiry from Nationwide. Dr. Rosoff stated that Jerry had parathyroid carcinoma but that his treating physicians did not know this prior to July 1980. He submitted discharge summaries to this effect prepared by himself and Dr. Bruce Larson, an endocrinologist, who also treated Jerry at the Hospital of the Good Samaritan in Los Angeles. At trial, Dr. Skinner testified that, in hindsight, he now believes the tumor removed in 1979 was probably cancerous. Nationwide also received the admitting records and discharge summaries from Jerry’s 1979 surgery at Phoenix General Hospital. These records contained the conclusion that the 1979 parathyroid tumor was benign. However, the confirmation letter from Dr. Soule at the Mayo Clinic concerning the tumor is absent from the Nationwide file. Ms. Nihoff made the final decision to deny Jerry’s claim based upon her determination that he had been receiving treatment for cancer during the ninety day exclusionary period even though the cancer was undiagnosed at that time. Ms. Nihoff testified that the treatment consisted of the office visits and blood tests. She further stated that it was her understanding of Nationwide policy that treatment could include any contact with a doctor, such as visiting his office or talking with him on the telephone. On 20 October 1980, a denial letter was sent to Arizona Optical. This letter stated that Jerry’s claim was denied because he had received treatment “for this illness” within ninety days of the policy’s effective date. It further stated that a review of the denial was possible upon request. The denial letter was sent only to Arizona Optical, as the policyholder, even though Nationwide knew that Sandra Linthicum no longer worked there. Sandra did not receive a copy of this letter and states she was not informed of the denial. Jerry was hospitalized again at Phoenix General Hospital on 28 October 1980. When Sandra gave the admitting personnel her insurance information, she was informed that Jerry’s previous hospital bill had not been paid. Upon telephoning Nationwide from the hospital, Sandra states, she was informed by Ms. Nihoff for the first time that the claim had been denied on the basis of a preexisting illness. Subsequently, Jerry was transferred to Mercy Clinic at St. Joseph’s Hospital as a charity patient. From October 1980 until his death in February 1982, Jerry remained a charity patient at Mercy Clinic, receiving out-patient treatment between hospital stays. Dr. Skinner testified that it was his opinion that Jerry eventually became paralyzed due to the delay involved in obtaining treatment through Mercy Clinic. Dr. Skinner felt the paralysis was avoidable, and could have been prevented if Jerry could have afforded private care. Additionally, Sandra, her twelve year old son, other family members, and friends administered medications and cared for Jerry at his home. After an inquiry by a Phoenix newspaper column, “Answerline”, Nationwide reviewed its denial in April 1981. Mr. Richard Schlade, after reviewing the file, concluded that the denial was justified. Mr. Schlade was persuaded by Dr. Rosoff’s determination that Jerry had cancer in 1979 and that his previous doctors had misdiagnosed it. Further, Mr. Schlade testified that Dr. Larson’s discharge summary indicated that hypercalcemia and hypertension were secondary to or caused by parathyroid carcinoma. From this, Mr. Schlade drew a causational link to the hypercalcemia and hypertension reported in the records of Dr. Luke and determined Jerry had parathyroid cancer and had received treatment for it or a symptom caused by it during the ninety days prior to the effective date of Nationwide’s policy. Later, Ms. Mary Beth Miller, the claims department supervisor, conducted another review of Jerry’s claim. She also concluded that Jerry had been treated for cancer or a symptom of it during the ninety day exclusionary period, based upon Dr. Larson’s report that hypercalcemia and hypertension are due to parathyroid carcinoma. Ms. Miller, however, showed some uncertainty about this conclusion and therefore, sent the file to the home office, where it was referred to Mr. Richard Kokesh, the Group Filed Services Manager for Nationwide. Prior to Mr. Kokesh reviewing the file, it was initially examined by his assistant Ms. Pat Tweeton, a senior claims examiner. She wrote on the file: Rich, I think they did an excellent job on this file. I re-reviewed the whole thing and came to the same conclusion they did. I feel the claim is preexisting. The problem is, if it is a problem, that the doctors doing the 1979 surgery did not diagnose as cancer. So neither doctor or patient knew this. * * * * * * My suggestion would be to stick to denial and advise Wagnon not to discuss with media. In his review Mr. Kokesh agreed, concluding primarily on the basis of the opinions of Drs. Rosoff and Terry, that the denial was justified. After Jerry’s death, Sandra brought suit against Nationwide and its claim agency, Wagnon, for breach of contract and bad faith. A jury awarded Sandra $14,951.13 for breach of contract, $150,000 for bad faith, and $2,000,000 in punitive damages. The court of appeals reversed the punitive damage award but affirmed on all other issues. We granted review to examine the issue of punitive damages. THE STANDARD FOR IMPOSITION OF PUNITIVE DAMAGES A. When Punitive Damages May Be Imposed Exemplary or punitive damages are those damages awarded in excess of full compensation to the victim in order to punish the wrongdoer and to deter others from emulating his conduct. Cassel v. Schacht, 140 Ariz. 495, 496, 683 P.2d 294, 295 (1984); Prosser & Keeton, The Law of Torts § 2 at 9 (5th ed. 1984); Dobbs, Handbook on the Law of Remedies § 3.9 at 204 (1973); Restatement (Second) of Torts § 908. Other rationales, besides punishment and deterrence, utilized as justification for punitive damages include preserving the peace, inducing private law enforcement, compensating victims for otherwise unrecoverable losses, and financing the costs of litigation. Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 So. Cal.L.Rev. 1, 3 (1982). In deciding whether punitive damages are awardable, the inquiry should be focused upon the wrongdoer’s mental state. Dobbs, supra. To recover punitive damages something more is required over and above the “mere commission of a tort.” Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986); Prosser & Keeton, supra, § 2 at 9-10. The wrongdoer must be consciously aware of the wrongfulness or harmfulness of his conduct and yet continue to act in the same manner in deliberate contravention to the rights of the victim. Rawlings v. Apodaca, supra, 151 Ariz. 162, 163, 726 P.2d at 578-579. It is only when the wrongdoer should be consciously aware of the evil of his actions, of the spitefulness of his motives or that his conduct is so outrageous, oppressive or intolerable in that it creates a substantial risk of tremendous harm to others that the evil mind required for the imposition of punitive damages may be found. Id. This court and the court of appeals have attempted to express and illustrate the type of “evil mind” necessary for punitive damages in many ways and in a myriad of contexts. Unfortunately, this has resulted in an ambiguous, overbroad list of “catch phrases” from which attorneys pick and choose in an effort to obtain punitive damages. The various characterizations of conduct allowing recovery of punitive damages include: (1) Malice—express or implied, Arizona Publishing Co. v. Harris, 20 Ariz. 446, 181 P. 373 (1919); Magma Copper Co. v. Shuster, 118 Ariz. 151, 575 P.2d 350 (App.1977); (2) Spite or ill will, State Farm Mutual Insurance Co. v. St. Joseph’s Hospital, 107 Ariz. 498, 489 P.2d 837 (1971); (3) Evil intent or bad motive, Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); McNelis v. Bruce, 90 Ariz. 261, 367 P.2d 625 (1962); (4) Gross negligence, Gila Water Co. v. Gila Land and Cattle Co., 30 Ariz. 569, 249 P. 751 (1926); Iaeger v. Metcalf, 11 Ariz. 283, 94 P. 1094 (1908); (5) Wanton, reckless or willful acts, Lutfy v. R.D. Roper & Sons Motor Co., 57 Ariz. 495, 115 P.2d 161 (1941); (6) Intentional misconduct, Id.; Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972); (7) Fraud, Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249 (1920); (8) Oppression, Id.; Salt River Water Users’ Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976); Jerman v. O’Leary, 145 Ariz. 397, 701 P.2d 1205 (App.1985); (9) Extreme, aggravated or outrageous conduct, Lerner v. Brettschneider, 123 Ariz. 152, 598 P.2d 515 (App. 1979); (10) Conduct involving an unreasonable risk of causing distress, Wetzel v. Gulf Oil Corp., supra.; (11) Reckless disregard for or indifference to the rights, interests or safety of others, Smith v. Chapman, supra.; Salt River Water Users’ Association v. Giglio, supra; Sellinger v. Freeway Mobile Homes Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1976); Neilson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966); McNelis v. Bruce, supra; Schmidt v. American Leasco, 139 Ariz. 509, 679 P.2d 532 (App.1983); (12) Criminal acts or conduct, Puz v. McDonald, 140 Ariz. 77, 680 P.2d 213 (App.1984); (13) Acts done in bad faith, Huggins v. Deinhard, 127 Ariz. 358, 621 P.2d 45 (App.1980). The numerous expressions of the conduct and mental state required for punitive damages has broadened its scope but loosened its impact. [C]ourts have developed a large vocabulary to describe the kind of mental state required—the defendant must be “malicious”, “reckless”, “oppressive”, “evil”, “wicked”, or guilty of “wanton misconduct”, or “morally culpable” conduct. Since all of these words refer to the same underlying culpable state of mind, and since courts have not been at all concerned with any shades of difference that might be found between, say, malice and recklessness, almost any term that describes misconduct coupled with a bad state of mind will describe the case for punitive damages. Dobbs, Handbook on the Law of Remedies, § 3.9 at 205. Having juries decide whether to award compensatory vs. punitive damages based on vague verbal distinctions between mere negligence, gross negligence and reckless indifference is often futile and nothing more than semantic jousting by opposing attorneys. Further, it leads to misapplication of the extraordinary civil remedy of punitive damages which should be appropriately restricted to only the most egregious of wrongs. “A standard that allows exemplary awards based upon gross negligence or mere reckless disregard of the circumstances overextends the availability of punitive damages, and dulls the potentially keen edge of the doctrine as an effective deterrent of truly reprehensible conduct.” Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me.1985). We find ourselves in agreement with the Supreme Judicial Court of Maine and “perceive cogent reasons for avoiding an over-broad application of the [punitive damages] doctrine.” Tuttle v. Raymond, 494 A.2d at 1360. The type of tortious conduct justifying punitive damages should be only those limited classes of consciously malicious or outrageous acts of misconduct where punishment and deterrence is both paramount and likely to be achieved. We, therefore, conclude that a less broad standard for punitive damages is needed. As discussed earlier, it is the “evil mind” that distinguishes action justifying the imposition of punitive damages. See Rawlings v. Apodaca, supra. In whatever way the requisite mental state is expressed, the conduct must also be aggravated and outrageous. It is conscious action of a reprehensible character. The key is the wrongdoer’s intent to injure the plaintiff or his deliberate interference with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. Rawlings v. Apodaca, 151 Ariz. 161, 726 P.2d at 577. While the necessary “evil mind” may be inferred, it is still this “evil mind” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct which is required for punitive damages. We hold that before a jury may award punitive damages there must be evidence of an “evil mind” and aggravated and outrageous conduct. B. Burden of Proof For Punitive Damages In examining the currently broad scope of punitive damages, we reach a re lated issue, the burden of proof in a claim for punitive damages. As this remedy is only to be awarded in the most egregious of eases, where there is reprehensible conduct combined with an evil mind over and above that required for commission of a tort, we believe it is appropriate to impose a more stringent standard of proof. When punitive damages are loosely assessed, they become onerous not only to defendants but the public as a whole. Additionally, its deterrent impact is lessened. Therefore, while a plaintiff may collect compensatory damages upon proof by a preponderance of the evidence of his injuries due to the tort of another, we conclude that recovery of punitive damages should be awardable only upon clear and convincing evidence of the defendant’s evil mind. See Tuttle v. Raymond, 494 A.2d at 1362-1363. In making this distinction, we are not alone. See e.g. Tuttle v. Raymond, supra; Travelers Indemnity Co. v. Armstrong, 442 N.E.2d 349 (Ind.1982); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980); Or.Rev.Stat. § 30.925 (1981); Minn.Stat. Ann. § 549.20 (1984); See also Colo.Rev.Stat. § 13-25-127(2) (1973) (proof beyond a reasonable doubt); Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va.L.Rev. 269, 296-298 (1983) (recommending such a higher standard). We hold that the burden of proof for punitive damages is by clear and convincing evidence. C. Punitive Damages in Bad Faith Claims In the instant case, we consider whether punitive damages may be awarded in a case involving the tort of bad faith. This question was recently answered by this court in Rawlings v. Apodaca, supra. In a bad faith tort case, as with all other torts, punitive damages are not awardable unless there is something more than the conduct required to establish the tort. Rawlings v. Apodaca, 151 Ariz. 162, 726 P.2d at 578; Farr v. Transamerica Occidental Life Insurance Co., 145 Ariz. 1, 8, 699 P.2d 376, 384 (1984). However, as we stated in Rawlings, supra, punitive damages are recoverable in a bad faith action when the defendant’s conduct is “aggravated, outrageous, malicious or fraudulent” combined with an evil mind as evidenced by a showing that the defendant was consciously aware of the needs and rights of the insured and nevertheless, ignored its obligations. 151 Ariz. 162, 726 P.2d at 578. We hold that punitive damages may be awarded in a bad faith case. Rawlings, supra. IS THERE SUFFICIENT EVIDENCE TO AWARD PUNITIVE DAMAGES IN THIS CASE? In the case before us, the court of appeals held that the award of punitive damages was not justified. We agree. While Nationwide may not have dealt with the Linthicums in good faith, there is not sufficient evidence of an evil mind, illustrating a desire to harm consciously disregard the Linthicum’s rights, as is necessary to warrant punitive damages. We reach this conclusion irrespective of whether the burden of proof is clear and convincing evidence or the lesser standard of a preponderance of the evidence. Initially we note, as did the court of appeals, that “certain of the alleged acts of misconduct [by Nationwide] were specifically approved by Arizona law. For example, the practice of issuing an insurance certificate to summarize the terms and conditions of the policy, and transmitting that certificate to the insured through her employer, is authorized by ... A.R.S. § 20-1402.” Linthicum v. Nationwide Life Insurance Company, 723 P.2d at 714. Other acts of misconduct alleged by the Linthicums to warrant punitive damages include: sending a denial of claim letter only to Arizona Optical and not to Sandra; not disclosing the medical basis for the denial; investigating all dependent claims filed in the first year of coverage for potential denial; not directly asking any of Jerry’s doctors whether he had treated Jerry during the ninety day exclusionary period before issuing its denial; strictly construing its policy against the insured; conducting only fake reviews of the claim denial after a newspaper inquiry; refusing to provide Sandra with a copy of the policy; knowing the harm a denial would cause the Linthicums and denying the claim anyway. While we do not entirely agree with the court of appeals characterization of these facts as “procedural errors on the part of Nationwide”, neither do we find them sufficient to support an award of punitive damages. Linthicum v. Nationwide Life Ins. Co., 723 P.2d at 714. Admittedly, Nationwide does appear to construe its policy strictly in its own favor. Investigating all dependent claims filed within the first year for potential denial and denying all claims upon any possible supportable basis is definitely not in the insured’s interest. These facts are definitely relevant to a claim for bad faith; however, without evidence of an “evil mind” there is not a claim for punitive damages. Nationwide follows a tough claims policy but it is not “aggravated, outrageous, oppressive or fraudulent”. The knowledge of the harm its denial was causing the Linthicums is definitely relevant to proving an “evil mind”. If it had been shown that there was a deliberate ignoring of the Linthicums’ rights and needs, then punitive damages might have been awardable. In the instant case, Nationwide reviewed the file several times because of the gravity of the situation. While the petitioner may not be satisfied with the procedures utilized in these reviews, they do not appear to be designed to deny valid claims. We do not find sufficient evidence to affirm the punitive damage award. We reverse and vacate the award for punitive damages and affirm the remainder of the judgment of the trial court and the opinion of the court of appeals. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur. . There are four parathyroid glands located within the thyroid gland. The parathyroid glands secrete a hormone which regulates the amount of calcium in the body.

HAYS, Justice. University Mechanical Contractors of Arizona, Inc. (University), has petitioned this court for review of the appeals court’s decision in University Mechanical Contractors of Arizona, Inc. v. Puritan Insurance Co., 150 Ariz. 337, 723 P.2d 686 (1985). That opinion reversed a trial court action which entered judgment on a writ of garnishment in favor of University. We accepted review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 23, R.Civ.App.P., 17A A.R.S. FACTS In 1978, University purchased from Ins-ta-Foam Products, Inc. (Insta-Foam), a system of pipe and O-ring couplings designed by Insta-Foam. These couplings were for use in a solar heating and cooling facility at the Yuma Proving Grounds which University was under contract to build. In December, 1978, University began installing the system. Sometime after the Insta-Foam parts were installed, leaks developed due to problems with the O-rings and the pipe. University attempted to correct the problem by beveling the pipe and eventually reinstalled it in early 1979. At that time the system was pressure-tested for leaks and none were discovered. Because of another subcontractor’s failure to supply a major component of the facility, the Insta-Foam system remained sealed and unused for nearly a year. The facility allegedly became operational in December, 1979; however, it appears from the record that the actual date may have been closer to April, 1980. Nevertheless, it is undisputed that within two weeks after beginning operation of the solar heating and cooling system, large amounts of water began leaking from the system. Initially, certain leaks were located and repaired by University. Within a short time, however, more leaks were found and University was forced to repair the entire system of couplings. After obtaining a judgment of $96,599.72 against Insta-Foam, University filed a writ of garnishment against Puritan Insurance Company (Puritan). The writ was based on a comprehensive general liability policy issued by Puritan to Insta-Foam on October 13, 1978. The policy was to be effective for one year until October 13, 1979. Puritan answered University’s writ of garnishment by denying that the loss was covered. After trial, however, judgment was entered on the writ of garnishment in favor of University. The trial court based its ruling on a finding of fact that the insurance policy was in full force and effect at the time Insta-Foam delivered the products to University and therefore there was coverage under the policy. Puritan appealed from the judgment and the court of appeals reversed, holding that, since the accident did not occur until at least two months after the policy had expired, there was no coverage under the general liability policy issued by Puritan. In Arizona, the interpretation of an insurance contract is a question of law to be determined by this court, independent of the findings of the trial court. Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982), cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982); see also State Farm Fire & Casualty Co. v. Rossini, 107 Ariz. 561, 564, 490 P.2d 567, 570 (1971). On appeal, we will sustain the trial court’s ruling on any theory supported by the evidence, even though the trial court’s reasoning may differ from our own. Sparks v. Republic National Life Insurance Co., 132 Ariz at 534, 647 P.2d at 1132; see also Minderman v. Perry, 103 Ariz. 91, 93, 437 P.2d 407, 409 (1968). Here, the trial court found that the damages incurred by University were covered by the Puritan policy held by Insta-Foam. We agree. Under the policy at issue, Puritan agreed to pay any costs which Insta-Foam became legally obligated to pay as damages because of “property damage ... caused by an occurrence....” The policy defines the term “property damage” in two different clauses: (1) Physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such a loss of use is caused by an occurrence during the policy period (emphasis added). The policy also defines an “occurrence” as: An accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. With these definitions clearly in mind, we can proceed. In the present case, the appeals court reversed on the grounds that the policy requires (1) that there be an accident which causes property damage, and (2) that the property damage occur during the policy period. In so holding, the court relied on Outdoor World v. Continental Casualty Co., 122 Ariz. 292, 594 P.2d 546 (App.1979). In Outdoor World, a boat having a defective steering mechanism was sold during the policy period to a customer. It was not until after the policy period had expired, however, that the customer was injured in an accident. The dispute on appeal centered on whether coverage was limited, by the policy definition of “occurrence,” to injuries which occurred during the policy period. The policy definition of “occurrence” was the following: ‘[Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured; ... (emphasis added). Outdoor World v. Continental Casualty Co., 122 Ariz. at 293, 594 P.2d at 547. The definition of “occurrence” employed in Outdoor World clearly required the accident to result in bodily injury during the policy period. The accident, however, resulted in bodily injury only after the policy expired and therefore did not fall within the terms of coverage. The definition of “occurrence” in this case, however, is significantly different from the definition of the same word in Outdoor World. Here, the critical language “during the policy period” is not contained in the Puritan definition of “occurrence.” The Puritan policy merely defines an “occurrence” as an accident which results in property damage, without any limitation as to time. For this reason, University asks us to consider the decision of the Wisconsin Court of Appeals in Western Casualty & Surety Co. v. Budrus, 112 Wis.2d 348, 332 N.W.2d 837 (App.1983). There, the policy definition of “occurrence” was the same as that used in the Puritan policy. That policy also contained a definition of “property damage” identical to that used in clause (2) of the policy before us. In Western Casualty, the insured negligently sold mistagged seed to a customer. Although the seed was sold during the policy period, it was not planted until the term of insurance had expired. As the crop grew, the customer discovered that it was a crop which was of no value to him. The customer sued the seller for the resulting damages. The insurer, Western Casualty, denied that it had an obligation to defend the sale of the mistagged seed. It claimed that since there was no loss of use of tangible property, and no occurrence during the policy period, there was no coverage for the loss under the policy. In holding that Western Casualty did in fact have a duty to defend its insured, the court stated: The policy defines occurrence as an “accident ... which results in property damage.” There is no requirement that the resulting damage arise during the policy period. It requires only that the accident occur during the policy period. When the term “property damage” is defined, the policy requires only that the loss of property use be caused by an “occurrence during the policy period.” Here, the negligent act of selling the mistagged seed, which caused the damage, occurred during the policy period.... Finally, to interpret the policy to exclude coverage would also cause an absurd result. It was only by chance that Richter planted the properly tagged seed in 1979. Coverage afforded under the policy should be determined by the parties to the contract and not by a third party’s fortuitous act. Western Casualty & Surety Co. v. Budrus, 332 N.W.2d at 840. While we find this logic and reasoning persuasive, we note a critical flaw as it relates to this case. Here, if one combines the policy definition of “occurrence” with clause (2) of the Puritan definition of property damage, the result is the same as that which was before our appeals court in Outdoor World. In other words, coverage is provided for “loss of use of tangible property which has not been physically injured or destroyed, provided such a loss of use is caused by an [accident ... which results in ... property damage ...] during the policy period." (Emphasis added.) As the accident in this ease did not occur until at least two months after the policy had expired, it would appear that clause (2), on its face, does not provide coverage for University’s loss. The fact that coverage is not available under clause (2) does not, however, end our inquiry. Clause (1) of the “property damage” definition provides coverage for “[pjhysical injury to ... tangible property which occurs during the policy period, including the loss of use [of tangible property—here, the solar facility] at any time resulting therefrom. ” (Emphasis added.) Under this clause, we believe the Puritan policy provides coverage for the claimed loss. The Insta-Foam pipe and O-ring couplings were sold and shipped by the insured during the policy period. Even as the goods were being installed, which was still during the policy period, they began to leak. The determination of what caused the leaking was set forth by the trial court in its findings of fact: 9. The leaking was caused by three factors: (1) the O-rings supplied by INS-TA-FOAM were the wrong size for the pipe and coupling; (2) the pipe was too rough to accommodate expansion and contraction without causing the O-rings to wear; and (3) the grooves in the couplings manufactured by INSTA-FOAM and supplied to UNIVERSITY were too shallow and too sharp, and thereby caused cutting of the O-rings when the pipe expanded and contracted as planned. Thus, installation of the faulty couplings clearly constituted physical injury to the solar facility (tangible property). More over, as a result of the installation of these parts, there was a definite loss of the facility’s use. As this loss of use can occur at any time under clause (1), it need not be during the policy period for coverage to exist. Accordingly, we find that the first clause of the “property damage” definition set forth in the Puritan policy creates coverage for the suffered loss. As the two clauses defining property damage are disjunctive, coverage may be found under either clause. Therefore, the inapplicability of clause (2) does not act to defeat that coverage. Having found coverage under the Puritan policy, we need not address the remaining issues on appeal. The opinion of the court of appeals is vacated and the judgment of the trial court is hereby affirmed. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.

OPINION HAIRE, Judge. The primary issue in this appeal is whether the superior court properly enjoined the Arizona Department of Transportation (Department) from revoking the driver’s license of appellee, Jack Bade (Bade). Bade was previously convicted in 1983 of driving while under the influence of intoxicating liquors. Thereafter, on July 20, 1984, he was again convicted on a subsequent offense of driving while under the influence. Under the terms of a plea agreement relating to the subsequent offense, an allegation of Bade’s prior (1983) conviction of driving while intoxicated was dropped, and the trial judge suspended Bade’s driver’s license for 30 days and restricted his driving privileges for an additional 60 days. Having received notice of two convictions, the Department revoked Bade’s license from July 20, 1984 until July 20,1985 for having been convicted twice of violating A.R.S. § 28-692 within a period of 36 months. Bade requested a hearing before the Department, and his request was denied. He then filed a complaint for special action with the superior court. At the conclusion of the special action proceeding, the superior court permanently enjoined the Department from revoking Bade’s license, and granted Bade his attorney’s fees, stating that the revocation “would be contrary to the terms of the plea agreement____” Although the briefs in this appeal were filed after the issuance of the Arizona Supreme Court’s decision in Loughran v. Superior Court, 145 Ariz. 56, 699 P.2d 1287 (1985), the trial court’s judgment was entered prior to Loughran. We will discuss the Loughran decision before proceeding with a discussion of the arguments advanced by Bade in support of the trial court’s judgment. The facts show that Loughran was placed on probation for two years and sentenced to two concurrent six month terms in prison, for violation of A.R.S. §§ 28-692, and 28-692.02. In the plea agreement concerning Loughran’s convictions, the allegation of a prior conviction for violation of A.R.S. § 28-692 was dismissed. Slightly over one year after Loughran’s sentence was imposed, the Department notified him that his license was revoked for a one year period, commencing on the date of notification and continuing for a period of one year, pursuant to A.R.S. § 28-445. In arriving at its final decision that Loughran’s license was improperly revoked under A.R.S. § 28-445, the Arizona Supreme Court first held that, without the permission of the Department, the county attorney had no authority to bargain away by plea agreement the Department’s right to revoke Loughran’s license pursuant to A.R.S. § 28-445. However, the court refused to allow the Department to revoke Loughran’s license because the revocation had not been made “forthwith” as required by the statute. Within this context, we now consider the contentions raised by Bade in support of the trial court’s judgment in this case. Bade’s first contention is that the judgment enjoining the revocation of his license should be upheld because the county attorney had “ostensible” authority to bind the Department by bargaining away the Department’s right (and duty) to revoke Bade’s license. The essence of this contention is that even a thorough investigation of the appropriate statutory and common law authorities would not have given notice to a reasonable person that the county attorney’s office did not have the right to bargain away the Department’s license revocation authority. Bade also points out that his plea agreement expressly set forth certain civil penalties which were not to be precluded by the agreement, and urges that a reasonable conclusion would be that other civil penalties not set forth, such as the Department’s revocation authority, would be precluded. From this premise Bade urges that the state negligently allowed him to rely upon the county attorney’s “ostensible” authority to bind the Department. We need not consider the merits of this contention, since in Loughran the Arizona Supreme Court has expressly ruled that the county attorney had no such authority. This court is bound by a decision of the Arizona Supreme Court and has no authority to overrule or disregard it. See McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968). Bade next contends that the state cannot impose a civil penalty of revocation, knowing that his prior conviction was constitutionally invalid. The first facet of Bade’s argument under this contention is that because of the dropping of the prior conviction allegation, he has never been convicted of a “DWI with a prior conviction,” and accordingly, the Department did not have the statutory authority to revoke his license. We conclude that a holding that a prosecutor may prevent the statutorily required departmental revocation by the simple expedient of failing to allege, or, as in this case, dropping the allegation of a prior conviction, would be contrary to the basic rationale of Loughran. We agree with Division 2’s express holding on this point. After a second conviction within the statutory period, the Department may revoke the violator’s license, regardless of whether the charge for the second violation contains an express allegation of a prior conviction. See Carlson v. Arizona Department of Transportation, 145 Ariz. 600, 703 P.2d 544 (1985). The second facet of Bade’s argument under this issue has some legal merit, but the record before this court furnishes inadequate support for the argument. We do not question that if Bade’s prior conviction had been found to be invalid, it would be a violation of Bade’s rights to allow the Department to proceed with the revocation of his license. However, the record in the superior court special action proceeding merely shows that in the plea agreement the prosecutor agreed to drop the allegation of the prior conviction “due to clear factual defects.” There is nothing in the record to show that the trial judge in the criminal prosecution involving the second DWI conviction, or the trial judge in the special action proceeding, ever considered or ruled upon the constitutional validity of the first conviction. Nor, can we accept Bade’s contention that since the trial court accepted the plea agreement, there was an implied finding of invalidity. See Carlson, supra. Here, the burden was upon Bade to show that the first conviction had been properly set aside as invalid, and he has failed to do so. We now consider Bade’s contention that the revocation must be set aside because of the Department’s delay in notifying him of the revocation of his license. Bade was convicted on July 20, 1984, and his conviction became final on July 30, 1984, pursuant to Rule 30.2, Arizona Rules of Criminal Procedure. The Department’s notice of revocation to Bade was dated September 25, 1984, and retroactively revoked his license commencing July 20, 1984 until July 20, 1985. On the basis of Lough-ran, Bade argues that the Department did not “forthwith” revoke his license, relying upon the delay of approximately two months in notifying him of the revocation after his conviction became final. Although we would not normally address Bade’s argument because it is raised for the first time on appeal, we do so here because the decision upon which the contention is based, the Loughran decision, was filed after the completion of the trial court proceedings. In Loughran, the Arizona Supreme Court refused to allow the revocation of Loughran’s license because the revocation was not timely made. The court stated: “In the instant case, the petitioner presumably had the opportunity to drive for the six months between sentencing ... and ... when he was to begin his sentence.... [T]he suspension should have begun after the right of appeal had expired. Had this been done, petitioner’s revocation would have run and petitioner’s license been restored by the time the petition was filed in the Superior Court.” 145 Ariz. at 59, 699 P.2d at 1290. In contrast, in the case at hand Bade was not prejudiced by the Department’s action. The Department did not delay the commencement of the period of revocation of Bade’s license; it merely delayed notifying Bade about that revocation. The Department revoked Bade’s license for the minimum statutory period of one year, pursuant to A.R.S. § 28-402(2), commencing upon his conviction. While the public interest might have been better served by prompt notification, Bade could not have suffered any prejudice from the delay, since the expiration date for the one year revocation period was not extended by the Department’s action. Accordingly, we find no reason to set aside the Department’s order based upon its delay in notifying Bade of the revocation. Having found no error, we reverse the superior court’s order enjoining the Department from revoking Bade’s license and remand this case for proceedings consistent with this decision. Since we have reversed the judgment entered in Bade’s favor, we also reverse the superior court’s order awarding Bade attorney’s fees. Therefore, we do not address the question of whether the award of attorney’s fees against the state would have been precluded by the provisions of A.R.S. § 12-348(G)(2). Nothing we say in this decision is intended to preclude Bade from pursuing any remedy which might be available to him for the purpose of invalidating his second conviction pursuant to the principles set forth in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), or from attacking the constitutional validity of his first conviction in a proceeding appropriate for that purpose. The judgment is reversed and the matter is remanded for proceedings consistent with this decision. EUBANK, P.J., and SHELLEY, J., concur. . We express no opinion as to whether the prior conviction could have been collaterally attacked in the special action proceeding or in the criminal proceeding involving the second conviction.

