dealing with an instrument which was claimed to be invalid by one test; we are dealing with an instrument which is claimed to be invalid according to the other test. But in each case the invalidity claimed is based upon like unlimited statutory language. I have sought to emphasize the consideration that the language employed in each of these two sections, taken literally, is equally absolute and without exception; that for the same purpose which is behind all registry statutes, with no stronger or different purpose in one act than in the other the Legislature, by language equally positive, has provided for the invalidity of certain instruments in the circumstances respectively set out in the two acts; and that in the construction of both acts any equitable principle which would read an exception into the absolute language of one with equal force would require an exception to be understood as to the operation of the other. Nor can it with reason be said that there is any expression which indicates a desire on the part of the Legislature to limit the rule of construction as to registry statutes adopted by this court in Westerly Savings Bank v. Stillman. Rather must it be inferred from the absence of such provision that the Legislature was satisfied with that construction, and did not desire to interfere with its continuance. Westerly Savings Bank v. Stillman was decided in 1889. The section relat the signing of the mortgage. Does this clause render said section 10 essentially different from said section of the Public Statutes and relieve it from the application of the rule laid down in Westerly Savings Bank v. Stillman? It is clear that to hold thus would be to attempt to draw a distinction be tween the two sections, in regard to the point now under consideration which is altogether unreasonable and illogical. It would be to magnify a verbal variance into a vital and legal distinction, where none could have been intended. By the provisions of said section of the Public Statutes the conveyances therein named were to be invalid as to all persons save the parties thereto, unless said conveyances were acknowledged and recorded; the strongest interpretation that can be placed upon the later act, regarding personal property mortgages, is that they are to be invalid as to all persons except the parties thereto, unless possession of the chattels be taken and retained, or unless said mortgages be recorded in five days. According to the strict language of each section a condition of invalidity is provided for if the requirement of the respective statute is disregarded; in one case, if the conveyance is not acknowledged and recorded; in the other if the mortgagee fails to do one or the other of the things therein prescribed within five days. It would be a perversion of reasoning to hold that the Legislature intended to provide for a higher or a different de-ing to personal property mortgages now ungree of invalidity in the latter section than in the former, or to create in the latter section a condition of invalidity which would be unaffected by any equitable principle which should be applied to the former. I take it there are no degrees of invalidity. Under the former section the holder of certain conveyances, unacknowledged and unrecorded, according to the absolute language of that section, was the holder of an invalid conveyance save as to the parties. Under the latter section the holder of a chattel mortgage who had not taken and retained possession of the chattels or had not recorded said mortgage within five days, by the absolute language of that section, was the holder of an invalid personal property mortgage save as to the parties. Each holder under the conditions named was in exactly the same category as to the validity of his conveyance or his mortgage and a rule of construction applicable to one statute, which declared the invalidity of the conveyance, is equally applicable to the other statute, which declared the invalidity of the chattel mortgage. In one case the invalidity was based upon the absence of acknowledgment or rec"It is upon the same ground that in countries ord; in the other it was based upon the ab-in order to make them perfect titles against subwhere the registration of conveyances is required sence of possession or record within five days. The test of validity or invalidity provided in the two cases differed, but the condition of invalidity was the same. In West der consideration was first adopted in 1899. This court had said explicitly that, in equity at least, the construction of all registry statutes should be the same whether such statutes in terms provided that an unrecorded mortgage was valid as against a purchaser with notice or was silent on that subject. That had