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The opinion of the court was delivered by
Wells, J.:
On May 20, 1889, the board of statehouse commissioners accepted the bid of George H. Evans & Co. to do certain work in completion of the state capitol. A contract was afterward made for said work and a bond given, signed by all the plaintiffs in error herein, conditioned for the carrying out of said contract and the payment of all indebtedness incurred for labor and material. On this bond the action now before us was instituted to recover $257.70 for personal services rendered by the plaintiff below, the defendant in error here, in carrying out said contract for P. E. Lane, a subcontractor under said George H. Evans & Co., and other amounts aggregating $362.06, for labor performed by other individuals under the same subcontractor on said work, the claims for which were assigned to said plaintiff. Demurrers were filed to this petition on the ground of a defect of parties defendant, on account of P. E. Lane, the subcontractor, not being made a party defendant, and also on the ground that the petition does not state facts sufficient to constitute a cause of action against the defendants. These demurrers were overruled by the court and exceptions saved.
Afterward the defendants answered as follows : (1) A general denial; (2) that the plaintiff was not the real party in interest; (3) pendency of another action on each of said claims by the assignors as plaintiffs ; (4) that the bond sued on did not inure to the benefit of the plaintiff so as to enable a suit thereon by him for his individual benefit; (5) that by agreement the part of the contract under which the plaintiff and his assignors performed any labor was eliminated from the contract of George H. Evans & Co. and became a direct contract of P. E. Lane, for which Evans & Co. and their sureties were not liable ; (6) that the bond had been altered after its execution without the consent of the sureties; (7) that the contract for the performance of which the bond was given was mate-i-ially changed by the board of state-house commissioners after the execution of the bond, thus materially affecting the work to be performed by George H. Evans & Co. thereunder, without the consent of the sureties. To these answers the plaintiff replied by general denials. The case was tried to the court and a jury, judgment was rendered for the plaintiff, and the matter is now before us for review.
There are eleven assignments of error, and we shall examine them, so far as seems to be necessary, in the order in which they are presented in the plaintiff in error's brief. It is first contended that the demurrers to the petition and to the evidence ought to have been sustained as to the sureties. It is claimed by the plaintiff in error that the bond sued on herein was given under the provisions of paragraph 6135, General Statutes of 1889, and that any conditions thereof not required by said section are nugatory and cannot be enforced. To this the defendants in error reply that the section of the statute referred to relates solely to the erection of the west wing and could have no relation to the central dome, and that said bond was given under the provisions of chapter 179, Laws of 1887, being paragraphs 4747 and 4748, General Statutes of 1889. (Gen. Stat. 1897, ch. 96, §§ 35 and 36.) Paragraph 6146, General Statutes of ■ 1889, extends the provisions of paragraph 6135 to the • erection of the central building, and it is evident to us that the bond in question was prepared to cover the requirements of both sections, and the mere fact, if it were a fact, that the bond was not marked with the approval of the proper officers, or found in the place where the laws require it to be kept, would not render its provisions nugatory or prevent parties intended to be benefited thereby from-claiming relief under its provisions. We are cited by counsel for plaintiff in error to Kills v. Bentley, 6 Kan. App. 804, 51 Pac. 232, as authority supporting their contention. We do not think that case very much in point. There the court held substantially that, where by the doing of certain acts -a lien would be prevented from attaching, a partial doing of the acts required would not prevent the lien. In McCracken v. Todd, 1 Kan. 148, it was held that the sureties on a bond cannot take advantage of an omission to have the bond approved and its amount prescribed. A careful review of the authorities on this subject satisfies us that the true rule is that while the party on whom rests the duty of giving the bond cannot take advantage of .the bond to relieve himself of liability unless it is executed, approved, delivered and deposited or recorded as required by law, yet as to the party to be protected thereby the failure to observe such requirements as relate to its approval, verification, deposit or record does not invalidate it. Such provisions are for the benefit of the state or obligee, who alone can take advantage of them.
The claim that P. E.Lane, the subcontractor under whom the services were performed, ought to have been made a party defendant is without merit, as the act under which this condition of the bond was made expressly provides for an action on the bond, and had the defendants desired a personal adjudication as to Lane, sufficient authority is given by sections 24 and 27, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ ¶ 4113, 4118), to have brought him in. As to the objection that the claim was not for labor doné under said contract within the meaning of the term labor, as used in the statute, we think the evidence was sufficient to sustain the finding of the court in that respect.