LOCKWOOD, Justice: This is an appeal by Robert Stevenson, from the Superior Court’s denial of his petition for Writ of Habeas Corpus. In 1964 the appellant, convicted of first: degree murder, was committed to the Arizona State Prison for life. The appellant; filed an Application for Commutation of Sentence with the Arizona State Board of Pardons and Paroles (hereinafter designated the Board) in March, 1972. Subsequently, the Board notified the appellant in writing that his application had been denied. The appellant was not afforded a hearing. No reasons for refusal to make a recommendation to the Governor accompanied the denial, save that no grounds existed upon which to recommend a commutation of sentence to the Governor. In his petition for writ of habeas corpus the appellant claimed a denial of due process because he was not given a hearing before the Board, nor any reason for refusal to make a recommendation to the Governor. Furthermore, Stevenson contends that he was denied equal protection because at the same time several other life-term prisoners were granted hearings before the Board. The Superior Court denied the petition on the grounds that “it is an administrative matter over which the Court does not have jurisdiction.” Stevenson appealed to this Court and the matter was submitted for decision upon the opening brief of the appellant because the appellee did not file his answering brief within thirty (30) days as required by Rule 5(f)(2), Rules of the Supreme Court, 17 A.R.S., and no extension of time had been granted pursuant to Rule 7 (a) (2). The appellant contends that the failure to file an answering brief is a confession of reversible error. We agree that failure to file such a brief may be considered grounds to reverse if there are debatable issues. See Barrett v. Hiney, 94 Ariz. 133, 382 P.2d 240 (1963); Tom v. Baca, 93 Ariz. 96, 378 P.2d 912 (1963). However, we need not consider this point. We must determine whether the lower court had jurisdiction to entertain the habeas corpus petition. In the instant case, Stevenson essentially claims that the denial of a hearing was an abuse of discretion by the Board. Generally, habeas corpus is used to attack the validity of a prisoner’s custody, Holman v. State ex rel. Eyman, 5 Ariz.App. 311, 426 P.2d 411 (1967), and not executive discretion. The special action writ of mandamus will lie whenever an administrative board has abused its discretion. Cagle Bros. Trucking Service v. Arizona Corp. Comm’n., 96 Ariz. 270, 394 P.2d 203 (1964); Manjares v. Newton, 64 Cal.2d 365, 411 P.2d 901, 49 Cal.Rptr. 805 (1966). It has been held that pro se habeas corpus relief should be liberally construed and read with a measure of tolerance. In re Buccheri, 6 Ariz.App. 196, 206, 431 P.2d 91, 101 (1967); Hall v. State ex rel. Eyman, 6 Ariz.App. 259, 260, 431 P.2d 699, 700 (1967). Stevenson did file his petition in propria persona. Reviewing courts authorized to grant relief by extraordinary writs are inclined to grant appropriate relief notwithstanding the erroneous labeling of the writ applied for. In re Acosta, 97 Ariz. 333, 336, 400 P.2d 328, 330 (1965); Goodman v. State, 96 Ariz. 139, 140, 393 P.2d 148, 149 (1964); In re Buccheri, supra, 6 Ariz.App. at 198, 431 P.2d at 93. For example, in In re Acosta, this Court treated a habeas corpus petition as a motion for permission to file a delayed appeal. In the present case, we treat the habeas corpus petition as an application for a writ of special action under Rule 1, Rules of Procedure for Special Actions, 17 A.R.S. The case is therefore reversed and remanded to the Superior Court with directions to proceed in accordance with this opinion. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER, J., concur. Note: Justice WILLIAM A. HOLOHAN did not participate in the determination of this matter.

HAYS, Chief Justice. Defendant, Charles Edward Byrd, was found guilty by a jury, of the crime of robbery, and was sentenced to not less than five nor more than six years in jail. He appeals from the judgment and sentence. The facts indicate that one Jimmie Moore got into his car in the early morning hours of April 4, 1971, and shortly thereafter discovered that the defendant and another young man were in the car with him. The other young man was the defendant’s brother, J. D. Byrd. Moore drove to a better lighted section of the city, stopped, and refused to go further. The two men got out, opened the door on the driver’s side, kicked Moore in the face, searched him, tore off his shirt, and took his car keys and $17. Two officers in a passing police car rescued him and apprehended the two Byrds. Defendant did not take the stand and offered no witnesses. Defendant presents only one question: Did the prosecutor’s argument to the jury violate defendant’s constitutional rights not to take the witness stand and not to have that fact commented upon? These rights have been clearly set forth in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Defendant presents three remarks of the prosecutor to which he objects. They are: “The testimony of Mr. Moore has been uncontradicted.” SfC % ‡ “There were three people there and he [Mr. Moore] is the one who brought these allegations, and he is the primary person involved in telling you what happened. He [Mr. Moore] testified upon the stand, and it has not been contradicted, that he had never seen these two guys before.” Unfortunately for defendant, his point of law has been repeatedly decided by this court in favor of the State. The whole rationale is clearly set forth in State v. Berryman, 106 Ariz. 290, 475 P.2d 472. The prosecution has a right to argue to the jury that the State’s case has not been contradicted, even though the defendant is one of the persons who might have done so. “The true test is, was the reference calculated or intended to direct the attention of the jury to'the défendant’s neglect to avail himself of his right?” Op. cit., p. 294, 475 P.2d p. 476.' ' In our. opinion, no error .was committed by the prosecutor’s arguments to the jury. Even if these remarks could be interpreted to be calculated to direct the jury’s attention to the defendant’s failure to testify, defendant is not in a position to urge error at this point because he failed to object to the arguments at the time they were made. State v. Totress, 107 Ariz. 18, 480 P.2d 668. The prosecuting attorney- also stated to the jury: “This is probably one of the clearest cases I have ever taken to trial, ánd' I think, at least in my own mind, there is not any question, any serious question that Mr. Byrd is guilty of the charge on this case.” While defendant does not make a separate issue of this in his brief,-he does complain that this statement aggravated the prior statements claimed to have been improper. We see no aggravation. However, we wish to point out that it is not only improper but also unethical for an attorney, in his closing argument, to express his personal belief in the defendant’s guilt or innocence. State v. Abney, 103. Ariz. 294, 440 P.2d 914. This ruling was based upon Canon of Professional Ethics No. 15,' which has now been incorporated into the Code of Professional Responsibility, as Disciplinary Rule No. 106(C).(4), adopted by this court in 1971. The judgment and sentence of the Superior Court are affirmed. CAMERON, V. C. J., and STRUGKMEYER, LOCKWOOD and HOLOHAN,'-' IT., concur.

CAMERON, Vice Chief Justice. This is an appeal from a judgment of guilty to the crime of transportation of marijuana, § 36-1002.07 A.R.S., and a sentence thereon of from ten years to life imprisonment. We are asked to answer the following questions on appeal: 1. Does the evidence support conviction for transportation of marijuana? 2. Was the sentence imposed on defendant based upon an invalid admission of an allegation of a prior conviction? 3. Did the prosecutor commit reversible error in his comments to the jury during closing argument ? The facts necessary for determination of the matter on appeal are as follows. In the morning of 27 August 1970, Mr. Settle, manager of the Chandler Municipal Airport, observed a plane land and taxi to an unusual parking place. The pilot of that plane, a Piper Aztec, was met shortly thereafter by a second man, later identified as the defendant Shing, driving a station wagon. The two men left the airport in the station wagon but returned some time later. The two men seemed to be watching the horizon for something. When the two men again left the airport, Mr. Settle walked out to the Aztec and thought it smelled of marijuana. This caused him to call the Sheriff’s office. Several detectives arrived and sej: up a surveillance. A.P that time the two men had returned to the airport and took off in the Aztec, leaving the station 'wagon at the airport. In the station wagon were several plastic containers of what smelled like aviation fuel. At about 7:30 p. m., the Aztec returned and the two men were seen .close to the Aztec, apparently waiting for so.mething. About thirty minutes later, there was the sound of another aircraft. The Aztec took off and the 'station wagon began to leave with its lights off. The detectives observed the driver of the station wagon and later identified him as the defendant. At that time, another airplane made a very low pass over the field. The detectives followed the two planes by the navigational lights of the Aztec and the noise of the other plane. When the planes reached the South Mountain area of Phoenix, they appeared to descend. The detectives proceeded to the Stellar City Airport, but the two planes were not there. Next, they proceeded to the Goodyear auxiliary strip, which had once been used by the Air Force but was now abandoned. There they found the Aztec, another plane, a ten passenger Dehaviland Dove, and the station wagon. The defendant Shing was found sitting in the station wagon and was arrested. The others fled and were not apprehended at that time. The door of the Dehaviland was open and it could be seen that it contained a number of boxes. One of these had broken open and several smaller packages were lying on the floor. It was apparent that these smaller packages were similar to packages containing kilos of marijuana. There were seeds, stems, and leaves of marijuana on the floor of the Dehaviland. The officers noticed a strong odor of marijuana coming from the aircraft. The Dehaviland contained some 2600 pounds of marijuana. After being warned of his “Miranda” rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including the right to remain silent, the defendant was questioned concerning his presence at the airstrip and the identity of his companion. The defendant refused to respond to their questions. At the trial Mr. Shing testified that he had no idea that the plane contained marijuana. He stated that he was offered $500 (on'é detective stated that Mr. Shing said $1000) to accompany a friend on a business trip. Mr. Shing claims that he was only following instructions and that he was supposed to put fuel into the. Dehaviland. He refused to disclose the identity of this friend at the trial claiming his life would be endangered if he did. DOES THE EVIDENCE SUPPORT CONVICTION FOR TRANSPORTATION OF MARIJUANA? Mr. Shing was convicted of violating § 36-1002.07 A.R.S., which provides in part: “Every person who transports * * * marijuana shall be punished by imprisonment in the state prison * * Defendant contends that he was an innocent bystander, that he had no knowledge of the illegality of the transaction, and there was no evidence he knew that the plane contained marijuana or that he knew that the .substance in fact was marijuana, and thus it was error to deny his motion for a directed verdict. Defendant relies on Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962) which said: “Mere presence at the scene of a crime is insufficient to establish guilt. In cases where the narcotic was found in a public place and conviction was sustained, there was involved a factor connecting the accused with the narcotic, independent of his presence at or near the location where the drug was found * * (Footnote omitted) 90 Ariz. at 413, 368 P.2d at 650. In Carroll, supra, we were dealing with narcotics found in a public place accessible to many people other than defendant. In the instant case, we have a defendant who was paid a high salary to rent a car, drive in the dark of night to an abandoned airstrip to put gas into another airplane when that plane could have easily refueled at several other convenient locations in the area. Defendant was the only person present when arrested at the scene with some 2600 pounds of marijuana. Testimony indicated that the plane was loaded with boxes of marijuana in smaller packages, that the marijuana was visible inside the door of the plane, that the marijuana had a strong odor to it because it was damp. These circumstances strongly infer that defendant knew that some illegal activity was in progress and that there was ample evidence to support the conviction of transporting marijuana. The best defendant could hope for at common law would be to be classified as a principal in the second degree. See Perkins on Criminal Law, 2d ed. at page 658. Arizona, however, has abolished the common law distinctions between degrees of principals and accessories before the fact. § 13-137, et seq., A.R.S. And further: “All persons concerned in the commission of a crime whether it is a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its -commission, ■* 1 * ' * are' principals in any crime' so committed.” '' § 13-Í39'A.R.S. ' Sée also‘§ 13-140 A'.RiS. WAS THE SENTENCE IMPOSED.ON DEFENDANT BASED. UPON .AN INVALID ADMISSION'OF AN ALLEGATION OF A PRIOR CONVICTION? ' . ■ ■ The defendant next claims that his sentence was based upon an invalid admission of an allegation of a prior conviction. He argues that since the admission is constitutionally void- on its face, it is necessary to vacate his sentence. We do not, however, need to consider the validity of the prior conviction. Although there was an addendum to the information . which alleged a prior conviction pursuant to § 13-1650 A. R.S. for robbery in the State of California and the minute entry of the plea while showing a. plea of not guilty to the crime as charged also shows “defendant admits allegation of prior conviction,” the judgment of guilt was for the crime as charged only and the record does not, reflect a judgment of guilt as to. the. prior .conviction. • [2] Since the sentence imposed is within the statutory limits for- transporting marijuana without a prior conviction, we cannot find any abuse -of discretion- in imposing1 sentence particularly considering the amount' of marijuana involved. See State v. Smith, 107 Ariz. 218, 484 P.2d 1049 (1971); State v. Carpenter, 105 Ariz. 504, 467 P.2d 749 (1970). DID THE PROSECUTOR COMMIT REVERSIBLE ERROR IN' "HIS COMMENTS TO THE JURY DURING CLOSING ARGUMENT? At the trial on cross-examination-by defendant’s attorney, one of • the sheriff’s deputies was asked the following afier stating that defendant ■ had expláined and read to him ■ his rights from a “standard rights card”: ■ ■ “I asked him if he wanted to talk tó 'us. He said,‘Yea.’ ’■ ■' “I told who I was naturally. I asked him how many people were there — originally were there. He didn’t want to discuss that. I asked him if he wanted to téll the who it was. He said, ‘No.’ Laté'r, "Detective Lines returned with what we'thought was a suspect, and I asked Mr! Shing if he would look at this person and identify him. He said, ‘No.’ ” Later, the defendant took the stand and testified in his own behalf. On cross-examination he was asked: “Q This person who hired you to make ■this business trip with him has a name, does he not ? .“A Yes. “0 You have never told anyone who ■ "this person was before, have you? ,.‘.‘A No. "L* * * * * * “Q Well, Mr. Shing, you have testified this morning that you knew this person for 10 years, and you were ■ hiréd by this person to make a trip ’ '"'’’to Phoenix, and you were going to ■ ‘ be paid for it. Can you ,tell who this person is ? "A Like I said, the reason why I didn’t mention the name because I am .• afraid because the Sheriff’s depart- : • ■. mettt advised me — told me earlier ' ■ that' my life in dangerous and at the Sanie- time after awhile I got to . thinking, not only my life would be .ill dangerous but my family life would be in dangerous, too.” , In his closing argument the prosecutor commented: “Perhaps, the most significant thing . about * * * Mr. Shing’s behavior ■Was his silence. He had an opportunity ".'to explain his presence at the airstrip. ■ He didn’t do so. He had an opportunity !' to 'identify someone bise who might or ■/'might not be involved. The officers didn’t know. He didn’t know, but Mr. ..Shing .did not avail himself of that opportunity.” Defendant asserts for the first time on appeal that the comments of the prosecutor on defendant’s silence after arrest punish him for exercising his right to remain silent. Defendant relies on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and two Arizona cases, State v. Simoneau, 98 Ariz. 2, 401 P.2d 404 (1965) and State v. Villalobos, 6 Ariz.App. 144, 430 P.2d 723 (1967). We are not here concerned with comment upon defendant’s testimony at trial. Since the defendant chose to take the stand and testify, his testimony including his refusal on the stand to name the person who hired him was certainly a proper subject for comment by the prosecutor in his remarks to the jury. We are, however, concerned with the comments of the prosecutor as they pertain to actions of the defendant after his arrest and Miranda warnings, Miranda v. Arizona, supra, in remaining silent and in refusing to name the people with him or to identify the person shown to him. We have stated: “We * * * do not approve the introduction of evidence of an accused’s silence in reply to questions when he is in custody or under other circumstances where it is his constitutional right to refrain from incriminating himself under the Fifth Amendment to the Constitution of • the United States.” State v. Simoneau, supra, 98 Ariz. at 6, 401 P.2d at 407. The federal courts have stated: “ * * * after the arrest and during an official examination, while respondent is in custody, it is common knowledge that he has a right to say nothing. Only under peculiar circumstances can there seem to be any duty then to speak. Lacking such circumstances, to draw a derogatory inference from mere silence is to compel the respondent to testify; * * McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. 1928); United States v. Pearson, 344 F.2d 430, 431 (6th Cir. 1965). See also People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116 (1965). To hold that a defendant may, after being warned of his right to remain silent, have that silence used against him would nullify the warning required by Miranda, supra, and the warning would have to be amended to inform the defendant that not only what he says may be used against him, but what he doesn’t say will also be used against him. We have stated: “Whether a case in which the accused does not initiate the conversation, but responds to several questions, then lapses into silence when asked an embarrassing question falls into the same category is much more doubtful. In such a case it generally would not be as ‘natural’ that the accused respond to an embarrassing question. It is much more likely that he is simply asserting his right to remain silent. Thus we limit our holding that an admission by silence can be admissible evidence to the facts of the case before us. * * State v. O’Dell, 108 Ariz. 53, 56, 492 P.2d 1160, 1163 (1972). And we believe that it was fundamental error which was not waived by the failure of the defendant to object when the prosecutor commented upon defendant’s silence after arrest. Under the facts in this case, however, we believe that said comments were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Considering the position in which defendant was found — two airplanes, one with 2600 pounds of marijuana, the aviation fuel, the abandoned airstrip — any such comment is most surely harmless beyond a reasonable doubt. Judgment affirmed. HOLOHAN, J., concurs.

OPINION BARKER, Judge. ¶ 1 Adam P., a juvenile, appeals from the juvenile court’s adjudication entered on January 17, 2001 and the disposition entered on March 14, 2001. The juvenile filed a timely notice of appeal on March 23, 2001. ¶ 2 The issue presented in this opinion is whether a golf cart is a “means of transportation” under Arizona Revised Statutes (“A.R.S.”) section 13-1814 (1999). Factual And Procedural Background ¶ 3 On January 17, 2001, the juvenile court adjudicated Adam P. delinquent of theft of means of transportation in violation of A.R.S. § 13-1814. At the adjudication hearing, Corey Johnson testified that he saw the juvenile driving a golf cart down his neighborhood street with a passenger. Johnson stopped the juvenile when he saw the golf cart going towards a major street. Johnson asked him where he got the golf cart. The juvenile told him that the golf cart belonged to a friend and that the friend had let him borrow it. Johnson called the police. ¶4 Officer Kinard Brown testified at the adjudication. He said that the juvenile “wasn’t real clear in his answers” during questioning. He had reason to believe that the juvenile was “hiding something.” The juvenile told Officer Brown that the golf cart belonged to Morgan, a friend. However, the juvenile could not produce a phone number, address, or information about his friend’s location. Another officer, Harold Sprouse, testified that the juvenile admitted to him that he and his friend Anthony had taken the golf cart from the Ladera Apartments. ¶ 5 The service manager from the Ladera Apartments, Ramon Mendoza, testified that he identified the golf cart at the scene of the offense and that it belonged to Ladera Apartments. He also testified that the juvenile did not have permission to use or be in possession of the golf cart. ¶ 6 After the state rested, the juvenile moved for a directed verdict. Counsel argued that a golf cart was not a “vehicle” as defined by A.R.S. §§ 13-1801 and 13-105 and that it could not therefore be a “means of transportation” pursuant to § 13-1814. The juvenile’s counsel referred to the legislative fact sheets to A.R.S. § 13-1801 and argued that the legislature intended to distinguish theft of automobiles from other theft. He argued that if golf carts were included within § 13-1814, then electric wheelchairs and “gopeds” would be included, too. ¶ 7 The court denied the juvenile’s motion for a directed verdict and found him delinquent. At the disposition hearing, the court placed the juvenile on probation. This appeal followed. Is a golf cart a “means of transportation”? ¶8 The juvenile argues that a golf cart does not fall within the definition of a “means of transportation” for purposes of § 13-1814. Statutory interpretation is a question of law which this court reviews de novo. In re Paul M., 198 Ariz. 122, 123, 7 P.3d 131, 132 (App.2000). ¶ 9 Section 13-1814(A)(1) states that a person commits “theft of means of transportation” if that person knowingly “controls another person’s means of transportation.” Section 13-1801(A)(9) defines “means of transportation” as “any vehicle.” Section 13-105(36) in turn defines the term “vehicle” as follows: [A] device in, upon or by which any person or property is or may be transported or drawn upon a highway, waterway or airway, excepting devices moved by human power or used exclusively upon stationary rails or tracks. ¶ 10 On its face, the definition of “vehicle” contained in § 13-105(36) clearly includes golf carts. It defines a vehicle as one upon which a person “is or may be transported.” (Emphasis added.) A golf cart certainly can transport a person. Also, golf carts which are registered with the Department of Transportation may be used on a highway pursuant to A.R.S. § 28-2153. Moreover, A.R.S. § 28-101(22), defines a “golf cart” as a type of “motor vehicle.” ¶ 11 The juvenile also argues that if a golf cart were indeed considered a vehicle, then motorized wheelchairs and “go-peds” would necessarily be vehicles. This is not so. In A.R.S. § 28 — 101(29)(b), motorized wheelchairs are expressly excluded from the definition of motor vehicle. The question of whether a “go-ped” is a vehicle is not before us. ¶ 12 The juvenile additionally asserts that the legislative history to § 13-1814 “clearly reflects” that the statute only applies to automobiles. However, to ascertain legislative intent, we do not necessarily review legislative history. We only review legislative history if a statute is unclear. As noted in Tobel v. State, Arizona Dept. of Public Safety, 189 Ariz. 168, 174, 939 P.2d 801, 807 (App.1997): Our first duty in interpreting a statute is to determine and give effect to the legislature’s intent, and the first place to look is the wording of the statute. If the language is plain and unambiguous, then no construction is necessary and our duty is simply to apply that plain and unambiguous language. ¶ 13 In this case, the statute is clear. The definitions contained in A.R.S. §§ 13-1801(A)(9), 13-105(36) and 28-101(22) clearly define “vehicle.” They are not ambiguous. A review of legislative history is neither necessary nor appropriate. ¶ 14 We conclude that a golf cart does fall within the definition of “vehicle.” As such, it is a “means of transportation” for purposes of § 13-1814. Conclusion ¶ 15 We affirm the adjudication and disposition entered by the juvenile court. CONCURRING: JON W. THOMPSON, Presiding Judge, and NOEL FIDEL, Judge. . We originally decided this matter by means of a Memorandum Decision, filed October 4, 2001. We affirmed the proceedings below. Following that decision, the State requested that we publish the Memorandum Decision as it presents a reoccurring issue of statutory interpretation. We granted the request to publish those portions of the earlier decision and do so in this Opinion. We file separately a Memorandum Decision which includes the remaining issues.

