deceased, or of having great bodily harm done by him; and this belief must rest upon reasonable grounds, and the party from whom | the danger is apprehended must be making some attempt to execute his designs, or at least be in an apparent situation to do so, and thereby induce the reasonable belief in the mind of the accused that he intended to do so immediately. You must determine from all the facts and circumstances proven in this case whether this condition of things existed at the time of the firing of the fatal shot or shots by the defendant, John Nelson. If you find from the evidence that, at the time the defendant fired the fatal shot or shots which killed the said Albert Morris, the defendant acted under the belief that he was in danger of immediate death or great bodily harm at the hands of said Albert Morris, and that the circumstances, including the mental condition of the defendant at that time, were such as to induce such belief in the mind of an ordinarily prudent person under the same circumstances, and that the defendant was under the reasonable belief of the necessity of firing the said shot or shots in order to avoid death or great bodily harm, you will be justified in finding the defendant not guilty." The vice of this instruction is that the jury are told that the facts and conditions recited therein would justify them in finding the defendant not guilty, when, if the facts and conditions suggested were found by the jury, it was a positive duty to acquit. The statute, in effect, provides that a homicide is justifiable if committed by a person in the lawful defense of himself from an assault, when there shall be reasonable cause to apprehend a design on the part of his assailant to commit a felony or to do some great personal injury, and there shall be immediate danger of such design being accomplished. Gen. St. 1901, § 1994. If the killing was justifiable, the jury had no discretion in the matter, and was bound to acquit the defendant. The instruction complained of apparently gave the jury the discretion to acquit or convict although the defendant may have shot and killed Morris when he believed, and had reasonable grounds to believe, that he was in danger of meeting death or great bodily harm at the hands of Morris. It is not enough to tell the jury that a finding of not guilty in such cases is justifiable or defensible, and that they are warranted or at liberty to acquit where the homicide is justifiable; and the language used implied no more than that. Instead of giving the jury permission to find the defendant not guilty under such circumstances, there should have been a clear and unequivocal direction to acquit. In a prosecution for murder, it is important that the charge should be so explicit and accurate as not to mislead the jury as to the law of the case, or leave them in doubt as to their duty. It was especially important to the defendant in this case, as he was defending upon the

theory that he was under a reasonable apprehension of loss of life, or of at least great bodily harm, from the assault of Morris, and that the danger appeared to be so imminent that he had no alternative of escaping it, except by resistance with the weapon which he used. It is true, as the state claims, that in another instruction the court directed an acquittal where certain elements of the crime were not established, but the one criticised was the only one which applied the law of self-defense to the defendant; was the only one which presented the doctrine that one assailed could act on apparent danger of his life, and on the belief of the necessity of firing the fatal shots for the protection of himself. In view of the defense that was made, and the circumstances of the case, we cannot say that the erroneous instruction was not misleading and prejudicial; and, that being true, the verdict should be set aside.

The defendant had cause to complain of the misconduct of the jury and the bailiff in charge of them. Without permission of the court or the consent of the defendant, the jurors were taken to a public barber shop, where they remained a considerable time, until all of them were shaved. Later, and after the jury had retired to deliberate on the verdict, the bailiff separated the jurors, taking ten of their number to a hotel for breakfast, and left two of them, who did not feel like going, in the jury room. While the bailiff and the ten jurors were absent, the janitor entered the jury room and did some work there. At this time no officer was in charge of the jury room or the jurors left in it, and these things occurred without the permission or knowledge of the court. At another time the bailiff left the jury in their room and went to his home, some distance away, where he remained a considerable time, during which no one was in charge of the jury. An effort, not entirely successful, was made to show that no prejudice resulted from the misconduct. There were serious irregularities, which should never occur in any case, and especially in one where life and liberty are involved. Whether there are sufficient of these to overthrow a verdict, it is not necessary to inquire, since there is to be a reversal on other grounds.

Some important and newly discovered evidence was offered on the motion for a new trial, which was excluded because it was not produced and filed within a time fixed by a rule of the court. It appears that some of it could not have been obtained within that time, and hence the enforcement of the rule was exceedingly harsh. In such cases, and where parties appear to be acting in good faith, full opportunity should be given to the defendant to make a showing in support of his motion before final judgment is rendered.

For the error mentioned, the judgment will be reversed, and the cause remanded for a new trial. All the justices concurring.

JUSTICE OF THE PEACE-CONVICTION OF MISDEMEANOR-APPEAL COMPLAINT-WITNESSES' NAMES-SEPARATION OF JURY.

