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gether with orders of commitment and fixing the amount of bail, are not only full and sufficient evidence of a preliminary trial, but are the highest and best evidence of such trial.

2. Chapter 107, Sess. Laws 1895, fixing terms of court in all the counties of the TwentyThird judicial district, repeals, by implication, section 20, c. 118. Sess. Laws 1889 (paragraph 2040, Gen. St. 1889), upon the same subject, and is a substitute for the earlier enactment.

3. One may defend himself and his family with deadly weapons from a felonious assault, if necessary to protect the same therewith from such assault, and may also defend his habitation from such character of assault, by the use of like weapons, if necessary to preserve the same from destruction or serious injury; but a nonfelonious assault upon one's person, family, or habitation-that is, an assault not made under such circumstances, and with such means, and under such appearances, as to justify a belief in imminent danger of great bodily harm to person, or destruction or serious injury to habitation-may not be resisted with deadly

weapons.

4. Where an information under section 38 of the crimes and punishments act, charges, as the statute requires, a specific intent to kill a particular person, but the conviction is had under section 42 of such act, for the lesser offense of wounding such person under such circumstances as would constitute manslaughter in the third degree if death had ensued, a refusal to instruct the jury that the state must prove such specific intent to kill such particular person is harmless error.

(Sylus by the Court.)

Appeal from district court, Ellis county; Lee Monroe, Judge.

Daniel Countryman was convicted of an offense, and appeals. Affirmed.

John E. Hessin, for appellant. L. C. Boyle, Atty. Gen., and Bond & Osborn, for appellee.

DOSTER, C. J. Daniel Countryman, the appellant, lived at Wakeeney, Trego county. His son had recently married, and, together with his bride, was at his father's house. The evening of August 1st, after dark, the premises about the house were invaded by a party of riotous disturbers, intent upon giving the newly-wedded pair a mock serenade, called a "charivari." This was especially annoying and objectionable to the appellant, who is a physically diseased and mentally nervous and excitable person. He remonstrated with the party, and warned them away; but, failing to induce them to desist or leave his premises, he fired a loaded gun at them, and shot and wounded one of the number, named Joseph Sigler. He was arrested, and prosecuted, under section 38 of the crimes and punishments act, for shooting at and wounding Sigler, with intent to kill him. A change of venue was taken to Ellis county, where, upon a trial of the case, a verdict and a judgment of conviction were rendered against him, under section 42 of such act, for wounding Sigler under circumstances which would have constituted manslaughter in the third degree if death had ensued. From this he appeals.

His first objection in the court below was by plea in abatement of the prosecution, up

on the ground that no preliminary examination had been accorded him. This was overruled, and afterwards, upon the call of the case for trial, an objection was interposed to the jurisdiction of the court, upon the ground that the term then pending in Ellis county, to wit, the fourth Monday in May, 1896, was not authorized by law. This was likewise overruled. These and other claims of error, based upon instructions given and refused, and upon the insufficiency of the evidence to support the verdict, are brought up for review.

The evidence of the defendant was the most favorable to himself of all the witnesses; and to a correct understanding of the case, so far as it involves the instructions and the sufficiency of the facts proved, a summary of his testimony is given, together with literal quotations of its most material parts: "Am fifty-four years of age, and served during the last war, and, while in the military service, contracted chronic diarrhea, from which am still suffering. Suffer also from heart trouble, and have done so for about ten years. The condition of my physical health has prevented the doing of manual labor for five or six years, and for the last three or four years have not been permitted to go away from home alone. The effect of this heart trouble and chronic diarrhea upon my nervous system has been to render me nervous and excitable. Such has been the case for eight or ten years, and it has grown worse from day to day until the present time. July 31st I accompanied my family to a point about forty or fifty miles distant, to attend the wedding of my eldest son, and, on the following day, returned to my home, in Wakeeney, with my family, including the newly-married pair. In the evening upon my return, I learned that a charivari was to be given to the bridal party. I sent for the city marshal, who came to my house, and whom I asked to prevent the anticipated disturbance. The mar shal said he couldn't stop it, but said to allow the boys to have their fun until about nine o'clock, and then he would come along, and put an end to it. *** I agreed to that, but said that I would not have the charivari party inside my yard, or allow them to molest anything. In about an hour and a half afterwards, the expected rioters came, and invaded the yard premises, yelling, ringing bells, pounding on tin pans, and throwing missiles (seemingly stones) against the house; whereupon I took my loaded gun, and went to the door, and undertook to talk to the disturbers of the peace, but could not make them hear, for the noise. I then took the gun, pointed it to one side of them, and up in the air, and fired it; whereupon they stopped their noise, and scattered out onto a vacant lot adjoining. I went out to the gate, and tried to remonstrate with them, but, every time I would say anything, they would interrupt with yells. I told them

