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case-made had not been properly settled and were that the order of sale was prematurely allowed. This motion was sustained by the issued; that the purchaser, being the admin. court of appeals. 46 Pac. 55. On applica- istratrix of her deceased husband's estate, tion of plaintiffs in error, the case was or- was incapacitated to purchase; and that the dered certified to this court.

sale was for an inadequate price. The order

of sale was not prematurely issued. More Vadden & Buckman and Chas. L. Brown,

than six months had elapsed from the date for plaintiffs in error. Pollock & Love, for

of the judgment against the Harnleys foredefendants in error.

closing the mortgage. This judgment was

rendered on the 1st of February, and the orALLEN, J. (after stating the facts). The der of sale was not issued until the 11th of first question in this case arises on the ruling | August. The period of the stay begins to of the courts of appeals dismissing the peti- run from the date of the judgment directing tion in error. The objections to the record the sale. Water Co. v. Lombard (Kan. Sup.) are "that it shows no waiver on the part of 47 Pac. 532. The judgment against the Hill counsel for plaintiffs of the suggestions of estate, subsequently rendered, was a judgamendments, does not show that amendments ment for money. Hill's executors claimed no were not suggested, and shows that the case- title to or interest in the mortgaged property. made without amendments was presented to There was no occasion for a foreclosure as the trial judge for signing and settling, against them, for a full title to the mortand does not show that attorneys for the gaged property could have been made withplaintiffs were present at the time the case- out Hill's executors being parties to the suit. made was settled.” The motion for a new Their only interest in the foreclosure and trial was overruled September 28, 1891. The sale of the mortgaged property was in prodefendants were given 60 days to make and tecting their estate from liability on account serve a case, and the plaintiffs 20 days there- of Hill's indorsement of the note. The purafter to suggest amendments. The case was chaser at the sale, La Quincy Phillips, occuserved on plaintiffs' attorneys on November pied a fiduciary relation to creditors and dis24th. On December 24th, which was after tributees of the estate of James Phillips. As the time for suggesting amendments had ex- between heirs and persons interested in that pired, the following waiver was written on estate, she could not speculate with funds the case, and signed by plaintiffs' attorneys: belonging to the estate to their detriment, "We hereby consent that the foregoing case

but towards the Hill estate she occupied no made may be presented to the Honorable M. relation of trust or confidence. They are in G. Troup, judge of the above-named court, no position to charge her with violation of for allowance and settlement, this 24th day | her trust. A purchase by an executor or adof December, 1891, hereby waiving any no

ministrator under foreclosure of a mortgage tice of the time and place for such settle- due the estate is not absolutely void as ment." Thereupon, on the 24th of Decem- against the whole world, whether the purber, the case was signed by the judge, who

chase be in his individual name or as excertified, among other things, "that said case- ecutor or administrator. Merket v. Smith, made is a true, full, and correct case-made 33 Kan. 66, 5 Pac. 394; Beck v. Uhrich, 16 in said cause, and is signed and allowed by Pa. St. 499; Perry, Trusts, $ 127 et seq.; him as such." If the plaintiffs had any Briggs v. Railroad Co., 56 Kan. 526, 43 Pac. a nendments to suggest, their time for sug- 1131. This leaves but one remaining ground gesting them had expired. They consented of attack,-that of inadequacy of price. The that the case might be presented to the judge property was sold for $150. There is evion a day named, and waived any notice of dence tending to show that it was worth the time and place. This clearly conferred $1,200. At the trial the plaintiffs offered in anthority on the judge to proceed in their open court to bid the full amount of the absence, and settle the case. If they had judgment against the Hill estate at a resale suggested amendments, it was their duty to of the property. Mere inadequacy of price, attend at the time of settlement, and see taken alone, is generally held insufficient that they were duly considered by the judge. ground for setting aside a sheriff's sale. We are not to presume either that they did Means v. Rosevear, 42 Kan. 377, 22 Pac. 319; or did not suggest amendments, or, if they Babcock v. Canfield, 36 Kan. 437, 13 Pac. 787; did suggest them, that the amendments ei. Jones v. Carr, 41 Kan. 329, 21 Pac. 238. But ther were or were not incorporated in the where application for relief is made in due case-made. The judge, at the time stated in time by motion to set aside the sale, or in rethe waiver, did sign the case, and certify sistance of the motion to confirm, gross inthat it was true, and the plaintiffs were adequacy of price is a circumstance of great bound under their waiver by whatever he weight, when taken in connection with other did. The form of the certificate is sufficient. irregularities, if not of itself sufficient to war. Railroad Co. v. Cone, 37 Kan. 567, 15 Pac. rant the setting aside of the sale. This, how. 199; Mudge v. Bank, 56 Kan. 333, 43 Pac. ever, is a matter directly involved in the 23. The court of appeals erred in dismiss- conduct of the sale by the sheriff. In this ing the case.