OPINION DRUKE, J. ¶ 1 Plaintiff Amparo Hernandez-Gomez sustained severe injuries when the 1981 Volkswagen Rabbit in which she was riding as a front-seat passenger veered off the road, flipped over, and landed. on its roof. Plaintiff sued Volkswagen of America, Inc., and Volkswagenwerk Aktiengesellschaft (collectively, Volkswagen), claiming that her injuries had resulted from the vehicle’s negligently or defectively designed passive restraint system. The restraint system for the front-seat passenger consisted primarily of an automatic shoulder belt that moved diagonally across the passenger’s chest when the door was shut. The system did not include a manual lap belt, which plaintiff asserted would have prevented her injuries. ¶ 2 After our supreme court twice decided that federal law did not preempt plaintiffs tort claim, Hernandez-Gomez v. Leonardo, 180 Ariz. 297, 884 P.2d 183 (1994) (Hernandez-Gomez I), vacated, Volkswagen of America, Inc. v. Hernandez-Gomez, 514 U.S. 1094, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995); Hernandez-Gomez v. Leonardo, 185 Ariz. 509, 917 P.2d 238 (1996) (Hernandez-Gomez II), the case proceeded to trial before a jury, which awarded plaintiff $3.1 million in damages. The trial court denied Volkswagen’s post-trial motions, and this appeal followed. Although Volkswagen presents six issues for our consideration, we find the federal preemption issue dispositive. ¶ 3 Federal law preempts state law under the Supremacy Clause when Congress expressly so provides, the federal law so thoroughly occupies the field that it leaves no room for state law, or state law actually conflicts with federal law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Actual conflict oc curs when it is impossible to comply with both state and federal law “or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385, 392 (1995), quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587 (1941). ¶4 Volkswagen has contended from the outset that the National Traffic and Motor Vehicle Safety Act of 1966, Pub.L. 89-563, 80 Stat. 718, (Safety Act) and Federal Motor Vehicle Safety Standard 208 (FMVSS 208), which was promulgated pursuant to the Safety Act, expressly or implicitly preempt plaintiffs state tort claim. The version of FMVSS 208 applicable here allowed manufacturers to choose one of three options for a safety restraint system; generally, the first option required a “[cjomplete passive protection system,” the second required a “head-on passive protection system,” and the third a “lap and shoulder belt protection system with belt warning.” 49 C.F.R. § 571.208, S4.1.2. 1, S4.1.2. 2, and S4.1.2.3 (1980) (italicizing deleted). Volkswagen chose to equip the 1981 Rabbit with an option two system, S4.1.2.2(b), which did not require a lap belt. As a result, Volkswagen has consistently argued that federal law preempted plaintiffs state tort claim that the vehicle’s restraint system was negligently or defectively designed because it had no lap belt. ¶ 5 Our supreme court first rejected Volkswagen’s argument in Hernandez-Gomez I, concluding that the “Safety Act’s savings clause expresses Congress’ intent to allow state common-law claims against automobile manufacturers whose safety restraint systems comply with federal minimum performance standards but are unreasonably dangerous to consumers.” 180 Ariz. at 305, 884 P.2d at 191. The court found that “the savings clause explicitly manifests a congressional intent to preserve common-law tort claims.” Id. Thus, having determined that federal law did not expressly preempt plaintiffs state tort claim and relying on Cipollone, the court did not address the issue of whether plaintiffs claim was implicitly preempted. ¶ 6 The court later addressed the issue, however, in Hernandez-Gomez II, after the United States Supreme Court granted Volkswagen’s petition for certiorari in Hernandez-Gomez I, vacated the opinion, and remanded the case for reconsideration in light of the Court’s intervening decision in Myrick. See Volkswagen of America, Inc. v. Hernandez-Gomez, 514 U.S. 1094, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995). Upon reconsideration, the Arizona Supreme Court again determined that federal law did not expressly preempt plaintiffs state tort claim. ¶ 7 Then, based on Myrick, the court considered whether federal law implicitly preempted plaintiffs state tort claim and found that it did not. The court first found that FMVSS 208 established only minimum equipment, not design, performance standards for frontal crash protection and, therefore, was “not a comprehensive regulation that occupies the entire field.” Hernandez-Gomez II, 185 Ariz. at 516, 917 P.2d at 245. The court next found that, “even though S4.1.2.2(b) expressly prohibits the use of manual devices to achieve the required front-end crash protection, nothing [in FMVSS 208] prevented the use of manual devices for protection in [rollover accidents],” id. at 517, 917 P.2d at 246, and therefore, it was “possible for Volkswagen to both comply with federal law and be found liable in tort under the theory asserted by Plaintiff.” Id. at 518, 917 P.2d at 247. Finally, the court found that the imposition of common-law liability for Volkswagen’s failure to include lap belt protection in a rollover accident would not obstruct Congress’s objectives. “Rather, the effect of common-law liability here would be to compensate Plaintiff for injuries allegedly caused by the manufacturer’s choice not to do something allowed under the standards: install manual lap belts to provide rollover protection.” Id. at 519, 917 P.2d at 248. ¶ 8 Thus, based on its analysis of the relevant provisions of the Safety Act and FMVSS 208, our supreme court concluded that there was “neither express nor implied preemption of Plaintiffs claim.” Id. The court’s conclusion is, of course, binding on this court, see Myers v. Reeb, 190 Ariz. 341, 947 P.2d 915 (App.1997), absent a subsequent decision by the United States Supreme Court governing the same subject. Cf. Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985) (acknowledging binding authority of United States Supreme Court opinion on subject but determining Arizona Supreme Court’s decision did not conflict with that opinion). In this case, that subsequent decision, Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), was rendered after we had conducted oral argument in this appeal; therefore, we requested supplemental briefing by the parties. ¶ 9 In Geier, the driver of a 1987 Honda Accord was seriously injured when the vehicle collided with a tree. She and her parents filed a lawsuit in a federal district court, alleging under common law that her injuries had resulted from the vehicle’s negligent and defective design because it lacked a driver’s side airbag. The district court dismissed the lawsuit based on express preemption, and the District of Columbia Circuit Court of Appeals affirmed but did so based on implied preemption. Geier v. American Honda Motor Co., Inc., 166 F.3d 1236 (D.C.Cir.1999). Although all the Supreme Court justices agreed federal law did not expressly preempt the lawsuit, the majority held that the lawsuit “conflict[ed] with the objectives of FMVSS 208 ... and is therefore [implicitly] pre-empted by the [Safety] Act.” Geier, 529 U.S. at 866, 120 S.Ct. at 1917, 146 L.Ed.2d at 922. ¶ 10 In so holding, the majority rejected the dissent’s position that FMVSS 208 set “a minimum airbag standard.” Id. at 874, 120 S.Ct. at 1922, 146 L.Ed.2d at 927. The Court observed that the Department of Transportation’s comments accompanying the promulgation of FMVSS 208 made clear that the standard deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and FMVSS 208 would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote FMVSS 208’s safety objectives. Id. at 875, 120 S.Ct. at 1922, 146 L.Ed.2d at 927-28. ¶ 11 The Court then reviewed the history of FMVSS 208 and the considerations that had shaped the standard and determined that it “deliberately sought variety — a mix of several different passive restraint systems.” Id. at 878, 120 S.Ct. at 1924, 146 L.Ed.2d at 930. The Court observed that FMVSS 208 did so “by setting a performance requirement for passive resti-aint devices and allowing manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement.” Id. ¶ 12 The basic question, said the Court, was “whether a common-law ‘no airbag’ action like the one before us actually conflicts with FMVSS 208”; the Court held that the action did. Id. at 874, 120 S.Ct. at 1922, 146 L.Ed.2d at 927. The Court found that the petitioners’ action was based on a “claim that manufacturers had a duty to install an airbag when they manufactured the 1987 Honda Accord[,] ... [a duty that] would have presented an obstacle to the variety and mix of devices that the federal regulation sought.” Id. at 881, 120 S.Ct. at 1925, 146 L.Ed.2d at 931-32. The Court explained that “[s]uch a state law — i.e., a rule of state tort law imposing such a duty — by its terms would have required manufacturers of all similar cars to install airbags rather than other passive restraint systems, such as automatic belts or passive interiors.” Id. at 881, 120 S.Ct. at 1925, 146 L.Ed.2d at 932. Accordingly, the Court concluded that, “[b]ecause the rule of law for which petitioners contend would have stood ‘as an obstacle to the accomplishment and execution of the important means-related federal objectives that we have just discussed, it is preempted.” Id., quoting Hines, 312 U.S. at 67, 61 S.Ct. at 404, 85 L.Ed. at 587. ¶ 13 The Court’s analysis in Geier leads to the same conclusion here. As already noted, the applicable version of FMVSS 208 gave Volkswagen three options for equipping its 1981 Rabbit with a safety restraint system. Volkswagen chose an option two system for the front-seat passenger, S4.1.2.2(b), which did not require a lap belt. Other options also did not require a lap belt for the front-seat passenger, such as options S4.1.2.1(a) and (c)(1) under option one. Plaintiff maintains, however, that the 1981 Rabbit was negligently or defectively designed because it did not have a passenger lap belt. But this would impose a duty on Volkswagen to include that belt in all such vehicles to avoid tort liability. Accordingly, as in Geier, plaintiffs common-law tort claim presents “an obstacle to the variety and mix of devices that [FMVSS 208] sought,” id. at 881, 120 S.Ct. at 1925, 146 L.Ed.2d at 932, and is implicitly preempted. ¶ 14 Plaintiff nonetheless argues in her supplemental brief that her claim is not preempted because the 1981 Rabbit “failed to provide her as a front seat occupant with reasonable rollover crash protection.” In support of her argument, she points to the following: the option Volkswagen chose applies only to frontal crashes; one of her experts testified at trial that “it was technologically feasible to add a manual lap belt to the [Rabbit’s] passive shoulder belt system”; the Department of Transportation told Volkswagen, in 1974 that it could equip its vehicles with “additional safety belts” if its vehicles satisfied FMVSS 208; our supreme court observed in Hemandez-Gomez II that the option Volkswagen chose “did not prohibit additional, manually-activated or automatic devices to provide protection in other types of crashes, including rollovers,” 185 Ariz. at 517, 917 P.2d at 246; and the Safety Act’s savings clause preserves this state tort action. But, in light of Geier, plaintiffs argument no longer appears tenable. ¶ 15 Although the FMVSS 208 at issue here did not expressly prohibit manufacturers from adding other safety equipment to any of the available options, we read Geier as holding that FMVSS 208 gave manufacturers an unfettered choice among those options and precluded a common-law action requiring additional safety equipment not otherwise called for by the chosen option. And, because only one of the available options in FMVSS 208 addressed rollover crash protection, S4.1.2.1(c)(l), any other reading of Geier would force manufacturers to add rollover protection to any other option they chose in order to avoid common-law liability. This would, in our opinion, pose an obstacle to alternative choices “the federal regulation sought.” 529 U.S. at 881, 120 S.Ct. at 1925, 146 L.Ed.2d at 932. ¶ 16 In our view, the conclusion in Hemandez-Gomez II that federal law does not implicitly preempt plaintiffs state law tort claim is not compatible with Geier. We therefore disagree with plaintiffs assertion that Hemandez-Gomez II “is entirely consistent with and supported by Geier and remains the law of this case.” And we believe the distinctions drawn in Hemandez-Gomez II between performance and design standards and between front-end and rollover accidents do not survive Geier. ¶ 17 Numerous courts have considered Geier’s impact on various state tort actions. Plaintiff relies on the following three cases to support her position: Leipart v. Guardian Industries, Inc., 234 F.3d 1063 (9th Cir. 2000); Harris v. Great Dane Trailers, Inc., 234 F.3d 398 (8th Cir.2000); and Choate v. Champion Home Builders Co., 222 F.3d 788 (10th Cir.2000). Although each case discusses Geier, none involves FMVSS 208. ¶ 18 Leipart addressed whether the Consumer Product Safety Act preempted the plaintiffs’ state tort claims against a glass shower door manufacturer. The court found no preemption, concluding that the Act created a minimum safety standard “above which state common law requirements were permitted to impose further duties.” 234 F.3d at 1070. ¶ 19 Harris involved FMVSS 108, a standard promulgated under the Safety Act for trailer lamps and reflective devices. The plaintiffs claim alleged that the trailer her husband’s vehicle had struck at night was defectively manufactured because the trailer’s rear end did not have reflective tape. The court observed that FMVSS 108 provided that “ ‘each vehicle shall be equipped with at least the number of lamps, reflective devices, and associated equipment specified,’” but “did not require the use of reflective tape to make trailers more conspicuous.” 234 F.3d at 401, quoting 49 C.F.R. § 571.108, S5.1.1 (emphasis added in Harris). Based on this observation, the court found that FMVSS 108 simply established “a minimum federal safety standard” and, thus, posed “no actual conflict between FMVSS 108 and [the plaintiff’s] common law claim because the federal standard neither required nor prohibited the use of reflective tape.” 234 F.3d at 401. Therefore, the court found no implied preemption. ¶20 The court in Choate used a similar analysis in finding no preemption of the plaintiffs’ action against defendants for their failure to install a smoke detector with a battery-powered back-up in a manufactured home. The court noted that, under the Manufactured Housing Act, the applicable standard “only requires ‘(a)t least one smoke detector (which is hard wired to the general electrical circuit).’ ” 222 F.3d at 795, quoting 24 C.F.R. § 3280.208(a), (d) (emphasis added by Choate). “This,” said the court, “is clearly a minimum rather than a maximum standard, and a state standard requiring a battery-operated backup is not in any way contrary to ... [the] federal standard calling for ‘at least’ one hard-wired smoke detector.” 222 F.3d at 795. The court then distinguished the plaintiffs’ claim from that in Geier, stating: Under the plaintiffs’ claim asserted in [Geier], manufacturers should have used airbags instead of the other options presented. This would have effectively eliminated use of the other choices offered under the federal standards.... The rule of law sought by [the plaintiffs], on the other hand, would not eliminate the chosen federal method of providing smoke detection in manufactured homes. It would simply increase the effectiveness of that method. Id. at 796 (citation omitted). Other courts have reached similar conclusions in post-Geier cases that did not involve FMVSS 208. See Green v. Fund Asset Management, L. P., 245 F.3d 214, 225 (3d Cir.2001) (“The creation of a greater protection [by the Investment Company Act of 1940] does not mean that the lesser protection is an obstacle if a complainant elects to employ it.”); Phillips v. Cricket Lighters, 773 A.2d 802, 808 (Pa.Super.Ct.2001) (Geier distinguishable because federal regulations pertaining to disposable butane lighters did not “give lighter manufacturers a choice of options”). ¶ 21 In contrast, the post-Geier cases that specifically involve FMVSS 208 have all held, based on Geier, that the federal standard implicitly preempted the plaintiffs claims. Representative is Hurley v. Motor Coach Industries, Inc., 222 F.3d 377 (7th Cir.2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1087, 148 L.Ed.2d 962 (2001). There, a bus driver suffered severe injuries when the bus collided with a double trailer. He and his wife sued the bus manufacturer, claiming the bus was unreasonably dangerous because it only had a two-point seat belt and should have had, among other things, a three-point seat belt and an airbag. The district court found the plaintiffs’ lawsuit preempted and the Seventh Circuit Court of Appeals affirmed. That court first commented: “Aside from the fact that, [the plaintiffs’] claim concerns buses and Geier’s claim concerned cars, it is hard to see any significant difference between the two situations ... [because the] applicable standard for buses ... is found [in FMVSS 208].” Id. at 381. After the court noted that regulatory section S4.4.3. 1 provided that buses of a certain weight “ ‘shall comply with the requirements of S4.4.2. 1 or S4.4.2. 2,’ ” the court observed: “That ‘or’ is critical, since S4.4.2.1 calls for a ‘complete passenger protection system’ for the driver ... [and] S4.4.2. 2 requires only a seat belt assembly.” 222 F.3d at 381. The court thus concluded that, like in Geier, the decision of the National Highway Transportation and Safety Board “to leave options open to bus manufacturers was made with specific policy objectives in mind. [The plaintiffs’] suit, if successful, would under mine that policy objective and is therefore preempted.” Id. at 382. See also James v. Mazda Motor Corp., 222 F.3d 1323 (11th Cir.2000) (FMVSS 208 preempts state tort claim that lap belt in 1994 Mazda Protegé was defectively designed), cert. denied, 532 U.S. 921, 121 S.Ct. 1358, 149 L.Ed.2d 287 (2001). ¶ 22 Accordingly, Geier compels us to conclude that federal law implicitly preempts plaintiffs state tort claim that the 1981 Rabbit was negligently or defectively designed. We therefore vacate the judgment entered against Volkswagen. FLÓREZ and PELANDER, JJ., concurring.

OPINION KLEINSCHMIDT, Judge. This appeal arises from a jury verdict against plaintiff-appellant in a wrongful death action that arose out of the crash of a Cessna aircraft. The plaintiff is the widow of the deceased pilot. She brought an action against Cessna in strict liability. She also sued Northland Aviation. North-land had trained the pilot and rented the Cessna aircraft to him. Her action against Northland was based on negligence. The case against Cessna centered on the plaintiff’s theory that the airplane was designed in such a way as to make it difficult to drain water from a critical point in the fuel line, and that when the water froze in the line it caused the plane to crash. The jury returned a verdict in favor of the plaintiff against Northland Aviation, and in favor of Cessna against the plaintiff. This appeal involves only the verdict in favor of Cessna. The appellant has raised the following issues: 1) Whether the trial court erred in failing to instruct the jury on Cessna’s duty to warn about the potential danger of operating the aircraft in freezing weather; 2) Whether the trial court erroneously admitted a Federal Aviation Administration (FAA) videotape entitled “Stalling for Safety;” 3) Whether it was error for the trial court to admit the following items of evidence: a) evidence that the Cessna aircraft had a good safety record with few crashes attributable to the accumulation of ice in the fuel system; b) testimony of certain of Cessna’s expert witnesses whose identities were disclosed to plaintiffs only 28 days before trial; 4) Whether the trial court erroneously precluded the plaintiff from introducing the following items of evidence: a) an FAA publication circulated in the southwestern part of the United States which warned Cessna operators of the problems of draining water from the fuel system; b) rebuttal evidence offered by the plaintiff in order to show that the FAA “approval” of the Cessna fuel system was predicated upon an erroneous summary by the FAA of its own data; c) the formal response of the National Transportation Safety Board to the published call for comment by the FAA which showed problems with the Cessna plane; d) a Cessna interoffice communication which was purportedly evidence that the FAA withdrew its proposed rule in exchange for Cessna’s installation of a quick drain. FACTS On November 27, 1979, Gary Schneider and a friend were killed when their Cessna Model 152 aircraft crashed. As the pilot, Schneider had rented the plane from North-land Aviation, which was in the business of renting and maintaining aircraft. Schneider had previously been trained by North-land. Schneider rented the plane for the purpose of spotting elk. The two men left the Flagstaff Airport sometime before 7:30 a.m.; the exact time is unknown because there were no witnesses who saw them depart. Around 8:50 that morning, the plane crashed in a clearing eight miles south of Flagstaff. Shortly before the crash, three eyewitnesses saw and heard the aircraft flying low over a forested area with the engine cutting in and out, heading toward the only clearing in the area. A fourth eyewitness heard a plane with engine trouble and watched it as it circled the clearing once or twice, before it suddenly went into a nose dive. The testimony reveals that Schneider was flying from anywhere between 200 and 500 feet above the ground. All the experts who testified described the plane as having had a stall-spin accident. A subsequent investigation by the National Transportation Safety Board (NTSB) discovered no mechanical malfunctions or defects. It was appellant’s contention that this particular model, the 152, had a fuel system which was hazardous in freezing weather because it permitted water to accumulate at the lowest point in the fuel system. The water would then freeze and clog the fuel line either by expanding or by moving to a point where it impeded the flow of fuel. The plaintiff’s experts expressed the opinion that Schneider had a blockage in the fuel line and was trying to get the engine to function while he was circling the clearing. According to the experts, he stalled because of insufficient air speed and went into the ground in a stall-spin. The ground temperature at the time of Schneider’s takeoff from Flagstaff was 27 degrees Fahrenheit, while the temperature at the time of the crash was 32 degrees. The plaintiff had three different theories upon which she based her case against Cessna: 1) the defective design of the fuel system; 2) improper instructions as to how to drain water from the fuel line; and 3) Cessna’s failure to warn of the hazards of flying the plane in freezing weather. To understand the claims and defenses raised on appeal, it is necessary to understand the relationship between the claim against Cessna and the claim against Northland Aviation. The plaintiff’s case against Northland was based on negligent conduct: 1) the negligent failure to properly maintain the plane by draining the fuel system at the fuel line tee-fitting after every 100 hours of flight; and 2) teaching Schneider an improper method of recovering from a stall-spin. As we have already observed, the jury found Northland negligent, but found in favor of Cessna against Schneider. Northland has not appealed. THE FUEL SYSTEM The Cessna 152 fuel system, and whether it was defective, is at the heart of plaintiff’s claim against the manufacturer of the airplane. All aviation fuel contains water in small amounts, and there are standard safeguards to avoid the problems it creates. When the water is unfrozen, it is heavier than fuel and it separates and accumulates at the low point in the fuel system. Generally, then, proper safety procedure requires that the fuel system be drained at the low point in the system before flying. A drain is usually provided at the low point in the system to accomplish this. In the model 152, the low point in the fuel system is a tee-fitting which projects about Vi of an inch below the fuselage of the aircraft, where it is exposed to the outside air temperature. If water freezes in the fuel line, it can block or impede the flow of fuel and cause engine failure. Plaintiff’s experts hypothesized that water accumulated at the tee-fitting and formed an ice pellet which loosened during flight due to the heat from the exhaust, bobbed up into the fuel line and impeded the flow of fuel. A partially restricted fuel line results in the engine cutting in and out which is consistent with what witnesses on the ground said they heard. The plane that crashed did not have a quick drain at the tee-fitting, the low point in the fuel system. As the name implies, a quick drain is a device which permits easy, quick drainage without resort to disassembly of the fuel system. Rather, this airplane had quick drains at three other points in the system: one on each wing fuel tank and one at the “gascolator” or fuel strainer. Besides alleging a design defect in the fuel system, the appellant contended that Cessna’s instructions on draining water from the fuel line were inadequate. Specifically, the Cessna Pilot’s Operating Handbook suggested that the pilot perform a pre-flight check of the drains on each wing tank and at the gascolator for any accumu lated water. According to plaintiffs experts, these instructions were inadequate because the low point in the fuel system, the tee-fitting, is the most critical spot to test for the presence of water. Drainage at the sumps on the wing tanks located above the tee-fitting would not remove water which had settled to the tee-fitting. Draining at the tee-fitting was a laborious two-man process. Appellant faulted Cessna for failing to recommend draining the tee-fitting before every flight; the manufacturer only suggested draining at the tee-fitting after every 100 hours of flying time, or when drainage from the gascolator revealed the presence of water. Either of these two procedures, the appellee suggests, was adequate to maintain a water-free tee-fitting. The appellant also complained about the lack of directions as to the location of the tee-fitting drain plug, about the laborious process required to drain the tee-fitting, and criticized the lack of any instruction from Cessna on catching the discharge from the gascolator in a cup for observation-of water. There was testimony that pilots generally discharged the gascolator fuel on the ground, a practice which makes it difficult to detect the presence of water. The plaintiffs final theory against Cessna was that the company failed to warn of the hazards of flying the Model 152 aircraft in freezing weather. They argue that the desired warning would have linked the failure to drain the fuel system properly to a possible subsequent engine failure in freezing temperatures. FAILURE TO GIVE A WARNING INSTRUCTION The appellant initially contends that the trial court erred in failing to instruct the jury on the duty to warn about the potential danger of operating the 152 model aircraft in freezing weather. Although the appellant properly requested an instruction regarding the need to give this warning, the trial judge refused to give it, apparently because the judge thought that such an instruction was only proper in unusual cases, as where an ethical drug is flawlessly made but may nonetheless be harmful if not properly used. The appellant argues that a product may be “defective” or “unreasonably dangerous” because of the failure to give an adequate warning. See Tucson Industries, Inc. v. Schwartz, 108 Ariz. 464, 501 P.2d 936 (1972); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 581 P.2d 271 (App.1978); Kavanaugh v. Kavanaugh, 131 Ariz. 344, 641 P.2d 258 (App.1981). The appellant urges that if a request is made for a proper jury instruction, it is reversible error for the trial court to refuse to instruct on a theory which is within the issues and supported by substantial evidence. See Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326 (App.1978). Cessna, on the other hand, defends the court’s refusal to give a warning instruction on the basis that since the jury found in favor of Cessna on Schneider’s strict liability claim, it must necessarily have concluded that the “defect” did not in fact exist. According to Cessna, if any defect existed, it would have been inherent in the design of the fuel system, not in the lack of a warning as to the hazards of flying the aircraft in below-freezing weather. Although the instruction about a warning was not given, the trial court did give a jury instruction on the duty to give adequate directions for the use of a product. There is, however, a distinction between a warning instruction and a directions instruction: Instructions are to be followed to secure the most efficient or satisfactory use of the product; warnings are instructions as to dangers that might occur if the directions are not followed. Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 564, 667 P.2d 750, 758 (App.1983). (Emphasis in original). The directions instruction given by the court read as follows: A party who manufactures or sells a product which he has reason to foresee may cause injury from a particular use, is required to give adequate directions for safe use of the product. If he fails to do so, he is liable for any injury resulting from the failure to give adequate directions. On the other hand, the court rejected the following warning instruction: A party who manufactures or sells a product which he has reason to foresee may cause injury from a particular use, is required to give an adequate warning of the danger. If he fails to do so, he is liable for any injury resulting from the failure to warn. The trial court’s refusal to submit the requested warning instruction was error. If there was any evidence tending to establish Schneider’s theory that Cessna’s failure to warn made the product defective, the instruction should have been given. Correa v. Curbey, 124 Ariz. 480, 605 P.2d 458 (App.1979). Brown established the proposition that the failure to warn can make a product defective and/or unreasonably dangerous if the plaintiff failed to follow directions because of the absence of a warning. Thus, we conclude that Schneider was entitled to have the jury assess her theory that Cessna owed a duty to warn against flying in subfreezing weather without draining the tee-fitting, particularly if water was found upon draining the gascolator. The focal point of our decision is Brown, which was a wrongful death action in which the decedent was electrocuted while he was operating a portable electric saw. He was using the saw with a frayed extension cord and a second ungrounded extension cord. The manufacturer’s instructions directed that the saw be used only with a grounded extension cord. The plaintiff proceeded on a theory that Sears had failed to provide adequate instructions and warnings concerning the operation of the saw and that this failure rendered the saw defective and unreasonably dangerous to the decedent. The decedent’s personal representative appealed the trial court’s entry of summary judgment against her. On appeal, the personal representative claimed that there was a genuine issue of fact as to whether the saw was unreasonably dangerous in the absence of a warning to the effect that if it was operated with an ungrounded extension cord there was a substantial risk of electrocution. The court of appeals reversed, reasoning that there was a genuine issue of fact on this question. We concluded that we could not say: [A]s a matter of law, that the red tag in the saw carton and the instruction booklet provided with the saw cautioning of the danger of ‘shock’ was of a degree of intensity that would have caused the Decedent to exercise for his own safety caution commensurate with the potential danger of death. Brown, 136 Ariz. at 565, 667 P.2d at 759. Simply put, we concluded that reasonable people might find that the decedent would have followed the directions if the severity of the risk of ignoring them had been meaningfully brought home to him. In Brown we knew that the deceased did not follow the manufacturer’s directions. Here, the deceased may not have followed them. It is entirely possible that he did not, but would have, had he been warned that flying in freezing weather without draining the tee-fitting could result in engine failure. Cessna argues that because the jury found for Cessna it necessarily determined that the fuel system on the Model 152 was not defective so the need to warn never arose. The appellant’s response to this is that the jury may have found that the product was defective but not unreasonably dangerous. If that were the case, the appellant reasons, the jury might have reached a different conclusion if it had been told that Cessna not only had a duty to instruct on the use of the plane, but also had a duty to warn of what could happen if the instructions were not followed and the plane was flown in freezing weather. The trial court’s refusal to give an instruction on the duty to warn precluded the jury from considering whether the lack of a warning made the aircraft defective and/or unreasonably dangerous. It is re versible error for the trial court to refuse to instruct the jury on a legal theory which is within the issues of the case and supported by substantial evidence. Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 539, 647 P.2d 1127, 1137, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982); Gaston v. Hunter, supra. In the present case, substantial evidence was presented entitling plaintiff to an instruction on Cessna’s duty to warn of engine failure in subfreezing temperatures. There was credible evidence that the product was “defective” and/or “unreasonably dangerous” because of a failure to warn. Such a determination depends upon, among other things, foreseeability, seriousness and cost of prevention. Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434, 581 P.2d 271, 279, quoting Hall v. E.I. DuPont De Nemours & Co., 345 F.Supp. 353, 368 (E.D.N.Y. 1972). There was evidence of foreseeability. The appellant introduced numerous incidents of forced landings and crashes which were attributable to ice in the tee-fitting. The accidents had occurred for at least five years before Schneider’s death. Also, Cessna knew of the adoption, in 1977, of a regulation requiring that all new planes had to have a quick drain at the lowest point in the fuel system. The seriousness of the problem arises from the very nature of airplanes. Based upon the evidence presented, it was reasonably arguable that the cost of such a warning was not disproportionate to the risk involved. Thus, the jury should have been able to assess Cessna’s duty to warn, and should have decided “whether it was reasonably foreseeable that the user would fail to read the directions or fail to follow them, in the absence of a warning as to the consequences of such misuse.” Brown, 136 Ariz. at 564, 667 P.2d at 758, quoting W. Kimble and R. Lesher, Products Liability § 199 at 210-11 (1979). ADMISSION OF VIDEOTAPE The second challenge raised by appellant regards the trial court’s decision to admit the videotape, “Stalling for Safety,” over appellant’s objection that it was inadmissible hearsay and unfairly prejudicial. The videotape was admitted under the “Learned Treatise” hearsay exception, Rule 803(18), Arizona Rules of Evidence. The question presented is a very close one but, as this particular trial unfolded, we do not believe the court erred in admitting the videotape. Cessna introduced the videotape to support its theory that pilot inattention alone explained Schneider’s stall-spin crash. “Stalling for Safety” is a PAA training film which discusses and depicts the prevalence of stall-spins due to pilot inexperience or pilot inattention. A narrator provides the commentary, description and safety tips, while the picture includes enactments of how pilots inadvertently enter stall-spins and how they then can recover control of their planes. Among other scenes, the videotape presents a pilot who, while circling a field to spot cattle, suddenly enters a stall-spin which the tape attributes to his distraction. In other words, the videotape contained a scenario similar to, if not almost identical to, Cessna’s version of how the Schneider accident is supposed to have happened. As both parties and the trial court recognized, the videotape is clearly hearsay. Rule 801(a), Arizona Rules of Evidence, defines a hearsay “statement” as either an oral or written assertion, or non-verbal assertive conduct. Thus, both audio and video portions of this videotape contained hearsay assertions to the effect that pilots often inadvertently put their aircraft into stall-spins. The videotape was admitted under Rule 803(18), Arizona Rules of Evidence, which makes learned treatises admissible: To the extent called to the attention of an expert witness upon cross-examination or relied upon him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admis sion of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (Emphasis added.) The argument is made that the videotape was not authenticated as an FAA production pursuant to Rule 902(5). The FAA seal at the start of the videotape made it self-authenticating under Rule 902(5), which posits: [E]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: * * * * * * (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. For a case in point see California Ass’n of Bioanalysts v. Rank, 577 F.Supp. 1342, 1355 n. 23 (C.D. Cal.1983). See also 5 Weinstein & Berger, Weinstein’s Evidence, at 902-30 (1978). The mere fact that the videotape is an authentic FAA production, however, does not automatically qualify it as a “reliable authority” in terms of Rule 803(18). The cross-examination testimony of appellant’s expert, John LaMonica, is cited by Cessna to substantiate the authoritativeness of “Stalling for Safety”: Q Would you be amazed if stall spins did occur in daylight outside of clouds? A In all the airplanes that fly, they probably have occurred. I think it would be much more likely if there was some other problem going on. Q The best place to find data on this or information about it would be from the FAA, wouldn’t it? A That would be a good source, yes. Q It publishes a lot of material and films about stall spins, doesn’t it? A Yes. Q And they are authoritative sources, aren’t they? A They are pretty good; yes, sir. Q You have seen one called, ‘Stalling for Safety’, haven’t you? A I’ve seen, I think, all of those, I’ve seen many of those films and I don’t remember the exact titles. Q And they’re a good training source, aren’t they? A I believe so; yes, sir. (Emphasis added). The highlighted testimony is relied upon heavily by Cessna in its contention that LaMonica had seen “all” of the FAA movies, which he had already acknowledged generally were authoritative sources. The need to establish the reliability of an authority is well-established. See, e.g., State Highway Dept. v. Willis, 106 Ga. App. 821, 128 S.E.2d 351 (1962) (while expert witness may be cross-examined by reference to a standard treatise in the field of an expert’s special knowledge to test his credibility, he cannot be cross-examined upon a treatise which has not been established as a standard treatise on the subject); People v. Behnke, 41 Ill.App.3d 276, 353 N.E.2d 684 (1976) (it was reversible error to permit cross-examination of an expert on government training manual written with view toward litigation, where the expert did not recognize the text and where the prosecution had not otherwise established the manual’s authoritative nature); Hemmingway v. Ochsner Clinic, 608 F.2d 1040 (5th Cir.1979) (document written by two registered nurses was inadmissible as learned treatise where there was no testimony recognizing the document as a reliable authority). Measured against the standard for establishing the authority of a learned treatise which these cases develop, LaMonica’s testimony was adequate to establish “Stalling for Safety” as a reliable authority. In all probability, any number of expert witnesses who are familiar with aviation could view the tape and testify, based upon what they knew from other sources and what they had seen and heard in the videotape, that it was, or was not, authoritative and that it was, or was not, a source that experts could rely upon in forming their opinions. We do not think any combination of magic words must be used to qualify an item for admission as an exception within the meaning of Rule 803(18). Nor do we believe that the qualifications of every narrator and actor in an informational film must be known and acknowledged, any more than every author alluded to in the footnotes of a medical text needs to be acknowledged as qualified. The significant point is that the tape was produced under the auspices of an agency which one would expect to have expert knowledge of the subject, and LaMonica’s testimony was sufficient to satisfy the foundational requirement. The eases which the appellant relies on are really not to the contrary. For example, in Farmers Union Federated Coop. Ship. Ass’n v. McChesney, 251 F.2d 441 (8th Cir.1958), the item sought to be introduced as a learned treatise was nothing more than a transcript of comments made during a symposium. The speakers were unidentified and one cannot conclude from reading the case that the comments had the blessing of the publisher. That is simply not the case with respect to this videotape. Our confidence in our conclusion is strengthened by a review of the sparring that preceded the showing of the videotape to the jury. When LaMonica gave his initial testimony about the tape as an authoritative source, he was probably unaware that he was laying the foundation for its admission. In arguing against its admission, counsel for the appellant told the court that LaMonica had been mistaken in his testimony and that he had not previously seen this tape. The record shows that at the very time this argument was being made, LaMonica was present in the courtroom and the judge pointed out that all he had before him in evidence was the testimony that LaMonica had seen the film. Counsel for the appellant made no effort to recall LaMonica as a witness to correct any purported misstatement about whether he had previously seen the film and made no offer of proof on the subject. We do not suggest that counsel’s argument was deliberately false. By the time that the argument was made, LaMonica had in fact viewed the film. It is possible that he had not seen it before, but that if called to testify he would have had to acknowledge its authority. In any event, as the record stands, the foundation was sufficient. The appellant has still another argument as to why the showing of the videotape was error. She says that items admitted under Rule 803(18) must be admitted in conjunction with the testimony of an expert witness while that expert witness is on the stand to explain the technical material. The best discussion of this position is found at 4 Weinstein & Berger, supra, at 803-329 and 803-330. In discussing the rule it says: It recognizes that the difficulty with learned treatises is not the usual hearsay danger of admitting unreliable evidence, but rather the possibility that the jurors will misunderstand and misapply the evidence without expert guidance. Consequently, Rule 803(18) admits only those treatises whose existence is disclosed while an expert is on the stand, either by the expert himself on his direct examination or by the questioner in the course of cross-examination. Limiting the admission of treatises to situations when an expert is testifying guarantees that the trier of fact will have the benefit of expert evaluation and explanation of how the published material relates to the issues in the case. We agree that the procedure used here was not the best, and violated the spirit of the rule as discussed by Weinstein. However, there are three reasons why we do not think that the case should be reversed on this account: 1) The appellant raises this issue for the first time on appeal. She never brought this specific point to the trial judge’s attention. 2) While no witness was on the stand while the film was shown, evidence in this form does not lend itself very well to the type of comment discussed in Weinstein. As a practical matter we assume that the best way to proceed would be to show the entire videotape to the jury while the expert witness was available and then allow the expert witness to critique or explain the tape. The tape can be stopped at points where the expert wishes to explain or amplify what is depicted. Here, the appellant had every opportunity to follow that procedure on rebuttal and did not choose to do so. 3) The point for which the film was shown, that pilot inattention can lead to stall-spin crashes, is a simple one. Assuming that the source is authoritative, it is not the kind of thing that jurors will likely misunderstand or misapply unless they have expert guidance. Finally, we note in passing that Rule 803(18) was also violated by the admission of the videotape as an exhibit in contravention of the rule’s express admonition that “statements may be read into evidence but may not be received as exhibits.” Again, the rule does not lend itself very well to videotapes. For the film to be shown to the jury, it would have to be introduced into evidence. Error of this type has generally been deemed harmless. Garbincius v. Boston Edison Co., 621 F.2d 1171 (1st Cir.1980); see Dawson v. Chrysler Corp., 630 F.2d 950, 961 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). In the absence of something in the record to indicate that the jury had a video machine so that they could review the tape during their deliberations, we will not assume that they were prone to misapply the evidence. EVIDENTIARY QUESTIONS Since the case must be retried, we will address questions which may arise again. Cessna introduced evidence at trial through its executive engineer that the Model 152 had experienced only one incident of engine failure due to the formation of ice in the tee-fitting for every five million hours of flight. Since this case was tried, the Arizona Supreme Court, in Jones v. Pak-Mor Mfg. Co. 145 Ariz. 121, 700 P.2d 819 (1985), has re-examined the propriety of introducing evidence of safety history. At the new trial, Cessna must bring the safety history it seeks to introduce within the dictates of Jones, supra, and establish the necessary foundational predicate for this type of evidence if it is to be admitted. Appellant also complains that the trial court erred in allowing testimony of certain of Cessna’s expert witnesses whose identities were first disclosed to the plaintiff’s counsel only 28 days before trial. Rule 26(e)(1), Arizona Rules of Civil Procedure, requires that a party supplement his responses to interrogatories as to the identities of his expert witnesses “prior to 30 days before the date of trial.” In light of our decision to reverse, we need only note that Cessna must timely disclose its expert witnesses at the new trial. The trial court sustained Cessna’s objection, based on lack of foundation, to a document offered by the appellant which was a certified copy of an FAA publication circulated in the Southwest United States. The document was a public report which was published to warn Cessna owners and operators that draining the gascolator would not drain the fuel system of water and that water could still freeze in the tee-fitting. As already noted in our discussion of the authenticity of the FAA videotape, the fact that the publication purports to be published by the government is enough to authenticate it under Rule 902(5), Arizona Rules of Evidence. Because it is more likely than not that Cessna had knowledge of the publication, it should have been admitted for the purpose of proving Cessna had notice of the claimed susceptibility of water to freeze in the tee-fitting—a factor which bears on Cessna’s duty to warn. Appellant points to the exclusion of evidence relating to incident reports that the FAA allegedly miscounted when it withdrew its Notice of Proposed Rule Making, which would have required Cessna to install a quick-drain at the tee-fitting. She sought to introduce such evidence in her rebuttal to discredit testimony introduced by Cessna in its case-in-chief. Rule 403, Arizona Rules of Evidence, permits the trial court to exclude evidence when its probative value would be substantially outweighed by considerations of “undue delay, waste of time, or needless presentation of cumulative evidence.” By precluding appellant from presenting evidence ad infinitum, we cannot say the trial court abused its discretion in acting in conformity with Rule 403. See State v. Verive, 128 Ariz. 570, 627 P.2d 721 (App.1981) (appellate court will review trial court’s rejection of evidence for a reason listed under Rule 403 to determine if there was an abuse of discretion.) We also note that because there was already evidence that Cessna introduced a quick-drain modification for the tee-fitting after Schneider’s accident, the trial court acted within its discretion in refusing to admit cumulative evidence in the form of a Cessna inter-office communication which purportedly indicated that the FAA withdrew its proposed rule change in exchange for Cessna’s installation of a quick-drain at the tee-fitting. The trial court also precluded appellant from introducing a formal response of the National Transportation Safety Board (NTSB) to a published call for a comment by the FAA. A year after the accident, the NTSB wrote the FAA that its review of this model’s performance from 1975 to 1979 showed several accidents caused by the accumulation of ice and/or water in the fuel system of the aircraft. It recommended that Cessna install a quick-drain at the tee-fitting and that it modify its pilot handbooks to clarify how to alleviate the accumulation of ice in the fuel system. The trial court ruled the NTSB letter inadmissible. While appellant urges that the document is an agency record admissible under Rule 803(8)(B) or (C), Arizona Rules of Evidence, the trial court was acting within its discretion in excluding the document because it was collateral to any question of Cessna’s conduct. The evidence went to whether the FAA knew what the NTSB thought at a particular time; the question before the jury, however, was whether Cessna had notice of an alleged defect in its fuel system. While we have decided that the trial court did not abuse its discretion in precluding appellant from introducing these items of evidence, we do not rule definitively that the admission of such evidence would necessarily be error. On retrial the court must consider these issues on the basis of what is presented and exercise its discretion. Based upon the foregoing, we reverse and remand for a new trial. CONTRERAS and OGG, JJ., concur.