remained the settled rule of construction in our courts for ten years, and yet this statute was passed without an attempt on the part of the Legislature, by any language in the act, to neutralize or limit this established rule of construction. The case of Westerly Savings Bank v. Stillman must be regarded as the ruling authority in this state upon the question now under consideration, and is decisive of the case at bar. The view taken by the English Court of Chancery and by this court in Westerly Savings Bank v. Stillman is in agreement with the great weight of English and American authority. In 1 Story's Equity Jurisprudence, the author, in the course of his treatment of the subject of constructive fraud, says, at section 397: sequent purchasers, if a subsequent purchaser has notice at the time of his purchase of any prior unregistered conveyance, he shall not be permitted to avail himself of his title against that prior conveyance. This has been long the often applied in America, although not in Eng-edge of such equity is everywhere regarded as land, in courts of law as a just exposition of the registry acts. The object of all acts of this sort is to secure subsequent purchasers and mortgagees against prior secret conveyances and incumbrances. But, where such purchasers and mortgagees have notice of any prior conveyance. it is impossible to hold that it is a secret conveyance by which they are prejudiced. On the other hand, the neglect to register a prior conveyance is often a matter of mistake or of overweening confidence in the grantor; and it would be a manifest fraud to allow him to avail himself of the power by any connivance with others to defeat such prior conveyance." made in bad faith; and this is a doctrine of equity, of universal application, holding that a purchaser cannot in conscience hold a legal estate so acquired; there being no equity united with it. In the case before us as made by the bill, Lawrence [the first mortgagee] parted with his money and received this mortgage in good faith. As between him and Haskill [the mortgagor], the title, both legal and equitable, passed. As to subsequent purchasers and mortgagees, he was clothed with the equitable title, and the attempt to sell the property afterwards to another, and thus defeat the equitable title before created, would on the part of Haskill be In Patten v. Moore, 32 N. H. 382, two part-gagee had notice of the prior equity, he would the grossest bad faith; and, if the second mortners, being the owners of certain standing be justly charged with participating in the timber, executed a mortgage on the same to fraud. Indeed, there is no doctrine of equity more generally recognized than that which dethe complainant, but all the formalities renounces such a purchase as made in bad faith; quired by law were not completed and the and we are wholly unable to perceive any good mortgage recorded until November 3, 1851. reason why it should not be applied in its full On October 23, 1851, one of the partners, who force in a case like the one stated in the bill; and this, we think, accords with the adjudged had purchased his copartner's interest, concases in our own courts." veyed said timber to the respondent, who had knowledge of the complainant's mortgage. The respondent claimed the timber as a bona fide purchaser, alleging that the complainant's mortgage was invalid against him; it never having been completed and recorded till November 3, 1851. The court said: "The principle of equity is unquestioned that one who buys property with notice of an existing right of a third person, either legal or equitable, shall be deemed to have made his purchase in bad faith, and to be guilty of a fraud, so that he will not be permitted to set up his purchase against such right. * * It is no answer to this to say that the mortgage was at that time invalid. As between the parties, a mortgage is sufficient without any oath, and without either possession or recording. Rev. Stat. 248, c. 132, 7. And in that case, if before, or at the time of his purchase, William Moore [the respondent] had notice that there was even a defective and voidable mortgage, as to a bona fide purchaser, he was chargeable with notice of all the facts at that time existing relative to that mortgage, and at best would stand in no better position than Moore and Gage [said partners]." In Gooding v. Riley, 50 N. H. 400, at page, 411, the court said: The [6] Under the authorities the complainant must be held guilty of fraud in knowingly entering into the transaction with the mortgagor, Miss Vaill, to defeat the legal and equitable rights of the respondent. respondent in good faith had parted with his money, and had received therefor the In the sale of the mortgage in question. chattels