It is next contended that the objection to the introduction of evidence ought to have been sustained. J. T. Botkin, recording clerk in the office of the secretary of state, identified the papers, of the first of which exhibit “A” attached to plaintiff's petition is a copy, as being a part of the files of that office. The other papers were the contract referred to in the bond as the contract under which said bond was given, specification No. 2 to addenda No. 2 inclusive, dated June 5, 1889, and specification No. 3 of workmanship and material required for the completion of the Kansas state capitol building, at Topeka, Kan., under which proposals were made June 1, 1887. These were properly admitted, the first two because they were the instruments sued on and were sufficiently identified, and the other because it was referred to and made a part of the contract under which the bond was given, and said specification expressly authorized any changes to be made that were thought expedient without in any way affecting the validity of the contract.
Complaint is made that the court refused and failed to instruct the jury as to the different attitudes of sureties and principals. As there was no question involving' the distinction between principals and sureties in this case, such instruction was not necessary. So far as the liability upon this bond to the plaintiff was concerned they were simply obligors.
It is next claimed that neither the bond nor the contract contains any reservation of the right to make changes, and the court should have so instructed the jury. The bond, so far as this case is concerned, provides for the payment of all indebtedness incurred for labor and material furnished in the construction of the improvements provided for by plans and specification No. 2 and. addenda No. 2. Specification No. 2 provides : “All general clauses in specification No. 1 not specially modified by specification No. 2, will b.e in full force the same as if they were in specification No. 2. Reference is had chiefly to the general clauses of specification No. 1.” Among the general clauses of specification No. 1 is the following : “Right is reserved to make any alterations or additions to the work that may be thought expedient without in any way affecting the validity of the contract based on these specifications or drawings.”
It is claimed that by the transactions of July 7 and 11, 1892, between the state and George H. Evans & Co., said firm was released from the work for which recovery is sought. We do not think that such was the necessary or legal effect of these transactions. The contractors sublet the iron work to P. E. Lane, and, desiring to go to El Paso, Tex., they separated as far as possible the sublet work from the balance of the contract, and for the purpose of enabling the subcontractor to deal directly with the owner, executed an irrevocable power of attorney for said subcontractor to sign and execute all vouchers for material furnished and work done and to indorse all warrants that might be allowed by the state board of public works and the state architect, and to receive and receipt for all sums so allowed, to the full sum of $19,000, said sum being the amount due from said “George H. Evans & Co. to said Philander E. Lane as P. E. Lane upon a subcontract made with him under the contract of George H. Evans & Co. date May 20, 1889, with the state of Kansas for the construction of the state-house building. And the said P. E. Lane, in consideration of this power of attorney, hereby agrees to release the said George H. Evans and J. J. Cox from all liability arising out of the above-mentioned subcontract.”
We see no intimation here, much less conclusive proof, that P. E. Lane had contracted -with the state of Kansas for said work, or that the state 'of Kansas had accepted the said P. E. Lane as solely responsible therefor, and had released George H. Evans & Co. from liability on that part of their contract, or the bondsmen from their liability on the bond. This is on the theory that the state board of public works could have released the bondsmen had they so desired and agreed. Of this we have serious doubts. The bond was taken in obedience to the requirements Of law, for the benefit of the material-men and workmen, and we can see weighty reasons why it should not be abrogated or annulled without the unequivocal consent of the parties for whose benefit it was given.
We see no reversible error in this case ; on the contrary, we think the judgment of the court below was right. It will be affirmed.
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The opinion of the court was delivered by
Wells, J.:
There are no formal assignments of error in plaintiff in error’s brief, and the main question for our consideration is, Do the findings of fact sustain the judgment rendered by the court below? Of this general question there are three subdivisions : (1) Is the action of the probate court res judicata as to the rights of the parties under the will? (2) Are the findings of the district court res judicata as to the rights of the parties to the land? (3) If the doctrine of res judicata does not apply in either of the foregoing cases, did the court below properly construe and apply the law applicable to the facts found? These questions we will consider in the order stated..