that, as long as they staid outside there, they could make as much noise as they wanted to, as far as I was concerned, but they must stay outside, let the property alone, and not molest anything. If they came inside, and went to molesting anything, I would shoot, and shoot to hurt; whereupon I retired into the house, where all the family were. I admit being excited at this time. In about five or ten minutes they returned inside of the yard, and stuck their heads up against the windows, and yelled, and rang bells, and then went away, and were gone for a while; but in a very short time they returned, and went to making still more noise than before, and, among other things, jammed or forcibly threw something against the house, which I think was my hitching post, because next morning I found such post pulled up or broken off, and laying with one end against that part of the house from which the noise of jamming or bumping had proceeded. I again took the gun, and went out of the door, and stepped around the corner of the house, and saw a clump of men standing there. Q. Where were they? A. They were at the west; very near the west end of the house. Q. State what you did. A. I ordered them out of the yard. Q. What did they do? A. Stood there, and looked at me. Q. What did you do? A. I raised up my gun, kind of this fashion (indicating), and fired. State if, at the time you fired, you knew any of the parties who were back there in the yard? A. I did not. Q. Did you shoot at Walter Olson? A. I didn't shoot at any particular man. Q. State to the court and jury what your intention was when you went out with that gun. A. To scare them out of the yard. Q. State whether, after you had fired the gun, you heard anybody make any exclamation. A. I did. Q. What was said? A. I heard a man say, 'My God! I am shot in the leg.' Q. State after that where you went. A. Back into the house. I had a picket fence with boards along the bottom. About ten feet of such boards had been broken off by the rioters, and about ten of the pickets pulled off or torn loose. The sidewalk close by the house was twisted around and torn up. At the southeast corner of the house there was a hole in its side, which I had never seen before. It had been freshly broken. The whole disturbance did not last over twenty minutes from the very beginning, and it was not more than two or three minutes from first hearing the noise until I went to the door with my gun. No one tried to get into the house at either windows or doors. No windows were broken, but one window was up, and some one (didn't know who) stuck his head in it. I recognized no one, so as to tell who they were. Q. There wasn't anybody threatening any danger to you, was there? A. They hadn't made any threats to me. Q. When you went out into the yard now- After

Q.

