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gether with orders of commitment and fixing the amount of bail, are not only full and sutlicient 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 2010, 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 justily 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 enstled, a refusal to instruct the jury that the state must prove such specific intent to kill such particular person is harmless error.

(Syll. lus 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.

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 insufliciency 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 marshal 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

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

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that, as long as they staid outside there, wards, when you came in, and then you they could make as much noise as they went out into the yard, you took your gun wanted to, as far as I was concerned, but with you? A. Yes, sir. Q. What did you they must stay outside, let the property take the gun with you that time for? A. alone, and not molest anything. If they To scare them out of the yard. Q. To scare came inside, and went to molesting anything, them? A. Yes, sir. Q. When you got I would shoot, and shoot to hurt; whereup- around there, you heard the boys still makon I retired into the house, where all the ing a racket? A. Yes, sir. Q. They were family were. I admit being excited at this pounding on these things when you walked time. In about five or ten minutes they re- to the corner of the house? A. Yes, sir. turned inside of the yard, and stuck their Q. You ordered them to leave? You are sure heads up against the windows, and yelled, you ordered them to leave? A. I am. Q. Do and rang bells, and then went away, and you know whether they heard you or not? were gone for a while; but in a very short A. I couldn't say they heard. I couldn't tell, time they returned, and went to making but they turned around, and stood there still more noise than before, and, among looking at me. When I came out of there, other things, jammed or forcibly threw some of them started to run. Q. When you something against the house, which I think told them to leave? A. Yes, sir. Q. You was my hitching post, because next morn- didn't wait any longer, but fired the gun ing I found such post pulled up or broken off, right into the crowd? A. Yes, sir. 'Q. If and laying with one end against that part you went out to scare them that time, why of the house from which the noise of jam- didn't you shoot over their heads, like you ming or bumping had proceeded. I again did before? A. Because I told them, if I took the gun, and went out of the door, and shot, I would take no pains. Q. Then you stepped around the corner of the house, and didn't take any pains? You meant to do

a clump of men standing there. Q. just what you did? A. I shot with the inWhere were they? A. They were at the tention of scaring them out of the yard. I west; very near the west end of the house. didn't take no pains to miss or hit. Q. Q. State what you did. A. I ordered them Dorr't you think you would have scared them out of the yard. Q. What did they do? A. as bad to have shot over their heads? A. Stood there, and looked at me. Q. What No, sir, because they had been tried. Q. did you do? A, I raised up my gun, kind You meant business, didn't you? A. I did. of this fashion (indicating), and fired. Q. Q. Did you know, when you got out there, State if, at the time you fired, you knew whether your fence had been molested? A. any of the parties who were back there in I didn't know whether the fence had. Q. the yard? A. I did not. Q. Did you shoot Did you know the sidewalk had been molestat Walter Olson? A. I didn't shoot at any ed? A. I did. You knew it had, did you? particular man. Q. State to the court and A. I knew, when I came out, that it had been jury what your intention was when you moved. Q. You saw that as you stepped went out with that gun. A. To scare them out? A. Yes, sir. Q. Don't you think, from out of the yard. Q. State whether, after what occurred there at the time when you you had fired the gun, you heard anybody fired that first shot, that if you had said to inake any exclamation. A. I did. Q. What the boys to 'go away now,' and not molest was said? A. I heard a man say, "My God! you, that they would have gone? A. No, sir. I am shot in the leg.' Q. State after that Q. They wasn't trying to do anything furwhere you went. A. Back into the house. I ther at the time you scared them off. Could had a picket fence with boards along the you tell whether they were men or boys? A. bottom. About ten feet of such boards had I could not. Q. You couldn't tell anything been broken off by the rioters, and about ten about that? Did you hear boys' voices? A. of the pickets pulled off or torn loose. The I didn't know whether it was boys' or men's. sidewalk close by the house was twisted Q. What was your belief with respect to the around and torn up. At the southeast cor- necessity of your firing at that time as to ner of the house there was a hole in its side, the protection of the property and your famwhich I had never seen before. It had been ily? A. I believed it was necessary. I befreshly broken. The whole disturbance did lieved I had to do something to protect mynot last over twenty minutes from the very self and property and family there by the beginning, and it was not more than two actions of the mob, or whatever you may or three minutes from first hearing the noise call it, after I forbid them coming in. Q. until I went to the door with my guin. No Now, this noise you had heard made against one tried to get into the house at either win- the house was made before you went out, dows or doors. No windows were broken, wasn't it? A. Yes, sir. Q. You picked up the but one window was up, and some one gun, and went out after you heard the noise ? (didn't know who) stuck his head in it. I A. Yes, sir. Q. They were making a racket recognized no one, so as to tell who they out there? A. Yes, sir. Q. They weren't were. Q. There wasn't anybody threatening molesting the house at that time? A. Not any danger to you, was there? A. They after I got out. Q. Now, then, when you hadn't made any threats to me. Q. When said 'Go' as you said, there were a part of you went out into the yard now- After- them skipping out? A. A part of them was In