Paragraph 7245, General Statutes of 1889 (Gen. Stat.'1897, ch. 110, §41), provides that if any provision be made for the widow in the will of her husband, and she shall not have consented thereto in writing, the probate judge shall cite her to appear and elect whether she will take under the will or under the law. This is the only provision that authorizes the citation of the widow to appear and make her election, and that is only in case she shall not have consented in writing to the provisions of the will. In this case she did consent to the will in writing, and the probate court had no jurisdiction to make the citation it did make. The will was probated as a whole, including the consent, and if the widow desired to contest the validity of the consent she could do so under paragraph 7224, General Statutes of 1889 (Gen. Stat. 1897, ch. 110, §20). The rights of the devisees could not be disposed of in the expiarte and summary manner attempted in this case.
A more difficult question arises over the ejectment proceedings in the district court. In that case both' parties appeared and contested the issues involved. In Hentig v. Redden, 46 Kan. 231, 26 Pac. 701, the supreme court held : “ Where a judgment is rendered in this state for the plaintiff in an action in the nature of ejectment, the title which he recovers is thereby established as against the defendant.” And ordinarily the title established by an action in ejectment is res judicata and binding on the parties in all litigation, and this applies to all questions necessarily involved in the suit. The-pleadings in the ejectment case are not in the record and we cannot tell exactly what were the issues therein, but the judgment was for the defendant, the pláintiff in error here, and-was just what it should have been if his present contention is sustained. In other words, the plaintiff in error claims that the court rendered the proper judgment in the ejectment case but on the wrong theory, while the defendant in error claims that the theory on which the judgment was rendered is res judicata and settles the rights of the parties to the land in question. After considerable hesitation and investigation, we conclude that the proceedings in ejectment settled the question as to whether the plaintiff in that case was the owner' of the whole title to the land in question and entitled to the possession thereof as claimed by the widow, but there was no issue as to what, if any, interest the respective parties may have had therein as tenants thereof in common, and the findings of the court on the subject were outside of the issues in the case and are not res judicata.
This leaves for consideration the question, Did the court below properly construe and apply the law applicable to the facts found? Paragraph 7239, General Statutes of 1889, does not require that the consent of the wife be executed in the presence of two subscribing witnesses, but simply in the presence of two witnesses ; and if the consent in this case was executed in the presence of two witnesses, then it is binding on her, and cannot after the death of her husband be repudiated and avoided.
It appears from the findings of fact in this case that the decedent left at the time of his death $500 worth of personal property and 200 acres of land besides that in this controversy. The 200 acres of land lie partly in Geary county and partly in Riley county, and the value of it does not appear in the findings.
Under paragraph 7275, General Statutes of 1889, Charles Neuber had a right to dispose of one-half of his property by will, and by the phrase “ one-lialf of his property,” we think is meant or included the right to dispose of the whole of certain specific property to the value of one-half his estate. Therefore, if the con • sent of his wife to the will should be found to be void, the wife would only be entitled to such part of the devised property as, added to the property undevised, would equal in value one-half of the whole estate.
The judgment of the court below will be reversed, and a new trial directed to be had in accordance with the views herein expressed. -
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The opinion of the court was delivered by
Wells, J.:
On November 5, 1897, Josie E. Eckert obtained a judgment against the plaintiff in error Ed. Beckenheuser, before a justice of the peace of Geary county. An abstract of this judgment was filed in the district court, an execution was issued thereon and levied on lot 5, in block 32, in Junction City, and this action was instituted to enjoin a sale under such levy, the plaintiffs claiming the property to be exempt as their homestead. The defendants answered that the judgment, under which said execution was issued and levied was rendered on an indebtedness contracted by the plaintiff Ed. Beckenheuser for the erection .of improvements upon the premises levied on. This was denied by the reply, and a trial was had on these issues which resulted in a judgment for the defendants, and the matter is brought to this court by the plaintiffs below.