case a motion was filed to confirm the sale, The grounds relied on to avoid the sale and one of the counsel for the plaintiffs tes. tified that he saw the motion, and learned of not know its condition; but it must be shown the sale before the confirmation. No reason

that when he received the deposits he knew the

bank to be inselvent. But his relation to the was shown at the trial why this question

bank, and his duty to examine into the concould not have been properly presented when dition of its affairs, and know whether it is solthe motion to confirm the sale was heard. vent or insolvent, may be taken into consideraThe question of price obtained at the sale is

tion by the jury in determining whether he had

actual knowledge of its condition. always one of the circumstances to be con

(Syllabus by the Court.) sidered by the court in confirming or setting aside a sale, and the order entered confirm

Appeal from district court, Sherman couning this sale was an adjudication against the

ty; Charles W. Smith, Judge. plaintiffs on the question of inadequacy of

M. B. Tomblin was convicted of an offense, price. They could not thereafter maintain an

and appeals. Reversed. independent action to retry matters necessa- Waters & Waters, for appellant. L. C. rily involved in the confirmation of the sale. Boyle, Atty. Gen., and John Hartzler, for the Cross v. Knox, 32 Kan. 725, 5 Pac. 32; Bank State. v. Huntoon, 35 Kan. 577, 11 Pac. 369. Errors committed by the trial court on motions to ALLEN, J. The defendant was charged as confirm or set aside judicial sales may be re- president, director, and managing officer of viewed in this court, and the plaintiffs ap- the Sherman County Bank, a corporation orpear to have had a full opportunity to contest ganized under the laws of Kansas, with havthe sale in the usual and ordinary manner ing received deposits of money when the in the trial court, and might by petition in bank was insolvent, knowing that it was in error have had its action reviewed here in a that condition. The information contains direct proceeding in the original action. ten counts, five of which charge him as prinThough this is in one sense a direct attack cipal and the others as accessory. He was on the sale, it is an attack by an independent convicted as accessory under four counts of action, which leaves the order confirming the

the information, and sentenced to four years' sale as an adjudication of every matter then imprisonment in the penitentiary, and to pay presented to the court, or which ought to a fine of $2,000. From this judgment he aphave been presented, for its determination. peals. Numerous errors are assigned in the Though there were some averments of fraud brief. We shall consider only those quesin the petition, they were not sustained by tions decisive of the case and which might the proof, nor was there any finding by the arise on a retrial. court of any such fraud. The judgment is George W. Edwards was called as a juror. reversed, and the case remanded for a new On his examination he stated that he had trial. All the justices concurring.

talked with various persons about the case; that he had an opinion as to whether or not

the bank was solvent at the time the deposits (37 Kan. 841)

were received; that it would require eviSTATE V. TOMBLIN.

dence to remove it; that he might have ex

pressed an opinion, though he could not say (Supreme Court of Kansas. March 6, 1897.)

