Page images

case-made had not been properly settled and allowed. This motion was sustained by the court of appeals. 46 Pac. 55. On application of plaintiffs in error, the case was ordered certified to this court.

Madden & Buckman and Chas. L. Brown, for plaintiffs in error. Pollock & Love, for defendants in error.

ALLEN, J. (after stating the facts). The first question in this case arises on the ruling of the courts of appeals dismissing the petition in error. The objections to the record are "that it shows no waiver on the part of counsel for plaintiffs of the suggestions of amendments, does not show that amendments were not suggested, and shows that the casemade without amendments was presented to the trial judge for signing and settling, and does not show that attorneys for the plaintiffs were present at the time the casemade was settled." The motion for a new trial was overruled September 28, 1891. The defendants were given 60 days to make and serve a case, and the plaintiffs 20 days thereafter to suggest amendments. The case was served on plaintiffs' attorneys on November 24th. On December 24th, which was after the time for suggesting amendments had expired, the following waiver was written on the case, and signed by plaintiffs' attorneys: "We hereby consent that the foregoing casemade may be presented to the Honorable 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." Thereupon, on the 24th of December, the case was signed by the judge, who certified, among other things, "that said casemade is a true, full, and correct case-made in said cause, and is signed and allowed by him as such." If the plaintiffs had any amendments to suggest, their time for suggesting them had expired. They consented that the case might be presented to the judge on a day named, and waived any notice of the time and place. This clearly conferred authori on the judge to proceed in their absence, and settle the case. If they had suggested amendments, it was their duty to attend at the time of settlement, and see that they were duly considered by the judge. We are not to presume either that they did or did not suggest amendments, or, if they did suggest them, that the amendments either were or were not incorporated in the case-made. The judge, at the time stated in the waiver, did sign the case, and certify that it was true, and the plaintiffs were bound under their waiver by whatever he did. The form of the certificate is sufficient. Railroad Co. v. Cone, 37 Kan. 567, 15 Pac. 499; Mudge v. Bank, 56 Kan. 353, 43 Pac. 255. The court of appeals erred in dismissing the case.

The grounds relied on to avoid the sale

were that the order of sale was prematurely issued; that the purchaser, being the admin. istratrix of her deceased husband's estate, was incapacitated to purchase; and that the sale was for an inadequate price. The order of sale was not prematurely issued. More than six months had elapsed from the date of the judgment against the Harnleys foreclosing the mortgage. This judgment was rendered on the 1st of February, and the order of sale was not issued until the 11th of August. The period of the stay begins to run from the date of the judgment directing the sale. Water Co. v. Lombard (Kan. Sup.) 47 Pac. 532. The judgment against the Hill estate, subsequently rendered, was a judgment for money. Hill's executors claimed no title to or interest in the mortgaged property. There was no occasion for a foreclosure as against them, for a full title to the mortgaged property could have been made without Hill's executors being parties to the suit. Their only interest in the foreclosure and sale of the mortgaged property was in protecting their estate from liability on account of Hill's indorsement of the note. The purchaser at the sale, La Quincy Phillips, occupied a fiduciary relation to creditors and distributees of the estate of James Phillips. As between heirs and persons interested in that estate, she could not speculate with funds belonging to the estate to their detriment, but towards the Hill estate she occupied no relation of trust or confidence. They are in no position to charge her with violation of her trust. A purchase by an executor or administrator under foreclosure of a mortgage due the estate is not absolutely void as against the whole world, whether the purchase be in his individual name or as executor or administrator. Merket v. Smith, 33 Kan. 66, 5 Pac. 394; Beck v. Uhrich, 16 Pa. St. 499; Perry, Trusts, § 127 et seq.; Briggs v. Railroad Co., 56 Kan. 526, 43 Pac. 1131. This leaves but one remaining ground of attack, that of inadequacy of price. The property was sold for $150. There is evidence tending to show that it was worth $1,200. At the trial the plaintiffs offered in open court to bid the full amount of the judgment against the Hill estate at a resale of the property. Mere inadequacy of price, taken alone, is generally held insufficient ground for setting aside a sheriff's sale. Means v. Rosevear, 42 Kan. 377, 22 Pac. 319; Babcock v. Canfield, 36 Kan. 437, 13 Pac. 787; Jones v. Carr, 41 Kan. 329, 21 Pac. 258. But where application for relief is made in due time by motion to set aside the sale, or in resistance of the motion to confirm, gross inadequacy of price is a circumstance of great weight, when taken in connection with other irregularities, if not of itself sufficient to warrant the setting aside of the sale. This, however, is a matter directly involved in the conduct of the sale by the sheriff. In this case a motion was filed to confirm the sale, and one of the counsel for the plaintiffs tes