wards, when you came in, and then you went out into the yard, you took your gun with you? A. Yes, sir. Q. What did you take the gun with you that time for? A. To scare them out of the yard. Q. To scare them? A. Yes, sir. Q. When you got around there, you heard the boys still making a racket? A. Yes, sir. Q. They were pounding on these things when you walked to the corner of the house? A. Yes, sir. Q. You ordered them to leave? You are sure you ordered them to leave? A. I am. Q. Do you know whether they heard you or not? A. I couldn't say they heard. I couldn't tell, but they turned around, and stood there looking at me. When I came out of there, some of them started to run. Q. When you told them to leave? A. Yes, sir. Q. You didn't wait any longer, but fired the gun right into the crowd? A. Yes, sir. Q. If you went out to scare them that time, why didn't you shoot over their heads, like you did before? A. Because I told them, if I shot, I would take no pains. Q. Then you didn't take any pains? You meant to do just what you did? A. I shot with the intention of scaring them out of the yard. I didn't take no pains to miss or hit. Q. Don't you think you would have scared them as bad to have shot over their heads? A. No, sir, because they had been tried. Q. You meant business, didn't you? A. I did. Q. Did you know, when you got out there, whether your fence had been molested? A. I didn't know whether the fence had. Q. Did you know the sidewalk had been molested? A. I did. You knew it had, did you? A. I knew, when I came out, that it had been moved. Q. You saw that as you stepped out? A. Yes, sir. Q. Don't you think, from what occurred there at the time when you fired that first shot, that if you had said to the boys to go away now,' and not molest you, that they would have gone? A. No, sir. Q. They wasn't trying to do anything further at the time you scared them off. Could you tell whether they were men or boys? A. I could not. Q. You couldn't tell anything about that? Did you hear boys' voices? A. I didn't know whether it was boys' or men's. Q. What was your belief with respect to the necessity of your firing at that time as to the protection of the property and your family? A. I believed it was necessary. I believed I had to do something to protect myself and property and family there by the actions of the mob, or whatever you may call it, after I forbid them coming in. Q. Now, this noise you had heard made against the house was made before you went out, wasn't it? A. Yes, sir. Q. You picked up the gun, and went out after you heard the noise? A. Yes, sir. Q. They were making a racket out there? A. Yes, sir. Q. They weren't molesting the house at that time? A. Not after I got out. Q. Now, then, when you said 'Go' as you said, there were a part of them skipping out? A. A part of them was

Q.

skipping out when I went out there. Now you say you said for them to go, and you turned right around, and fired your gun into the crowd? A. They had time to go. Q. You said a bit ago you done that? A. I did, but they had time to go. Q. Was there anybody then trying to molest you at that time, or your house or your family? A. No, sir. Q. Then, do you pretend to tell this jury that it was necessary for the protection of yourself and your family and your house to shoot one of those boys at that time? A. I did; I can positively state to the jury that I did feel that way. Q. And, at the same time, part of the boys were skipping out? A. Yes, sir."

The plea in abatement was properly overruled. The complaint filed with the examining magistrate read as follows:

"State of Kansas, Trego County-ss.: F. D. Street, being duly sworn, on oath says that on the first day of August, A. D. 1895, in the county of Trego and state of Kansas, Daniel Countryman did then and there, unlawfully, feloniously, willfully, deliberately, and of his malice aforethought, make an assault in and upon Joseph Sigler, with a certain shotgun breach loader, which said shotgun was loaded and charged with gunpowder and leaden shots, did discharge and shoot off, against and upon the said Joseph Sigler, on the left knee, with intent to murder the said Joseph Sigler. F. D. Street.

"Subscribed and sworn to before me, this 1st day of August, A. D. 1895. Joshua Groft, Justice of the Peace."

This complaint was quoted in the warrant of arrest. The justice's docket, at the appropriate place and in the logical order of statement of proceedings before him, contained the following entry: "August 2, 1895. Plaintiff, by John A. Nelson, county attorney, present. Defendant appeared in person. The defendant waived formal arraignment, and plead not guilty. And it appearing that the said offense was committed, and that there is probable cause to believe the defendant guilty of its offense, it is by me adjudged that he do enter into a recognizance in the sum of one thousand dollars, for his appearance at the next term of the district court of Trego county, and, for want of such recognizance, that he be committed to the jail of Trego county, there to remain until discharged by law." The justice's mittimus or order of commitment recited, in substance, the complaint and warrant of arrest. These papers and proceedings show a more than usually strict and technical compliance with legal forms, and are, without doubt, full and sufficient evidence of a preliminary examination or trial, and, in fact, are the best evidence.