whether he had or not; that he would take JURY — COMPETENCY-CRIMINAL LAW-CONFRONT


box. Though he also said on further exam

ination that he had not a settled conviction, 1. On the trial of a criminal prosecution against a defendant charged with having re

he had such an opinion with reference to one ceived deposits as an officer of a bank, when of the principal issues in the case, -the solthe bank was insolvent, and he knew its insol

vency or insolvency of the bank,

,--as would vency, a challenge to a juror, who has a fixed opinion as to the solvency or insolvency of the

render him incompetent as a juror. The court bank at the time the deposits were received, erred in overruling the challenge. A more should be sustained, it appearing that the ques- important and prejudicial error, and the one tions as to the solvency of the bank, and the

on which a reversal of the judgment is mainly knowledge the defendant had as to its condition, were among the principal ones to be tried.

based, is in the admission of the deposition of 2. A defendant on trial, charged with a fel- E. Lindsay, taken at St. Joseph, Mo., on writony, has the right guarantied to him by the con.

ten interrogatories prepared by counsel for stitution to meet the witnesses produced by the

the defendant and cross interrogatories by state face to face, and it is error to admit, over his objection, the deposition of a witness

the state. The defendant had testified on taken out of the stite, when he was not per- the trial at length with reference to many sonally present, containing important testi

matters, and, among others, that he went to mony, notwithstanding the fact that the deposition was taken on the application of the defend

the State National Bank in St. Joseph, and ant on interrogatories prepared by his counsel made arrangements for $5,000 more money if and cross interrogatories prepared by counsel the bank should need it; that this was done for the state. By causing the deposition to be taken, the defendant did not irrevocably con

shortly before the bank closed; that his bank sent to its introduction in evidence.

then owed the St. Joseph bank $2,500, and 3. A person charged with having received that he made arrangements for and was told deposits, as an officer of a bank, when it was

by Mr. Lindsay that he could get $5,000 if he insolvent, is not guilty of a crime, under section 16 of chapter 43 of the Laws of 1891,

wanted it, thereby increasing the indebtedmerely because through his negligence he does ness to $7,500. This deposition was offered by the state in rebuttal, and portions of it to withdraw from the consideration of the were admitted over the objection and excep- jury each count separately operated as tion of the defendant. In that part which final discharge of the defendant from furwas read in evidence to the jury Mr. Lindsay ther prosecution on those counts, to which testified that he was the president of the the motion was at first sustained and afterState National Bank, and resided in St. Jo- wards overruled. While the court announseph, Mo.; that Tomblin's bank owed them ced its ruling on the motion, there was yet $10,000; that Tomblin made application for no actual discharge of the defendant from funds two days before the suspension of the further prosecution, and on the record we bank, and that it was not granted; that Tom- think no error was committed by the court blin asked for $2,500. This evidence was im- in recalling and correcting the decision at portant. It squarely contradicted the state- first announced. ments of Jr. Tomblin, and tended to show We do not think it was incumbent on the that the accounts of the Sherman County state to show that the bank held a certificate Bank with the St. Joseph bank were in a of the bank commissioner authorizing it to much less favorable condition than Tomblin transact business. Nor was it essential to had stated, and also that Tomblin could not show that the county treasurer was authorobtain the assistance from Lindsay's bank ized by the county to deposit funds in the that he claimed he had secured. The tenth bank. Whether the deposit was made rightsection of the bill of rights in the constitu- fully or wrongfully by the county treasurer, tion of this state secures to the accused in all it was still a deposit, within the meaning of criminal prosecutions the right "to meet the the law. witness face to face." This right was not Many other alleged errors are discussed in waived by his causing the deposition of Lind- the brief, concerning which we express no say to be taken. He did not offer it in evi- opinion, as it is probable that the same quesdence; and, notwithstanding the fact that he tions may not arise on another trial, and they had caused the deposition to be taken and do not appear to us of such importance as filed in the court before the trial commenced, to require discussion in this opinion. The he still had the right to insist on confronting judgment is reversed, and the cause remandevery witness who should testify against him ed for a new trial. All the justices concurat the trial, face to face. This constitution- ring. al guaranty is one of the most important safeguards to the citizen when charged with crime, and no court has any right to abridge *