tified that he saw the motion, and learned of the sale before the confirmation. No reason was shown at the trial why this question could not have been properly presented when the motion to confirm the sale was heard. The question of price obtained at the sale is always one of the circumstances to be considered by the court in confirming or setting aside a sale, and the order entered confirming this sale was an adjudication against the plaintiffs on the question of inadequacy of price. They could not thereafter maintain an independent action to retry matters necessarily involved in the confirmation of the sale. Cross v. Knox, 32 Kan. 725, 5 Pac. 32; Bank v. Huntoon, 35 Kan. 577, 11 Pac. 369. Errors committed by the trial court on motions to confirm or set aside judicial sales may be reviewed in this court, and the plaintiffs appear to have had a full opportunity to contest the sale in the usual and ordinary manner in the trial court, and might by petition in error have had its action reviewed here in a direct proceeding in the original action. Though this is in one sense a direct attack on the sale, it is an attack by an independent action, which leaves the order confirming the sale as an adjudication of every matter then presented to the court, or which ought to have been presented, for its determination. Though there were some averments of fraud in the petition, they were not sustained by the proof, nor was there any finding by the court of any such fraud. The judgment is reversed, and the case remanded for a new trial. All the justices concurring.

(57 Kan. 841)


1. On the trial of a criminal prosecution against a defendant charged with having received deposits as an officer of a bank, when the bank was insolvent, and he knew its insolvency, a challenge to a juror, who has a fixed opinion as to the solvency or insolvency of the bank at the time the deposits were received, should be sustained, it appearing that the questions as to the solvency of the bank, and the knowledge the defendant had as to its condition, were among the principal ones to be tried.

2. A defendant on trial, charged with a felony, has the right guarantied to him by the constitution to meet the witnesses produced by the state face to face, and it is error to admit, over his objection, the deposition of a witness taken out of the state, when he was not personally present, containing important testimony, notwithstanding the fact that the deposition was taken on the application of the defendant on interrogatories prepared by his counsel and cross interrogateries prepared by counsel for the state. By causing the deposition to be taken, the defendant did not irrevocably consent to its introduction in evidence.

not know its condition; but it must be shown that when he received the deposits he knew the bank to be insolvent. But his relation to the bank, and his duty to examine into the condition of its affairs, and know whether it is solvent or insolvent, may be taken into consideration by the jury in determining whether he had actual knowledge of its condition.

(Syllabus by the Court.)

3. A person charged with having received deposits, as an officer of a bank, when it was insolvent, is not guilty of a crime, under section 16 of chapter 43 of the Laws of 1891, merely because through his negligence he does

Appeal from district court, Sherman county; Charles W. Smith, Judge.

M. B. Tomblin was convicted of an offense, and appeals. Reversed.

Waters & Waters, for appellant. L. C. Boyle, Atty. Gen., and John Hartzler, for the State.

ALLEN, J. The defendant was charged as president, director, and managing officer of the Sherman County Bank, a corporation organized under the laws of Kansas, with having received deposits of money when the bank was insolvent, knowing that it was in that condition. The information contains ten counts, five of which charge him as principal and the others as accessory. He was convicted as accessory under four counts of the information, and sentenced to four years' imprisonment in the penitentiary, and to pay a fine of $2,000. From this judgment he appeals. Numerous errors are assigned in the brief. We shall consider only those questions decisive of the case and which might arise on a retrial.