skipping out when I went out there. Q. was tried, was not authorized by law. Sesu. Now you say you said for them to go, and Laws 1889, c. 118, $ 20 (Gen. St. 1889, par., you turned right around, and fired your gun 2010), fixed the terms of court in all the couninto the crowd? A. They had time to go. ties in the Twenty-Third judicial district, and Q. You said a bit ago you done that? A. specifically as to Ellis county on the second I did, but they had time to go. Q. Was Monday in May, and in Trego county on the there anybody then trying to molest you at fourth Monday in May of each year. that time, or your house or your family? A. 1895 the times of holding court in all the No, sir. Q. Then, do you pretend to tell this counties of the Twenty-Third judicial disjury that it was necessary for the protection trict were changed by an act purporting, in of yourself and your family and your house its title and in its first section, to amend secto shoot one of those boys at that time? A. tion 2010 of the General Statutes of 1889. I did; I can positively state to the jury that See Laws 1895, c. 107. By this act the May I did feel that way. Q. And, at the same term in Ellis county was fixed for the fourth time, part of the boys were skipping out? Monday, and what had been the May term in A. Yes, sir."

Trego county was postponed to June; but it The plea in abatement was properly over- contained no specific clause repealing the ruled. The complaint filed with the examin- act of 1889; and, because of this, it was ing magistrate read as follows:

claimed to be violative of section 16, art. 2, “State of Kansas, Trego County-ss.: F. D. of the constitution, which declares that “no Street, being duly sworn, on oath says that on law shall be revived or amended unless the the first day of August, A. D. 1855, in the coun- new act shall contain the entire act revived, ty of Trego and state of Kansas, Daniel or the section or sections amended, and the Countryman did then and there, unlawful- section or sections so amended shall be rely, feloniously, willfully, deliberately, and of pealed." The older law, however, has been his malice aforethought, make an assault in repealed by the necessary implication arising and upon Joseph Sigler, with a certain shot- out of the adoption of an entirely new progun breach loader, which said shotgun was vision, covering every detail of the older one, loaded and charged with gunpowder 'and-by providing anew all which the older one leaden shots, did discharge and shoot off, provided for. The law of 1895 not only chanagainst and upon the said Joseph Sigler, on ged the time of holding the May term of the left knee, with intent to murder the said court in Ellis county, but of the other terms Joseph Sigler. F. D. Street.

as well, and not only changed all the terms "Subscribed and sworn to before me, this in Ellis county, but all the terms in all the 1st day of August, A. D. 1895. Joshua Groft, other counties of the Twenty-Third judicial Justice of the Peace."

district. Thus, the new law did contain the This complaint was quoted in the warrant "entire section amended,” to use the lanof arrest. The justice's docket, at the appro- guage of the constitution, or the "entire secpriate place and in the logical order of state- tion as amended," which is what the conment of proceedings before him, contained stitution means. Therefore the law providthe following entry: “August 2, 1893. Plain- ing for terms of court in Trego county on tiff, by John A. Nelson, county attorney, the fourth Monday in May, and Ellis county present. Defendant appeared in person. on the second Monday in May, had been The defendant waived formal arraignment, amended by another, which assigned the and plead not guilty. And it appearing that fourth Monday in such month to Ellis counthe said offense was committed, and that ty, and another day in another month to there is probable cause to believe the defend- Trego county; and similar changes having ant guilty of its offense, it is by me adjudged been made as to all the other counties in the that he do enter into a recognizance in the Twenty-Third district, and as to all their sum of one thousand dollars, for his appear- terms, the latter was a substitute for the ance at the next term of the district court of earlier one in all its parts, and as to its enTrego county, and, for want of such recog- tire subject-matter. This accomplished a renizance, that he be committed to the jail of peal of the earlier one by implication, which Trego county, there to remain until dis- is allowable, without any express repeal. charged by law.” The justice's mittimus or State v. Guiney, 55 Kan. 534, 40 Pac. 926. order of commitment recited, in substance, The defendant, at the close of the trial, prethe complaint and warrant of arrest. ferred requests to the court for certain inThese papers and proceedings show a more structions to the jury, to the effect that one than usually strict and technical compliance whose person or family or property is atwith legal forms, and are, without doubt, tacked by a party of rioters may resist such full and sufficient evidence of a preliminary attack, whether felonious or otherwise, by examination or trial, and, in fact, are the the use of such means as will make his rebest evidence.

sistance effectual, even to the extent of using The objection to the jurisdiction of the firearms or other deadly weapons; and, to court was likewise unfounded. It was based the refusal of the court to give such instrucupon the theory that the term of court in tions, exceptions were preserved. These inEllis county commencing on the fourth Mon-structions were correctly refused. It is not day in May, 1896, at which the defendant the law that one may resist a nonfelonious assault upon himself or his family or his prop- weapon, for the purpose of compelling them erty by the use of deadly weapons.