OPINION KLEINSCHMIDT, Judge. We remand this case with directions to the trial court to set aside the defendant’s plea of guilty. The trial judge allowed the defendant to enter the plea without disabusing him of the notion that the plea could be set aside if the defendant later came up with evidence to show that he was not guilty. The case is governed by the recent supreme court decision in State v. Anderson, 147 Ariz. 346, 710 P.2d 456 (1985), which mandates reversal. We discuss hereafter the proper way for trial judges to deal with inquiries concerning the finality of a plea of guilty. The appellant pled guilty to kidnapping pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The plea agreement was very advantageous to him. The record shows that at the time of the change of plea the defendant told the judge he was entering an Alford plea to give himself time to prove that he was innocent. Neither the judge nor counsel advised the appellant on the record that for all practical purposes a plea of guilty was final and that proving himself innocent would not entitle him to set aside the plea. As the plea proceeded the defendant repeated that even though he was pleading guilty he was going to clear himself, and again no one told him on the record that such would not effect the legal consequences of his plea. The same remark was repeated a third time moments later without comment from the judge or counsel. As the proceeding progressed the judge recited the rights the appellant was waiving by pleading guilty and asked him if he understood them. The following exchange occurred: [Defendant] I would like to make a statement about that. You said also my constitutional rights—if I have any new evidence that they might reopen the case or dismiss it or look into it or something, right? In other words, I’m not quitting on this deal, I’m innocent. Now, what I mean, but I just—they told me that, and also said within seven years if I obeyed my probation, that I could have this expunged from my record under this Alford plea, correct? THE COURT: Yes. THE DEFENDANT: I will pursue to prove my innocence. I’m innocent in fact of this whole matter. Yes, I understand what you are saying at this point and the way I’m taking this deal, that I do give up these rights until I am able to clear myself. THE COURT: All right. Then, as to all matters dealing with this trial, then, do you understand that you are giving up those rights? THE DEFENDANT: Yes. After some further discussion of the rights the defendant was waiving, the following exchange occurred: THE COURT: You understand that [that defendant was giving up his plea of not guilty] now? THE DEFENDANT: Yes. THE COURT: And do you give that not guilty plea up? THE DEFENDANT: Yes, but I have a question. THE COURT: What’s the question? THE DEFENDANT: It’s about my constitutional rights as reopening a case. In other words, if I do come up with evidence which I intend to do and which I will do as soon as possible, then I have a right to reopen the case, right? In other words, if I could prove that I’m telling the truth, right—in other words, I know I'm telling the truth about these matters. THE COURT: Well now, let’s look at this again. You talk about reopening it when you are merely pleading to it at this time. If you and—and I know both attorneys have told you this, but if you feel that the evidence should be presented, then you may want a trial, but the point I’m trying to indicate to you, the only way that you would be able to go back with respect to this charge, to go back into the record is by making an immediate appeal. THE DEFENDANT: Immediate appeal? THE COURT: I will be advising you to that effect. THE DEFENDANT: How does that work? THE COURT: Once you make your plea, you are giving up your right to do as you indicated, go back into the record. I’m not certain quite how you mean that— MR. DONOFRIO: Your Honor, I think what he means, he wants to know that there is such a thing as Rule 32, if newly discovered evidence which was not available to him at the time this plea proceedings, he could take and file a petition for post conviction relief. That’s all he is asking. He has talked to Mr. Adams [defendant’s attorney] about this. MR. ADAMS: Yes, Your Honor. I have advised him that if he were to come up with some evidence that was not available at this time, substantial evidence that he could in fact file a petition for post conviction relief under Rule 32 and come back into this Court with that evidence. If it were substantial enough to set aside this plea, that is another question but he also has that right and I advised him that he would have that right. I think what he is saying is, if he ever had sufficient evidence to present a Rule 32 by way of post conviction relief, that he could present that to the Court at a later date, even after he pled guilty. I think that’s also available to him. THE COURT: Let me clarify for the record why I am slowing down on this. The problem is that I am wanting to make sure that Mr. Mott understands and is going forward in good faith at this time rather than projecting into laying a foundation for post conviction relief. To me the better wisdom of it for Mr. Mott to be sure that he understands and gets his rights protected at this time and that is why I just want to make sure you fully understand. It is the constitutional rights that we are concerned about, and as far as—let’s look at it this way: The plea itself certainly, that would not be—I mean, the appeal itself would not be barred by waiving constitutional rights. So, I would think that anything after would also fall within that category, but I still want this Defendant to know that he is in effect waiving a full determination, in particular of those matters that are to be dismissed, and I just hate there to be any misunderstanding. THE DEFENDANT: Okay. THE COURT: Do you feel you understand it now? THE DEFENDANT: I want to ask one question. At this time, I’m doing that, yes. THE COURT: You feel you understand that? THE DEFENDANT: To go to trial at this time, yes—no. THE COURT: And do you give up those constitutional rights that we went over? THE DEFENDANT: Yes. THE COURT: And has anyone promised you anything now with respect to sentencing that has not been put in that plea agreement; anything outside of the agreement, any lawyer or any judge or any friend, anybody? THE DEFENDANT: Not that I can think of. In Anderson, our supreme court held that a defendant, who was advised at the time he pled guilty that if evidence later developed that would exonerate him he could move to withdraw his plea, was ineffectively represented by counsel. The court reasoned that while the advice was technically correct it was misleading because it would normally be understood to mean that a motion to withdraw the plea would be routinely granted. Since counsel did not advise the defendant in Anderson that leave to set aside the plea was discretionary and that it would require him to bear a heavy burden of proof, the plea was set aside. We see no difference between this case and Anderson. Here, the appellant was expressly told that if exonerating evidence developed he could ask to obtain post-conviction relief under Rule 32. While the judge did make an attempt to clarify this, she did not succeed in doing so. The record before us does not establish the defendant was ever told that relief under Rule 32 is discretionary, that it can be forfeited if the defendant was not diligent in producing the evidence before trial, and that it may be forfeited if a proceeding to vacate the conviction is not begun promptly after the new evidence is available. The dissent sees a distinction between this case and Anderson in that this was an Alford plea and Anderson was a plea of no contest. The supreme court in Anderson recognized “that there is no significant difference between a plea of guilty with a protestation of innocence and a plea of no contest,....” Anderson, 147 Ariz. at 350, 710 P.2d at 460. Mott was misadvised to the same degree and in just the same way the defendant in Anderson was misadvised. We do not suggest that when taking a plea the trial judge must advise a defendant about the nuances of petitions for post-conviction relief or motions to withdraw the plea. On the contrary the judge should advise the defendant that pleas of guilty are final. If the defendant raises the issue of later vacating a plea the judge should not attempt to advise him of how pleas and convictions may be vacated. Instead, the judge should, in no uncertain terms, tell the defendant that he should not enter a plea of guilty unless he accepts the fact that it will be final. We have considered whether this matter should be remanded for a hearing to determine whether the defendant was, notwithstanding the state of the record, aware of the fact that his plea was final. Before he was sentenced the defendant did attempt to withdraw his plea and the trial court inquired as to the state of his knowledge based on what he had been told by his attorney. The defendant’s attorney testified that he did not advise the defendant he could withdraw the plea and the trial judge found that such was the case. What the trial judge wholly failed to assess was that which transpired during the change of plea proceeding. While the appellant was not expressly told he could later withdraw his plea, the proceeding would have left most people with that impression. At very least, the point became hopelessly muddled. Consequently, the plea was not voluntarily and intelligently made as required by Rule 17.1(b), Arizona Rules of Criminal Procedure. We have reviewed the record with respect to the contention that the defendant did not properly waive his right to counsel. We are satisfied that the waiver was knowingly, voluntarily, and intelligently made. It is ordered remanding the cause to the trial court with directions to vacate the plea of guilty. CORCORAN, J., concurs.

HAYS, Justice. This petition for review arises from an opinion of the Court of Appeals affirming an award to Christopher J. Puma (respondent) by the Arizona Industrial Commission. W. A. Krueger Co. and Fidelity & Casualty Company of New York v. Industrial Commission of Arizona and Christopher J. Puma, 1 CA-IC 3261 (filed March 19, 1986). We accepted review and have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24, and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. The facts are undisputed. On August 22, 1982, respondent herniated a cervical disc in a work-related accident. His claim for worker’s compensation benefits was accepted and he was seen by several physicians. One of these physicians, Dr. Paul LaPrade, a neurosurgeon, subsequently performed a diskectomy to decompress the left C-7 nerve. Dr. LaPrade testified that, from a medical viewpoint, the surgery was successful, despite some complaints of continued pain from respondent. Based on his examinations of respondent, it was Dr. LaPrade’s opinion in late March, 1983, that respondent could return to normal work within two months. Dr. LaPrade informed respondent of his opinion and shortly thereafter, respondent began to complain of severe and disabling neck pain. Dr. LaPrade ran a battery of tests to determine the cause of this pain. The test results, however, were all normal. In June, 1983, Dr. LaPrade was shown surveillance films of respondent performing a variety of physical activities. Dr. LaPrade testified that in his opinion respondent “performed these duties without any apparent difficulty, and he moved his neck in what I had interpreted to be a normal range of motion____” He further stated that the film was in direct contradiction to how respondent behaved during his examinations: “Well, during the office visits he would barely move his head in any direction at all; just minimal movement to the right and to the left, ... five to ten degrees.” After viewing these films, Dr. LaPrade discharged respondent without permanent disability. Based on this action, the insurance carrier issued a notice of claim status closing the claim. Respondent protested this decision and a hearing was held. At this hearing, Dr. LaPrade testified that respondent’s physical condition was “stationary.” He stated that although the AMA Guides provided a 5% permanent impairment for the surgical removal of a disc, without residual effects, the Guides were simply that—guides. It was his opinion that, in this case, the recommended rating was too liberal. Another surgeon, Dr. Joseph Gimble, also examined respondent and testified that he was unable to diagnose the cause of respondent’s discomfort. Although he deferred to Dr. LaPrade’s rating of respondent’s impairment, he agreed with Dr. LaPrade’s characterization of the AMA Guides as merely guidelines. Following the hearing, the administrative law judge (AU) issued an award closing the claim without permanent impairment. This AU subsequently resigned, however, and respondent’s request for administrative review was assigned to another AU. On review, the new AU concluded that, despite the evidence, the AMA Guides must be followed when applicable. Accordingly, he issued an award based on a 5% permanent impairment. The Court of Appeals affirmed the award. Petitioner contends that such an interpretation of the role that the AMA Guides play in rating an impairment is too restrictive. We agree. Shortly after accepting jurisdiction in the present case, this court rendered its opinion in Gomez v. Industrial Commission, 148 Ariz. 565, 716 P.2d 22 (1986). In Gomez, a worker with a rated 30% permanent partial loss of use of his left leg claimed that he was entitled to a scheduled 100% disability because he could no longer perform his prior employment. Unlike the present case, however, all the doctors agreed that the AMA Guides did, in fact, provide an accurate measure of the claimant’s impairment. In finding that the AU did not err in basing his award on the 30% impairment provided by the Guides, this court stated: The Commission has adopted the AMA Guides for rating the percentage of impairment when there has been a partial loss of use rather than the complete loss of a member. See A.R.S. § 23-1044(B)(21). When they are applicable and “truly reflect the claimant’s loss”, they may be used as the sole indicator or factor to be considered in fixing the percentage of impaired function. Where the AU finds that the Guides do not provide a fair, accurate measure of the degree of impairment, he or she must turn to other factors. Any relevant factors, except those prohibited by statute (such as loss of earning capacity) may be considered. Effect on job performance is one such factor. Evidence regarding such factors may come from experts, from the literature, lay witnesses or any other competent source that would assist the AU in determining the actual percentage of partial loss of use. Use of these factors fulfills the statutory mandate (citations omitted). 148 Ariz. at 152, 716 P.2d at 26. In the present case, the situation is the mirror image of that presented in Gomez. In Gomez, the AU was asked to make an award based on an impairment rating higher than that recommended by the AMA Guides. Here, however, the AU was urged to adopt an impairment rating lower than that provided for by the Guides. Despite this difference, we believe Gomez is dispositive of the issue. The AMA Guides are not to be blindly applied regardless of a claimant’s actual physical condition. Rather, their purpose is to serve as a guideline in rating an impairment and are valid when the stated percentage “truly reflects the claimant’s loss.” Gomez v. Industrial Commission, 148 Ariz. at 152, 716 P.2d at 26, citing Adams v. Industrial Commission, 113 Ariz. 294, 295, 552 P.2d 764, 765 (1976). Where however, the evidence establishes that the Guides do not “truly reflect the claimant’s loss” or where the medical evidence is in conflict, the AU may use his discretion and make findings independent of the Guides’ recommendations. We believe respondent’s situation is just such a case. At the original hearing, the AU heard expert testimony from respondent’s treating physicians, Drs. LaPrade and Gimble. This testimony was uncontradicted and consisted of their belief that respondent had no permanent impairment. In other words, the Guides did not “truly reflect” respondent’s loss—it overstated the loss. Additionally, there was evidence which, if believed, would indicate that respondent himself was not accurately representing his impairment. Based on the testimony, his examination of the surveillance films and his own observations of both physicians and respondent at the hearing, the original AU ruled that respondent had no permanent physical impairment. We find that under such circumstances, the actions of the AU in rejecting the 5% permanent impairment recommended by the AMA guides was proper. Accordingly, the opinion of the Court of Appeals is vacated. The Decision Upon Review and Award, dated February 28, 1984, is set aside and the Decision Upon Hearing, dated December 28, 1983, is hereby reinstated. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.

OPINION HOWARD, Presiding Judge. Petitioner’s special action challenges the trial court’s denial of its motion for summary judgment. Since the denial of a motion for summary judgment is a non-appealable order and because the trial court failed to perform a duty required by law as to which he had no discretion, we assume jurisdiction and grant relief. On March 17,1984, Walter E. Melton, the real party in interest, was driving northbound on U.S. Highway 89 in Oro Valley. At the intersection of U.S. 89 and El Conquistador Way, his vehicle collided with a car driven by Kathleen Trighis who was attempting to, or waiting to, make a left turn at the intersection from El Conquistador Way south onto U.S. 89. Trighis filed suit against Melton for personal injuries. Melton filed a third-party complaint against petitioner and then sought leave to amend his complaint to add the Arizona Department of Transportation (ADOT) and Sheraton Corporation Inc. as third-party defendants. On December 3,1985, petitioner filed a motion for summary judgment which the respondent court denied by minute entry order dated February 11, 1986. To recover in his negligence action against petitioner, the real party in interest must be able to show that it owed him a duty, that petitioner failed to perform the duty and that such failure proximately caused his injury. Arizona Public Service Company v. Brittain, 107 Ariz. 278, 486 P.2d 176 (1971). Whether such a duty exists is a question of law for the court, Griffith v. Valley of Sun Recovery and Adjustment Bureau, Inc., 126 Ariz. 227, 613 P.2d 1283 (App.1980), and may be determined on a motion for summary judgment. Here, our review of the record establishes that petitioner had no jurisdiction over the stop sign in question and thus owed no duty to the real party in interest. Mr. James Kreigh, engineer for the Town of Oro Valley, stated by affidavit and by deposition that at no time did petitioner take part in the design, construction, main tenance or placement of any traffic control devices in question. He also testified that the stop sign in question was placed within U.S. 89’s right-of-way and thus was under the exclusive jurisdiction of ADOT. Mr. Richard Buchanan, traffic technician for ADOT, testified that it was normal procedure for a work order from his department to direct work being done within his department’s right-of-way and such a work order existed for the intersection in question. Mr. Buchanan confirmed that the sign was installed within ADOT’s right-of-way and by ADOT personnel. Additionally, Melton himself admitted that ADOT had direction, provision and control of the intersection and was charged with the duty to locate, design, construct and maintain state highway routes within that area. Melton argues that since El Conquistador Way was dedicated to petitioner, a duty owed by petitioner to the public was created. Melton has presented no authority for the proposition that the mere dedication to petitioner gave rise to a public duty regarding the intersection. At trial, he intend to call Mr. David Beaufort, an expert in highway design and safety, who apparently will testify that the dedication of a street to a town creates a responsibility to the public for maintenance and control of the street. However, such a conclusory statement from Beaufort, who is not an expert in the legal interpretation of the dedication of roadways, does not create a dispute as to a material fact such as to prevent summary judgment. The ease law in Arizona holds contrary to Beaufort’s opinion. See State ex rel. Herman v. Cardon, 112 Ariz. 548, 544 P.2d 657 (1976); City of Scottsdale v. Mocho, 8 Ariz.App. 146, 444 P.2d 437 (1968). Petitioner did not assume any responsibility for the location or maintenance of the intersection in question. Since the intersection was outside petitioner’s jurisdiction, petitioner owed no duty to the third-party plaintiff Melton or to any other person' and Melton’s negligence claim against the town has no. basis. The trial court’s order denying petitioner’s motion for summary judgment is vacated and the court is ordered to enter an order granting petitioner’s motion. Relief granted. HATHAWAY, C.J., and FERNANDEZ, J., concur.