The objection to the jurisdiction of the court was likewise unfounded. It was based upon the theory that the term of court in Ellis county commencing on the fourth Monday in May, 1896, at which the defendant

was tried, was not authorized by law. Sess. Laws 1889, c. 118, § 20 (Gen. St. 1889, par.. 2040), fixed the terms of court in all the counties in the Twenty-Third judicial district, and specifically as to Ellis county on the second Monday in May, and in Trego county on the fourth Monday in May of each year. In 1895 the times of holding court in all the counties of the Twenty-Third judicial district were changed by an act purporting, in its title and in its first section, to amend section 2040 of the General Statutes of 1889. See Laws 1895, c. 107. By this act the May term in Ellis county was fixed for the fourth Monday, and what had been the May term in Trego county was postponed to June; but it contained no specific clause repealing the act of 1889; and, because of this, it was claimed to be violative of section 16, art. 2, of the constitution, which declares that "no law shall be revived or amended unless the new act shall contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed." The older law, however, has been repealed by the necessary implication arising out of the adoption of an entirely new provision, covering every detail of the older one, -by providing anew all which the older one provided for. The law of 1895 not only changed the time of holding the May term of court in Ellis county, but of the other terms as well, and not only changed all the terms in Ellis county, but all the terms in all the other counties of the Twenty-Third judicial district. Thus, the new law did contain the "entire section amended," to use the language of the constitution, or the "entire section as amended," which is what the constitution means. Therefore the law providing for terms of court in Trego county on the fourth Monday in May, and Ellis county on the second Monday in May, had been amended by another, which assigned the fourth Monday in such month to Ellis county, and another day in another month to Trego county; and similar changes having been made as to all the other counties in the Twenty-Third district, and as to all their terms, the latter was a substitute for the earlier one in all its parts, and as to its entire subject-matter. This accomplished a repeal of the earlier one by implication, which is allowable, without any express repeal. State v. Guiney, 55 Kan. 534, 40 Pac. 926.

The defendant, at the close of the trial, preferred requests to the court for certain instructions to the jury, to the effect that one whose person or family or property is attacked by a party of rioters may resist such attack, whether felonious or otherwise, by the use of such means as will make his resistance effectual, even to the extent of using firearms or other deadly weapons; and, to the refusal of the court to give such instructions, exceptions were preserved. These instructions were correctly refused. It is not the law that one may resist a nonfelonious

assault upon himself or his family or his property by the use of deadly weapons. He may resist nonfelonious assaults by the use of such weapons or means as may be necessary to repel the same, but not to the extent of taking or endangering life. State v. Thompson, 9 Iowa, 188; State v. Kennedy, 20 Iowa, 569; Rippy v. State, 2 Head, 217; Gallagher v. State, 3 Minn. 270 (Gil. 185); Harrison v. State, 24 Ala. 67. These and other like cases are to be found in Horrigan & Thompson on Self-Defense. The defendant's testimony heretofore quoted, and which, as we have said, is the most favorable to himself of all the witnesses, shows no felonious assault in fact, no assault at all-upon his person, nor upon any member of his family. It shows nothing but a trespass, aggravated and inexcusable, however, upon his property. No threats of harm to himself or to his family had been made by any of the rioters. At and before the time of firing upon the intruders, some of them were standing still, apart from him and his house, while others were running away. Fear upon the defendant's part that the rioters would assault him or his family, or injure his property, did not justify the use upon them of a deadly weapon. The use of a deadly weapon by a person in defense of himself, his family, or his property is unjustifiable except where the assault is felonious in character, is impending, and is so near to being made as to prevent its consummation by the use of other means adequate to repel the same. This was the law laid down in Com. v. Selfridge, by Judges Parsons, Sedgwick, Sewell, and Parker, of Massachusetts, nearly 100 years ago, and has remained without serious challenge to this time. Horr. & T. Cas. Self-Def. 1. The case of Patten г. People, 18 Mich. 314, is confidently relied upon by the defendant to sustain his view. In that case, however, it was in evidence that the defendant's mother was severely ailing, and that the noise of the riotous party, and the terror in which she was thrown by their presence and conduct, greatly endangered her life, and the court therefore (correctly, as we think) instructed that the defendant was justified in the protection of his mother in the use of a deadly weapon. In the case, however, Judge Christiancy, in delivering the opinion of the court, distinguished between cases in which the defendant might or might not be justifiable in the use of deadly weapons, and, in so doing, paralleled, in the latter instance, the case we have in consideration. He remarked as follows: "Considering the case first with reference only to the facts existing prior to the time when the defendant went out with the ax, and without reference to the peculiar effects produced by the conduct of the rioters upon his mother, there was nothing, I think, In the evidence fairly tending to show a state of facts which would justify or excuse the defendant in rushing out and attacking any of the rioters with an ax, or other dangerous