1. Under section 5, c. 156, Laws 1901, a justice of the peace, before whom one has been convicted of the commission of a misdemeanor, is required to designate whether an appeal taken from such conviction shall be to the district court "sitting at Columbus" or "sitting at Galena."

2. Permission to indorse a witness' name up- i on a complaint in a criminal action is the exercise of discretion in the district court; and where it does not appear that by so doing the court has abused its discretion it will not be held to be error, even though the court violated its own rule in so doing.

3. It is not prejudicial error for the court to ask of the defendant in a criminal action, in the presence and hearing of the jury, if he has any objection to the jury separating for the purpose of going to their meals.

(Syllabus by the Court.)

In banc. Appeal from district court, Cherokee county; A. H. Skidmore, Judge.

Leon and Sophia Regard were convicted of keeping a nuisance, and appeal. Affirmed.

Chas. Stephens, for appellants. A. A. Godard, Atty. Gen., and J. N. Dunbar, Co. Atty., for the State.

CUNNINGHAM, J. Appellants were convicted before a justice of the peace of the city of Columbus, in Cherokee county, of keeping and maintaining a nuisance. They sought to appeal from such conviction to the district court of that county. Chapter 156 of the Laws of 1901 (section 1949, Gen. St., 1901) provides for holding terms of the district court of that county both at Columbus and Galena, and section 5 of that act provides that in all appeals or proceedings in error from justices of the peace to the district court the party taking such appeal or proceeding in error has a right to designate whether the same shall be to the court sitting at Columbus or sitting at Galena, and in all cases in which any person is required to enter into recognizance for his appearance before the district court the officer taking such recognizance shall designate whether the person shall be recognized to the court sitting at Columbus or sitting at Galena. Appellants here claim that this was such an appeal as gave them the right to indicate whether it should go to Columbus or Galena. Section 5826, Gen. St. 1901, provides that a defendant in a criminal action shall have the right to appeal from the judgment of a justice of the peace imposing a fine or imprisonment or both on condition that he "enter into a recognizance to the state of Kansas in a sum with sureties to be fixed and provided by the justice before whom such proceedings are had." Now, as under section 5, c. 156, Laws 1901, in cases where a recogni

3. See Criminal Law, vol. 14, Cent. Dig. § 1520.

zance is required to be given, the officer taking such recognizance must direct where such appeal shall be tried, and as this is a case where upon an appeal a recognizance is required to be given by the terms of section 5826, Gen. St. 1901, therefore the justice did right in selecting the place where the case should go. While the language used in the first part of section 5 is that in all appeals the party appealing shall have the right to designate where his appeal shall be tried, the subsequent portion, as well as the context, indicates that civil appeals were meant, and not criminal ones.

Appellants further complain of the action of the district court in permitting the name of the probate judge to be indorsed upon the complaint during the progress of the trial, contrary to the rules of the court in relation to such matters. The evidence of the probate judge was merely formal, and something that defendants might well expect to be introduced, the offering of which could in no wise prejudice or surprise them. The rule of the trial court cannot be said to be a hard and fast one, or one the violation of which this court may hold to be an abuse of discretion.

After the court instructed the jury, the defendants were asked in its presence and hearing if they had any objection to the jury separating and going to their meals. It is insisted this was error, for the reason that it tended to prejudice the jury against the defendants, as, if they should deny the request, the jury would naturally feel injured and revengeful, and, if they should grant the request, the jury might be exposed to adverse influences by their mingling with persons prejudiced against the defendants. Appellants cite State v. Parker (Wash.) 65 Pac. 776, in support of their contention. The statutes of Washington do not permit the separation of a jury except by the consent of the defendant, and it was held in that case, under circumstances' somewhat similar to that of the case at bar, that consent so given was not voluntary, hence was not the consent of the defendant. No such provision is found in our statute, the whole matter relating to the conduct of the jury being left to the sound discretion of the court, without respect to the wishes of the parties. We see no indication in the facts of this case that this discretion was not properly exercised.

The complaint charged that the nuisance was maintained in a one-story building, and it is insisted the evidence shows that it was in a two-story building. The evidence does show that there were some attic rooms in the building, and perhaps it might have been well called a one and one-half story building; but we see no material departure from the allegations of the complaint, even if we should say that it was essential to prove the building to be exactly such as was alleged in the complaint. The identity of the building where the nuisance was shown to have been

maintained with that charged in the complaint was fully established.

The judgment of the trial court will be affirmed. All the justices concurring.

STATE v. DANIELS.

(Supreme Court of Kansas. Nov. 8, 1902.)

ESCAPE-INDICTMENT-SUFFICIENCY.