CAMERON, Justice. This matter, transferred from the court of appeals pursuant to Rule 19, Ariz.R.Civil App.P., 17A A.R.S., was brought by the Tucson City Court and its Chief Magistrate, The Honorable Ann Bowen, challenging an adverse ruling by the Pima County Superior Court and The Honorable Lillian Fisher, Judge. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3). We must decide only two issues: 1. Whether a policy of the Chief City Prosecutor that requires all Deputy City Prosecutors to routinely disqualify a certain City Court Magistrate, the Honorable Fernando Fajardo, in all DUI (driving while under influence of intoxicating beverages) cases is an abuse of Rule 10.2 of the Rules of Criminal Procedure, 17 A.R.S. 2. Whether the Chief Magistrate of the Tucson City Court exceeded her authority in requiring that Deputy City Prosecutors avow that they acted in the exercise of their independent professional judgment before being allowed to file a Rule 10.2 motion to peremptory disqualify Magistrate Fajardo. The facts are not in dispute. In September 1984, the Chief City Prosecutor of Tucson promulgated a policy requiring all city prosecutors to disqualify Magistrate Fajardo in any proceeding involving DUI. On 15 October 1984, the Tucson City Court Chief Magistrate, Ann Bowen, issued an order in response to this policy. In her order, Chief Magistrate Bowen set forth statistics on the number of challenges to Magistrate Fajardo during the previous three-week period. During that period 258 Notices of Change of Judge were filed by city prosecutors against Magistrate Fajardo compared to fewer than 50 Notices of Change of Judge filed in Pima County Superior Court during the previous six month period. Chief Magistrate Bowen concluded by ordering that: each and every Request for Change of Judge filed by the city prosecutor today and in the future, is likewise DENIED ... without examination of the individual defendant’s files until such time as proof by avowal of each individual Assistant City Attorney who files such request for counsel that such Request is being filed as an act of independent exercise of professional judgment by the attorney making the Request for Change of Judge and not as a result of an order to engage in the “policy” which has the appearance of being part of an invidiously discriminatory pattern. Although the order was not made public a copy of the order was sent to the Chief City Prosecutor William Call. Thereupon, the Chief City Prosecutor brought a special action in superior court contesting the order. The City Prosecutor in his petition to the superior court stated the policy as follows: V Commencing on or about September 24, 1984, Petitioner by and through Tucson City Prosecutor’s Office, began exercising its peremptory rights, pursuant to Rule 10.2, Rules of Criminal Procedure, 17 A.R.S., to require a change of judge in all DUI cases which were set or were to be set before Hon. Fernando Fajardo, Magistrate of the City Court. VI The reasons for the implementation of this policy were that Judge Fajardo had consistently been ruling against the State in an arbitrary and capricious manner, both in pretrial motions, and at trial. The city court response contained the uncontested affidavit of Magistrate Fajardo which stated: 4) That as a result of the office policy of filing notice of change of judge against me, I have had several meetings with City Attorney’s office officials. 5) One such meeting was held with Mr. William Call and Mr. Frank Kern of the City Prosecutor’s office. A subsequent meeting was held with Mr. Fred Dean and Mr. Call in the presence of Council members, Rudy Bejerano and Charles Ford. 6) That it has been made clear to me at the several meetings that the purpose of the notices of change of judge was to “re-educate me”. That is, that the first time period of notices of change of judge that were filed was done to make a point that I would not be allowed by the City Prosecutor to hear cases unless my approach to the law changed. I was told that it was felt that the short period of notices of change of judge was “sufficient” to teach me my lesson. 7) I was specifically advised by Mr. Call that the first period of notices of change of judge “didn’t do any good” and as a consequence, as a matter of office policy, notices of change of judge were once again filed against me in DWI cases. 8) I have been advised by officials of the City Prosecutor’s office that the notices of change of judge “will not go on forever” but that as my manner of ruling changes I will be “permitted” once again to sit as a Magistrate on DWI cases. After an evidentiary hearing, Judge Lillian Fisher ruled that the order of the Chief City magistrate should be vacated. The City Court of the City of Tucson and the Honorable Ann Bowen filed a notice of appeal to the court of appeals. We transferred the case from the court of appeals to this court pursuant to Rule 19, Ariz.R.Civil App.P., 17 A A.R.S. WAS THE POLICY AN ABUSE OF THE RULES OF CRIMINAL PROCEDURE? The Arizona Rules of Criminal Procedure, 17 A.R.S., set forth a two-procedure scheme for judge disqualification. Pursuant to Rule 10, a judge can be disqualified either for cause, Rule 10.1,, or peremptorily, Rule 10.2. Rule 10.1 requires a party to file a motion verified by affidavit, alleging that the party cannot get a fair and impartial hearing because the assigned judge is biased and prejudiced and specifically alleging the grounds for such a belief. If the motion is timely filed, then the presiding judge shall provide for a hearing on the allegations of bias and prejudice. By contrast, Rule 10.2 permits a party to disqualify a judge for no cause or reason. Under Rule 10.2, a party may exercise his right to a change of judge merely by filing a pleading entitled “Notice of Change of Judge.” No allegation of bias or prejudice is required by Rule 10.2. See State v. Keel, 137 Ariz. 532, 534, 672 P.2d 197, 199 (App.1983). Arizona is part of a minority of three states, along with Indiana and North Dakota, with such a “liberal” rule of disqualification. See Note, Peremptory Challenges of Judges: The Arizona Experience. Law and the Social Order 1973:95. Since the issue in the instant case involves peremptory challenges, we will focus only on Rule 10.2. Once the Notice of Change of Judge has been filed, the procedure under Rule 10.2 is summary and automatic. If the Rule 10.2 request has been filed timely, then “the case shall be transferred immediately to the presiding judge who shall reassign the case to a new judge.” Rule 10.5. Once the notice has been filed, the challenged judge may not proceed further in the action, except to make temporary orders as are necessary in the interest of justice before the action is transferred to the presiding judge. Rule 10.6. Rule 10.2 on its face applies only to cases in the superior court. We have, however, extended the applicability of Rule 10.2 to non-record courts such as the Tucson City Court. Cain v. City Court of City of Tucson, 135 Ariz. 96, 98, 659 P.2d 649, 651 (1983). The right of a criminal defendant to a change of judge without cause is zealously protected and on the basis of fairness extended beyond the superior court. State v. Keel, 137 Ariz. at 534, 672 P.2d at 199 (App.1983). It is clear that city prosecutors have the authority under Rule 10.2 to challenge Magistrate Fajardo peremptorily. We believe, however, that the exercise of peremptory challenge by the City Prosecutor in the manner and for the reasons described herein was an abuse of the Rules of Criminal Procedure for two reasons. First, the procedure infringed upon the obligation of each Deputy City Prosecutor to exercise his or her individual professional judgment on a case by case basis. The admitted policy here was to require each deputy as a matter of policy to exercise peremptory challenge to Magistrate Fajardo, regardless of whether the attorney handling the case believed this was mandated. As the Washington Supreme Court has noted: In our view, this fixed formula which requires a particular action in every case upon the happening of a specific series of events constitutes an abuse of the discretionary power lodged in the prosecuting attorney. State v. Pettitt, 93 Wash.2d 288, 296, 609 P.2d 1364, 1368 (1980) (emphasis in original). Second, the policy amounted to an improper attempt to influence a judge in his judicial decisions. The effect of this policy was to bring pressure upon Magistrate Fajardo. We agree with the dissenting opinion of Justice Tobriner of the California Supreme Court who stated: In my view, the use of “blanket” challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality. Solberg v. Superior Court, 19 Cal.3d 182, 205, 137 Cal.Rptr. 460, 475, 561 P.2d 1148, 1163 (1977), (TOBRINER, J., dissenting). The hope of the City Prosecutor was that Judge Fajardo would make rulings favorable to his client. This is always the hope of an advocate and it can most often be realized by adequate preparation and professional exercise of a lawyer’s skills. The Tucson City Prosecutor’s policy with its attendant effects was an attempt to intimidate not only Magistrate Fajardo but by example the entire Tucson City Court. As such the policy was an abuse of the rules and a threat to the independence and integ rity of the judiciary which cannot be allowed. We hold that the blanket order of the City Prosecutor that Magistrate Fajardo be peremptorily challenged was not only an improper restriction on the professional independence of the deputy city prosecutors as well as threatening the independence of the judiciary, but an abuse of Rule 10.2 which significantly frustrated its purpose. CHIEF CITY MAGISTRATE’S ORDER We now turn to the issue of whether the Chief Magistrate had the authority to require all city prosecutors to make an avowal of good faith when they filed a Notice of Change of Judge. We believe she did not. The effect of the order of the municipal court was to create a local rule of court. We have stated: Following the adoption of the amended 1960 state constitution, this court was given exclusive power to make rules relative to all procedural matters in any court. Ariz. Const., art. 6, § 5, Subsec. 5, added 1960; State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969). We have held that this rule-making power may not be supplemented or superseded by a Superior Court. Anderson v. Pickrell, 115 Ariz. 589, 566 P.2d 1335 (1977). We reenforced this constitutional position when we adopted Rule 36, Arizona Rules of Criminal Procedure, 17 A.R.S. (1973): “Any court may make and amend rules governing its practice not inconsistent with these rules. No such rule shall become effective until approved in writing by the Supreme Court.” This rule allows adoption of local rules of practice and procedure, but only with our approval. Since we did not approve the guidelines, they did not become effective. Rule 36, supra. Hare v. Superior Court, 133 Ariz. 540, 542, 652 P.2d 1387, 1389 (1982). In the instant case, the court required the prosecutor to make an avowal of good faith and independent professional judgment before they could avail themselves of the right of a peremptory challenge to the judge. The order was in effect a local rule which was not approved by this court and is of no force and effect. See also Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984). CHARGES OF UNETHICAL CONDUCT We note the allegations of unethical conduct made by both the city prosecutor and the city magistrate. The allegations added little to this case and have instead detracted from the presentations of the parties. If there are in fact ethical violations, there are proper forums other than this one to consider these violations. We would omit comment on these allegations of ethical violations, but for the fact that our disposition of this case is contrary to the City Prosecutor’s view of what is judicial misconduct and we therefore speak on that issue. The City Prosecutor in his brief and statements contended that the City Magistrate acted unethically by having the order affect only the prosecutor and not the public defender. At oral argument the City Prosecutor stated: Mr. Call: I would also like to say that this Order No. 2 is also in violation of Judiciary Ethics Cannon No. 2 in that it is not impartial and that it also only goes to the State. It does not affect the defense bar. We disagree with the city prosecutor. Fairness and impartiality does not mean that every criminal rule must be symmetrically or equally applied to both the defendant and the prosecution. The difference is that prosecutors have a duty to do justice, A.B.A. Standards for Criminal Justice § 3-1.1 (1980), and defense attorneys have a duty to represent their clients within ethical constraints, A.B.A. Standards for Criminal Justice § 4-1.1 (1980). Because of the nature of the criminal law, the rules cannot in all cases be applied on a one-for-one basis. We could, for example, grant the defendant a right to peremptory challenge of a judge and not give that same right to the prosecutor. Indeed, some states do give this right to the defendant only and not to the state. See, for example, Smith-Hurd Illinois Annotated Statutes, Chapter 38, § 114-5(a) and Wisconsin Rules of Criminal Procedure 971.20(2). We find no ethical, legal or constitutional problem in denying the right to peremptory challenge to the state while not applying it to the defense. This is especially true where as here the abuse of the rule by the state is readily apparent and abuse by the defendant is not. DISPOSITION The Supreme Court has the rule-making power for all courts in the state. State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969). This rule-making power allows the court to monitor the use of its rules and encompasses the power to suspend the application of the rules where the ends of justice require. Therefore, as to pending cases, it is ordered dismissing all requests for peremptory change of judge directed at Judge Fajardo made by the City Prosecutor or his deputies. As to future cases, if the City Prosecutor does not terminate his policy of peremptorily challenging Judge Fajardo in all DWI cases, then we will be forced to suspend indefinitely the availability of Rule 10.2 to the City Prosecutor until such time as we are satisfied that the rule is not being abused by the City Prosecutor or his deputies. GORDON, V.C.J., and FELDMAN, J., concur. HAYS, J., did not participate in the determination of this matter.

OPINION KLEINSCHMIDT, Judge. This is an appeal from a judgment for the plaintiff in a defamation action. As required by Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), we must examine the entire record and make an independent decision as to whether there is clear and convincing evidence to support a finding of malice. The case also presents questions about evidentiary rulings, jury instructions, misconduct of counsel, excessiveness of the verdict, and the trial court’s denial of a judgment notwithstanding the verdict. A decision on this last issue is, of course, intertwined with the duty prescribed by Bose. Dennis R. Starkins, who was a Captain in the Phoenix Fire Department, brought this defamation action against Jerry Bateman, Henry Alcott, and Michael Soock, who were his subordinates in the fire department. The defendants had reported to their superiors and repeated to others that Starkins was stealing city gasoline for his personal use from a pump at the fire station where he worked. These charges formed the primary basis for the termination of Starkins’ employment with the fire department. The City of Phoenix was also named as a defendant because the defamatory remarks were made by the individual defendants in the course and scope of their employment. No question is raised on appeal as to the propriety of holding the city to answer. Michael Soock was dismissed from the lawsuit prior to trial and is not a party to this appeal. Starkins sought damages for the loss of his job, emotional suffering, the destruction of his marriage, and harm to his reputation. The jury returned a verdict in favor of Starkins and against Bateman and the City of Phoenix in the amount of $450,000 and against Alcott and the City of Phoenix in the amount of $450,000. The jury also assessed punitive damages against Bate-man in the amount of $20,000 and Alcott in the amount of $10,000. The defendants filed a motion for judgment n.o.v. or in the alternative for a new trial. They also filed a motion for a remittitur. The court denied the motion for judgment n.o.v. or new trial and granted the motion for remittitur only as to punitive damages. The court reduced punitive damages to $4,000 against Bate-man and to $2,000 against Alcott. The defendants have filed a timely notice of appeal. An overview of the evidence is of assistance in understanding the issues. Captain Starkins and Fire Fighter Bateman were assigned to the same shift at Fire Station 33. Over a period of time they developed a bitter antipathy for each other. On December 17, 1979, following a disagreement that arose out of Bateman’s conduct on an emergency call the two men argued, and Starkins said to Bateman “You are out.” Based upon prior discussions between the two, this statement was understood to mean that Bateman would have to transfer from Station 33. Soon thereafter Bateman told another fire fighter, defendant Henry Alcott, that Starkins was stealing gasoline and that he, Bateman, thought somebody else should know about it. According to Bateman, he first saw Star-kins steal gas in October or November of 1979. Then, on December 11,1979, he saw Starkins near his van with the nozzle to the fire station’s gas pump in his hand. Later the same day Starkins confided to Bateman that he had taken some gas and he told Bateman to charge the gas in the gas log to a city vehicle. Bateman said that again, on December 20, Starkins told him that he was going to take some gas. It was then that Bateman told Alcott and another fire fighter, Mike Soock, that Starkins was stealing gas from the city. Bateman, Alcott and Soock decided to keep a watch on Starkins and, according to Bateman, after they all returned from an emergency call on the evening of December 23, Starkins stole some more gas. On that occasion Starkins’ vehicle had been parked near the gas pump, and when Bateman checked the meter on the pump, he determined that 18 gallons were missing. He checked the gasoline log and found that a false entry had been made in the log to cover the missing amount. Shortly after-wards he reported these alleged thefts to the other captain assigned to Station 33. Henry Alcott testified that Bateman first told him on December 20, 1979, that Star-kins was taking gasoline. He said that he saw Starkins’ van parked near the pump on that day, that the gas tank cap was off, and the van’s fuel gauge was on empty, leading him to conclude that Starkins was intending to take some gas. On December 23, he kept tabs on the gas meter and corroborated Bateman’s version that there was an 18 gallon discrepancy after Starkins moved his van away from the pump. The third accuser, Michael Soock, said that on December 20, he looked out the window of the station and saw Starkins standing near his van with the nozzle to the gas pump in his hand. He also corroborated that the pump reading showed an 18 gallon discrepancy on December 23. For his part, Starkins flatly denied ever stealing any gasoline or admitting as much to Bateman or anyone else. While his honesty was impugned by evidence that he had once stolen the answers to the battalion chief’s examination and that he had indicated on a promotion application that he had a master’s degree when in fact the degree had not been awarded, a number of witnesses testified that they considered him to be honest. DENIAL OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT The defendants argue that Starkins produced no evidence to support the elements of actual malice, that is, that he had produced no evidence that defendants knew their accusations were false or that they acted in reckless disregard of the truth. Normally, in determining whether the trial court should have directed a verdict, this court must view the evidence and inferences therefrom in a light most favorable to the party opposing the motion. Rocky Mountain Fire and Cas. Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 292, 640 P.2d 851, 854 (1982); Bailey v. Montgomery Ward & Co., 6 Ariz.App. 213, 217-18, 431 P.2d 108, 112-13 (1967). Putting aside the standard of review dictated by Bose for the moment, we find the evidence more than sufficient to create jury issues concerning whether Bateman and Alcott acted with actual malice. The evidence with respect to Bateman’s acting with malice included the following: Dennis Starkins testified that Bateman deliberately lied by stating that Starkins had stolen gasoline and had asked Bateman to alter the gas records to conceal the stealing; Starkins testified that Bateman deliberately lied by suggesting to others that Starkins had confided in Bateman on a number of occasions about prior incidents of stealing gasoline; Bateman repeated statements that Starkins was stealing gasoline not merely to his superiors but also to his “close friends”; there was a long history of ill will between Bateman and Star-kins; Starkins introduced evidence tending to show that Bateman pumped gas through the meter of the gas tank back into an underground tank to deliberately frame Starkins; in spite of testimony that vehicles other than Starkins’ van could have removed gasoline from a tank on the evening in question, Bateman nevertheless told his superiors that it was “totally im possible” because of the position of Star-kins’ van for any other vehicle to have obtained fuel at that time; Bateman failed to “dip the tank” on the evening in question to determine whether in fact any gasoline had been taken out of the underground tank; and Bateman was aware that there was a long history of poor record keeping with respect to fire department gasoline and that fire department personnel often “juggled the books” to make them balance. Both Bateman and Alcott gave inconsistent statements on different occasions, and their testimony did not always coincide on material points. For example, Bateman could not recall that Star-kins had confided to him on December 23 that he was going to steal gas, but he conceded that in earlier statements he had reported such a conversation and had variously said on one occasion that it had occurred after lunch, and on another that it had taken place later in the evening. Bate-man had previously given a statement in which he said that he, Alcott, and Soock had all observed a false entry in the gas log on December 23, but at trial he could not say that such was the case. He related in an earlier statement that the other captain assigned to Station 33 first approached him about discrepancies in the gas log. The captain in question contradicted this statement and Bateman, at trial, was not sure which version was correct. He could not remember saying to Chief James A. Walker that “we all steal from the city” although Walker clearly testified that Bate-man said this on an occasion when he was remarking to Walker that he hoped that Starkins got what he deserved. Henry Alcott, in various statements, gave conflicting testimony about when on December 23 he checked the meter on the gas pump. He gave conflicting statements about how long the van was parked by the pump. Evidence was introduced to show that it would have been difficult for Mike Soock to have seen Starkins from the fire house window in a position near the gas pump. Taken together there was sufficient evidence to show that Bateman acted either knowing that his accusation was false or with reckless disregard for the truth. Appellants contend that the only evidence of Alcott having acted in reckless disregard for the truth was that he failed to conduct a full investigation to establish whether Starkins had in fact stolen gasoline. They contend that an investigatory failure alone is insufficient to raise an issue of actual malice. See Ross v. Gallant, Farrow & Co., 27 Ariz.App. 89, 91, 551 P.2d 79, 81 (1976). However, there was evidence of more than Alcott’s failure to investigate thoroughly. For example, there was testimony that Alcott was aware of the history of ill will between Bateman and Starkins and that he unreasonably relied upon Bateman’s allegations based on slight circumstantial evidence. Additionally, Alcott was aware that on the evening in question someone other than Starkins could have taken gas from the pump. Further, Alcott knew or should have known that because of the bad relations between the two men it was highly unlikely that Star-kins had admitted a theft to Bateman as Bateman claimed. Nevertheless, he relied on Bateman and reported to his superiors and others that Starkins had stolen gasoline. Additionally, even after admitting that he had been mistaken about material statements to his superiors, he did not retract those statements. In summary, Alcott made his charges based on an unreliable source where there were obvious reasons why he should not have believed that source. Recklessness may be found where there are obvious reasons to doubt the truthfulness of the informant and the accuracy of his statements. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262, 267-68 (1968). Indeed, given the inconsistencies in the testimony, the evidence as a whole would support the conclusion that Bateman and Alcott conspired to lie about Starkins stealing gasoline for the purpose of causing Star-kins to be fired. We find no error in the trial court’s refusal to grant judgment notwithstanding the verdict in favor of Bate-man and Alcott. BOSE REVIEW We must review the record independently to determine whether there was clear and convincing evidence of malice. This is a duty imposed by Bose Corp. v. Consumers Union of United States, Inc. Bose involved an article published in Consumer Reports describing a sound amplifying system manufactured by the Bose Corporation. The article said that the amplifier caused the sound of individual musical instruments to wander “about the room.” The author of the article testified that when he listened to the system the sound of instruments heard through the speakers tended to wander “along the wall.” Based on this distinction the trial court found that the article contained a false statement of fact and concluded that the plaintiff had sustained its burden of proving that the respondent had published it with malice, that is, with knowledge that it was false or with reckless disregard as to its truth or falsity. The court of appeals reversed, holding that its review of the “actual malice” determination was not limited to the “clearly erroneous” standard of Federal Rule of Civil Procedure 52(a), which provides that findings of fact by the trier of fact shall not be set aside unless clearly erroneous and that due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. The court of appeals, based on its independent review of the record, concluded that the plaintiff had not sustained its burden of proof. The Supreme Court concluded that Rule 52(a) does not prescribe the standard to be applied in reviewing a determination of actual malice. Because of the overriding importance the First Amendment attaches to free expression, an appellate court must exercise independent judgment to determine if the record establishes actual malice with convincing clarity. Undertaking that task, the Supreme Court concluded: Here, however, adoption of the language chosen was ‘one of a number of possible rational interpretations’ of an event ‘that bristled with ambiguities’ and descriptive challenges for the writer. Time, Inc. v. Pape, [401 U.S. 279, 290, 91 S.Ct. 633, 639, 28 L.Ed.2d 45, 53, reh. den. 401 U.S. 1015, 91 S.Ct. 1248, 28 L.Ed.2d 552 (1971)]. The choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella. Bose, 466 U.S. at 512, 104 S.Ct. at 1966, 80 L.Ed.2d at 525. The proper scope of review expected of appellate courts under Bose is currently the subject of hot debate. The United States Court of Appeals for the District of Columbia Circuit gave the matter extensive consideration in Tavoulareas v. Piro, 759 F.2d 90, vacated for rehearing en banc, 763 F.2d 1472 (D.C.Cir.1985). A final decision in Tavoulareas is now pending. While we do not rely on Tavoulareas as precedent, there is much in the majority opinion that we find persuasive. The question that is so perplexing is how an appellate court should treat decisions that rest upon an assessment of the credibility of witnesses, particularly where the versions of what occurred are in direct conflict. Should an appellate court defer to the finder of fact’s assessment of the underlying facts, or should it undertake a de novo evaluation of the entire case, in the process making its own determination as to who was lying and who was telling the truth? We believe that in a case of this nature it is our duty to review the entire record and determine whether the ultimate facts clearly support a finding of malice. In doing so we must take into account all of the facts, but where the finder of fact has made a choice between who is lying and who is telling the truth, we must defer to that choice unless such a finding is clearly erroneous. Several things suggest this result. First, the Supreme Court did not, in Bose, specifically hold that an appellate court must review each fact necessarily or impliedly found by the trier of fact and decide whether there is clear and convincing evidence to support each fact. It only clearly held that the import of such facts as found by the trier of fact must support, by clear and convincing evidence, the ultimate fact, that is, the existence of actual malice. Second, the majority opinion in Bose said that the proper standard of review must be faithful to both Rule 52(a) and to the rule of independent appellate review first applied in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), thus implying that an appellate court need not make an independent decision that the evidence supporting each and every underlying fact is clear and convincing. This analysis applies to Rule 52(a), Arizona Rules of Civil Procedure, which is identical to the federal rule. Third, the majority in Bose noted that it could accept all of the trial court’s purely factual findings and nevertheless hold that the record did not contain clear and convincing evidence of malice, again implying that the appellate court need not make an independent decision that the evidence supporting each and every underlying fact is clear and convincing. We are reluctant to interpret Bose as requiring us to undertake a de novo review of the record to determine whether the underlying facts which support the verdict were established by clear and convincing evidence. An appellate court is not equipped to make such a review effectively, and to do so would entirely displace the function of the jury in defamation cases. Instead, we have undertaken a complete and independent review of the trial record to determine whether the ultimate facts are clearly and convincingly sufficient to establish malice. Given the standard we have adopted, the issue is easily resolved in this case. The jury necessarily found that Bateman lied when he said that he saw Starkins at various times with the gas hose in his hands near his van, that Starkins falsified the gas log, and that Starkins admitted that he stole gas. These facts clearly prove malice. It is highly probable that the jury also found that Alcott lied, particularly in describing what he saw on December 20 with respect to Starkins with the gas nozzle in hand, the gas cap off the van, and the empty tank. Even assuming that the jury only found that Alcott acted with a reckless disregard for'the truth, we believe, under all the circumstances, that such finding and conclusion clearly and convincingly constitute malice. HEARSAY OBJECTIONS Starkins called numerous character witnesses. The appellants contend that the trial court erred by permitting these witnesses to testify that (1) Starkins’ marriage had been destroyed, that he had suffered emotionally, and that he was unable to obtain employment as a result of the defamation, and that (2) Starkins had told them that he did not steal gasoline. They argue that the testimony was offered and received to prove the truth of the matters asserted and was thus inadmissible hearsay. They further contend that the cumulative effect of this testimony was highly prejudicial. The appellants cite six specific portions of the trial transcript in which Starkins’ character witnesses were asked whether Starkins had told them that he had stolen gas. A review of the record indicates that on four of these occasions, no timely objection was made to the testimony. The first objection to testimony concerning Starkins’ denial of the theft occurred during the testimony of Sandy Starkins, the plaintiff’s former wife. Counsel objected when Ms. Starkins was asked, “In all the time since December of 1979, has Dennis ever told you anything which would indicate to you that he stole gas on December of 1979?” The witness had previously been asked, “During the entire time of your marriage, did Dennis say even one word which would lead you to believe he ever took any gas, one ounce of gas from the City of Phoenix?” This was asked and answered negatively without objection. Appellants assert that since the original question to Sandy Starkins was not offered to prove the truth of the matter it was not hearsay. They argue, however, that when the question was asked the second time, it was clear that counsel was trying to elicit substantive hearsay evidence that the gas stealing allegations were not true. However the record is characterized, if hearsay evidence is admitted without objection it becomes competent evidence admissible for all purposes. See State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982); Wescott v. Glowenski, 12 Ariz.App. 393, 397, 470 P.2d 713, 717 (1970). See generally Udall & Livermore, Law of Evidence (2d ed.) § 12 at 16 (1982). The reception of inadmissible evidence that has at some other point been admitted is harmless error. See Rule 61, Arizona Rules of Civil Procedure; State v. Stone, 104 Ariz. 339, 343, 452 P.2d 513, 517 (1969). Inspiration Consol. Copper Co. v. Bryan, 31 Ariz. 302, 306-07, 252 P. 1012, 1014 (1927); Shute v. Fidelity Savings & Loan Ass’n, 21 Ariz. 111, 115, 185 P. 646, 647 (1919). Following Sandy Starkins’ testimony, two other witnesses testified without objection that Starkins had never admitted the alleged theft. The appellants contend that having once made an objection, there was no reason for them to continue to object to the sanie line of questioning in order to preserve the issue for appeal. The record reflects, however, that the original objection was not an indication to the court that there was a continuing objection to a particular line of questioning or that the court accepted it as such. In fact, defense counsel later opened up this area himself on cross-examination of Evan Paoletti, one of Starkins’ witnesses. The controlling question is whether the objectionable matter was brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived. State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975). The fact that defense counsel wanted to make a continuing objection to a certain class of evidence was not clear until later proceedings in chambers. Having failed to object when the testimony was elicited or having failed to advise the court that the objection was a continuing one, appellants’ later objections were untimely. Thus, they cannot now assert the admission of this testimony as reversible error. See Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 214, 693 P.2d 348, 357 (App.1984); Zakroff v. May, 8 Ariz.App. 101, 106, 443 P.2d 916, 921 (1968). The only testimony to which defendants made a timely objection was the testimony of James E. Walker who was asked, “Has he [Starkins] ever told you that he stole the gas?” The court overruled the hearsay objection without explanation. By the time Walker testified, three witnesses had testified without objection that Starkins either never admitted the theft or denied it outright. Following Walker’s testimony, appellants’ counsel made a record in chambers objecting to all testimony of prior witnesses with respect to what Starkins had told them about the theft. Counsel requested that the testimony be stricken and moved for a mistrial. Starkins’ counsel argued that opposing counsel was making a general objection where individual objections should have been made at the time the testimony was elicited. He further contended that the statements were not hearsay pursuant to Rule 801(d), Arizona Rules of Evidence. The court denied the motion for mistrial holding that the statements were admissible pursuant to Rule 801(d)(1) and Rule 803(24), Arizona Rules of Evidence. The trial judge informed both counsel, however, that he would probably consider subsequent testimony as to out-of-court statements made by Starkins as hearsay and would rule on them on an objection-by-objection basis. Leaving the question of admissibility aside, we again emphasize that at this point only Walker’s testimony had been admitted over a timely objection. Although the court had informed counsel of the necessity to rule on an objection-by-objection basis, appellants’ counsel nevertheless failed to make an objection on a later occasion when similar testimony concerning Starkins’ denial of the theft was later introduced. In this context we must determine whether the admission of Walker’s testimony constitutes reversible error. We agree with appellants that neither Rule 801(d)(1) nor Rule 803(24) of the Arizona Rules of Evidence provides a basis for admitting Starkins’ denial of the theft. Rule 801(d), Arizona Rules of Evidence provides in part: Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; ... Appellants correctly point out that Star-kins’ denial of stealing gas is not inconsistent with his trial testimony and thus not admissible under Rule 801(d)(1)(A). Further, even if there had been a charge of recent fabrication or improper motive, the statements to Walker occurred after the motive to fabricate arose, that is, after charges of theft were made. To be admissible under Rule 801(d)(1)(B), the statements must have been made before the motive to fabricate arose. See State v. Martin, 135 Ariz. 552, 554, 663 P.2d 236, 238 (1983). Likewise, we find no basis for admissibility pursuant to Rule 803(24) which provides: 24. Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that A. the statement is offered as evidence of material fact; B. the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and C. the general purposes of these rules and the interest of justice will be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. This exception requires the proponent to make such testimony known to the adverse party in advance of trial. Starkins apparently concedes that no such advance notice was given. Thus, Walker’s testimony was not admissible under Rule 803(24). Further, the trustworthiness of an individual’s assertions of innocence are highly suspect. See State v. Spratt, 126 Ariz. 184, 187, 613 P.2d 848, 851 (App.1980); State v. Duffy, 124 Ariz. 267, 275, 603 P.2d 538, 546 (App. 1979). Nevertheless, we find no reversible error. Assuming Walker’s testimony was inadmissible, testimony that Starkins had denied the theft to his friends had been elicited on five other occasions without objection or without timely objection. Similar testimony was elicited without objection after Walker testified even though the trial judge had informed counsel that he would rule on such testimony as it arose. If error, we find that the admission of Walker’s testimony was harmless. See Siegrist v. Carrillo, 112 Ariz. 218, 221-22, 540 P.2d 690, 693-94 (1975); Snyder v. Beers, 1 Ariz.App. 497, 501, 405 P.2d 288, 292 (1965). Appellants also allege error in the introduction of testimony from Starkins’ character witnesses to the effect that Starkins’ marriage had been destroyed, that his emotional and mental state was in shambles, and that he was unable to obtain employment as a result of the defamation. This objection was not made until the proceedings in chambers we have referred to above. It was not made with respect to any particular witness’ testimony at the time the testimony was elicited. Further, only in their reply brief do the appellants specifically indentify the testimony they contend is hearsay. Some of the testimony with respect to Starkins’ emotional and mental state and the destruction of his marriage are based on the witnesses’ observations of Starkins and his family. Witnesses have a right to testify about their opinions concerning the mental condition of a party. See generally, Udall & Livermore, Law of Evidence, (2d Ed.) § 21 (1982); see also Rules 601 and 701, Arizona Rules of Evidence. When counsel made a general objection in chambers to all testimony from witnesses concerning Starkins’ inability to get a job and the breakup of his marriage, it was too late to separate direct observation from alleged hearsay. Under these circumstances the objection was untimely, and even assuming that the testimony was improper, the error was waived. JURY INSTRUCTIONS Appellants next contend that the trial court erred in failing to give their proposed instructions concerning Starkins’ status as a “public official” and defendants’ “qualified privilege” to report suspicions of theft to their superiors. They argue that these were separate defense theories and that they were entitled to jury instructions on each. The parties agree with the trial court’s pretrial ruling that Starkins was a public official as a matter of law and that appellants’ statements to their superiors gave rise to a qualified privilege. The parties also agree that if the plaintiff in a defamation case is a public official or if defendants in a defamation case have a qualified privilege to make a statement, the test for proving defamation is identical; the plaintiff must establish by clear and convincing evidence that the publication was made with actual malice. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982). The trial court so instructed the jury. Nevertheless, appellants contend that the trial court’s instruction on “actual malice” was insufficient because they were entitled to an instruction telling the jury why actual malice was required both because Starkins was a public official and because they had a qualified privilege to report their suspicions to their superiors. We think it would have been preferable for the trial court to have included instructions along the lines requested by the appellants for the sake of fleshing out the theory of the case but we do not agree that the failure to do so in this case is reversible error. We find that the cases relied upon by appellants do not support their claim of entitlement to their requested jury instructions. They cite language in Schafroth v. Baker, 276 Or. 39, 553 P.2d 1046 (1976) that merely instructing on actual malice is insufficient to call the jury’s “attention to the need for some relationship between the defendants’ purpose and the purpose of the privilege,....” Schafroth, 276 Or. at 46, 553 P.2d at 1049. The holding in that case, however, was that the trial court committed error because malice was improperly defined. Appellants also contend that Russell v. Smith, 434 So.2d 342 (Fla.App.1983), stands for the broad proposition that in a defamation case a jury must be told that the plaintiff is a public official. In Russell, plaintiff was a police officer, and the court instructed the jury on the so-called “business privilege” or “common interest doctrine.” The jury was instructed to consider whether the statements were made by a person with an interest or a duty in the subject matter to another person with an interest or duty in the subject matter, making the statements therefore conditionally privileged. Under this instruction, the jury was free to find that there was no “common interest,” and therefore it could have concluded that no privilege existed and consequently would not have applied the proper test of whether the statement was made with “actual malice.” Had the jury been told that plaintiff was a “public official,” it would have been bound to apply the proper test. Both the Florida Court of Appeals and subsequently the Florida Supreme Court rejected plaintiff’s argument that refusal to instruct on the public official privilege was harmless error in that a finding of malice was implicit in the jury’s award of punitive damages. The test for malice for purposes of granting punitive damages is not necessarily the same as the New York Times’ test applicable to qualify a privilege. See Smith v. Russell, 456 So.2d 462 (Fla.1984). Unlike the situation in Russell v. Smith, the instant case does not involve the use of an improper test for malice. Appellants also rely upon Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1978) as authority that it is reversible error for the trial court to fail to instruct the jury on the existence of a qualified privilege because it deprives a jury of the opportunity to evaluate the occasion on which the statements were uttered and understand why it was necessary for them to consider the actual malice question. In Marchesi, however, the Maryland Court of Appeals held that the jury was instructed improperly on the test of “actual malice.” The case does not hold that failure to explain the reason for applying the test is per se reversible error. Finally, we note that appellants’ reliance upon Roscoe v. Schoolitz, 105 Ariz. 310, 464 P.2d 333 (1970), is likewise misplaced. The holding in Roscoe was that the court erred by instructing the jury that defendants had the burden of establishing the existence of a qualified privilege by a preponderance of the evidence. The court held that the jury should have been instructed that plaintiff had the burden of proving a lack of good faith in order to defeat the defense of a qualified privilege. Roscoe, 105 Ariz. at 314, 464 P.2d at 337. It does not hold that failure to instruct on the reasons for the existence of a qualified privilege is per se reversible error. Indeed, the appellants here enjoyed a relative advantage over the defendants in many of the cases they rely on because here, the question of the existence of the privilege was established by instruction for the jury. Appellants’ requested instructions would have required the court to explain two bases for charging jurors with the duty of finding the existence of actual malice by clear and convincing evidence. The purpose of jury instructions is to inform the jury about the issues of the case and give them guidance in deciding those issues. See Eldredge v. Miller, 78 Ariz. 140, 144, 277 P.2d 239, 243 (1954). Instructions must be considered as a whole; the test is whether, upon the whole charge, the jury will gather the proper rules to be applied in arriving at a correct decision. Kauffman v. Schroeder, 116 Ariz. 104, 106, 568 P.2d 411, 413 (1977). The court is not required to instruct the jury on every refinement in the law. Fridena v. Evans, 127 Ariz. 516, 522, 622 P.2d 463, 469 (1980); Hales v. Pittman, 118 Ariz. 305, 310, 576 P.2d 493, 498 (1978). As appellee points out, there are instances where juries are instructed without being told the reason for that instruction. See, e.g., Recommended Arizona Jury Instructions Negligence 2A (contributory negligence instruction in which the jury is not told that the reason for the instruction is that the instruction is required under the Arizona Constitution). The jury was correctly instructed that it had to find actual malice by clear and convincing evidence. We find no prejudice resulting from the trial court's failure to give defendants’ proposed instructions. Counsel for defendants was free to argue and did argue that it was the duty of his clients to come forward and report to their superiors. Thus, he was able to argue the underlying principles and the reasons for the instruction on malice. Appellants also contend that the trial court erred by failing to give their requested instruction number 4 which provided: I will instruct you on what the law defines actual malice to be. I now will instruct you, however, on what actual malice is not. Actual malice, as that term is used in these instructions, is not ill will, evil motive, spite, hostility or a deliberate intention to harm an individual. Defendants contend that this instruction would properly have advised the jury that alleged hostility and ill will existing between Bateman and Starkins could not prove the actual malice which was required in this case. However, ill will does present circumstantial evidence of actual malice which may be considered by the jury. See Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 250, 259 N.E.2d 651, 664 (1970); Cochran v. Indianapolis Newspapers, Inc., 175 Ind.App. 548, 559-60, 372 N.E.2d 1211, 1220 (1978). See generally Restatement (Second) of Torts § 580 A, comment d (1977). Appellants cite authorities which conclude that ill will, “standing alone” is not sufficient of itself to prove malice. See Ross v. Duke, 116 Ariz. 298, 301, 569 P.2d 240, 243 (App. 1976); Goldwater v. Ginzberg, 414 F.2d 324, 342 (2d Cir.1969). However, they do not hold that ill will is not evidence of actual malice. The instructions given to the jury defining malice were proper. We find no reversible error in the court’s refusal to give defendants’ requested instruction number 4. The instruction was unnecessary and even misleading in the sense that it implies that hostility, ill will, and evil motive could not be taken into consideration on the issue of actual malice. Finally, the appellants contend that the trial court erred by failing to give their requested instruction number 8 which defines the terms “clear and convincing.” In support of this proposition appellants cite Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 363 N.E.2d 240 (1977), where the Supreme Judicial Court of Massachusetts approved a jury instruction defining “clear and convincing” evidence in a defamation suit. Id., 372 Mass. at 587-88, 363 N.E.2d at 243-44. In the instant case, the court instructed the jury that “clear and convincing evidence” requires a higher degree of certainty than the preponderance of the evidence. We have expressly held that there is no need to define the terms “clear and convincing.” See Ulan v. Richtars, 8 Ariz. App. 351, 356, 446 P.2d 255, 260 (1968). See also Phoenix Newspapers, Inc. v. Church, 24 Ariz.App. 287, 296-97, 537 P.2d 1345, 1354-55 (1975). Accordingly, we find no reversible error in the trial court’s failure to give defendants’ requested instruction number 8. MISCONDUCT OF COUNSEL Defendants argue that plaintiff’s counsel erred in closing argument by attempting to show Bateman’s malice by examples of ill will and past disputes between Bateman and Starkins. As previously discussed, the existence of ill will was a factor which could be considered as circumstantial evidence as to the existence of actual malice. Additionally, great latitude should be given to counsel in closing arguments. See Pelayo v. Bell, 13 Ariz.App. 418, 419, 477 P.2d 537, 538 (1971); Tanner v. Pacioni, 3 Ariz.App. 297, 301, 413 P.2d 863, 867 (1966). An appellate court will normally defer to the trial court’s ruling on misconduct of counsel unless it is clear that the trial court has abused its discretion; absent an abuse of discretion resulting in a clear showing of prejudicial error, the ruling of the trial court will not be disturbed on appeal. See Taylor v. DiRico, 124 Ariz. 513, 518, 606 P.2d 3, 8 (1980); Taylor v. Cate, 117 Ariz. 367, 369, 573 P.2d 58, 60 (1977). We find no abuse of discretion in this case. DAMAGES Appellants’ final argument is that the jury awarded outrageously excessive damages. The amount of a damage award is a question peculiarly within the province of the jury, and it will not be overturned or tampered with unless the verdict was the result of passion and prejudice. Larriva v. Widmer, 101 Ariz. 1, 7, 415 P.2d 424, 430 (1966). The size of the verdict alone is insufficient evidence of prejudice and passion on the part of a jury. Meyer v. Ricklick, 99 Ariz. 355, 357, 409 P.2d 280, 281 (1965). The test as to whether the jury’s verdict is the result of passion and prejudice is whether the result reached in damages awarded is so unreasonable and outrageous as to shock the conscience of the court. Riffle v. Robert L. Parker Co., 19 Ariz.App. 100, 107, 505 P.2d 268, 275 (1973); State v. Watson, 7 Ariz.App. 81, 87, 436 P.2d 175, 181 (1967). No such showing has been made in the instant case. Further, we note that the initial responsibility for reducing an excessive verdict is with the trial court. Magma Copper Co. v. Shuster, 118 Ariz. 151, 154, 575 P.2d 350, 353 (App.1977); Braun v. Moreno, 11 Ariz. App. 509, 512, 466 P.2d 60, 63 (1970). The trial court granted a remittitur and reduced punitive damages against Bateman from $20,000 to $4,000 and against Alcott from $10,000 to $2,000. Where the trial judge has otherwise refused to interfere with the jury’s verdict, this court will not interpose its own judgment unless convinced that the amount is so outrageously excessive to suggest, at first blush, passion or prejudice. Braun, 11 Ariz.App. at 512, 466 P.2d at 63. There was evidence in the record that Starkins’ reputation was severely harmed as a result of the defamation. There was evidence that he was unable to obtain comparable employment as a result of the defamation and that his emotional suffering was great. There was very convincing evidence that he loved his job in the fire department and that he was devastated by the inability to continue his life’s work. Additionally, there was evidence that the defamation was a factor in the dissolution of his marriage. While we recognize that the award is a very large one indeed, we do not find it to be outrageously excessive. The judgment of the trial court is affirmed. CORCORAN and EUBANK, JJ., concur.