The principal question in the case is, Did the evidence warrant the judgment rendered? The facts disclosed by the evidence seem to be substantially as follows : In the spring and summer of 1888, the plaintiff in error Ed. Beckenheuser, his sister Josie E. Eckert, a widow, and their mother were living together as one family. Ed. was contemplating matrimony, and obtained permission from his sister to use $400 of her money then under his control as her agent in building a residence. This money, together with some of his own, was used to erect a building partly on the lot levied on, then owned by him, and partly on a piece of a lot owned by his intended wife. The house was completed and moved into and occupied by Beckenheuser and his wife in September, 1888, and they still continue to reside therein. •
The issues in this case are plainly stated by the plaintiffs in error, as follows : The controversy between the parties is as to whether the transactions between Ed. Beckenheuser and his sister Josie E. Eckert, in the spring and summer of 1888, amount to the creation of an indebtedness for an improvement upon the homestead, within the meaning of the constitution and statutes, so as to subject the homestead to the satisfaction of a judgment obtained on such indebtedness.
The section of the constitution referred to reads as follows : “No property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises or for the erection of improvements thereon.” It is claimed by the plaintiffs in error that the indebtedness on which the judgment sought to be enforced was rendered did not belong to either of the classes mentioned. In the oral argument it was urged, in substance, that the exception of the exemption clause of the constitution and laws is limited to cases in which the creditor would be entitled to a lien under the lien law of the state. We can find no support for this proposition in the provisions themselves, in the decisions of the supreme court, or in the reasons and analogies of the law. The homestead-exemption clause and the lien law cover separate matters and have no connection whatever. Without considering any questions of strict or liberal construction, it seems to us that the issues of this case will be settled by the answer to the question, Is the homestead exempt from a forced sale for the payment of money borrowed for the express purpose of purchasing said premises or erecting improvements thereon and'so used?
In Nickols v. Overacker, 16 Kan. 58, the court said :
“There is no homestead-exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule is just the same as if no exemption law had ever been adopted, and land held as a homestead is, with respect to such obligations, governed by just the same rules as if it were not a homestead.”
Substituting “erection of improvements thereon” for “purchase-money,” and striking out all reference to the mortgage, and the balance of the page from which this quotation is taken applies fully to this case.
It would be a too narrow construction of this beneficent provision to say that it applies only to cases in which it is not needed, i. e., where the parties are fully protected by the lien law. We do not think it so intended. The judgment of the court below was just and equitable and should be sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
This .is an action by Dennis against Reagle on a covenant against encumbrances in a deed, to recover about $130 paid to discharge past-due interest on a mortgage existing on the land and assumed by Dennis, and taxes delinquent thereon. There are allegations in the petition that there were false and fraudulent representations made by the defendant for the purpose of inducing the plaintiff to trade for the land and accept the deed containing the covenant. These representations were regarding the items constituting the alleged breach.
There was a motion by the defendant to require the plaintiff separately to state and number the causes of action contained in the petition. This being denied, the defendant moved the court for an order striking out the allegations of fraud and deceit as redundant. This the court denied, saying that he would not com sider the allegations on the trial. The plaintiff had judgment for $137.07 and costs. Motion for a new trial was denied, and the plaintiff in error brings the case here for review.
The first contention in the brief is that the evidence shows beyond a question that Reagle only sold to Dennis his equity of redemption in the land described in the deed. There were two mortgages on the property, one for $450 and one for $750. The deed contains a clause by which Dennis expressly assumes the payment of the mortgage for $450. At the time this deed was made there were five interest coupons on this mortgage due and unpaid. Reagle, in taking the title from his grantor, had expressly assumed the payment of these coupons as well as the principal.
The covenant in the deed is expressly against encumbrance by way of tax liens and against any encumbrance except the $450.- The interest coupons were for eighteen dollars each. Delinquent taxes on the land amounted to about $10. In addition to this, there was considerable interest due on the defaulted coupons.
There was nothing said in the deed with regard to the $750 mortgage, which was held by Mrs. Evans. Before making the deed, however, Reagle made an arrangement with Mrs. Evans by which she agreed to receive $250 in full satisfaction of this mortgage — $25 in cash and the remainder in notes running through a period of about one year. Dennis was present when this agreement was finally.consummated and gave his notes for the deferred payments, and he testifies that he gave to Reagle, before going to Mrs. Evans's house for that purpose, $15 in money with which to pay Mrs. Evans the $25 cash, Reagle furnishing $10 thereof. He testifies that he had no knowledge that there was a $750 mortgage on the property ; that he was aware that he was to pay $250 in addition to the $450 mortgage ; that the consideration for the conveyance of the property was to be $700, and that he had no knowledge regarding the unpaid coupons or the delinquent taxes. On the other hand, Reagle testifies that he expressly told Dennis that the property would cost him about $800 ; that he told him of the unpaid coupons and the delinquent taxes, and assured him that they would not exceed $100. The consideration named in the deed was $1000. The case was tried to the court, and the court evidently based its findings and judgment on the deed itself, which was right, notwithstanding such immaterial evidence concerning the negotiations which resulted therein.