(57 Kan. 835) or deny it. Rice, Ey. $ 243; Cline v. State

STATE v. DOTY. (Tex. Cr. App.) 36 S. W. 1099. The facts in (Supreme Court of Kansas. March 6, 1897.) this case do not fall within the exception AccESSORY AFTER THE FACT AIDING TO ESCAPE sometimes urged where the accused was

ARREST. personally present at the time the testimony

D. and his stepdaughter, who was under

the age of consent, were criminally intimate; was taken, for it appears from the record in

and about the time a child was born to the this case that he was not present when this daughter she informed her mother that D., the. deposition was taken. We express no opin- husband of the mother, was the father of the

child. The mother then told her daughter to ion, however, whether this distinction can be

say to the officers of the law, if inquiry was maintained. The mere fact that the defend

made, that another than D. was the father of ant asked that the deposition might be taken the child, and the daughter made the statement did not amount to a consent that, whatever

as the mother advised. Within a few days

thereafter, D. was arrested and convicted of the witness might testify to, the deposition

the offense of rape. Held, that the mere admight be read in evidence at the trial. vice of the mother to her daughter to tell an unWhile the instructions fairly state the law

truth about the paternity of the child does not in the main, the concluding paragraph of the

make the mother an accessory after the fact,

nor constitute a crime, within the meaning of fourteenth instruction given seems to imply paragraph 2562, Gen. St. 1889. that the defendant might be held guilty in a (Syllabus by the Court.) criminal prosecution if, through his negli

Appeal from district court, Sumner coungenee he did not know the actual condition of the bank when it was in fact insolvent.

ty; J. A. Burnette, Judge. It was proper for the jury to take into con

Almira Doty was convicted of aiding her sideration the defendant's relation to the

husband to escape arrest, and appeals. Re

versed. bank as a managing officer, and the duties he owed to it for the purpose of determining W. H. Staffelbach and Haughey & Mcwhether he actually knew its insolvent con- Bride, for appellant. L. C. Boyle, Atty. Gen., dition; but mere negligence would not ren- John G. Woods, and H. L. Woods, for the der him guilty of a crime. It was incum- State. bent upon the state to establish not only the fact of insolvency, but the defendant's knowl- JOHNSTON, J. The appellant was coneilge of it.

victed of giving her husband, who had comWe find no error in the ruling of the court mitted the offense of rape, aid, with the inon the plea in abatement. Nor do we think tent and in order that he might escape artbe ruling of the court on defendant's motion rest, conviction, and punishment. Charles