George W. Edwards was called as a juror. On his examination he stated that he had 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 were received; that it would require evidence to remove it; that he might have expressed an opinion, though he could not say whether he had or not; that he would take the opinion he had with him into the jury box. Though he also said on further examination that he had not a settled conviction, he had such an opinion with reference to one of the principal issues in the case,-the solvency or insolvency of the bank,-as would render him incompetent as a juror. The court erred in overruling the challenge. A more important and prejudicial error, and the one on which a reversal of the judgment is mainly based, is in the admission of the deposition of E. Lindsay, taken at St. Joseph, Mo., on written interrogatories prepared by counsel for the defendant and cross interrogatories by the state. The defendant had testified on the trial at length with reference to many matters, and, among others, that he went to the State National Bank in St. Joseph, and made arrangements for $5,000 more money if the bank should need it; that this was done shortly before the bank closed; that his bank then owed the St. Joseph bank $2,500, and that he made arrangements for and was told by Mr. Lindsay that he could get $5,000 if he wanted it, thereby increasing the indebtedness to $7,500. This deposition was offered

by the state in rebuttal, and portions of it were admitted over the objection and exception of the defendant. In that part which was read in evidence to the jury Mr. Lindsay testified that he was the president of the State National Bank, and resided in St. Joseph, Mo.; that Tomblin's bank owed them $10,000; that Tomblin made application for funds two days before the suspension of the bank, and that it was not granted; that Tomblin asked for $2,500. This evidence was important. It squarely contradicted the statements of Mr. Tomblin, and tended to show that the accounts of the Sherman County Bank with the St. Joseph bank were in a much less favorable condition than Tomblin had stated, and also that Tomblin could not obtain the assistance from Lindsay's bank that he claimed he had secured. The tenth section of the bill of rights in the constitution of this state secures to the accused in all criminal prosecutions the right "to meet the witness face to face." This right was not waived by his causing the deposition of Lindsay to be taken. He did not offer it in evidence; and, notwithstanding the fact that he had caused the deposition to be taken and filed in the court before the trial commenced, he still had the right to insist on confronting every witness who should testify against him at the trial, face to face. This constitutional guaranty is one of the most important safeguards to the citizen when charged with crime, and no court has any right to abridge or deny it. Rice, Ev. § 243; Cline v. State (Tex. Cr. App.) 36 S. W. 1099. The facts in this case do not fall within the exception sometimes urged where the accused was personally present at the time the testimony was taken, for it appears from the record in this case that he was not present when this deposition was taken. We express no opinlon, however, whether this distinction can be maintained. The mere fact that the defendant asked that the deposition might be taken did not amount to a consent that, whatever the witness might testify to, the deposition might be read in evidence at the trial.

While the instructions fairly state the law in the main, the concluding paragraph of the fourteenth instruction given seems to imply that the defendant might be held guilty in a criminal prosecution if, through his negligence he did not know the actual condition of the bank when it was in fact insolvent. It was proper for the jury to take into consideration the defendant's relation to the bank as a managing officer, and the duties he owed to it for the purpose of determining whether he actually knew its insolvent condition; but mere negligence would not render him guilty of a crime. It was incumbent upon the state to establish not only the fact of insolvency, but the defendant's knowledge of it.

We find no error in the ruling of the court on the plea in abatement. Nor do we think the ruling of the court on defendant's motion 48 P.-10

[blocks in formation]

D. and his stepdaughter, who was under the age of consent, were criminally intimate; and about the time a child was born to the daughter she informed her mother that D., the husband of the mother, was the father of the child. The mother then told her daughter to say to the officers of the law, if inquiry was made, that another than D. was the father of the child, and the daughter made the statement as the mother advised. Within a few days thereafter, D. was arrested and convicted of the offense of rape. Held, that the mere advice of the mother to her daughter to tell an untruth about the paternity of the child does not make the mother an accessory after the fact, nor constitute a crime, within the meaning of paragraph 2562, Gen. St. 1889.

(Syllabus by the Court.)

Appeal from district court, Sumner county; J. A. Burnette, Judge.

Almira Doty was convicted of aiding her husband to escape arrest, and appeals. Reversed.

W. H. Staffelbach and Haughey & McBride, for appellant. L. C. Boyle, Atty. Gen., John G. Woods, and H. L. Woods, for the State.