In the second place, the plaintiff in error contends that Dennis, the purchaser, must pay the encumbrance which he assumed, and that the assumption by its implied terms covered the past-due interest. We do not so construe it. The language of the contract of assumption does not bear this interpretation. It is contended that there was duplicity in the petition, in that more than one cause of action was stated. In this counsel are mistaken. There was but one cause of action, but one ground of recovery; but one transaction was set forth as a cause of action. While there were allegations of fraud and deceit, doubtless for the purpose of enhancing the amount of damages, the cause of action was confined to the breach of the covenant.
The next contention is concerning the admission of incompetent evidence. The court doubtless did not take into consideration in its determination of the facts in the case any evidence not authorized. As we said before, it appears that the court confined itself to the contract contained in the deed and the undisputed facts of the payments made by the plaintiff. The finding does not justify any other conclusion. It is not to be presumed that the court would consider incompetent evidence. The judgment is abundantly supported by the evidence as well as the law. In amount it is confined to the actual payments made by the plaintiff, with interest thereon. There was but one cause of action stated in the petition. The court did not consider the allegations of fraud and deceit. So that even if it were error not to strike them out as redundant, it did not result in any prejudice to the defendant.
The judgment is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This action was commenced on August 20, 1894, by Olive J. Chapman to recover the sum of $5000 as damages resulting from the failure" of the plaintiff in error, defendant below, upon demand, to supply the plaintiff with water for irrigation purposes in the years 1891 to 1894, inclusive. The petition alleged that in the year 1891 and thereafter the de fendant, as the successor of the Western Irrigation Company, owned and was using an irrigating canal and laterals in Kearny county for carrying water appropriated from the Arkansas river, and that it was selling such water for irrigation purposes. The defendant pleaded that it was impracticable to furnish water to plaintiff’s land through the lateral leading thereto from the canal, and that the lateral had been abandoned before the defendant had acquired the ditch property. Trial by jury resulted in a verdict and judgment for plaintiff in the sum of $418.18.
The plaintiff’s cause of action is based on the provisions of section 1, article 2, chapter 133, Laws of 1891 (Gen. Stat. 1897, ch. 79, §10). That chapter is a comprehensive act covering the whole subject of irrigation.
The first paragraph of the section referred to reads :
“Any person having by lease, purchase, or agreement, written or oral, procured from any carrier water for irrigation of land or for other uses whatsoever, and having actually applied such water to beneficial uses, shall thereafter in every year, upon payment of a reasonable rate therefor prescribed by the county commissioners (or if no such rate hath been prescribed, then at a reasonable rate and price, not exceeding that at which such carrier hath been wont to supply to others), be entitled to continue in the enjoyment of water from the works of such carrier to the same amount.”
The plaintiff below claimed to have procured from the Western Irrigation Company, in 1889 and 1890, sufficient water to irrigate forty acres of land, under a written contract in 1889 and an oral agreement in 1890, and that on July 29, 1891, she made a written demand on the defendant to furnish water sufficient to irrigate the same land, and accompanied such de mand with a tender of forty-five dollars, the same being part payment for water in each of the two preceding years, and that defendant refused to comply with such demand. The written contract was produced in evidence. There is practically no evidence in the record concerning the alleged oral agreement referred to above. The .plaintiff introduced testimony tending to show that injury had been suffered from the failure of the water-supply in each of the years 1891 to 1894, inclusive. The only demand for water proved to have been made by the plaintiff was that of July 29, 1891. The court in its instructions limited the controversy to the alleged damages suffered in 1891. It appears from the evidence that the defendant, when it took possession of the irrigating ditches, in the spring of 1891, found it necessary to lengthen the main canal about one-half mile at the upper end, to build a dam across the river, and to make other changes in its ditch system, and that on account of such work it did not contract with water users during the year 1891. It also appears that, in order to obtain a flow of water into the Chapman lateral, it had been necessary to place a dam in the canal, and that the deposit of sediment above such dam was an injury to the canal. None of these matters received mention in the instructions.