FELDMAN, Justice. Petitioner brings this special action seeking relief from the trial court’s order denying leave to amend her complaint. Petitioner argues that Arizona should recognize the tort of “intentional spoilation (sic) of evidence”. We consider whether a tortfeasor has a duty to render aid to the victim of his tort and whether, if he fails to do so, he is liable for any subsequent exacerbation of injury. We have not previously considered these questions and therefore have accepted jurisdiction. King v. Superior Court, 138 Ariz. 147, 673 P.2d 787 (1983). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5, A.R.S. § 12-120.24 and Rule 7, Ariz.R.P.Spec.Act., 17A A.R.S. FACTS The facts of this case are compelling. Ms. La Raia (plaintiff) resided in an apartment project owned and operated by the real parties in interest, Friedkin/Becker, Inc. (defendant). Plaintiff had problems with roaches and asked the apartment manager to arrange for pest control service. Rather than calling the contract pest control company, the manager authorized the janitor, who was unlicensed and untrained, to spray plaintiff’s apartment. He did so while plaintiff was away at work. Never having sprayed indoors before, he apparently saturated everything with pesticide. When she returned to her apartment, plaintiff noticed an overpowering, pungent odor. She contacted Ms. Adkins, the “leasing hostess” at the project, and advised her of the situation. Ms. Adkins visited the apartment, noticed the smell and found that her eyes had begun to water. She arranged for plaintiff to spend the night in another apartment. Plaintiff became ill and asked the apartment manager for a list of the chemicals in the spray. The manager provided her with a partial list of the contents which omitted all toxic items. Thus, when plaintiff conveyed the information to her doctor and the pest control board, she was informed that none of the chemicals was toxic. Believing it was safe, plaintiff then reentered her apartment, only to become more seriously ill. Her condition worsened and she was hospitalized on December 13, 1982 at the poison control center at St. Luke’s Hospital in Phoenix. Staff from the poison control center telephoned the apartment manager to ask what chemicals had been used. Before returning the call from the poison control center, the manager ascertained that the pesticide can which the janitor had used was marked with a skull and crossbones and was “for outside use only”. She also learned that the product had been used by mistake. The manager instructed the janitor to take the can and dispose of it off the property. She then had the janitor bring a different pesticide from the maintenance room. This product, “Blitz”, was approved for indoor use but was not the spray used in plaintiff’s apartment. The manager copied the list of ingredients from the “Blitz” can and gave that list to the poison control center. Plaintiff was treated for carbamate exposure, the toxic ingredient in “Blitz”. She was discharged from the hospital on December 16,' 1982 and went back to her apartment. During the weeks which followed, she unsuccessfully attempted to rid her apartment of the smell. A friend who visited her noticed a smell similar to that of malathion or parathion, both of which are toxic organophosphates. Later tests performed on items taken from plaintiff’s apartment revealed traces of diazinon, which is a toxic organophosphate. After moving back to her apartment, plaintiff awoke every morning feeling nauseated, chilled and weak. She had bronchial congestion and difficulty in breathing. She was continually tired and found it impossible to work full time at her job. She finally moved into a new apartment on January 8, 1983, but was forced to throw away most of her possessions as they reeked of the pesticide. Plaintiff sued for negligence. The physician at the poison control center testified on deposition that based upon the representation that Blitz had been used in plaintiff’s apartment, the doctors had administered atropine, the treatment of choice for carbamate poisoning, but inappropriate for malathion, parathion and diazinon, organophosphate pesticides which are more toxic than carbamates. If he had known of plaintiffs exposure to organophosphates, the doctor would have administered the proper antidotes. Having reviewed the deposition testimony of Ms. Adkins (which revealed the facts related above), the doctor felt that the false information given the poison control center and the destruction of the can actually used had impaired the efforts to treat plaintiff and exacerbated her illness. Having learned the full story of what occurred, plaintiff filed a motion for leave to amend. The proposed second amended complaint attached to the motion labeled the counts in question (proposed Counts IX and X) as “Intentional Spoilation of Evidence”, no doubt referring to the destruction of the pesticide can containing labeled ingredients. The trial judge denied the motion on the grounds that the counts did not state a cause of action and were “legally insufficient” under Arizona law. Plaintiff seeks relief, arguing that leave to amend shall be freely given and that the failure to allow such an amendment was arbitrary, capricious and an abuse of discretion. See Rule 3, Ariz.R.P.Spec.Act., 17A A.R.S. DISCUSSION 1. Spoliation The tort of intentional spoliation of evidence has been recognized by case law in California. Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984). In Smith the plaintiff was injured when a wheel and tire from another vehicle crashed through her windshield. The vehicle which had lost the wheel was towed to the dealer who had sold it. The dealer agreed to retain the tire, wheel and other evidence for examination by plaintiffs experts. It later destroyed or lost the physical evidence, making it impossible for the experts to inspect the parts and determine what had happened. Plaintiff’s lawsuit was seriously compromised by these actions. Respondent argues that Smith v. Superior Court is inapposite to the case before us. We agree. Smith did not sue the tortfeasor for the physical injury which it had caused to her; instead, she sued for the damage done to her lawsuit by destruction of the evidence. In the case at bench, plaintiff seeks damages from the tortfeasor for the physical injuries which she sustained by reason of the actions of its employees. There is no need to invoke esoteric theories or recognize some new tort. It may be true that “for every wrong there is a remedy”, Smith, 151 Cal.App.3d at 496, 198 Cal.Rptr. at 832, but we believe the remedy for the problem before us is well within the realm of existing tort law. 2. Duty Assuming plaintiff’s allegations are true, defendant certainly acted wrongfully. However, no wrong is actionable unless the putative defendant owed a duty to the party injured. See, e.g., Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985); Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); W. PROSSER & W. KEETON, THE LAW OF TORTS § 53 at 358 (5th ed. 1984). Was defendant under a duty to aid and assist the plaintiff? Traditionally, tort law has been hesitant to impose a duty to render aid or assistance to those in peril. That reluctance is no doubt attributable to the historical distinction between action and nonaction, misfeasance and nonfeasance. W. PROSSER & W. KEETON, supra, § 56 at 373. Since nonfeasance was not actionable except in certain special relationships, the common law generally refused to impose a duty upon one person to give aid to another, no matter how serious the peril to the other and no matter how trifling the burden of coming to the rescue. Id. Thus, defendant might with impunity sit on the wharf, smoke his cigarette and refuse to throw his rope to a person drowning just below. Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928). The law did not require us ... to play the part of Florence Nightingale and bind up the wounds of a stranger who is bleeding to death, or to prevent a neighbor’s child from hammering on a dangerous explosive, or to remove a stone from the highway where it is menace to traffic, ... or even to cry a warning to one who is walking into the jaws of a dangerous machine. The remedy in such cases is left to the “higher law” and the “voice of conscience” which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim. W. PROSSER & W. KEETON, supra, § 56 at 375 (citations omitted). 3. Limited Duty Over the years, numerous exceptions have been made to the common law doctrine that there is no duty to assist those in peril. Among the exceptions are the duty of innkeepers and owners of real property to render assistance to guests or invitees. See Restatement (Second) of Torts § 314A (1965). Arguably, these exceptions are applicable to the facts presented by the case at bench. Even more on point, however, is the principle that where the defendant created the danger the law imposes a duty to do what is reasonable to extricate the plaintiff. Duty to Aid Another Harmed By Actor’s Conduct If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. Restatement § 322. We formally adopt this as the law in Arizona, although the principles are not new and have been used previously in this state. See Maldonado v. Southern Pacific Transportation Company, 129 Ariz. 165, 168, 629 P.2d 1001, 1004 (App.1981). Maldonado applied § 322 to a situation in which it was alleged that defendant negligently jerked a train car, causing plaintiff to fall under the wheels and become severely injured. Defendant then refused to aid plaintiff and may have hindered those who came to his assistance. The court of appeals found that in the absence of prior case law, it would apply Restatement § 322. That situation is closely analogous to the one before us. In the present case, we need say only that because defendant poisoned plaintiff it had a duty to minimize the resulting harm after it discovered what had occurred. Thus, there is no need to recognize a new tort. Having caused or contributed to plaintiff’s poisoning, defendant was under a duty to act reasonably to mitigate the resulting harm. Certainly, providing correct information as to the nature of the poison when requested by plaintiff and her doctors was well within the bounds of what could reasonably be expected, especially since defendant had that information at hand. In failing to provide it, and intentionally providing false information, defendant did not spoil the evidence, it caused a new or further injury to the plaintiff. 4. Procedural Considerations We hold, therefore, that plaintiff has stated a cause of action against defendant for the exacerbation of her injuries. We turn, then, to the procedural posture of this case. The cause of action which plaintiff pleaded in proposed Count IX properly describes the events, alleges that defendant wrongfully failed to render assistance and interfered with the help that plaintiff was getting from her physicians, with the result that plaintiff’s physical condition was worsened, that plaintiff sustained further injuries and sustained property damage. Despite these allegations the caption which plaintiff affixed to proposed Count IX was “Intentional Spoilation of Evidence”. That theory was neither pleaded nor appropriate. If the trial judge had stricken the caption or denied the proposed amended complaint as a whole on the grounds of prolixity, we would be reluctant to interfere, given the fact that plaintiff apparently sought to assert a fairly simple action in fifteen counts contained in a sixty-page amended complaint of over 88 factual paragraphs. However, the trial court did allow the amendments, except for the allegations in Count IX, which he held were legally insufficient, citing Home Insurance Co. v. Balfour-Guthrie Insurance Co., 13 Ariz.App. 327, 476 P.2d 533 (1971). That case holds that while leave to amend should be freely given, Rule 15(a), Ariz.R.Civ.P., 16 A.R.S., denial will be upheld when the “proffered amendment could not affect the outcome of the litigation, that is, when on its face it is legally insufficient.” 13 Ariz.App. at 328, 476 P.2d at 534. Treating the caption as surplus, the actual allegations of Count IX are legally sufficient and could certainly affect the outcome of the action. Further, Rule 8(g), Ariz.R.Civ.P., 16 A.R.S., requires that pleadings be construed so as to do substantial justice. See also Busy Bee Buffet, Inc. v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957) (mislabeled pleading will be considered as if properly labeled). The trial court having failed to note any valid reason that would support a ruling contrary to the liberal spirit of the rules favoring amendment, we find that his order as to proposed Count IX was an abuse of discretion. Owen v. Superior Court, 133 Ariz. 75, 80, 649 P.2d 278, 283 (1982). The order on the motion for leave to amend is therefore modified so as to permit amendment by addition of proposed Count IX and the case is remanded for further proceedings consistent with this opinion. HOLOHAN, C.J., GORDON, Y.C.J., and HAYS and CAMERON, JJ., concur. . In Arizona, relief formerly obtained by writs of prohibition, mandamus or certiorari is now obtained by “special action”. See Rule 1, Arizona Rules of Procedure for Special Actions, 17A A.R.S. . Count X pertained to the destruction of a note which plaintiff had written to the nonexistent pest control service and which had alleged evidentiary value. Evidently the original note was taken and destroyed by defendants’ employees. However, copies were made and exist. Obviously, therefore. Count X raises nothing of importance and the trial judge did not abuse his discretion in denying leave to add Count X. We consider only the propriety of denying leave to add Count IX. . Restatement (Second) of Torts will be referred to as Restatement § -. . Yet another principle of law may entitle plaintiff to relief if the facts alleged prove true. Even where the defendant is not responsible for plaintiffs peril, when he assumes to act affirmatively, as by providing information to plaintiffs doctor, he assumes a duty of reasonable care. See W. PROSSER & W. KEETON, supra, § 56 at 378-79.

OPINION KLEINSCHMIDT, Judge. The state appeals the trial court’s judgment denying forfeiture of a motor vehicle and ordering its return to claimant-appellee, Joan Barrett. We affirm. The 1979 Dodge van in question is held in joint tenancy by Joan Barrett and her husband, Jack Barrett. On April 4, 1985, Jack Barrett was arrested while driving the van. At the time of the arrest, a quantity of marijuana was found in the van. The state filed a forfeiture action requesting that the van be forfeited to the Department of Public Safety pursuant to A.R.S. §§ 13-3409(A)(3) and 13-106. Both Jack and Joan Barrett received notice of the action, but only Joan Barrett answered. In her answer, she demanded the return of the vehicle. The trial court found against the state and ordered the van returned to Joan Barrett. Arizona Revised Statutes § 13-106 prescribes the procedure by which the state may seek forfeiture of property involved in a crime. That statute also provides a means by which a party who has an interest in the property and who was not involved in the crime may claim the property. Arizona Revised Statutes § 13-106(G) states: [T]he court shall order the property restored or transferred to the claimant, if any, who proves, by a preponderance of the evidence, all of the following: 1. The claimant is the lawful owner or is otherwise entitled by law to ownership due to enforcement of a civil proceeding. 2. The claimant's possession, use or other act is or was lawful. 3. The unlawful possession, use or other act upon which forfeiture is sought was without the consent of the claimant. The trial court found that Joan Barrett “is the lawful owner of the 1979 Dodge Van, that Joan Barrett’s possession and use of the 1979 Dodge Van is lawful and that the unlawful possession, use or other act upon which forfeiture is sought was without the consent and knowledge of Joan Barrett.” Thus finding the conditions of A.R.S. § 13-106(G) fulfilled, the judge ordered the van returned. The state, however, relies on Matter of 1976 Blue Ford Pickup, 120 Ariz. 432, 586 P.2d 993 (App.1978), in which Division 2 of this court held that a joint tenant’s “status as an ‘innocent owner’ ... cannot salvage the vehicle from the forfeiture occasioned through the activities of the [other] joint owner.” 120 Ariz. at 435, 586 P.2d at 996. While the state correctly summarizes the holding in Blue Ford Pickup, we question whether that case is good law in light of our supreme court’s concern for the rights of an “innocent owner” as discussed in Matter of One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827 (1970). In any event, the state ignores the fact that the statutes prescribing the procedure by which a party with an interest in property subject to forfeiture may claim that property have been substantially rewritten since the decision in Blue Ford Pickup. When Blue Ford Pickup was decided, the claimant was required to prove “his lien, mortgage or conditional sales contract to be bona fide.” The court held that this requirement established a distinction between “claimants” and “owners.” Because the joint owner could not establish herself as a “claimant,” the court held she was not entitled to the return of the property. 120 Ariz. at 435, 586 P.2d at 996. The claimant statute as it now exists, and as set forth above, clearly establishes the right of an owner to reclaim property in a forfeiture case. Thus, the state’s reliance on Blue Ford Pickup is misplaced. The trial court found that Mrs. Barrett met the revised requirements of a claimant, and the record supports this finding. Thus, the trial court correctly ordered the return of the van to appellee. On appeal, the state claims that regardless of Joan Barrett’s interest in the van, it is at least entitled to forfeit Jack Barrett’s interest. This relief was not requested below. In its complaint, the state demanded that all interests in the vehicle be forfeited to the Department of Public Safety. A means by which the state might forfeit the husband’s interest while preserving the wife’s interest to her was not explored below and we therefore decline to address the issue. We note that the statute does not provide for such a division of interests. Affirmed. GREER and MEYERSON, JJ., concur.