1. In au information against a sheriff for misdemeanor in office, an allegation that he was a sheriff, without stating of what county, was insufficient, under Code Cr. Proc. § 104, requiring the information to be direct and certain as to the party.

In banc. Appeal from district court, Cowley county; James Lawrence, Judge.

S. A. Daniels was indicted for misdemeanor in office as sheriff. Motion to quash was sustained, and the state appeals. Affirmed.

A. A. Godard, Atty. Gen., and J. E. Torrance, Co. Atty., for the State. Hackney & Lafferty and H. S. Hines, for appellee.

PER CURIAM. The information against the defendant was intended to charge the offense of misconduct and misdemeanor in his office as sheriff of Cowley county. The question as to whether it did was raised by motion to quash, which was sustained. The state comes here on appeal.

*

The portion of the information material to this inquiry is as follows: "The county attorney gives the court to understand and be informed that S. A. Daniels, late of said county of Cowley, at and within the county of Cowley and state aforesaid, and within the jurisdiction of this court, on the

day of May, A. D. 1902, did then and there unlawfully commit the following willful misconduct and misdemeanor in office, to wit, that on the day of May, A. D. 1902, one George W. Miller was arrested charged with the deliberate and premeditated murder of one George C. Montgomery, was taken before L. H. Webb, a justice of the peace of Cowley county, Kansas, and was by the said L. H. Webb committed to the jail of Cowley county, Kansas, without bail, to await his preliminary examination; that the said George W. Miller was delivered to the sheriff of Cowley county, Kansas, on said commitment, and said commitment duly served upon the said S. A. Daniels, sheriff, but the said S. A. Daniels, notwithstanding the order of the court to commit the said George W. Miller to the jail of Cowley county, Kansas, and notwithstanding the duty of said sheriff to lock up and safely keep the said George W. Miller until his preliminary could be had, neglected and refused to so lock up and safely keep the said George W. Miller." It will be observed that there is no allegation that Daniels is or was the sheriff of Cowley county. It charges that he was a sheriff, and by an inference it might be assumed he was sheriff of Cowiey county. The aver

ment, however, would have been just as true had he been sheriff of any other county. The statute requires the information to be direct and certain as regards the party. Section 104, Code Cr. Proc. (section 5546, Gen. St. 1901). The certainty required is not found here.

The ruling of the court below will be affirmed.

(65 Kan, 565)

COFFEYVILLE MINING & GAS CO. v. CARTER.

ATTORNEY —

(Supreme Court of Kansas. Nov. 8, 1902.) JUDGMENT STATEMENT OF WRONGFUL DEATH-EVIDENCE-FINDINGS. 1. It is not error to deny a motion for judgment based upon the opening statement of plaintiff's case to the court and jury, unless such statement admits the existence of facts which absolutely preclude a recovery by plaintiff.

2. In an action of damages for death by wrongful act it is proper to receive evidence of whatever facts made the life of the deceased of pecuniary value to the survivors entitled to sue and recover damages for the death, including the ability of deceased to earn money or accumulate property, his disposition to contribute support, his condition of health, the probable duration of his life, and also the number, age, sex, health, or condition in life of his surviving children dependent upon him for care, support, education, and maintenance.

3. Findings of jury examined, and held to authorize neither a judgment in favor of defendant as against the general verdict nor the granting of a new trial.

(Syllabus by the Court.)

In banc. Error from district court, Montgomery county; A. H. Skidmore, Judge.

Action by Lulu Carter against the Coffeyville Mining & Gas Company. Judgment for Afplaintiff, and defendant brings error. firmed.

H. C. Dooley (W. V. Moore and A. M. Etchen, of counsel), for plaintiff in error. A. B. Clark and J. D. Brown, for defendant in error.

POLLOCK, J. This action was brought by Lulu Carter, daughter and administratrix of the estate of David Carter, a widower, deceased, against the Coffeyville Mining & Gas Company, to recover damages for the death of deceased by wrongful act. The facts necessary to a determination of this controversy are: Defendant put down and was the owner of a natural gas well on lot 14, block 62, in the city of Coffeyville. East of this gas well about 50 feet there was erected a twostory brick building. Immediately south of this building, and adjacent thereto, stood a small frame building, used as a blacksmith shop. David Carter was a blacksmith, and on the 21st day of May, 1896, was working at his trade in this shop. By reason of defects in the materials used or the manner of construction of the gas well, gas escaped

2. See Death, vol. 15, Cent. Dig. §§ 88, 108.

therefrom through crevices in the earth to a cellar or basement underneath the brick building. This accumulated gas, from some cause unknown, was exploded, which explosion demolished the brick building, and threw the south wall thereof upon the frame blacksmith shop, instantly killing Carter. There is much testimony in the record tending to show that at the time the brick building was constructed, and thereafter, gas from the well escaped through crevices in the earth into the bottom of the cellar; that the water in drinking wells in the vicinity of this gas well, free from gas before the boring of the well, afterwards became contaminated by gas, and unfit for use. The cellar or basement

under the brick building was rented by one Irwin, and had been closed for about 10 days prior to the death. Matches had been lighted therein the day preceding the accident without harm. At the time of the explosion Irwin had gone to the cellar with some colored help to carry out water therefrom. The explosion followed upon opening the cellar door. At the trial there was a verdict and judgment for plaintiff. The jury, at request of defendant, also made special findings of fact. Defendant brings error.