Considering now the propositions discussed by counsel, we think the section of the statute quoted above is retrospective, and that it was intentionally so made by the legislature in order to preserve the rights of water consumers who were dependent on some irrigating panal. The legislature certainly intended to provide a system of laws governing the relation of carriers and consumers of water used for irrigation purposes. Incident to the ownership of the canal in question were the existing rights of water consumers along that canal and its laterals. It was clearly the intention of the legislature to protect the rights of such persons as had theretofore been accustomed to use water from irrigating canals for agricultural purposes. We think the language employed by the supreme court of Colorado in the case of Golden Canal Co. v. Bright, 8 Colo. 144, 6 Pac. 142, is applicable here :
“The owner of an irrigating ditch, under the statute, is bound, provided he has water sufficient for the purpose, to admit a prior purchaser to its use and enjoyment on his payment or tender of the proper price therefor, provided the right thereto has not been forfeited.”
As already intimated, it is difficult to find in the record evidence tending to prove the oral agreement, alleged to have been made in 1890, respecting a sup.ply of water for that year. That fact was an essential element of plaintiff’s case.
The court in its instructions overlooked the facts hereinbefore stated in respect to the necessary work which was done by the defendant company in the year . 1891. It had the undoubted right to put its canal system into proper working order, and to do so it was entitled to a reasonable time in which to perform the necessary work of improvement. Whatever loss resulted to the plaintiff during such time could not properly be charged against the defendant. Even if the canal had been in operation, the defendant would not have been entitled to receive water therefrom until after the date of the demand and tender. It follows that whatever damage the plaintiff suffered from lack of water prior to that date was not the fault of the irrigation company. The instructions proceed on the theory that the company was liable for the entire loss for the year 1891.
In view of the foregoing, we have reached the conclusion that the plaintiff in error is entitled to a new trial, and to that end the judgment of the district court will be reversed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced in the district court of Linn county to recover on the statutory liability of the defendant in error as a stockholder in the Citizens’ Bank of Mound City. A jury was waived and the issue submitted to the court. Judgment was rendered in favor- of defendant for costs, and the plaintiff brings the case here for review.
. It is contended that the court .erred. in the admission of certain testimony. The technical rules-applicable to the admission of evidence are not applied with the same exactness when the issue is submitted to the court without the intervention of a jury. We have examined the objectionable testimony complained of, and, without attempting to set it forth in this opinion, must hold that there was no error prejudicial to the plaintiff in the refusal of the trial court to strike it out.
It is further contended that the trial court “erred in holding that a certain payment made by the defendant to one of the alleged creditors of the bank, in the amount of $540, which payment was made in real estate, was a defense to that amount.” It may be stated as a general rule that a stockholder who has voluntarily paid corporate debts to the full extent of his corporate liability is entitled to set up that fact, and when such payment was bona fide it is a bar to an action to collect any further amount. (Bank v. Milling Co., 59 Kan. 654, 54 Pac. 681.)
In the case of Musgrave v. Glen Elder Association, 5 Kan. App. 393, 49 Pac. 338, the court held that, as a matter of equity, the stockholder is entitled to a set-off for the amount voluntai-ily paid, in good faith, of the just debts of the corporation to a creditor.
Counsel contend that payment must be made in money. AYe cannot assent to this doctrine. This court has held, in the case of Campbell v. Reese, ante, p. 518, 56 Pac. 543, that where a stockholder pays a bona fide claim against an insolvent bank, and, as part payment, executes his promissory note, which is accepted by the creditor as payment, and it clearly appeals from the record that the transaction was doné in good faith, in an action to recover on the statutory liability of the stockholder he may plead and prove such payment as a defense. AYe see no good reason why the stockholder may not set up as a defense the payment of corporate debts to the full extent of his corporate liability and allege and prove that such payment was made in real estate.