48 P.-10

Doty and Almira were husband and wife, charged with the crime of rape. He waived
end Nannie Williams was the daughter of a preliminary examination, and was bound
Almira by a former husband, and they liv- over to the district court for trial. On June
ed together as a family in Oxford, Sumner 30, 1896, he was arraigned in the district
county. Nannie was 16 years old on Feb- court, entered å plea of guilty, and the court
ruary 4, 1896, and it appears that Doty had entered judgment on the plea, sentencing
been having sexual intercourse with her for him to the penitentiary for the period of 21
about 3 years before that time. On June 10, years. Shortly afterwards his wife, Almira
1896, she gave birth to a child, which lived Doty, was arrested, tried, and convicted as
but a few hours. Two days before the birth an accessory after the fact.
of the child a physician was called to see Nan- The prosecution was brought under section
nie, who, after an examination, told her moth- 422 of the crimes act, which reads: "Every
er, Almira Doty, that the girl was pregnant. person who shall be convicted of having con-
After the doctor went away the mother ask- cealed any offender after the commission of
ed the daughter who was the father of the any felony, or of having given to such of-
unborn child, and was told that it was fender any other aid, knowing that he has
Charles Doty. Afterwards Mrs. Doty told committed a felony, with the intent and in
her daughter that she wished they could say order that he may escape or avoid arrest,
it was some one else, and not Doty. Two trial, conviction or punishment, and no other,
days later the child was born, and Mrs. Doty shall be deemed an accessory after the fact;
inquired of the doctor if Nannie could be and, upon conviction, shall be punished by
moved so they could get away from Oxford, confinement and hard labor not exceeding
but the doctor said she could not. She then five years, or in the county jall not exceed.
suggested that the matter be kept quiet, and ing one year nor less than six months, or by
asked the doctor to withhold a report of the fine not less than four hundred dollars, or
birth to the state board of health. Two days by both a fine not less than one hundred dol.
later she told the doctor that he might make lars, and imprisonment in a county jail not
his report. It appears that a conference had less than three months." Gen. St. 1889, par.
been had between Charles Doty, Almira Do- 2562.
ty, and Nannie Williams in regard to char- The main question presented for decision
ging the paternity of the child upon someone is whether what was said and done by Al-
else than Charles Doty, with a view of mira Doty brings her within the condemna-
shielding him from the consequences of the tion of this statute. In fact, it seems that
crime. It was agreed among them that, up- nothing was done by her to conceal her hus-
on inquiry, Nannie should say that the fa- band, or to aid him to escape. At least, there
ther was Henry McPierson; and, in accord- were no overt acts. In her distress occasion-
ance with the agreement, Nannie told the ed by the shame of her daughter and the per-
county attorney and the sheriff, who ques- fidy and crime of her husband, she did ask
tioned her, that McPierson was the father her daughter to tell an untruth as to the pa-
of the child. Among other things they told ternity of her child, but there was no act, nor
. her to say was that she had met McPierson anything more than mere words. We think
in the schoolhouse grounds in July, 1895, and that the part taken by her in the transaction
had there had sexual intercourse with him; does not make her an accessory after the
that he had just come from the "Strip”; that fact, nor make her amenable under the quot-
he went from Oxford to Belle Plain; that ed statute. The word "aid," in its broader
he wrote her from Belle Plain in November, signification, might include assistance like
1895, to meet him at the schoolhouse grounds the failure to disclose a felony by one har.
on a certain evening; that she met him as ing knowledge of its commission, or assist-
suggested in his letter, and again had illicit ing the offender in obtaining witnesses to
intercourse with him; that at the meeting in testify in his behalf, or giving untruthful tes-
November he told her that he was going to timony in his behalf at the trial. While
Indiana; that from and after that meeting these might aid the offender in escaping pun-
she never saw him again or heard from him. ishment, it certainly is not such aid as the
It was also suggested to her that if she statute contemplates. The character of the
should only name one person the county at- aid is indicated by the particular words used
torney might not believe it, and that she had in the commencement of the section, and it
better name two persons, and she was told shows that it must be some substantial act
by her mother to say that the other person of personal assistance. It will be observed
was Ezra Shriver. Shriver lived in the com- that the concealing of an offender is first
munity, but it appears that there was no mentioned, and then there is added the gir-
such person as Henry McPierson. Her moth- ing of such offender any "other aid," and
er advised her to adhere to the story which the argument may well be made that the
she had told to the officers; that she might other aid is of a similar character with that
be sent to the house of correction, but the particularly specified. It is a familiar rule
term would not be long; and that that would of interpretation that, where particular words
be better than to have Doty go to the peni- are followed by general ones, the latter are
tentiary. About the time she told this story, to be held as applying to persons and things
and on June 15, 1896, Doty was arrested, of the same kind with those which precede.

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In Wren v. Com., 26 Grat. 952, in speaking | proceedings, the petition in error will be disof the character of aid given to a felon

missed. which would make a person liable as an ac- Error from district court, Wabaunsee councessory after the fact, the court said that ty; William Thompson, Judge. it was such as "that he concealed him in the

Action by J. W. Mallory and Elizabeth house, or shut the door against his pur- Mallory against John Y. Waugh and others. suers until he should have an opportunity Judgment for defendants. Plaintiffs bring to escape, or took money from him to let him

error. Dismissed. escape, or supplied him with money, a horse,

Vance & Campbell, for plaintiffs in error. or other necessaries, in order to enable him

Ferry & Doran, for defendants in error. to escape, or that the principal was imprisoned and the jailer was bribed to let him

PER CURIAM. This proceeding was escape, or conveyed instruments to him to enable him to break prison and escape. This

brought to review the rulings and judg.

ment of the district court of Wabaunsee and such like assistance to one known to be a felon would constitute a man accessory

county. The right to review is challenged after the fact.