by Miss Vaill to the complainant, these two women, Miss Vaill as principal and the complainant as particeps criminis, were guilty of fraud involving moral turpitude in thus combining in the attempt to deprive this respondent of his security and to cheat him of his money justly due. It would be a most unheard of and monstrous exercise of the equity jurisdiction of this court to grant this complainant the relief which she seeks upon a claim based on her own moral delinquency and fraud. Such action by the court would be in disregard of the maxim that "He that hath committed iniquity shall not have equity." VINCENT, J. (dissenting.) This is a suit in equity whereby the complainant seeks to restrain the respondent from taking possession of certain personal property and from foreclosing or treating as valid a certain mortgage upon the same and to have said mortgage delivered up and canceled. The complainant's bill must be dismissed. On July 10, 1914, at 10 o'clock a. m., the re"The English registry acts provided that conveyances of land should be deemed fraudulent spondent may present to this court a form of and void as against subsequent purchasers and decree to be entered in the superior court mortgagees, unless a memorial of such convey-dismissing the complainant's bill and awardances was registered; but it was very soon the ing costs to the respondent. established doctrine in equity that such prior deed or incumbrance, though not registered, created an equitable title in the grantee, and that, as the object of these statute provisions was to protect subsequent purchasers and incumbrancers against secret conveyances, notice to them would be equivalent to registry. Le Neve v. Le Neve, 3 Atk. 646; and see Dickerson v. Tillinghast, 4 Paige [N. Y.] 221 [25 Am. Dec. 528]. In such cases courts of equity lend their aid to protect the holders of such equitable titles against subsequent purchasers and others, with notices of such equity, as in all other cases A restraining order was issued which was where there is a prior equitable title which continued after a hearing upon the motion courts of equity would enforce. Whenever a for a preliminary injunction and is still in party, who has purchased and paid for the prop force. Subsequently, after the pleadings erty of another, has taken a promise to convey it, or has taken a conveyance which is good as were closed, and after a hearing in the subetween the parties, but not as to others for perior court upon the entry of a final decree, want of registration or the like, he will in equi- the case was certified to this court under ty be regarded as having the equitable title, which will prevail against a subsequent gran section 35, c. 289, Gen. Laws of R. I., upon an tee having notice of it. A purchase with knowl-agreed statement of facts. From the facts, as stated, it appears that The respondent claims that, notwithstandon or before September 28, 1910, Julia M.ing the specific terms of the statute, the reVaill, now deceased, executed and delivered cording of a personal property mortgage afto the respondent the mortgage under con- [ter the expiration of more than five days sideration, covering personal property then from the date of the signing thereof acts as owned by Miss Vaill and located in New a constructive notice to those who may take Shoreham, R. I. The respondent never took a conveyance subsequent to such recording, possession of the mortgaged chattels, nor did and that as against them such a mortgage he have the said mortgage recorded within would be valid. five days from the date of the signing thereof, but the same was placed on record in New Shoreham on October 26, 1910. Later, on July 18, 1911, Miss Vaill, by a bill of sale, sold and conveyed the chattels described in the said mortgage to the complainant, who thereupon took, and has since retained, possession of the same. The complainant at the time when she purchased the property-July 18, 1911-knew of the existence of the said mortgage to the respondent, and that the same then appeared of record. The indebtedness for which the said mortgage was given has not been paid, the interest thereon is in default, and therefore the respondent claims the right to take possession of and sell the property covered by said mortgage under the provisions thereof. The respondent also claims that the mortgage is valid as to the complainant because the complainant knew of its existence and record prior to her alleged purchase of the property which the mortgage describes. On the other hand, the complainant claims that said mortgage has no validity whatever; it not having been recorded within five days from the date of the signing thereof as required by section 10, c. 258, of the Gen. Laws of 1909. The case presents