weapon, for the purpose of compelling them to desist or leave, though he might have been excused for attempting to drive them off by force, and even by blows, with any instrument not calculated to endanger life or limb. But though, from the sudden, violent, and capricious impulses to which an excited mob is always subject, danger may always be naturally apprehended, especially about a man's dwelling at night, whatever the original object of the assemblage may have been,-and no one can estimate the nature or extent of the danger,-yet, until some actual violence had been done or attempted in this case against either the house or its inmates, the necessity which alone could excuse taking the life of any of the assailants had not yet occurred, and might never occur. And, though the defendant had the right to act under the circumstances as they appeared to him, yet up to this point (without reference to the defendant's mother) there was nothing in the circumstances which fairly tended to show that he could have believed the dire necessity to have arisen." Of course, it is not to be understood that one may not act in defense of his person, family, or habitation upon appearances of danger, even though there be no real danger. There must, however, be appearances of danger,-appearances which impress themselves upon the mind of an ordinarily prudent, cautious, and self-possessed person as dangerous. These were totally lacking in the case under consideration, even according to the defendant's own testimony. The court instructed the law to be that one who honestly believes that his person, family, or habitation is about to be injured by a riotous assemblage has the right to disperse such assemblage, by the use of such force as may honestly appear to be necessary for such purpose, even to the extent of using deadly weapons, but that the degree of force employed must not exceed that which he honestly believes is necessary to accomplish the purpose, without exposing himself or family to danger of bodily harm. This statement of the law was correct, and covered the facts of the case on trial.

Complaint is also made of the refusal of the court to instruct the jury that the proof upon the part of the state must be of a specific intent in the defendant's mind to kill Joseph Sigler, and that proof of firing into a crowd of boys with no specific intent to kill any one in particular would be insufficient to convict of an assault with intent to kill. If the law be as claimed by the defendant, the refusal of this instruction was harmless error, because the defendant was not convicted under section 38 of the crimes act, which requires proof of such particular intent, but was convicted under section 42 of such act, which does not require proof of such intent. It has already been held that a charge under section 42, of assaulting and wounding under such circumstances as would constitute manslaughter if death had ensued,

is included in an information for assault with intent to kill, under section 38. State v. Burwell, 34 Kan. 312, 8 Pac. 470.

Some criticism is made upon the language of one or two instructions which the court gave, but no substantial questions of error are raised, and, there being none in the record, the conviction is affirmed. All the jusices concurring.

(57 Kan. 828)

PHILLIPS et al. v. LOVE et al.
March 6, 1897.)

(Supreme Court of Kansas.
- MORTGAGE FORECLO-
SURE-STAY OF PROCEEDINGS-SALE

CASE-MADE-SETTLEMENT

CONFIRMATION.

1. Where a case-made is served within the time allowed by the court, and after the time for suggesting amendments has expired the attorneys for the defendant in error sign an indorsement on the case-made, which reads as follows: "We hereby consent that the foregoing case-made may be presented to the Hon. M. G. Troup, judge of the above-named court, for allowance and settlement, this 24th day of December, 1891, hereby waiving any notice of the time and place for such settlement."-the trial judge has a right to proceed to settle the case on the day named, whether such attorneys are present or not, and it will be presumed that all amendments desired were suggested and duly acted on by the judge. And where, on such waiver, the judge signed and allowed the case, certifying that it was full and correct, a motion to dismiss the petition in error for want of notice and defects in the certificate should be overruled.