OPINION DRUKE, J. ¶ 1 This appeal presents two issues not previously addressed in Arizona: whether a trial court should include vested employee stock options in calculating child support and, if so, when and how the court should value them. We hold that vested employee stock options constitute income for purposes of calculating child support under the 1996 Arizona Child Support Guidelines. A.R.S. § 25-320 app. We decline, however, to adopt a universal method of valuing such options and leave that to the trial court’s discretion, based on the facts and circumstances of each ease. ¶ 2 The parties stipulated to some of the facts relevant to this appeal. Those facts and the record show that, in July 1998, the trial court dissolved the marriage of Angella and David Robinson. The court incorporated into the decree a joint parenting agreement, a property settlement agreement, and an amendment to the property settlement agreement. In accordance with the joint parenting agreement, the trial court awarded the parties joint legal custody of their minor daughter, Ali, and appointed Angella the primary physical custodian. The record additionally shows that the court ordered David, who is employed by America On Line (AOL), to pay $750 per month in child support. Because Angella planned to remarry and move to Italy, the court further ordered David to pay one-half of Angella’s and Ali’s visitation travel expenses. The parties agreed the court would hold a review hearing after one year to “address child support and related issues, such as the division of travel expenses.” ¶ 3 After that hearing, the trial court reduced David’s monthly child support obligation to $707, based on such factors as his annual salary, an imputed seven percent annual return on his investments, and a visitation adjustment. As to the vested stock options that AOL had periodically granted to David, the court ruled they were recurring “non-cash benefits” under the Guidelines but found “it would be speculative to place a value on those options until, and if, they are exercised.” The court thus determined that “the most fair and reasonable method to calculate [David’s] additional child support obligation [is] when he exercises his stock options.” Accordingly, the court ordered that David pay a percentage of any monies he receives upon the exercise of the stock options the year the options are exercised[;] ... that 8% of the monies received, before taxes, is a fair and reasonable amount for [David] to pay for additional child support for Ali[; and] ... that the exclusive use of the ... Guidelines in this case would be inappropriate and unjust and this partial alternative to the Guidelines is in the best interests of the child. § 17, Arizona Child Support Guidelines. The court also ordered the parties to continue sharing visitation travel expenses and to pay their own attorney’s fees and costs. After the trial court denied Angella’s motion for reconsideration, she appealed, and David cross-appealed. ¶ 4 Angella claims the trial court erred in its treatment of David’s stock options for purposes of calculating his child support obligation. She also claims the court abused its discretion by requiring that she continue to pay one-half the visitation expenses and by denying her request for attorney’s fees. In his cross-appeal, David challenges only the court’s apparent inclusion in its order of the value of the unexercised stock options AOL had granted before the decree was entered, not the method the court used to value the options. Stock Options ¶ 5 Angella contends the trial court “erred as a matter of law by excluding from David’s income the exercise of stock options in the calculation of his gross income for purposes of determining a monthly child support award.” We will not disturb a trial court’s decision on the amount of child support and whether to modify an award of child support absent an abuse of discretion. Little v. Little, 193 Ariz. 518, 975 P.2d 108 (1999). But, as our supreme court noted in Grant v. Arizona Public Service Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982), a trial court may be regarded as having abused its discretion when “there has been an error of law committed in the process of reaching the discretionary conclusion.” We thus review de novo whether the trial court here correctly ruled that the Guidelines’ definition of “gross income” includes David’s vested stock options for purposes of calculating his child support obligation. Cf. Mead v. Holzmann, 198 Ariz. 219, 8 P.3d 407 (App.2000) (interpretation of Guidelines and whether pretax dollars are included in gross income reviewed de novo); Burnette v. Bender, 184 Ariz. 301, 908 P.2d 1086 (App.1995) (issue of whether capital gains is included in gross income when calculating child support is question of law). ¶ 6 Section 4(a) of the Guidelines provides, in relevant part, that “gross income” for purposes of calculating a parent’s child support obligation “includes income from any source” and that “[c]ash value shall be assigned to in-kind or other non-cash benefits.” § 25-320 app. To determine whether employee stock options constitute income under the Guidelines and the proper method for valuing them, we must first examine the nature of such stock options. ¶ 7 An employee stock option “allows a corporate employee to buy shares of corporate stock at a fixed price or within a fixed period [and is usually] granted as a form of compensation.” Black’s Law Dictionary 1431 (7th ed.1999). “It is a contract for a right to buy (call) or sell (put) and, like most contracts, the value of the option depends directly on the terms of the option.” Michael J. Mard & Jorge M. Cestero, Stock Options in Divorce: Assets or Income?, 74 Fla. B.J. 62, 62 (May 2000). Also, a stock option may be vested and matured, vested and unmatured, or unvested. As commentators have explained: Essentially, “[the] employee stock option is vested and matured if the employee has an absolute right to exercise the option immediately; the option is vested and unmatured if the employee cannot exercise the option yet but has an absolute right to do so at some future date; the option is unvested if it cannot yet be exercised” and if future vesting is based upon the occurrence of a certain contingency. Kristy Watson, Acting in the Best Interests of the Child: A Solution to the Problem of Characterizing Stock Options as Income, 69 Fordham L.Rev. 1523, 1538 (2001), quoting Note, Stock Options — Classification and Valuation, 15 Equitable Distribution J. 77, 77 (1998). ¶ 8 The stock options AOL has granted to David are subject to the following terms. David may not exercise an option and acquire stock for a period of one year after the grant date. Thus, when granted, the option is vested but unmatured. At the end of the first year, twenty-five percent of the grant matures, thus permitting David to exercise the option and acquire a maximum of twenty-five percent of the stock granted. He may thereafter acquire an additional twenty-five percent of the stock on each of the next three annual maturity dates but forfeits any stock he does not acquire within ten years of the grant date. To acquire the stock, David must pay the “strike price,” which is the price set at the grant date. ¶ 9 David argues that his stock options do not constitute cash-like benefits under the Guidelines because they “have no value until they are exercised and [the stock is] sold.” This argument, however, ignores the dual nature of stock options. They have characteristics of an asset in that they represent a right to purchase an ownership share in the underlying corporation’s stock---- On the other hand, they have characteristics of income in that the whole purpose behind options is to allow the owner to capture the appreciation in value of the stock prior to its actual purchase. Mard & Cestero, supra, at 62. Employee stock options have thus become a widely used form of compensation and are “increasingly popular as part of the corporate executive’s total compensation package versus providing only current cash salary or cash bonuses.” Jack E. Earns & Jerry G. Hunt, Should Unexercised Stock Options Be Considered “Gross Income” Under State Law for Purposes of Calculating Monthly Child Support Payments?, 33 Creighton L.Rev. 235, 256 (2000); see also Watson, supra (stock options are a form of compensation commonly used by start-up companies, technology companies in particular). Indeed, stock options often represent a significant part of an employee’s compensation. See Murray v. Murray, 128 Ohio App.3d 662, 716 N.E.2d 288, 294 (1999) (stock options granted to father annually were “an integral part of his compensation package”). ¶ 10 That has been true for David. Although his base salary was $42,600, David’s total income from AOL, including income from exercised options, was $159,721 in 1995, $88,297 in 1996, $267, 438 in 1997, and $1,817,059 in 1998. That the options comprise a significant part of David’s compensation and represent value to him is irrefutable. As the court observed in Rice v. City of Montgomery, 104 Ohio App.3d 776, 663 N.E.2d 389, 392 (1995): “[T]he true value of the stock option to its owner is the potential for appreciation in stock price without investment risk.” See also In re Marriage of Kerr, 77 Cal.App.4th 87, 91 Cal.Rptr.2d 374, 380 (Ct.App.1999) (father’s stock options are “part of his overall employment compensation and must be used to calculate child support”). Accordingly, we conclude that the trial court properly ruled that David’s vested stock options from AOL constitute recurring “non-cash benefits” under the Guidelines. ¶ 11 The question remains, however, whether the trial court correctly determined how and when to value those options for purposes of calculating child support. As noted above, the court determined that they should be valued at the time David “exercises his stock options.” Angella asserts that the court’s determination is contrary to their child’s best interests because it gives David unfettered discretion to decide whether and when to exercise his options. It permits him to protect “the bulk of the wealth he accumulates from his employment during his daughter’s minority ... by simply refusing to exercise any stock option ... until after she reaches the age of majority.” David counters that “Arizona law mandates that child support should be based on actual circumstances, not hypothetical income.” ¶ 12 The valuation method the trial court adopted is usually referred to as the “deferred distribution” method or the “if, as and when” method. Green v. Green, 64 Md.App. 122, 494 A.2d 721, 729 (1985). As Angella points out, however, this method leaves the choice of whether and when to exercise the option to the employee parent. Thus, the “if, as and when” method not only leaves room for great mischief, potentially depriving a child of needed support, but also creates far too much uncertainty in the amount of child support, subjecting it to the investment decisions or whims of the employee parent. Accordingly, we agree with the Ohio Court of Appeals that, after a vested stock option matures, “the option then becomes an investment choice, and its value may be imputed as part of [that parent’s] ‘gross income.’ ” Murray, 716 N.E.2d at 294. The Murray court reasoned that to hold otherwise would allow the parent “to shield a significant portion of [the parent’s] income from the courts, and deprive [the] children of the standard of living they would otherwise enjoy.” Id. To avoid this result, we believe vested, matured stock options must be valued independently of and without regard to the employee parent’s decision to actually exercise them. But see Fisher v. Fisher, 564 Pa. 586, 769 A.2d 1165 (2001) (refusing to value unexercised options based on speculation that parent might attempt to avoid sharing profit with former spouse). ¶ 13 Various methods have been proposed by courts and commentators for valuing employee stock options, whether for purposes of dividing marital assets or calculating child support. For example, in Murray, the court valued each vested stock option “according to the stock price on the most recent date on which an option could be exercised[, i.e., the maturity date,] minus the [strike] price on thé day that option was granted.” 716 N.E.2d at 298. The court then added the imputed appreciation of those vested, matured options to the father’s annual gross income and, based on the applicable child support guidelines, calculated the monthly child support obligation. ¶ 14 Another method for valuing stock options is often referred to as a net present value method. See, e.g., Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998); Hall v. Hall, 88 N.C.App. 297, 363 S.E.2d 189 (1987). This method utilizes various accepted economic and theoretical models, which generally take into account the vagaries and volatility of the stock market. See Mard & Cestero, supra (identifying economic models such as Shelton and Kassouf and theoretical models such as widely used Black-Scholes); see also Watson, supra, at 1539 (stating net present value method “depends on either the intrinsic valuation method or any financial model, including the Black-Scholes model”). But, like the court in Murray, we question the practicality of these models for determining a parent’s child support obligation. As that court observed: “Although these models are regularly used in the marketplace, they are designed to reflect market forces under certain conditions, and may not be reliable for purposes of litigation.” 716 N.E.2d at 298. Moreover, “these models generally were designed to value marketable options,” which employee stock options typically are not. Andrew C. Littman, Valuation and Division of Employee Stock Options in Divorce, 29 Colo. Law. 61, 62 (May 2000). ¶ 15 Finally, rather than adopting one of the above valuation methods, one commentator urges courts to impose a constructive trust on stock options. The commentator agrees “courts have properly classified stock options as income in the child support context” but contends “they have used improper methods to value those options and have effectively defeated the goal of fulfilling the best interests of the child.” Watson, supra, at 1558. She submits that courts “should impose a constructive trust on the options and divide the options between the parties based on the percentages in the child support formula,” claiming that this “provides a better solution to valuation because it addresses the problems of fairness and efficiency better than currently employed methods.” Id. ¶ 16 In light of the numerous methods available for valuing employee stock options, we hesitate to prescribe a single method for all cases or a particular method for this case. Although the method the Murray court used appears appropriate here, we decline to adopt it based on the limited stipulated record before us but do not foreclose the trial court from adopting it upon remand if the facts and circumstances warrant it. The appropriateness of the valuation method will depend on such factors as the nature of the stock options, market conditions, tax consequences, ease of application, and other facts and circumstances peculiar to each case. Of course, the method adopted cannot leave the valuation to the unfettered discretion of the employee spouse, as was the case here, and must be consistent with the policies and purposes of the Guidelines. See § 25-320 app., § 1 (purpose of Guidelines is “[t]o establish a standard of support for children consistent with the reasonable needs of children and the ability of parents to pay”). See also Holzmann, 198 Ariz. 219, ¶ 11, 8 P.3d 407, ¶ 11, quoting Boutz v. Donaldson, 128 N.M. 232, ¶ 26, 991 P.2d 517, ¶ 26 (App.1999) (recognizing that “ ‘one of the driving forces behind the child support guidelines is efficiency and ease of administration’ ”). ¶ 17 Although we cannot approve the “if, as and when” valuation method the trial court adopted in this case, we disagree with Angella that § 4(a) of the Guidelines precluded the court from ordering David to pay, as child support, a percentage of the actual or imputed income he derives from his stock options. Section 4(a) provides that “[seasonal or fluctuating income shall be annualized.” § 25-320 app. This would usually include option-derived income and require its annualization. But § 17(a) of the Guidelines allows a trial court to deviate from the Guidelines, and the trial court did so here after it considered, as § 17(a) requires, “all relevant factors, including those set forth in Arizona Revised Statutes Section 25-320,” and “the best interests of the child in determining the amount of a deviation,” as § 17(a)(2) requires. § 25-320 app. The court thus found “it fair and reasonable that [David] pay [eight percent] of any monies he receives upon the exercise of [his] stock options.” Given the provisions of § 17(a) and the broad discretion accorded trial courts in ordering child support, see Standage v. Standage, 147 Ariz. 473, 711 P.2d 612 (App.1985), we agree with the California Court of Appeals in Marriage of Kerr that a percentage award “would be permissible, as long as the [trial] court sets a maximum amount that would not exceed the children’s needs,” which the court would determine “in light of both parents’ abilities and standards of living.” 91 Cal.Rptr.2d at 381 (emphasis added). In sum, trial courts must determine, in the exercise of their discretion, what works best under the facts and circumstances of each case. ¶ 18 For the foregoing reasons, we conclude that the trial court properly included David’s vested stock options in calculating child support but erred in adopting the “if, as and when” method of valuing them and in ordering David to pay eight percent of the resulting income as additional child support. We therefore remand the matter to the trial court for further proceedings on the valuation issue, as well as on the issue raised in David’s cross-appeal. We cannot determine from this limited stipulated record whether all options granted pre-decree were considered and distributed in the property settlement agreement. We therefore cannot decide, as David argues, that the child support award should apply “only to those stock grants David receives [post-decree].” Visitation Expenses ¶ 19 Angella claims the trial court abused its discretion by ordering her to pay one-half the visitation travel expenses. We disagree. Section Í5 of the Guidelines allows a trial court to allocate travel costs associated with visitation after considering “the means of the parents” and “how their conduct (such as a change of residence) ■ has affected the costs of visitation.” § 25-320 app. In this case, the trial court had before it financial information relating to both parties, and it was well aware that Angella had moved with Ali to Italy. Under these circumstances, we find no abuse of discretion. See Spector v. Spector, 17 Ariz.App. 221, 496 P.2d 864 (1972). Attorney’s Fees ¶ 20 Angella also claims that, based on “the parties’ respective financial circumstances,” the trial court erred by failing to award her attorney’s fees. We review the court’s ruling for an abuse of discretion. Burnette. We find none here. ¶ 21 Under A.R.S. § 25-324, a trial court may “order a party to pay a reasonable amount to the other party” for attorney’s fees and costs “after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.” In considering their financial resources, the court “must consider both the claimant’s need and the other spouse’s capacity to bear the burden.” Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App.1997). “It is an abuse of discretion to deny attorneys’ fees to the spouse who has substantially fewer resources, unless those resources are clearly ample to pay the fees.” Id. ¶ 22 The trial court here found that both parties had sufficient funds to pay their attorneys, had legitimate issues requiring resolution, and had stipulated to having the review hearing. Although the record shows that David has considerably more assets than Angella, she had no debt and nearly $215,000 in assets at the time of the review hearing. Because Angella had sufficient assets to pay her attorney’s fees, Roden, the court did not abuse its discretion in ordering her to do so. In our discretion, we deny both parties’ requests for an award of attorney’s fees on appeal. ESPINOSA, C.J. and HOWARD, P.J., concurring. . Although not entirely clear from the record, David’s stock options appear to be nontransferable, that is, they cannot be traded in the open market. See generally Kristy Watson, Acting in the Best Interests of the Child: A Solution to the Problem of Characterizing Stock Options as Income, 69 Fordham L.Rev. 1523 (2001). And his options are apparently nonqualified options, as opposed to qualified, incentive stock options. For a discussion of the difference between qualified and nonqualified stock options and the tax implications for each, see Jack E. Kams & Jerry G. Hunt, Should Unexercised Stock Options Be Considered “Gross Income” Under State Law for Purposes of Calculating Monthly Child Support Payments?, 33 Creighton L.Rev. 235 (2000). See also Andrew C. Littman, Valuation and Division of Employee Stock Options in Divorce, 29 Colo. Law. 61 (May 2000). . David also argues that Angella waived the issue of whether his stock options should be included in gross income for purposes of calculating child support because she failed to raise the issue at the time the trial court entered the decree. We find his argument meritless. As already noted, David agreed at the time the decree was entered that the post-decree review hearing would "address child support and related issues.” . The parties agree, however, that the higher income for 1998 resulted from David’s having exercised his options "to effect a division of the parties’ community property for the purpose of divorce.” . But see In re Marriage of Campbell, 905 P.2d 19 (CoIo.Ct.App.1995) (employee parent must realize income for it to be included in calculation of child support, and options must be exercised to be regarded as income).

HOLOHAN, Chief Justice. This suit concerns the disposition of a death benefit which became payable upon the death of John R. Carpenter, a longtime employee of the City of Mesa. John’s former wife Opal sought a share of the death benefit. The superior court granted judgment to Opal awarding her the proceeds of the group life insurance policy on the life of John and one-half of the value of John’s retirement account as of the date of the dissolution of the marriage of John and Opal on September 27, 1974. The trial court also awarded Opal $6000 in attorney’s fees. The value of the death benefit after September 27, 1974 and one-half the value of the pre-September 27, 1974 death benefit were awarded to Sandra, John’s second wife. On appeal the Court of Appeals held that Opal had no right to any share of John’s retirement fund death benefit, but she should receive the proceeds of the life insurance policy which John was obligated to have maintained for her benefit under the decree of dissolution. The appellate court also reversed the award of attorney’s fees to Opal. Carpenter v. Carpenter, 150 Ariz. 130, 722 P.2d 298 (App.1985). The material facts are undisputed. John and Opal Carpenter were married from October 9, 1937 until September 27, 1974. John Carpenter worked for the City of Mesa from June 1951 until his death on May 20,1981. John and Sandra married on February 13, 1981 and remained married until John’s death. Opal and John’s dissolution decree incorporated by reference a property settlement agreement the pair entered into on June 21, 1974. The agreement provided among other things that Opal remain the beneficiary of John’s group term life insurance policy carried by the City of Mesa or under like coverage obtained elsewhere. Before his death, John named Sandra the beneficiary of the term life insurance policy. John also participated in the Arizona State Retirement System (ASRS) from February 1963 until he died. ASRS is a contribution plan, with benefits based upon and accumulated from employee salary deductions and employer contributions. A.R.S. §§ 38-748, -749; see generally A.R.S. §§ 38-741, -781.37. Neither the property settlement nor their dissolution decree mentions John’s accumulated state retirement fund benefits; neither contains any provision purporting to dispose of community assets not specifically described. John had named Opal as his beneficiary under ASRS from February, 1963 until June 1977. Sandra became John’s beneficiary in January of 1979. A.R.S. § 38-781.11 provides that should an ASRS participant die prior to retirement, the participant’s named beneficiary will receive a death benefit according to a set formula. Like retirement benefits, the death benefit accumulates from salary deductions and employer contributions. We granted Opal’s petition for review. Sandra did not seek review of the Court of Appeals decision to award the proceeds of the life insurance policy to Opal. The two issues presented for review are whether Opal had a community interest in John’s retirement fund death benefit and whether she was entitled to the award of attorney’s fees in the superior court. We approve the appeals court decision to reverse the award of attorneys’ fees and to remand for a reconsideration of that award by the trial court. The Court of Appeals correctly noted that Opal is only entitled to attorneys’ fees for the portion of the judgment awarding her the life insurance proceeds, as it arose out of a contract. A.R.S. § 12-341.01. Opal’s retirement fund death benefit claim did not arise out of a contract. To determine an appropriate award of attorneys’ fees on remand, the trial court should consider what proportion of the case was contract-based and how much of it concerned other issues. We took review to address only the issue whether Opal had a community property interest in her former husband’s Arizona State Retirement System death benefit even though their 1974 decree of marital dissolution predated Everson v. Everson? 24 Ariz.App. 239, 537 P.2d 624 (1975). Retirement Benefits as Community Property John Carpenter’s ASRS retirement pension was a contributory pension, based upon and accumulated from salary deductions and employer contributions. A.R.S. §§ 38-748, -749. The Arizona courts recognized that contributory plans were community property as early as Warren v. Warren, 2 Ariz.App. 206, 407 P.2d 395 (1965). Warren stated that a spouse’s “contributions [to an employee stock plan] prior to divorce consisted in [sic] deductions from his salary, which certainly qualifies as community property;” Id., 2 Ariz.App. at 207-08, 407 P.2d at 396-97. Community property, including contributory financial plans, is subject to division by the court. Id.; see also Koelsch v. Koelsch, 148 Ariz. 176, 713 P.2d 1234, 1239 (1986); Johnson v. Johnson, 131 Ariz. 38, 41, 638 P.2d 705, 708 (1981). John and Opal’s property settlement agreement and their dissolution decree did not dispose of his ASRS pension benefits. The record does not disclose why the pair made no provision at the time of divorce for the pension plan. Because the parties do not urge an outside agreement to clarify the omission, however, we need not address what motivated it. Although the property agreement declares “[a]ny and all property acquired by either of the parties hereto from and after the date hereof shall be the sole and separate property of [that party],” it does not provide for disposition of uncatalogued or undisposed of community property. Despite their failure to dispose of the pension in the property settlement, the portion of John’s ASRS retirement benefit earned up until John and Opal’s marital dissolution is nevertheless community property. Therefore, Opal remains entitled to a share of the pension’s value at that time. The parties agreed that the value as of that September date was $16,197.11. John and Opal’s marital dissolution occurred in 1974. Sandra advances the argument that it is against public policy for Opal to reopen or reexamine her divorce decree and property settlement with John. Sandra cites Reed v. Reed, 124 Ariz. 384, 604 P.2d 648 (App.1979), and Guffey v. LaChance, 127 Ariz. 140, 618 P.2d 634 (App.1980) as the controlling authority on the issue. The Court of Appeals agreed with Sandra’s position. At the outset it is important to recognize the distinction between two types of pension plans which figure in the community property analysis. On the one hand, contributory pension plans accrue from employee salary deductions and employer contributions. At any given time an employee may ascertain his or her “balance” of contributions in the plan. On the other hand, noncontributory pension plans do not accumulate from deductions from the employee’s salary or compensation. Both Reed and Guffey involved noncontributory military pensions. Military pensions differ from contributory pensions in that they do not accrue directly from salary deductions. This court held that military pensions are community property in Van Loan v. Van Loan, 116 Ariz. 272, 273, 569 P.2d 214, 215 (1977), but prior to Van Loan noncontributory, military pensions had not been considered community property in this jurisdiction. Van Loan extended the principle that contributory pensions are community property to include noncontributory plans, which are earned by community labor rather than by contribution of community funds. Adopting the reasoning of the California Supreme Court in Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), Van Loan held that “to the extent that such a property right [in a non-vested, non-contributory pension plan] is earned through community effort, it is properly divisible by the court upon dissolution of the marriage.” 116 Ariz. at 274, 569 P.2d at 216 (emphasis added). Everson v. Everson, 24 Ariz.App. 239, 537 P.2d 624 (1975), in contrast to Van Loan, was not a case which radically altered Arizona community property law. The Everson case concerned a property settlement on marital dissolution. The court included the husband’s pension and profit-sharing plans among the divisible community assets. Ten years before, Warren v. Warren, supra, had recognized that contributory stock and pension plans, as forms of deferred compensation, are community property. Thus Everson did not suddenly give the courts the power to divide that type of property upon dissolution of marriage. Everson simply made that power explicit. Van Loan and Everson stand for similar propositions, but the cases are distinguishable. Everson acknowledged that accumulations in pension funds, as deferred compensation, are judicially divisible community property; Van Loan extended divisible community property to include noncontributory pension plans. This distinction is important in examining Reed and Guffey. Reed v. Reed involved an appeal from a trial court holding that the wife had a community property interest in one-half the military pension her husband had earned during their marriage. Division Two of the Court of Appeals reversed, pointing out first that the Reeds’ final decree had predated Everson v. Everson and Van Loan v. Van Loan. The Reed court declared that although Everson held that the portion of pension plans earned during marriage is indeed community property, Van Loan was the first square holding that “non-vested military benefits attributable to community effort are community property.” Reed, 124 Ariz. at 385, 605 P.2d at 649. Because Everson and Van Loan were decided after the Reeds’ final decree, the Reed court refused to apply the ruling retroactively. The court in Reed relied on public policy which favors finality of divorce decrees. “There is a compelling policy interest favoring the finality of property settlements. Peste v. Peste, 1 Wash.App. 19, 459 P.2d 70 (1969). This policy interest would be greatly undermined if the court were to create the potential for reexamination of every military divorce prior to Everson and Van Loan.” Id., 124 Ariz. at 385, 604 P.2d at 649 (citation omitted, emphasis supplied). Guffey v. LaChance, supra, involved a wife’s petition to modify her 1969 divorce decree to include her husband’s undisposedof military retirement pension. The former Mrs. LaChance based her argument on the applicability in 1969 of later-repealed A.R.S. § 25-318(D) (corresponding to current subsection (B)). The statute would have required unprovided-for community property to be treated as tenancy-in-common property, entitling her to one-half of the pension. The Guffey court recounted but disregarded this argument, basing its holding instead on the finality of property settlements reasoning of Reed. The court in Guffey also refused to give “retrospective effect” to “the rule in Van Loan that the community acquires a property right in unvested pension benefits ...” Id., 127 Ariz. at 142, 618 P.2d at 636. The courts in Reed and Guffey were justified in not giving Van Loan retrospective effect. They were wrong, however, to hail Everson as a groundbreaking decision rather than the logical heir to an older, different community property concept; unlike Van Loan, Everson did not require special retrospective application, as its holding was consistent with extant law. Thus, even though John and Opal’s dissolution decree preceded Everson, his accumulated pension benefits earned during their marriage were considered community property. John’s ASRS pension plan was a contributory pension plan. Unlike those in Van Loan, Reed and Guffey, John’s deferred salary, and not his “efforts,” went directly into the coffers of the retirement system. Even before Van Loan made noncontributory pensions subject to equitable distribution upon marital dissolution, John and Opal’s community had a cognizable property interest in his contributory pension plan. Opal did not receive her share of the value of John’s pension at the time of their dissolution decree in 1974. She was entitled to receive that share from the death benefit payable upon John’s death. The judgment of the superior court awarding Opal one-half the value of John’s ASRS pension as of the date of their marital dissolution is affirmed. The decision of the Court of Appeals reversing the award of benefits to Opal is vacated. In all other respects the decision of the Court of Appeals is approved, and the case is remanded to the superior court for further proceedings consistent with this opinion. GORDON, Y.C.J., and HAYS and FELDMAN, JJ., concur. . Because the intermediate beneficiary does not assert any share of the benefit, we need not determine the disposition of that share. . A.R.S. § 25-318(B) reads in full: B. The community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest.