but a single issue, and that is whether or not a mortgagee, who has neither taken possession of the mortgaged property nor recorded his mortgage within the time required by statute, can still maintain his mortgage as against the mortgagor's vendee who purchases the property with full knowledge of the existence of the mortgage. The statute which fixes the time within which mortgages of personal property shall be recorded is section 10, c. 258, Gen. Laws of R. I., and is as follows: "Sec. 10. No mortgage of personal property hereafter made shall be valid as to the assignee in insolvency of the mortgagor, or any other person except the parties thereto and their executors and administrators, until possession of the mortgaged property be delivered to and retained by the mortgagee, or the said mortgage be recorded in the records of mortgages or personal property in the town or city where the mortgagor shall reside, if in this state; and if not in this state, then in the town where the property is at the time of making said mortgage; which said recording or taking and retention of possession as aforesaid shall be made or taken within five days from the date of the signing thereof: Provided, that nothing herein contained shall be so construed as to affect any transfer of property under bottomry or respondentia bonds, or of any ship or goods at sea or abroad, if the mortgagee shall take possession thereof as soon as may be after the ar Our statute, before quoted, contains the imperative provision that no mortgage of personal property shall be valid until the mortgagee shall take possession of the mortgaged property or until he shall record his mortgage, and that such possession or recording shall take place within five days from the date upon which the mortgage is signed. As the court said in Haythorn v. Van Keuren & Son, 79 N. J. Law, 101, 74 Atl. 502: "The presumption is that the word 'shall' in a statute is used in an imperative, and not in a directory, sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context which will justify a different meaning." In thus making the record of the mortgage imperative within a specified time, the Legislature must have had some object in view, and must have intended that the failure to record should have some bearing and some effect on the validity of the instrument. It seems to me that the Legislature, in using the language which we find in the statute, intended that a mortgage which remained unrecorded for a period of five days should have no further legal existence, except as between the parties. The fixing of a definite period within which a mortgage must be recorded places the mortgage upon a different footing from mortgages made under statutes where no special time for recording is fixed. This difference has been recognized by this court in the case of Burdick v. Coates, 22 R. I. 410, 48 Atl. 389, in which the court, referring to the case of Commercial Bank v. Colton, 17 R. I. 226, 21 Atl. 349, used the following language: "The mortgage was recorded prior to the assignment, and there was no provision in the corded. The present statute is quite different; and, under a similar statute in Massachusetts it that an attachment made before the mortgage was held, in Drew v. Streeter, 137 Mass. 460, in the statutory period, took precedence of the was recorded, even though the record was withmortgage." statute as to the time when it should be re In the later case of Ziegler v. Thayer, 34 R. I. 288, 83 Atl. 266, the court said, in quoting from In re Ronk (D. C.) 111 Fed. 154: "It is apparent that it was the purpose of the Legislature to allow no valid claim, lien, or secret equity to be created on goods, unless public disclosure was made either by delivery of the goods to the assignee or mortgagee and the retention thereof by him, or by recording the assignment or mortgage within 10 days. To hold otherwise would be to defeat the beneficial effect of the recording statute." There are, however, some authorities which support the respondent's contention that re In (37 R. I. 168) STATE v. MARIANO. (No. 4634.) (Supreme Court of Rhode Island. July 10, 1914.) BILITY. structive notice to those who take a conveyance subsequent to such recording. support of this contention the respondent cites cases from Ohio, Kansas, Michigan, Texas, and New York. In only three of these 1. HOMICIDE (§ 163*)-EVIDENCE-ADMISSIstates-Kansas, Texas, and Ohio-does the statute fix any time for recording. In Kansas and Texas the statute provides for recording "forthwith," and in Ohio within six months. The courts in those states hold that the later record of the mortgage is a notice to parties who may subsequently deal with the property in question. In Burdick v. Coates, supra, this court held that