Many assignments of error are urged upon our attention. We shall examine separately only such as we deem of sufficient importance to merit special attention. It is first contended there was error in denying the motion of defendant for judgment upon the statement of the case to the court and jury made by counsel for plaintiff. This court has held, where the opening statement of counsel for plaintiff, made to the court and jury, contains an admission of facts, which absolutely precludes a recovery by plaintiff, the court is warranted in acting upon such admissions, and entering judgment against plaintiff. Lindley v. Railroad Co., 47 Kan. 432, 28 Pac. 201. Is the rule applicable in this case? The contention of counsel for plaintiff in error is based upon two grounds: (1) Counsel for plaintiff, in his opening statement, admitted the manner in which the gas in the cellar of the brick building became ignited was unknown to plaintiff. (2) The acts of negligence relied upon for recovery are set forth in an amended petition, filed more than two years after the death of Carter; and it is claimed the cause of action for such negligence was barred by the statute of limitation. As to the second ground, little need be said. Defendant did not raise the question of the statute of limitation, either by demurrer or answer to the amended petition. The cause of action set forth in the amended petition is merely an enlargement upon that stated in the original petition. It is the same cause of action, and was not barred by the two-years limitation found in section 422 of the Code. Railway Co. v. Ludlum, 63 Kan. 719, 66 Pac. 1045. As to the first ground, it is argued by counsel for plaintiff in error that the proximate cause of the death of Carter was the

It

ignition of the accumulated gas in the cellar, and not in permitting the gas to escape from the well and accumulate in the cellar. And, in consequence, the admission made by counsel for plaintiff in the opening statement of her case to the court and jury is an admission of want of knowledge and lack of proof upon a vital issue of fact fatal to a recovery, and warranted the court in entering judgment thereon. With this contention we do not agree. Defendant was employing for its profit a subtle and highly explosive agency. The rule at common law is, where an agent so introduced is controllable by care, attention, or science, he who receives the benefit must assume the responsibility. is neither pleaded, nor was an attempt made to show, contributory negligence on the part of deceased. In this condition of the record it was wholly immaterial how the gas became ignited. In Koelsch v. Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653, it is held: "The fact that an explosion of gas, which has accumulated in a cellar by negligence of a gas company, was caused by the act of a third person in lighting a match, will not relieve the gas company from liability." City of Kansas City v. Gilbert (No. 12,651, Oct., 1902) 70 Pac. 350. The motion for judgment was properly overruled.

The next claim of error arises upon the reception of testimony, and especially that of plaintiff, a witness in her own behalf, wherein she was permitted to state she was, and for years had been, in bad health, and that her father was kind and affectionate toward her and his other children. It is insisted this is error, and many cases are cited in support of the contention made. In an action for personal injuries not resulting in death-and of such nature are the cases cited-the character of evidence offered and received is inadmissible. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; City of Galion v. Lauer, 55 Ohio St. 392, 45 N. E. 1044; Dayharsh v. Railway Co., 103 Mo. 570, 15 S. W. 554, 23 Am. St. Rep. 900. The case at bar is an action to recover damages for death by wrongful act. The rule here is different. Here plaintiff, in her representative capacity, is seeking recovery of damages for the death for the benefit of herself and the other children of deceased. In such case regard is had alone to the necessities and wants of the surviving children. While, as has been held by this court, no inflexible rule can be laid down governing all cases, as each case must be ruled by its peculiar circumstances, yet from the authorities it is safe to say, while the statute limits the amount of recovery in any given case to $10,000, within this limit just compensation for the loss sustained by the wrongful death is not by law meted out with miser hand. Whatever made the life of the deceased of pecuniary value to his surviving children, whether arising, on the one hand, from the ability and disposition of the de