·

2. In an action on certain promissory notes against the makers and indorsers thereof, and to foreclose a mortgage securing the same, by which appraisement of the property is waived, where judgment is rendered against the mortgagors for the amount of the notes, and for a foreclosure and sale of the mortgaged property at one term of court, the case continued as between plaintiffs and the indorser of the note to a subsequent term, at which judgment is rendered against the indorser on one of the notes, and where the indorser has no title to or interest in the mortgaged property, the six-months stay required by law begins to run from the date of the first judgment. Water Co. v. Lombard (Kan. Sup.) 47 Pac. 532, followed.

3. In such an action a sale to the administratrix, in her individual name, of the mortgaged property, by the sheriff, under a decree of foreclosure, is not absolutely void, and may not be attacked in an independent action by an indorser against whom a personal judgment is rendered in the action on one of the notes.

4. An order duly made confirming a sale of real estate made by the sheriff under an order of sale issued on a judgment of foreclosure is an adjudication of the regularity of the proceedings of the officer, and cannot be attacked in an independent action on the ground of mere inadequacy of the price for which the property sold.

(Syllabus by the Court.)

Error from court of appeals, Southern department, Central division.

Action by J. Mack Love and others, executors of James Hill, deceased, against La Quincy Phillips and others, executors of James Phillips, deceased, to set aside a sherff's sale and deed. From a judgment for plaintiffs, defendants bring error. Reversed.

On November 7, 1887, one Harnley and wife executed to James Hill two promissory notes for $650 each, together with a mortgage on certain real estate securing them. Hill indorsed the note to James Phillips. The notes were not paid at maturity, and proper steps were taken to charge Hill as indorser on one of them, but not on the other. On March 5, 1889, Phillips brought suit on the notes, and to foreclose the mortgage against Harnley and wife, Hill, and Mary J. Tyner. During the pendency of the action Hill died, and the action was revived against the defendants in error as the executors of his estate. James Phillips also died, and the action was revived in the name of plaintiffs in error as administrators of his estate. On the 1st of February, 1890, the action was tried on the issues between the plaintiffs and Harnley and wife and Mary L. Tyner, resulting in a judgment in favor of the plaintiff for $1,589.95, and decree for foreclosure of mortgage. The case as against Hill's executors was continued, and tried ou the 26th of April following, resulting in a judgment against them on one note for $810.67. On the 11th of August, 1890, an order of sale was issued on the judgment, which directed a sale of the property without appraisement; and the property, after having been duly advertised, was sold to La Quincy Phillips for $150. The sale was made on the 15th of September, and confirmed on the 19th of the same month. On the 2d of October Hill's executors moved to set aside the same. The plaintiff objected to the introduction of any evidence on the motion on the ground that the court was without jurisdiction to hear and determine the same, which objection was sustained by the court, and the motion was thereupon dismissed without prejudice. On the 16th of October a sheriff's deed was executed, conveying the property sold to La Quincy Phillips. On the 25th day of the same month this action was commenced by Hill's executors, as plaintiffs, to set aside the sheriff's sale and deed thereon. The grounds relied on by the plaintiffs were that the order of sale was prematurely issued, because less than six months had elapsed after the rendition of the judgment against Hill's executors; that the price paid was inadequate; and that the purchaser, being an administratrix, had no right to purchase the property in her own The case was tried to the court, and judgment rendered setting aside the sale and sheriff's deed. La Quincy Phillips and the other administrators of the estate of James Phillips, deceased, who had been made parties defendant, filed a petition in error and case-made in this court to reverse the judgment. The case being one in which the court of appeals had jurisdiction, it was certified down to the Central division of the Southern department, where a motion to dismiss the petition in error was made by the defendant in error, on the ground that the

name.

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