a chattel mortgage could have no validity whatever if the mortgagee failed to take possession of the property or to record his mortgage within five days from the date of the signing thereof, quoting Drew v. Streeter, 137 Mass. 460. The conclusions reached by this court in Burdick v. Coates, supra, are in accord with the decisions of the courts of many other states. See Sheldon, Adm'r, v. Conner, 48 Me. 584; Kennedy v. Shaw et al., 38 Ind. 474; Simpson v. Harris et al., 21 Nev. 353, 31 Pac. 1009; Gassner v. Patterson et al., 23 Cal. 299; Sage v. Browning, 51 Ill. 217; People v. Hamilton et al., 17 Ill. App. 599; Lockwood v. Slevin et al., 26 Ind. 124; Parroski v. Goldberg, 80 Wis. 339, 50 N. W. 191; Bevans v. Bolton, 31 Mo. 437; Rawlings v. Bean et al., 80 Mo. 614; Garland v. Plummer, 72 Me. 397; Sidener v. Bible, 43 Ind. 230; McDowell et al. v. Stewart, 83 Ill. 538. These authorities are equally applicable to another contention of the respondent that an unrecorded chattel mortgage is valid against a subsequent purchaser with actual knowledge of the mortgage. The respondent also cites cases to the effect that an unrecorded conveyance of real estate is valid against a subsequent purchaser with notice of the prior conveyance. It does not however, appear that the questions submitted in the cases cited by the respondent upon this point arose under any statute peremptorily fixing a time within which conveyances of real estate shall be recorded, but that they were determined by the well-settled and well-understood equitable principles governing such matters. While, as before stated, there is authority supporting the respondent's contention regarding both constructive and actual notice, the weight of authority seems to support the law as laid down by this court in Burdick V. Coates, supra, and I see no reason for changing the views therein expressed regard ing the interpretation of the statute in question. I think that the complainant is entitled to ■ decree as prayed for in her bill of complaint. fact that the dead boy's anus was found open, In a prosecution for manslaughter, the which in the opinion of the doctors was due to its having been penetrated by some instrument just before or after death, and which one doctor stated might have been caused by the commission of the crime of sodomy, was insufficient basis for showing accused's sexual capacity to commit that crime. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.*] 2. WITNESSES (§ 236*)—EXAMINATION—QUESThe allowance of a question which was simply preliminary was not error. TIONS. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. § 236.*] 3. HOMICIDE (§ 338*)-APPEAL AND ERRORHARMLESS ERROR-ADMISSION OF EVIDENCE. The erroneous admission of evidence of the sexual capacity of one accused of manslaughter to commit the crime of sodomy, merely because the boy's anus was found open, which might have been caused by the commission of the crime of sodomy just before or after death, was prejudicial to accused, as that crime is disgusting and repulsive and the slayer would be regarded as a foul degenerate and a wicked and criminal pervert. [Ed. Note.-For_other_cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. 338.*] 4. CRIMINAL LAW (§ 404*)-EVIDENCE-DEMONSTRATIVE EVIDENCE. Demonstrative evidence, such as the skull, etc., of accused's victim, is relevant and admissible when it shows the commission of a crime or throws light on the way it was committed; but, if it explains no fact and is relevant to no disputed issue, it is excluded on account of its tendency to create prejudice. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.*] 5. CRIMINAL LAW (§ 404)-EVIDENCE-ADMISSIBILITY-DEMONSTRATIVE EVIDENCE. In a prosecution for killing another by blows upon the head with a stone or other blunt skull was admissible, as demonstrating the deinstrument, the fractured portion of the victim's structive force and effect of the blows inflicted, though accused announced that he would deny all knowledge of the homicide and would not dispute the evidence as to the homicide itself, as that simply left upon the state the burden of proving its case and did not bar it from offering any demonstrative evidence which might tend to throw light not only on the fact but on the mode of killing. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.*] 6. CRIMINAL LAW (§ 1169*)-APPEAL AND ERBOR-HARMLESS ERROR-ADMISSION OF EVI DENCE. In a prosecution for manslaughter, where a boy witness had been asked upon cross-examination who told him not to take the watch offered by accused' because it belonged to deceased, an exception to the admission on redirect examination of evidence that it was his sister who told him was without merit. [Ed. Note.