JOHNSTON, J. The appellant was convicted of giving her husband, who had committed the offense of rape, aid, with the intent and in order that he might escape arrest, conviction, and punishment. Charles

Doty and Almira were husband and wife, and Nannie Williams was the daughter of Almira by a former husband, and they lived together as a family in Oxford, Sumner county. Nannie was 16 years old on February 4, 1896, and it appears that Doty had been having sexual intercourse with her for about 3 years before that time. On June 10, 1896, she gave birth to a child, which lived but a few hours. Two days before the birth of the child a physician was called to see Nannie, who, after an examination, told her mother, Almira Doty, that the girl was pregnant. After the doctor went away the mother asked the daughter who was the father of the unborn child, and was told that it was Charles Doty. Afterwards Mrs. Doty told her daug ter that she wished they could say it was some one else, and not Doty. Two days later the child was born, and Mrs. Doty inquired of the doctor if Nannie could be moved so they could get away from Oxford, but the doctor said she could not. She then suggested that the matter be kept quiet, and asked the doctor to withhold a report of the birth to the state board of health. Two days later she told the doctor that he might make his report. It appears that a conference had been had between Charles Doty, Almira Doty, and Nannie Williams in regard to charging the paternity of the child upon some one else than Charles Doty, with a view of shielding him from the consequences of the crime. It was agreed among them that, upon inquiry, Nannie should say that the father was Henry McPierson; and, in accordance with the agreement, Nannie told the county attorney and the sheriff, who questioned her, that McPierson was the father of the child. Among other things they told her to say was that she had met McPierson in the schoolhouse grounds in July, 1895, and had there had sexual intercourse with him; that he had just come from the "Strip"; that he went from Oxford to Belle Plain; that he wrote her from Belle Plain in November, 1895, to meet him at the schoolhouse grounds on a certain evening; that she met him as suggested in his letter, and again had illicit intercourse with him; that at the meeting in November he told her that he was going to Indiana; that from and after that meeting she never saw him again or heard from him. It was also suggested to her that if she should only name one person the county attorney might not believe it, and that she had better name two persons, and she was told by her mother to say that the other person was Ezra Shriver. Shriver lived in the community, but it appears that there was no such person as Henry McPierson. Her mother advised her to adhere to the story which she had told to the officers; that she might be sent to the house of correction, but the term would not be long; and that that would be better than to have Doty go to the penitentiary. About the time she told this story, and on June 15, 1896, Doty was arrested,

charged with the crime of rape. He waived a preliminary examination, and was bound over to the district court for trial. On June 30, 1896, he was arraigned in the district court, entered à plea of guilty, and the court entered judgment on the plea, sentencing him to the penitentiary for the period of 21 years. Shortly afterwards his wife, Almira Doty, was arrested, tried, and convicted as an accessory after the fact.

The prosecution was brought under section 422 of the crimes act, which reads: "Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact; and, upon conviction, shall be punished by confinement and hard labor not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars, and imprisonment in a county jail not less than three months." Gen. St. 1889, par. 2562.

The main question presented for decision is whether what was said and done by Almira Doty brings her within the condemnation of this statute. In fact, it seems that nothing was done by her to conceal her husband, or to aid him to escape. At least, there were no overt acts. In her distress occasioned by the shame of her daughter and the perfidy and crime of her husband, she did ask her daughter to tell an untruth as to the paternity of her child, but there was no act, nor anything more than mere words. We think that the part taken by her in the transaction does not make her an accessory after the fact, nor make her amenable under the quoted statute. The word "aid," in its broader signification, might include assistance like the failure to disclose a felony by one having knowledge of its commission, or assisting the offender in obtaining witnesses to testify in his behalf, or giving untruthful testimony in his behalf at the trial. While these might aid the offender in escaping punishment, it certainly is not such aid as the statute contemplates. The character of the aid is indicated by the particular words used in the commencement of the section, and it shows that it must be some substantial act of personal assistance. It will be observed that the concealing of an offender is first mentioned, and then there is added the giving of such offender any "other aid," and the argument may well be made that the other aid is of a similar character with that particularly specified. It is a familiar rule of interpretation that, where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede.