But merely suffer

on account of the insufficiency of the record.

The record attached to the petition in error ing the principal to escape will not make a

is a transcript, instead of a case-made, and party accessory after the fact, for it

the clerk of the district court certifies: “The amounts, at most, but to a mere omission. Or if he agree, for money, not to prosecute

above and foregoing to be a true, full, and the felon; or if, knowing of a felony fails

complete copy of the amended petition, apto make it known to the proper authorities,

swer, and all of the journal entries of judg

ment and orders of court in the case of J. none of these acts would be sufficient to

W. Mallory and Elizabeth Mallory vs. John make a party an accessory after the fact.

Y, Waugh et al., cause No. 2,695, in the If the thing done amounts to no more than

therein entitled cause, as the same remain the compounding a felony or the misprision

·on file and of record in my office." The cerof it, the doer will not be an accessory.” See, also, State v. Fry, 40 Kan. 311, 19 Pac. 742;

tificate of the clerk not only fails to show Whart. Cr. Law, $ 241; 1 Am. & Eng. Enc.

that the record contains a complete transLaw (20 Ed.) 269. The defendant gave no

cript of the proceedings in the case, but dis

closes the fact that it does not. Upon the personal assistance of this kind, and the mere fact that she asked her daughter to

authority of the case of Neiswender v. tell the county attorney a falsehood with re

James, 41 Kan. 463, 21 Pac. 573, followed spect to the paternity of the illegitimate

by the supreme and this court in numerous child, although reprehensible, does not, in

cases, the case must be dismissed. All the our opinion, constitute the aid which the

judges concurring. statute contemplates, or amount to an offense under the statute. It appears that the

(5 Kan. App. 879) advice of the mother and the falsehood of the daughter were not an aid to Doty, in any

In re BLUSH, sense, as a warrant for his arrest was ob- (Court of Appeals of Kansas, Northern Departtained on the same day that the fabricated

ment, E. D. March 17, 1897.) story was told to the officers, and he was ar

CONSTRUCTIVE CONTEMPT-PROCEDURE. rested some time before Nannie disclosed

Where no affidavit or information was filed what are deemed to be the real facts in the

on which to base proceedings for constructive case. Within a few days after the mother contempt, one confined in jail therefor will be had heard of the criminal intimacy between

discharged. her daughter and husband the latter was

Application of W. H. Blush for a writ of arrested, convicted, and sentenced. It ap- habeas corpus. Petitioner discharged. pears that the officers of the law were not mnisled by the telling of the untrue story, nor

C. A. Starbird, for petitioner. Frank Her

ald, for respondent. did Doty obtain any aid or advantage thereby. However, we rest our decision on the

PER CURIAM. This is an original habeas view that the statute under which the prose

corpus proceeding, instituted in this court cution was brought does not cover or include

for the purpose of securing the release of the misconduct of the appellant. The judg

Walter H. Blush, who is contined in the jail ment will therefore be reversed, and the ap

of Shawnee county under an order of the pellant will be discharged. All the justices

district court of said county; and it appears concurring.

from the return of the sherift that he was

attached for failing to pay an amount to his (5 kan, App. 879)

wife for alimony and suit money, as orMALLORY et al. v. WAUGH et al.

dered by the court. No atlılavit or informa(Court of Appeals of Kansas, Northern Depart

tion was filed upon which to base said proment, E. D. March 19, 1897.)

ceedings, and from the decision of the suPETITION IN ERROR-DISMISSAL.

preme court of the state in the case of State Where the certificate shows that the record

v. Henthorn, 46 Kan. 613, 26 Pac. 937, followdoes not contain a complete transcript of the ed in the case of In re Nickell, 47 Kan. 734,

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