-For other cases, see Criminal PARKHURST, J., concurs in opinion of Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; VINCENT, J. Dec. Dig. § 1169.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 22 7. CRIMINAL LAW (§ 1169*)—APPEAL AND ER-sible in the absence of anything happening at ROR-HARMLESS ERROR-ADMISSION OF EVI- the arraignment to render it inadmissible. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 785, 894-917, 920-927; Dec. Dig. § 406.*] DENCE. An exception to the admission of evidence which could not have prejudiced accused will be overruled. see Criminal [Ed. Note.-For other cases, Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] 8. CRIMINAL LAW (§ 516*)-EVIDENCE-"CONFESSION." Statements of accused that he unintentionally caused deceased's death by striking with his foot a stone which hit deceased in the head were not strictly a "confession," which is a person's declaration of his agency or participation in a crime, and is restricted to acknowledgments of guilt; such statements being of an explanatory or exculpatory character. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1139-1145; Dec. Dig. 8 516.' For other definitions, see Words and Phrases, vol. 2, pp. 1417-1419; vol. 8, p. 7611.] 14. CRIMINAL LAW (§ 1169*)-ADMISSIONS— VOLUNTARY CHARACTER. There was no error in refusing to strike out accused's admissions, as to the voluntary character of which the evidence was conflicting, where the court instructed the jury that they might consider all the evidence, but to exclude the admissions if they were not voluntary, to which no exception was taken. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $8 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*1 15. HOMICIDE (8 268)-TRIAL QUESTIONS FOR JURY. Evidence in a prosecution for homicide held to make a case for the jury, and to leave no reasonable doubt of accused's guilt if believed to be true. [Ed. Note. For other cases, see Homicide, 9. CRIMINAL LAW (8 406*)-EVIDENCE-AD- Cent. Dig. § 562; Dec. Dig. § 268.*] A boy's admissions not amounting to a confession were not inadmissible because, after admonishing him that whatever he said would be used for or against him, the officer added, "but, whatever you tell me, I want you to tell the truth"; such words not constituting an inducement rendering the statements involuntary. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 785, 894-917, 920-927; Dec. Dig. § 406.*] ADMISSION 11. CRIMINAL LAW (§ 406*) [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.*] 12. CRIMINAL LAW (§ 406*)-EVIDENCE-AD MISSIONS-VOLUNTARY CHARACTER. That while the admissibility of an officer's testimony concerning accused's admissions was being discussed, accused's counsel asked the state to call certain other officers that he might crossexamine them upon the voluntary character of the admissions, no ruling being requested or made, nor did counsel himself offer to call such officers, who were afterwards called and crossexamined, was not ground for excluding such admissions. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 785, 894–917, 920-927; Dec. Dig. 406.*] 13. CRIMINAL LAW (§ 406*)—ADMISSIONS-ON ARRAIGNMENT. Accused's admission when arraigned that he killed deceased, but unintentionally, was admis 16. CRIMINAL LAW (§ 655*)-TRIAL-CONDUCT OF TRIAL. It is always incumbent upon the court, and especially so in the heat of the trial when it may be annoyed by the persistence of zealous counsel in the face of rulings already made, to avoid any utterance which would prejudice the accused with the jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1520–1523, 1527, 1535; Dec. Dig. 8 655.*] 17. INFANTS (8 66*)-CAPACITY TO COMMIT CRIME QUESTIONS FOR JURY. Whether a boy lacking 3 months of being 14 years of age, who was accused of manslaughter, had sufficient capacity to commit a crime, held, under the evidence, for the jury. [Ed. Note. For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.*] Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge. Antonio Mariano was found guilty of man- Livingston Ham, Asst. Atty. Gen., for the BAKER, J. This is an indictment against the defendant, Antonio Mariano, for man slaughter in killing William A. Mather on February 29, 1912, in North Providence in this state. There are four counts in the indictment, the first two charging the killing by means of blows upon the head with a stone; the other two by blows upon the head "in some way and manner and by some means, instruments, and weapons to the grand jurors unknown." The case was heard on the 11th, 12th, 13th, 14th, 15th, 18th, and 19th days of March, 1913. At the trial the following statements showing the commission of a crime and its circumstances were in evidence and not disputed: On February 29, 1912, Mather was 12 |