ceased to contribute to the survivors, as evidenced by his capacity to earn money and accumulate property, his inclination to provide support, the condition of his health, the probable duration of his life, or, on the other hand, from the necessity that the survivors receive assistance as measured by the number, age, sex, health, or condition in life of the surviving children who are left dependent upon the life for care, support, maintenance, and education, may be shown in estimating the pecuniary and just measure of value of such life. Hence it was competent in this case to show the ill health of plaintiff, and the strength of the attachment of the father for his children, as revealed in his treatment of them, as tending to show the extent of the dependency of the children upon the father, and the probability of his continuing to contribute to their support. This court, in Railway Co. v. Cutter, 19 Kan. 83, said: "In determining the amount of such compensation, much must be left to the good sense and sound judgment of the jury upon all the facts and circumstances of the case. No uniform and precise rule can be laid down for estimating the value to the survivors of the life of the deceased, for the elements which go to make up such value are personal to each case." In the opinion Mr. Justice Brewer said: "In the very nature of things, it seems to us an exact and uniform rule for measuring the value of the life taken away to the survivors is impossible. The elements which go to make up the value are personal to each case. All that can well be done is to say that the jury may take into consideration all the matters which go to make the life taken away of pecuniary value to the survivors, and, limited by the amount named in the statute, award compensation therefor." See, also, Railroad Co. v. Brown, 26 Kan. 443; McKeigue v. City of Janesville, 68 Wis. 50, 31 N. W. 298; Hetherington v. Railway Co., 9 Q. B. Div. 160; Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Hall v. Railway Co. (C. C.) 39 Fed. 18; Felton v. Spiro, 24 C. C. A. 321, 78 Fed. 576, 47 U. S. App. 402; Tetherow v. Railway Co., 98 Mo. 74, 11 S. W. 310, 14 Am. St. Rep. 617; Abbot v. McCadden, 81 Wis. 593, 51 N. W. 1079, 29 Am. St. Rep. 910.

The remaining questions arise upon the special interrogatories requested and submitted to the jury. In this regard it is insisted the court erred in refusing to submit special questions Nos. 34, 36, and 37 requested by defendant. In these questions the jury is asked to find the amount awarded plaintiff by way of punitive damages for loss of companionship and loss of love and affection. As the court, in its instructions, limited the amount of plaintiff's recovery to the pecuniary loss suffered by his surviving children, the general verdict being for compensatory damages only, and as the jury in answer to special question No. 35 fixed the actual damages sustained at the sum of $3,000,

the amount of the judgment rendered, nc error was committed.

Again, it is urged defendant was entitled to judgment upon the special findings made by the jury. In answer to special questions 29 and 38, the jury find the death of Carter was not accidental. In answer to special question 39, it is found the negligence of the defendant was the cause of the death. And in answer to special questions 40 and 45, it is found the gas well was not constructed in a safe, careful, and prudent manner, but that the officers of the company were negligent in the construction of the well, and in laying pipes therein in such manner as to permit the escape of gas therefrom. As the findings made are neither contradictory nor destructive of plaintiff's right of recovery, the motion for judgment upon the findings was properly denied. Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633.

The final contention made is that the answers returned to special questions are so inconsistent, and evince such bias and prejudice of mind on the part of the jury, as to entitle defendant to a new trial of the action. An examination of the record discloses the fact that a portion of the special questions submitted at the request of defendant remain unanswered; that answers returned to others are not complete or responsive to the questions asked. But as defendant at the trial neither insisted upon answers to the questions unanswered nor to more direct and specific answers where the answers are incomplete, but remained content therewith, such error, if any, is waived. As the answers returned are neither contradictory of nor inconsistent with one another or the general verdict, the verdict must stand, and judg ment thereon be affirmed. All the justices concurring.

(65 Kan. 713)

STATE v. POOLE.* (Supreme Court of Kansas. Nov. 8, 1902.) BURGLARY-WHAT CONSTITUTES-BUILDING. 1. A frame chicken house, having doors and a board roof, is comprehended by the words "other building," used in the second subdivision of section 2059, Gen. St. 1901. State v. Rogers, 39 Pac. 219, 54 Kan. 683, followed.

2. To constitute burglary in the second degree, under section 2059, Gen. St. 1901, the building broken into and entered must at the time contain some human being, or have goods, wares, merchandise, or other valuable thing. kept or deposited therein. It is the duty of the court to instruct the jury that these essential elements of the crime must be found before the accused can be convicted.

(Syllabus by the Court.)

In banc. Appeal from district court, Shawnee county; Z. T. Hazen, Judge.

A. F. Poole was convicted of burglary. and appeals. Reversed.

C. A. Magaw and R. F. Hayden, for appellant. A. A. Godard, Atty. Gen., J. S. West, Asst. Atty. Gen., and Galen Nichols, Co. Atty., for the State.

*Rehearing denied.