OPINION GARBARINO, Presiding Judge. ¶ 1 We are called upon to determine the effect, if any, that a disclaimer of warranties, or an “as is” provision, in a purchase contract for commercial property has on a vendor’s duty'to disclose defects in the physical condition of a property being sold. We hold that latent defects in a property sold “as is” that are known to the vendor must be disclosed to the purchaser. We also hold that a vendor may be held liable for negligent nondisclosure of facts basic to the transaction when the purchaser is precluded by the vendor from discovering those facts. ¶ 2 The appellants, Pima Capital Management Company and Lincoln Life & Casualty, appeal a jury verdict awarding $3,690,000 in damages to the appellees, The S Development Company and Presidio North Limited Partnership, for the appellants’ negligent nondisclosure of facts basic to the parties’ transaction. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶ 3 Because this is an appeal from a jury verdict, we view the evidence in the light most favorable to upholding the jury verdict. Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69, ¶ 4, 3 P.3d 988, 989 (App.1999). The appellees purchased two Phoenix apartment complexes, Presidio North and Bell Tower, from the appellants in July 1993. Both purchase contracts contained substantially similar provisions, which stated: Disclaimer of Warranties. Buyer acknowledges that except as expressly set forth in this Agreement, Seller makes and has made no representations or warranties of any kind whatsoever, including but not limited to warranties concerning the condition of title, physical condition, encroachments, access, zoning, value, future value, income potential, any survey, environmental report or other information prepared by third parties, loan assumability,[ ] or the presence on or absence from the Property of any hazardous materials or underground storage tanks. Buyer is purchasing the Property as a result of its own examination thereof in its “AS IS" condition, and upon the exercise of its own judgment and investigation. (Emphasis added.) Both contracts also contained provisions granting the appellees the right to inspect the property: Buyer’s Inspection. During the Review Period described ... below, Buyer and Buyer’s agents, servants, employees and independent contractors shall have reasonable access to the Property for the purpose of investigating the condition of the same, and for any other reasonable purpose which relates to the potential use, occupancy, operation and maintenance of the Property; provided, however, that in conducting such investigations ... (ii) Buyer shall not injure or damage the Property.... (Emphasis added.) ¶ 4 Prior to the close of escrows, the appellees retained two engineering firms to inspect each of the buildings to be purchased. The inspections did not reveal any substantial problems with the plumbing in the buildings. Approximately two years after closing, however, the appellees learned that polybutylene pipe (PB pipe) had been used in both Presidio North’s and Bell Tower’s plumbing. PB pipe is a defective type of flexible tubing that will fail and leak when it is used to transport warm water under normal water pressures. The appellants claim that they were not aware that PB pipe had been used in the buildings when they sold the buildings to the appellees and, therefore, they could not and did not disclose that condition to the appellees prior to the sale. ¶5 The appellees sued the appellants alleging fraud and nondisclosure for failing to disclose the defective plumbing prior to the close of escrows. The appellants moved for summary judgment arguing that the “as is” provisions in the purchase contracts relieved them of any duty to disclose the defective plumbing, even if they had actual knowledge of the condition. The trial court denied the appellants’ summary judgment motion and the case proceeded to trial. The trial court granted the appellants’ motion for judgment as a matter of law on the appellees’ punitive damages claim after the case-in-chief, but denied the appellants’ motions for judgment as a matter of law on the other causes of action after the close of all of the evidence, and after the jury rendered its verdict. The trial court also denied the appellants’ motion for a new trial and motion to alter or amend the judgment. The jury returned a verdict in favor of the appellants on the fraud claim, but awarded the appellees $3,690,000 in damages on the nondisclosure claim. The appellants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-210KB) and (F)(1) (1994). ISSUES ' ¶ 6 The appellants raise the following issues on appeal: 1. Whether the trial court erred by denying the appellants’ motion for judgment as a matter of law in light of the purchase contracts’ “as is” clauses; 2. Whether the trial court erred by refusing to give an instruction on the legal effect of an “as is” clause; 3. Whether the trial court erred by instructing the jury that the appellants could have imputed knowledge of the defective plumbing; 4. Whether the trial court erred by precluding evidence of repairs made to the defective plumbing paid for by settlement proceeds from the plumbing manufacturer; 5. ^Whether the trial court erred by precluding evidence of the appellants’ offer to rescind the purchase contracts; 6. Whether the trial court erred by refusing to give the jury an avoidable consequences instruction; and 7. Whether sufficient evidence supported the jury’s consequential damages award. DISCUSSION I. The “As Is” Provisions and the Appellants’ Motion for Judgment as a Matter of Law ¶7 The appellees’ claim for nondisclosure is predicated on the Restatement (Second) of Torts § 551 (1977). The appellees devote much of their brief to refute the appellants’ argument that the “as is” clauses in the purchase contracts relieve them of tort liability for nondisclosure. The appellants are not, however, arguing that the insertion of the “as is” clauses in the purchase contracts relieves them, as a matter of law, of all tort liability for nondisclosure. Rather, they argue that the “as is” clauses pertain only to one element of the tort of nondisclosure-the duty element. ¶ 8 Section 551 of the Restatement (Second) of Torts places the burden on a plaintiff who claims that a defendant negligently failed to disclose facts basic to the transaction: (1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question. Restatement (Second) of Torts § 551(1) (emphasis added). The appellants do not dispute that the appellees argued, and the jury was instructed, that the appellants’ duty to disclose arose under § 551(2)(e) of the Restatement (Second) of Torts, which provides as follows: (2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts. Restatement (Second) of Torts § 551(2)(e). Essentially, the appellants argue that they were under no duty to disclose the defective plumbing to the appellees by operation of the “as is” clauses; that the “as is” clauses effectively shifted the burden of discovering the defect to the appellees and, therefore, the appellants are not liable for the appellees’ failure to discover the defect, and they should have been granted judgment as a matter of law. ¶ 9 First, we find merit in the appellees’ argument that the existence of an “as is” provision in a purchase contract generally operates only as a waiver of breach of warranty claims, not tort claims. See, e.g., Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 384, 694 P.2d 198, 214 (1984) (stating that “[wjhile parties to a contract may ‘disclaim responsibility for any potential [tort] liability ... they must expressly spell out their intention’ ” (emphasis added) (quoting Penn. Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1175 (3d Cir.1981))); Mardan Corp. v. C.G.C. Music, Ltd., 600 F.Supp. 1049, 1055 (D.Ariz.1984) (“[T]he warranty disclaimer is effective to preclude only causes of action which are based upon breach of warranty theory.”), aff'd, 804 F.2d 1454 (9th Cir.1986); Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994, 1001 (D.N.J.1988) (“[A]n ‘as is’ provision is merely a warranty disclaimer and as such precludes only claims based on breach of warranty.”); Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex.1995) (“A buyer is not bound by an agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent representation or concealment of information by the seller.”). A review of the disclaimer provisions at issue here does not evince an intent by the appellees to waive any tort remedies that may be available to them. ¶ 10 We also agree with the appellants’ argument that the “as is” clauses may affect the duty of a vendor to disclose facts that are basic to the transaction and, therefore, preclude tort liability. We do not agree with the appellants that the facts of this case relieve them, as a matter of law, from the obligation to disclose the defective plumbing. ¶ 11 We begin by recognizing that Arizona law “implies a covenant of good faith and fair dealing in every contract” so that “neither party will act to impair the right of the other to receive the benefits which flow from their agreement or contractual relationship.” Rawlings v. Apodaca, 151 Ariz. 149, 153, 726 P.2d 565, 569 (1986). In keeping with the covenant of good faith and fair dealing, we hold that a vendor must disclose latent defects in property that are known to the vendor, notwithstanding the existence of a burden-shifting “as is” clause or disclaimer of warranties. ¶ 12 A latent defect is defined as “[a] hidden or concealed defect. One which could not be discovered by reasonable and customary observation or inspection____” Black’s Law Dictionary 611 (Abridged 6th ed.1991). Nondisclosure to the purchaser of latent defects known to the vendor “impair[s] the right of the [purchaser] to receive the benefits” of the contract. Rawlings, 151 Ariz. at 153, 726 P.2d at 569. The very nature of a latent defect precludes the discovery of the defect upon a reasonable inspection. To hold otherwise would allow vendors to conceal latent problems with the property and “hide behind contract language purporting to shift the risk of nondisclosure to the purchaser.” Haney, 839 F.Supp. at 757. We are confident that this result would offend the implied covenant of good faith and fair dealing that the law incorporates into every contract. See Restatement (Second) of Torts § 551 cmt. 1. If the defective plumbing was a latent defect known to the appellants and that defective plumbing was a fact basic to the transaction, the appellants were under an obligation to disclose that condition regardless of the “as is” clause. ¶ 13 We also find support for our holding in the commentary to § 551 of the Restatement (Second) of Torts. Comment j states in part that “[i]f the parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places it there by custom or otherwise the other party has no duty of disclosure.” Restatement (Second) of Torts § 551 cmt. j. An “as is” clause shifts the burden of discovering those facts that are basic to the transaction. The commentary indicates, however, that the burden shifts to the other party to discover patent faets-facts that are discoverable upon a reasonable inspection. The rule stated in Subsection (1) reflects the traditional ethics of bargaining between adversaries, in the absence of any special reason for the application of a different rule. When the facts are patent ... there is no obligation to give aid to a bargaining antagonist by disclosing what the defendant has himself discovered. Restatement (Second) of Torts § 551 cmt. k; see also Lorenzo v. Noel, 206 Mich.App. 682, 522 N.W.2d 724, 726-27 (1994) (“ ‘As is’ clauses allocate the risk of loss arising from conditions unknown to the parties____‘As is’ clauses also transfer the risk of loss where the defect should have reasonably been discovered upon inspection, but was not.” (citation omitted)); Jaffe v. Bolton, 817 S.W.2d 19, 25 (Tenn.Ct.App.1991) (“[An] ‘as-is’ clause basically refers to the obvious or reasonably discernible defects in the property.”); Conahan v. Fisher, 186 Mich.App. 48, 463 N.W.2d 118, 119 (1990) (per curiam) (“Generally, the buyer bears the risk of loss under an ‘as is’ contract unless the seller fails to disclose concealed defects known to him.”); C. Lambert & Assocs. v. Horizon Corp., 106 N.M. 661, 748 P.2d 504, 507 (1988) (“[A]n ‘as is’ clause provides absolute protection to a seller ... only when the buyer and seller possess equal knowledge of the property.”); William L. Prosser, Handbook of the Law of Torts § 106, at 697-98 (4th ed. 1971) (“[T]here has been a rather amorphous tendency on the part of most courts to find a duty of disclosure in cases where the defendant has special knowledge, or means of knowledge, not open to the plaintiff____ This has now generally been extended to any facts or conditions basic to the transaction____”). ¶ 14 Even if we assume that the plumbing defect in this case was a “patent defect,” the jury was free to conclude that the “as is” clauses did not protect the appellants because the buyers were not given a chance to investigate. The Restatement (Second) of Torts further indicates that “when the plaintiff has equal opportunity for obtaining information that he may be expected to utilize if he cares to do so,” then the defendant is not under a duty to disclose. Restatement (Second) of Torts § 551 cmt. k. The evidence developed at trial demonstrates that, even if the plumbing defects were patent defects, the appellees did not have an “equal opportunity” to discover the defects because 1) the defective pipe was buried six inches inside the walls; 2) the contracts precluded the appellees from damaging the property; 3) the appellants’ property manager would not allow the appellees to inspect inside the walls of either building; and 4) all visible plumbing was copper piping. This is logical because, although a defect could be discovered upon inspection, preventing a party from conducting an inspection effectively turns what may be a patent defect into an undiscoverable-infact latent defect. ¶ 15 Simply stated, in the face of an “as is” sale, the rule of caveat emptor continues to apply and the vendor may be insulated from liability for nondisclosure of facts basic to the transaction if the facts at issue are patent, or if the purchaser has been given an appropriate opportunity to discover latent defects. See Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 215, 619 P.2d 485, 487 (App.1980) (applying caveat emptor to the sale of real property when the defect would have been discovered upon a reasonable inspection and the evidence did not indicate that the purchaser was prevented from inspecting). If the vendor fails to disclose a known latent defect or fails to give appropriate opportunity to discover latent defects, caveat emptor does not apply and the vendor must disclose the defect or, at a minimum, be subject to tort liability for nondisclosure. ¶ 16 “We review de novo a trial court’s ruling on a motion for [judgment as a matter of law].” Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 6, 995 P.2d 735, 738 (App.1999). “A trial court should grant a motion for [judgment as a matter of law] only when the facts presented in support of a claim have so little probative value that reasonable people could not find for the claimant.” Id. Moreover, “we must view the evidence most favorably to sustaining the jury’s verdict, and must not disturb that verdict ‘if reasonable minds could differ as to the inferences to be drawn from the facts.’ ” Anderson v. Nissei ASB Mach. Co., 197 Ariz. 168, 172, ¶ 10, 3 P.3d 1088, 1092 (App.1999) (quoting Adroit Supply Co. v. Elec. Mut. Liab. Ins. Co., 112 Ariz. 385, 390, 542 P.2d 810, 815 (1975)). ¶ 17 All of the issues raised with regard to the “as is” clauses are questions of fact for the jury. It is for the jury to determine if the defective plumbing was a fact basic to the transaction, see Restatement (Second) of Torts § 551 emt. j, whether a defect is latent or patent, see Tassan v. United Dev. Co., 88 Ill.App.3d 581, 43 Ill.Dec. 769, 410 N.E.2d 902, 910 (1980) (“It would appear that whether a defect is latent or patent is generally a question of fact since it depends on a standard of reasonableness in the given circumstances.”), whether the appellants knew about the defective plumbing, see Favour v. Joseff, 5 Ariz.App. 244, 246, 425 P.2d 432, 434 (1967) (“The questions of intent and knowledge are questions of a state of mind and the state of mind which must be determined is that of a party. These questions are questions of fact ____”), whether the appellees undertook a reasonable inspection, see de la Cruz v. State, 192 Ariz. 122, 124 n. 3, ¶ 8, 961 P.2d 1070, 1072 n. 3 (App.1998) (“[T]he jury’s role was ... to determine whether the State breached its duty to act reasonably [when undertaking an inspection] ----”), and whether the appellants did not give the appellees equal opportunity to discover the defect. See Restatement (Second) of Torts § 551 cmt. m (“[Disputed facts bearing upon the existence of the duty, as for example the defendant’s knowledge of the fact, [or] the other’s ignorance of it or his opportunity to ascertain it ... are to be determined by the jury....”). Viewing the evidence in the light most favorable to upholding the jury’s verdict, we conclude that reasonable minds could differ on the inferences to be drawn from the evidence. The appellants were not entitled to judgment as a matter of law merely because the purchase contracts contained “as is” clauses. ¶ 18 The dissent makes a good point. It appears, however, that the dissent posits that a contract containing an “as is” clause relieves the seller of the obligation to act in good faith, which is the obligation of every contracting party. The choice we are given is to elevate form over the moral and ethical duties inherent in our day-to-day lives. We choose the latter-that which reaffirms the policies underlying the covenant of good faith and fair dealing. II. The Trial Court’s Refusal to Give an Instruction on the “As Is” Clauses ¶ 19 The appellants next contend that the trial court erred by failing to give the jury an instruction on what the legal effect of an “as is” clause had on the underlying transaction. Although both parties requested an “as is” instruction, the trial court did not give one. The appellants submitted the following instruction: “The ‘as is’ clause in a contract puts the buyer on notice that the property may be defective, and it precludes the buyer from justifiably relying on the seller’s silence as a warranty of fitness.” The appellees’ proposed instruction stated: The realty purchase contracts under which plaintiffs purchased the apartment complexes at issue contain a disclaimer of warranty clause that provides in part: “Buyer is purchasing the property as a result of its own examination thereof in its ‘AS IS’ condition, and upon the exercise of its own judgment and investigation.” Although that clause may be considered as evidence, a party cannot free himself from fraud or misrepresentation with a clause in a contract. Clauses in realty purchase contracts do not preclude actions by buyers for non-disclosure. ¶ 20 “In order to properly preserve an objection to jury instructions on appeal, counsel must state distinctly what is being objected to and the grounds for the objection.” Williams ex rel. Dixon v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App.), review granted in part (1994), aff'd, 188 Ariz. 257, 934 P.2d 1349 (1997); Ariz. R. Civ. P. 51(a) (“No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” (emphasis added)). “The purpose of this rule is to fully advise the trial court of the basis of a litigant’s position so that it may not be led into involuntary error.” Edward Greenband Enters. of Ariz. v. Pepper, 112 Ariz. 115, 118, 538 P.2d 389, 392 (1975). ¶ 21 We conclude that the appellants failed to preserve this issue for appeal. First, although not dispositive of the issue, the appellants’ objection to the appellees’ proposed jury instructions was devoid of any objection to the inclusion of the appellees’ proposed “as is” instruction. Second, when the parties were settling final jury instructions with the trial court, counsel for the appellants stated that “[t]he objection to the [appellees’ ‘as is’] instruction is simply if you’re going to be giving an instruction like that, we are asking that you also give [the appellants’] proposed jury instruction No. 5, which is an additional sentence that talks about the as is clause.” When advised by the trial court that it was “not inclined to give either” instruction because it felt that both proposed instructions were argumentative, counsel for the appellants responded, “That’s another option.” The appellants’ counsel continued, “Like I said, your Honor, if you’re going to give one, we are asking you to give the other. We can live with neither one of those.” (Emphasis added.) The trial court then stated, “I’m not going to give either one.” That was the end of the discussion. Clearly, the appellants objected to the giving of only the appellees’ instruction without the appellants’ instruction, but they maintained that they would be satisfied if neither instruction was given. Accordingly, the appellants cannot predicate error upon the trial court’s refusal to give any “as is” instruction because they have waived that issue on appeal. ¶ 22 We also note that the trial court, even though refusing to give either instruction, did permit both parties to “say what you want about an as is clause in closing argument.” The appellants capitalized on the trial court’s permissive gesture and argued as follows: Since my clients didn’t make any representations, they didn’t make any false ones. And that’s the significance of all this business about the contracts and this as is and all of that. They did an as is deal. They said you have the right to inspect. As is means, you know, we are letting you decide in your judgment whether you want to buy these places or not. You got to decide. That’s why you get to, you know, kick the tires. We want to sell them, so you decide if you want them. Just like if you bought a car as is. It’s eight years old. Nobody knows whether the carburetor is going to last a day, a week, a year, so we’re selling it as is. That’s why we are not making any representations to the [appellees] in this case, because we are selling property as is. If we weren’t selling them as is, we would make some representations, I guess---It’s just a business decision that was sold as is, bought as is. There’s nothing wrong with that. It’s not like it’s against the law. (Emphasis added.) III. The Trial Court’s Imputed Knowledge Instruction ¶ 23 The appellants contend that the trial court committed reversible error by al lowing the jury to consider imputed knowledge of the plumbing defect flowing from the appellants’ agents to the appellants, rather than instructing the jury that, under § 551 of the Restatement (Second) of Torts, the appellants were required to have actual knowledge of the defect. This issue has been preserved for appeal. ¶ 24 We first determine whether § 551 of the Restatement (Second) of Torts requires a principal to have actual knowledge as opposed to constructive knowledge imputed to it by an agent. If we conclude that actual knowledge is required, the trial court’s instruction on imputed knowledge was reversible error. “A jury verdict will not be overturned because of the jury instructions that were given unless there is substantial doubt as to whether or not the jury was properly guided in its deliberations.” Catchings v. City of Glendale, 154 Ariz. 420, 424, 743 P.2d 400, 404 (App.1987). ¶ 25 The appellants’ argument is not well taken. A review of our common law, the Restatement (Second) of Torts, and the Restatement (Second) of Agency indicates that knowledge imputed from an agent to its principal can satisfy the requirements for nondisclosure under § 551 of the Restatement (Second) of Torts. As a general proposition, “knowledge acquired by an agent in the course of employment is imputed to the principal ____[and] is premised on the presumption that the agent will perform his obligation to give his principal all knowledge relevant to the principal’s protection and interest.” Manley v. Ticor Title Ins. Co. of Cal., 168 Ariz. 568, 572, 816 P.2d 225, 229 (1991). ¶ 26 The appellants argue that the term “know” within the meaning of § 551 of the Restatement (Second) of Torts somehow requires actual knowledge. The appellants incorrectly premise their argument on the notion that a negligent nondisclosure claim has a “deceit component,” and, therefore, that the state of mind of an agent cannot be imputed to the principal. We disagree. See Restatement (Second) of Agency § 257 cmt. b (1958) (“A principal, although personally innocent, is liable in an action of deceit under the rule stated in this Section [Misrepresentations; in General] if the agent’s conduct constitutes deceit.” (emphasis added)); id. § 261 cmt. a (“The principal is subject to liability [for his agent’s fraud] under the rule stated in this Section although he is entirely innocent____”); id. § 272 cmt. e (“In determining tort liability, the knowledge which the actor has or should have is usually of great importance. This is particularly true in cases of negligence and in tort which, like deceit ..., are based upon the fact that the defendant has acted improperly in view of the knowledge which he has.” (emphasis added)); id. illus. 6 (“P employs A to manage rental property. A learns that a stairway used in common by a number of tenants is dangerously weak. P’s liability for harm to a tenant, hurt by the fall of the stairway, results from A’s knowledge.” (emphasis added)). ¶ 27 The cases that the appellants cite for the proposition that the appellants were required to have actual knowledge of the defective plumbing, rather than constructive knowledge through their agents, do not support their position. In Frazier v. Southwest Savings & Loan Ass’n, 134 Ariz. 12, 653 P.2d 362 (App.1982), this Court did not have an imputed knowledge issue, or even an agency issue, before it. Rather, this Court held that the buyer’s lender could not be held liable for nondisclosure because the evidence did not support a finding either that the lender was an agent of the seller or that the lender had knowledge of the seller’s misrepresentations. Id. at 18-19, 653 P.2d at 368-69. ¶ 28 The next two cases that the appellants cite, Aranki v. RKP Investments, Inc., 194 Ariz. 206, 979 P.2d 534 (App.1999), and National Housing Industries v. E.L. Jones Development Co., 118 Ariz. 374, 576 P.2d 1374 (App.1978), are also distinguishable. In both of those cases, the plaintiffs attempted to impute the knowledge of a principal to an agent. See Aranki, 194 Ariz. at 208-09, ¶¶8-10, 979 P.2d at 536-37; Nat’l Housing Indus., 118 Ariz. at 379, 576 P.2d at 1379. By contrast, the facts of this case do not demonstrate that the appellees are attempting to impute knowledge of a principal to an agent. ¶ 29 The appellants last cite Wyatt v. Wehmueller, 167 Ariz. 281, 806 P.2d 870 (1991), in support of their position. In Wyatt, the supreme court departed from the general common law rule that the knowledge of an agent is imputed to the agent’s principal because it determined that the legislature, by statute, had intended to abrogate the common law rule and require that the principal have knowledge-in-fact. Id. at 284-85, 806 P.2d at 873-74. The court reasoned that the statute at issue carried with it criminal penalties and the scienter element of a criminal act could not be imputed. Id. at 285, 806 P.2d at 874. In addition, the court determined that the available remedies were punitive in nature, and, therefore, outside the scope of the general common law rules. Id. at 285-86, 806 P.2d at 874-75. Here, we are not dealing with a statutory abrogation of the common law. Rather, we are evaluating a common law cause of action sounding in tort. Wyatt does not support the appellants’ position. ¶ 30 The appellants also rely on comment b to § 275 of the Restatement (Second) of Agency, which states in part, If knowledge, as distinguished from reason to know, is the important element in a transaction, and the agent who has the knowledge is not one acting for the principal in the transaction, the principal is not affected by the fact that the agent has the knowledge. (Emphasis added.) This comment to § 275 does not support the appellants’ position. Rather, the comment merely reaffirms that the knowledge of an agent who does not represent the principal in the underlying transaction cannot be imputed to the principal. ¶31 We see no reason to depart from the common law rule of imputed knowledge in the context of a negligent nondisclosure claim given that the law presumes that “the agent will perform his obligation to give his principal all knowledge relevant to the principal’s protection and interest.” Manley, 168 Ariz. at 572, 816 P.2d at 229. We are particularly reluctant to depart from the common law in this case because there was substantial testimony that the property management company, whose agents accompanied the appellees during the inspections of the buildings, was actually in partnership with the appellants concerning the purchase and sale of the buildings. “Each partner is an agent of the partnership for the purpose of its business. An act of a partner ... for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership----” A.R.S. § 29-1021(1) (1998). The trial court did not err by giving the jury an imputed knowledge instruction. IV. The Preclusion of Evidence of Payment For Repairs by Settlement Proceeds from the Plumbing Manufacturer ¶32 The appellants next argue that the trial court erred by granting the appellees’ motion in limine that precluded the appellants from introducing evidence that the appellees had received settlement proceeds from a class action lawsuit involving the manufacturers of the defective plumbing. We review the trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. Brown v. United States Fid. and Guar. Co., 194 Ariz. 85, 88, ¶ 7, 977 P.2d 807, 810 (1998). Here, we find no abuse of discretion. ¶ 33 The appellees argued, and the trial court appeárs to have agreed, that the collateral source rule precluded the admission of evidence relating to the proceeds of a settlement with the manufacturer of the PB pipe. “In general, the collateral source rule allows a plaintiff to fully recover from a defendant for an injury even when the plaintiff has recovered from a source other than the defendant for the same injury.” Norwest Bank (Minn.), N.A. v. Symington, 197 Ariz. 181, 189, ¶ 36, 3 P.3d 1101, 1109 (App.2000). This means that “compensation for an injury received from a collateral source fully independent of the wrongdoer does not operate to reduce the damages recoverable from the wrongdoer.” Burrington v. Gila County, 159 Ariz. 320, 325-26, 767 P.2d 43, 48-49 (App.1988) (emphasis added). ¶ 34 Even if we were to assume that the appellees received the settlement funds based upon the same injury that the appellants are alleged to have caused, it is clear that the manufacturer of the pipe and the appellants are independent of each other and any benefit received from the manufacturers is collateral to the damages allegedly caused by the appellants. We disagree with the appellants that it does not matter “that [the appellees] asserted different claims against [the appellants] in this case.” The injury resulting from the actions of the manufacturer by negligently manufacturing the PB pipe and the injury caused by the appellants due to the nondisclosure of a defective condition of the property are only related in that.the defective condition was the plumbing — two completely unrelated torts with unrelated measures of damage. ¶ 35 Moreover, even if the appellants are correct in their assertion that the collateral source rule does not apply, the fact that the appellees received settlement funds from a product liability suit is irrelevant to the damages issue asserted in the appellees’ cause of action for nondisclosure against the appellants. That is, the evidence of the settlement proceeds for repairs would have been irrelevant because the appellees’ measure of damages was the difference between what the appellees paid for the buildings and what the buildings were worth at the time of the sale, including the defective plumbing. Subsequent receipt of monies from a third party and ensuing repairs do not affect that measure of damage. The trial court did not abuse its discretion by precluding that evidence from the trial. V. The Trial Court’s Preclusion of the Appellants’ Offer to Rescind, the Purchase Contracts ¶ 36 The appellants next argue that the trial court erred by precluding the introduction of the appellants’ offer to rescind the purchase contracts, which they assert is relevant to the issue of the appellees’ duty to mitigate damages. We disagree. The appellees moved in limine to preclude the appellants from introducing the offer to rescind the purchase contracts and the trial court granted the motion. We need look no further than our rules of evidence to determine that the trial court was well within its discretion in precluding the evidence. See Brown, 194 Ariz. at 88, ¶ 7, 977 P.2d at 810. ¶37 Rule 408 of the Arizona Rules of Evidence precludes the introduction of offers to compromise: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Ariz. R. Evid. 408 (emphasis added). The appellants argue that the evidence of the settlement offer is directly related to the appellees’ duty to mitigate damages, that is, had the appellees accepted the settlement offer, the appellees would not have incurred the damages that it sought as a product of this lawsuit. The appellants’ argument pertains directly to the amount of the appellees’ claim. Tribby v. Northwestern Bank of Great Falls, 217 Mont. 196, 704 P.2d 409, 417 (1985) (“We are not persuaded by the contention that refusing an offer to settle is a failure to mitigate damages and we find no direct authority for that proposition.”). ¶ 38 The appellants cite Burris v. City of Phoenix, 179 Ariz. 35, 875 P.2d 1340 (App. 1993), for the proposition that under all circumstances, settlement offers may be admitted on.a mitigation of damages issue. To that extent, we find that Burris is not dispositive on this issue and is distinguishable from the instant case. Burris involved the admission of the City of Phoenix’s offers to compromise Burris’s employment discrimination claim. The trial court concluded that the “settlement discussions were admissible concerning Burris’s failure-to-hire claim but not on his wrongful discharge claim.” Id. at 41, 875 P.2d at 1346. The court of appeals recognized that “[t]he trial court did not consider evidence of the settlement offer on the issue of the validity of Burris’s claim; instead, the court considered the offer on the question of mitigation of Burris’s damages [on Burris’s failure-to-hire claim].” Id. The court of appeals then concluded that “Rule 408 does not bar this use of the evidence of the settlement discussions and offer.” Id. Without second-guessing the wisdom of the court in Burris, the admission of the settlement offers in relation to Burris’s failure-to-hire claim may have been appropriate. The court in Burris did not, however, extend the exceptions to the admissibility of settlement offers precluded by Rule 408. Rather, the admission of the settlement offers at issue in Burris is unique to the facts of that case. ¶ 39 Here, that unique quality is not present. Evidence of offers to rescind purchase contracts under a theory of mitigation of tort-based damages is not relevant, even if Rule 408 would allow for the wholesale admission of any evidence tending to support a mitigation of damages defense. The failure to mitigate damages might arguably constitute a proper purpose for admitting evidence of settlement negotiations under [Rule] 408, but the issue is irrelevant in this case because the plaintiffs did not have the duty to mitigate their damages by accepting the offer to rescind. As the victims of misrepresentation, the plaintiffs could elect to either affirm the contract and sue for damages or rescind the contract. Price v. Long Realty, Inc., 199 Mich.App. 461, 502 N.W.2d 337, 340 (1993). We see no abuse of the trial court’s discretion by prohibiting the evidence of the appellants’ offer to rescind. VI. The Trial Court’s Refusal to Give an Avoidable Consequences Instruction ¶40 The appellants also argue that the trial court erred by failing to give an avoidable consequences instruction, that is, an instruction to the jury that a tort plaintiff has the duty to mitigate its damages and “cannot recover for losses due to ‘avoidable consequences.’ ” Monthofer Invs. Ltd. P’ship v. Allen, 189 Ariz. 422, 428, 943 P.2d 782, 788 (App.1997). The appellants point to no evidence in the record that an avoidable consequences instruction would have been warranted. See Herman v. Sedor, 168 Ariz. 156, 158, 812 P.2d 629, 631 (App.1991) (“It is reversible error to instruct on an issue if there is no evidence to support the instruction.”). The appellants merely give an unsupported proposition that the appellees “could have avoided the consequential damages ... had [the appellees] made the required repairs earlier.” ¶41 The appellees, however, are seeking the measure of damages between what they paid for the buildings and the buildings’ fair market value at the time of the sale. We conclude that the trial court did not abuse its discretion by refusing to give an avoidable consequences instruction. The instruction would not have conformed to the evidence presented at trial. VII. Sufficiency of the Evidence to Support the Award of Consequential Damages ¶42 The appellants’ final argument is that the evidence did not support the jury’s consequential damages verdict, and on that basis, the appellants are entitled to a new trial. “In reviewing a jury verdict, we view the evidence in the light most favorable to sustaining the verdict. We will affirm the verdict if there is substantial evidence to support it.” Warrington, 197 Ariz. at 69, ¶ 4, 3 P.3d at 989 (citation omitted). ¶ 43 The trial court’s charge to the jury on the issue of damages was as follows: If you find that any of the defendants are liable to plaintiffs for negligent misrepresentation by omission or fraud, you must then decide the full amount of money that will reasonably and fairly compensate plaintiffs for damages proved by the evidence to compensate the plaintiffs for the pecuniary loss to them of which the misrepresentation is a legal cause, including the difference between the value of what was received in the transaction and the purchase price or other value given for it, and pecuniary loss suffered otherwise as a consequence of the plaintiffs reliance upon the misrepresentations. Because the trial court instructed the jury on both benefit-of-the-bargain damages and consequential damages, and the verdict forms do not distinguish between the two types of damages, we cannot conclude what, if any, portion of the jury’s award should be considered consequential damages. ¶44 From an evidentiary standpoint, the appellees produced sufficient evidence to establish at least benefit-of-the-bargain damages. The appellees presented testimony that, had they known of the defective plumbing, they would have purchased the buildings for $5 to $6 million less than the $15 million paid. In addition, the appellees presented expert testimony on the replacement value of the defective plumbing, including “lost opportunity” damages for use of the money that the appellees overpaid, which the expert opined to be, at a minimum, nearly $3 million. The jury awarded approximately $700,000 more than the appellees’ expert’s opinion that, at a minimum, the appellees lost $3 million as a result of the nondisclosure of the defective plumbing. Even if we assume that the jury awarded nearly $700,000 as “consequential damages,” we find that the evidence supports this award. The expert testified that, in his opinion, he would expect “the discount [on the purchase price of the properties] to be greater than simply the cost of repairs [to the plumbing], because clearly there is cost associated with that, which would be reflected in the property value.” In any event, it was within the jury’s province to determine the compensation that appellees were due when taking into account the fair market value of the buildings at the time of the sale, including defects, and the price the appellees paid for the buildings. We conclude that the evidence supports the jury’s verdict. CONCLUSION ¶ 45 For the foregoing reasons, we affirm the jury’s verdict and the judgment entered thereon. CONCURRING: JON W. THOMPSON, Judge. . The purchase contract for Bell Tower did not contain the disclaimer of loan assumability. . See Barrett v. United States Brass Corp., 864 S.W.2d 606, 612 (Tex.Ct.App.1993) ("A polybutylene plumbing system consists of molded plastic (Celcon) insert fittings, polybutylene pipe extruded from polybutylene resin, and aluminum or copper crimp rings. Plumbers install the plumbing system by placing the crimp ring over the end of the pipe, pushing the fitting inside the pipe, and then using a crimp tool to crimp the ring around the outside of the pipe and fitting. The pressure from the crimp ring deforms the pipe and the fitting to make a water-tight seal with the fitting.”), rev'd, Amstadt v. United States Brass Corp., 919 S.W.2d 644 (Tex.1996). . The Restatement (Second) of Torts describes a fact basic to the transaction as a fact that is assumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but not go to its essence. These facts may be material, but they are not basic. Restatement (Second) of Torts § 551 cmt. j. . See Haney v. Castle Meadows, Inc., 839 F.Supp. 753, 757 (D.Colo.1993) ("While the parties can contractually alter the allocation of risk as to defects of which neither party has knowledge, a seller who actually knows there is a latent defect on the property and chooses not to reveal this to the purchaser cannot hide behind contract language purporting to shift the risk of nondisclosure to the purchaser.” (citing Brewer v. Brothers, 82 Ohio App.3d 148, 611 N.E.2d 492, 495 (1992))); Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561, 567 (1990) ("[T]he existence of an ‘as is’ clause in a contract of sale for real estate will not relieve the vendor of his obligation to disclose a condition which substantially affects the value or habitability of the property and which condition is known to the vendor, but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection.”); Mulkey v. Waggoner, 177 Ga.App. 165, 338 S.E.2d 755, 757 (1985) ("[T]he effect of an ‘as is’ clause on the passive concealment liability arising out of the duty to disclose ... concerns itself with obvious defects or at least those which are reasonably discemable.”). But see Eiland v. Coldwell Banker Hunter Realty, 122 Ohio App.3d 446, 702 N.E.2d 116, 123 (1997) ("If a purchase agreement states that the buyer purchases real property in its ‘as is’ physical condition ... the vendor has no duty to disclose latent defects."). . Black’s Law Dictionary defines a “patent defect” as one that "is plainly visible or which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence.” Black’s Law Dictionary 779 (Abridged 6th ed.1991). . Several courts have determined that the failure of a vendor to disclose a known latent defect to a purchaser is evidence of fraud. See Stemple, 400 S.E.2d at 566, and cases cited. Whether the failure to disclose a known latent defect amounts to fraud, however, is not before us. Although the issue we are deciding is whether a failure to disclose can be a basis for tort liability for negligent nondisclosure, some earlier fraud cases do assist us in illuminating the existence of the duty to disclose. There is much authority to the effect that if one party to a contract or transaction has superior knowledge or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud.... Williams v. Benson, 3 Mich.App. 9, 141 N.W.2d 650, 653 (1966) (emphasis added) (quoting 23 Am.Jur.2d Fraud and Deceit § 80), rev'd for a trial on the merits, 378 Mich. 721 (Mich.1966); see also Brooks v. Ervin Constr. Co., 253 N.C. 214, 116 S.E.2d 454, 457 (1960) ("Where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser, the vendor is bound to disclose such facts, and make them known to the purchaser.”); Kaze v. Compton, 283 S.W.2d 204, 207 (Ky.1955) ("[A]ctionable fraud or misrepresentation by a vendor may be by concealment or failure to disclose a hidden condition or a material fact.... If deception is accomplished, the form of the deceit is immaterial.”); Rothstein v. Janss Inv. Corp., 45 Cal.App.2d 64, 113 P.2d 465, 467 (1941) (holding that a vendee’s personal inspection of property is not a defense to fraud when the vendor knew of the defects, "and ‘where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such fact to the vendee.’ ” (quoting Clauser v. Taylor, 44 Cal.App.2d 453, 112 P.2d 661, 662 (1941))).