He may

to desist or leave, though he might have been resist nonfelonious assaults by the use of such excused for attempting to drive them off by weapons or means as may be necessary to re- force, and even by blows, with any instrupel the same, but not to the extent of taking ment not calculated to endanger life or limb. or endangering life. State v. Thompson, 9 | But though, from the sudden, violent, and Iowa, 188; State v. Kennedy, 20 Iowa, 569; capricious impulses to which an excited mob Rippy v. State, 2 Head, 217; Gallagher v. is always subject, danger may always be natuState, 3 Minn. 270 (Gil. 185); Harrison V. rally apprehended, especially about a man's State, 24 Ala. 67. These and other like cases dwelling at night, whatever the original obare to be found in Horrigan & Thompson on ject of the assemblage may have been,-and Self-Defense. The defendant's testimony no one can estimate the nature or extent of heretofore quoted, and which, as we have the danger,-yet, until some actual violence said, is the most favorable to himself of all had been done or attempted in this case the witnesses, shows no felonious assault-against either the house or its inmates, the in fact, no assault at all-upon his person, necessity which alone could excuse taking the nor upon any member of his family. It shows life of any of the assailants had not yet ocDothing but a trespass, aggravated and inex- curred, and might never occur. And, though cusable, however, upon his property. No the defendant had the right to act under the threats of harm to himself or to his family circumstances as they appeared to him, yet had been made by any of the rioters. At and up to this point (without reference to the debefore the time of firing upon the intruders, fendant's mother) there was nothing in the some of them were standing still, apart from circumstances which fairly tended to show him and his house, while others were running that he could have believed the dire necesaway. Fear upon the defendant's part that sity to have arisen." Of course, it is not to the rioters would assault him or his family, be understood that one may not act in deor injure his property, did not justify the use fense of his person, family, or habitation upupon them of a deadly weapon. The use of on appearances of danger, even though there a deadly weapon by a person in defense of be no real danger. There must, however, be himself, his family, or his property is unjustic appearances of danger,-appearances which fable except where the assault is felonious impress themselves upon the mind of an ordiin character, is impending, and is so near to narily prudent, cautious, and self-possessed being made as to prevent its consummation person as dangerous. These were totally by the use of other means adequate to repel lacking in the case under consideration, even the same. This was the law laid down in

according to the defendant's own testimony. Com. v. Selfridge, by Judges Parsons, Sedg- The court instructed the law to be that one wick, Sewell, and Parker, of Massachusetts, who honestly believes that his person, famnearly 100 years ago, and has remained with- ily, or habitation is about to be injured by a out serious challenge to this time. Horr. riotous assemblage has the right to disperse & T. Cas. Self-Def. 1. The case of Patten such assemblage, by the use of such force as 5. People, 18 Mich. 314, is confidently re- may honestly appear to be necessary for such lied upon by the defendant to sustain his

purpose, even to the extent of using deadly view. In that case, however, it was in evi- weapons, but that the degree of force employdence that the defendant's mother was se- ed must not exceed that which he honestly beverely ailing, and that the noise of the riot- lieves is necessary to accomplish the purpose, ous party, and the terror in which she was without exposing himself or family to danger thrown by their presence and conduct, great- of bodily harm. This statement of the law ly endangered her life, and the court there- was correct, and covered the facts of the case fore correctly, as we think) instructed that

on trial. the defendant was justified in the protection Complaint is also made of the refusal of of his mother in the use of a deadly weapon. the court to instruct the jury that the proof lo the case, however, Judge Christiancy, in upon the part of the state must be of a delivering the opinion of the court, distin- specific intent in the defendant's mind to kill guished between cases in which the defend- | Joseph Sigler, and that proof of firing into ant might or might not be justifiable in the a crowd of boys with no specific intent to tise of deadly weapons, and, in so doing, kill any one in particular would be insuffijaralleled, in the latter instance, the case we cient to convict of an assault with intent to have in consideration. He remarked as fol- kill. If the law be as claimed by the defendlows: “Considering the case first with refer- ant, the refusal of this instruction was harmence only to the facts existing prior to the less error, because the defendant was not contime when the defendant went out with the victed under section 38 of the crimes act, ax, and without reference to the peculiar ef- which requires proof of such particular infects produced by the conduct of the rioters tent, but was convicted under section 42 of upon his mother, there was nothing, I think, such act, which does not require proof of in the evidence fairly tending to show a state such intent. It has already been held that a of facts which would justify or excuse the charge under section 42, of assaulting and defendant in rushing out and attacking any of wounding under such circumstances as would the rioters with an ax, or other dangerous 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 jusiices concurring.

(57 Kan. 828)

PHILLIPS et al. v. LOVE et al. (Supreme Court of Kansas. March 6, 1897.) Case-Made- SETTLEMENT — MORTGAGE FORECLOSURE-STAY OF PROCEEDINGS-SALE

- 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 berely 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 certifitate 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 judgmen* 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, ard 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 sherOff'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 mort. gage 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 on 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 judg. ment 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 name. 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

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