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 which would make a person liable as an accessory after the fact, the court said that it was such as "that he concealed him in the house, or shut the door against his pursuers until he should have an opportunity to escape, or took money from him to let him escape, or supplied him with money, a horse, or other necessaries, in order to enable him to escape, or that the principal was imprisoned and the jailer was bribed to let him escape, or conveyed instruments to him to enable him to break prison and escape. This and such like assistance to one known to be a felon would constitute a man accessory after the fact. * * But merely suffering the principal to escape will not make a party accessory after the fact, for it amounts, at most, but to a mere omission. Or if he agree, for money, not to prosecute the felon; or if, knowing of a felony fails to make it known to the proper authorities,— none of these acts would be sufficient to make a party an accessory after the fact. If the thing done amounts to no more than the compounding a felony or the misprision of it, the doer will not be an accessory." See, also, State v. Fry, 40 Kan. 311, 19 Pac. 742; Whart. Cr. Law, § 241; 1 Am. & Eng. Enc. Law (2d Ed.) 269. The defendant gave no personal assistance of this kind, and the mere fact that she asked her daughter to tell the county attorney a falsehood with respect to the paternity of the illegitimate child, although reprehensible, does not, in our opinion, constitute the aid which the statute contemplates, or amount to an offense under the statute. It appears that the advice of the mother and the falsehood of the daughter were not an aid to Doty, in any sense, as a warrant for his arrest was obtained on the same day that the fabricated story was told to the officers, and he was arrested some time before Nannie disclosed what are deemed to be the real facts in the case. Within a few days after the mother had heard of the criminal intimacy between her daughter and husband the latter was arrested, convicted, and sentenced. It appears that the officers of the law were not misled by the telling of the untrue story, nor did Doty obtain any aid or advantage thereby. However, we rest our decision on the view that the statute under which the prosecution was brought does not cover or include the misconduct of the appellant. The judgment will therefore be reversed, and the appellant will be discharged. All the justices concurring.

(5 Kan. App. 879)

MALLORY et al. v. WAUGH et al. (Court of Appeals of Kansas, Northern Department, E. D. March 19, 1897.) PETITION IN ERROR-DISMISSAL.

Where the certificate shows that the record does not contain a complete transcript of the

Error from district court, Wabaunsee county; William Thompson, Judge.

Action by J. W. Mallory and Elizabeth Mallory against John Y. Waugh and others. Judgment for defendants. Plaintiffs bring error. Dismissed.

Vance & Campbell, for plaintiffs in error. Ferry & Doran, for defendants in error.

PER CURIAM. This proceeding was brought to review the rulings and judgment of the district court of Wabaunsee county. The right to review is challenged on account of the insufficiency of the record. The record attached to the petition in error is a transcript, instead of a case-made, and the clerk of the district court certifies: "The above and foregoing to be a true, full, and complete copy of the amended petition, answer, and all of the journal entries of judgment and orders of court in the case of J. W. Mallory and Elizabeth Mallory vs. John Y. Waugh et al., cause No. 2,695, in the therein entitled cause, as the same remain on file and of record in my office." The certificate of the clerk not only fails to show that the record contains a complete transcript of the proceedings in the case, but discloses the fact that it does not. Upon the authority of the case of Neiswender v. James, 41 Kan. 463, 21 Pac. 573, followed by the supreme and this court in numerous cases, the case must be dismissed. All the judges concurring.

(5 Kan. App. 879)

In re BLUSH.

(Court of Appeals of Kansas, Northern Department, E. D. March 17, 1897.) CONSTRUCTIVE CONTEMPT-PROCEDURE.

Where no affidavit or information was filed on which to base proceedings for constructive contempt, one confined in jail therefor will be discharged.

Application of W. H. Blush for a writ of habeas corpus. Petitioner discharged.

C. A. Starbird, for petitioner. Frank Herald, for respondent.

PER CURIAM. This is an original habeas corpus proceeding, instituted in this court for the purpose of securing the release of Walter H. Blush, who is confined in the jail of Shawnee county under an order of the district court of said county; and it appears from the return of the sheriff that he was attached for failing to pay an amount to his wife for alimony and suit money, as ordered by the court. No affidavit or information was filed upon which to base said proceedings, and from the decision of the supreme court of the state in the case of State v. Henthorn, 46 Kan. 613, 26 Pac. 937, followed in the case of In re Nickell, 47 Kan. 734,

« PreviousContinue »