It is not the medium of exchange that is material. The transaction must be free from fraud, the debt paid in good faith, and the money or property exchanged or paid by the stockholder for the corporate debt should be of equal value to the debt and accepted by the creditor in full payment of the debt.
Counsel contend ‘ ‘ that the court erred in holding that a certain sum of $96.81 due to the defendant from the defunct bank constituted a defense to that amount.” In the case of Musgrave v. Glen Elder Association, 5 Kan. App. 393, 49 Pac. 338, the court held :
“Where a stockholder, against whom proceedings are had to enforce the payment of his stock liability, is himself a creditor of the insolvent corporation, he will be allowed in equity to plead the indebtedness of the corporation to himself as a set-off against his liability to other creditors.”
In the case of Pierce v. Security Co., 60 Kan. 164, 55 Pac. 853, our supreme court held that
“A stockholder in a corporation who has paid the full face value of his stock, when proceeded against by a creditor of the corporation to enforce the statutory liability for the debts of the corporation, may show by way of set-off that the corporation is indebted to him upon bona fide claims and demands which accrued before he became liable as such stockholder.”
These authorities cover the objections raised by plaintiff in error.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
McElroy, J.:
The appellant, John Nesbit, was charged, tried and convicted in justice’s court of violating section 298, of chapter 100, of the General Statutes of 1897 (Gen. Stat. 1889, ¶ 2395). He appealed from the judgment rendered by the justice of the peace to the district court of Leavenworth county, where he was again tried by the court, a jury having been waived, and was convicted and sentenced to pay a fine of five dollars and the costs of the prosecution, from which judgment he appeals.
The appellant contends, first, that the statute under which he was prosecuted is unconstitutional. The statute reads as follows :
“Sec. 298. Every person who shall either labor himself or compel his apprentice, servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other work of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding twenty-five dollars.”
Nearly all the states of the union have enacted similar statutes. These statutes have usually been held to be constitutional and within the proper exercise of legislative power. The legislature has the power to make such laws as are necessary to preserve the public health and protect the public safety. In the exercise of that power, the legislature has the right, within certain limitations, to determine what laws are necessary to accomplish that purpose. The statute in question is within the municipal or police regulations. The appellant in support of his contention relies on two cases, neither of which supports his position. In People v. Havnor, 149 N. Y. 195, 31 L. R. A. 689, 43 N. E. 541, the court held that a statute prohibiting barbers from carrying on their trade on Sunday was a constitutional exercise of the police power to promote the public health, and that a statute permitting barbers in two localities of the state only to pursue their business during certain hours on Sunday does not deny to barbers in other places within the state the equal protection of the laws, when it affects all in the same locality alike.
In Bloom v. Richards, 2 Ohio St. 387, the court said :
“We are, then, to regard the statute under consideration as a mere municipal or police regulation, whose validity is neither strengthened or weakened by the fact that the day of rest it enjoins is the Sabbath day. Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regular recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the general assembly to require this cessation of labor and to name the day of. rest. It did so by the act referred to, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected. But regarded merely as an exertion of legislative authority, the act would have had neither more nor less validity had any other day been adopted.”
In the American and English Encyclopedia of Law', vol. 24, p. 530, we find these very pertinent assertions :
“The question of the constitutionality of statutes providing for the observance of Sunday has been considered in many cases, in most of which these statutes have been attacked as attempts to infringe the right of religious liberty ; but the courts have held, almost without exception, that such legislation is constitutional, and not in contravention of those clauses of the constitution of the United States and of the various states which guarantee full civil and religious liberty and security of life and property. So that the constitutionality of Sunday statutes may be said to be settled. Such statutes do not compel the observance of Sunday as a religious, but as a civil institution, and, therefore, do not violate any fundamental law prohibiting the passage of law's respecting the establishment of religion or restraining the free exercise thereof. They are- a proper exercise of the police power of the state, are intended for the promotion of the moral and physical well-being of the people, and interfere with no vested rights.” (See also People v. Moses, 140 N. Y. 214, 35 N. E. 499.)
Our supreme court has not, to our knowlege, passed on the question here presented, yet incidentally, in Johnson v. Brown, 13 Kan. 529, Brewer, J., delivering the opinion of the court, said :
“At common law a contract on Sunday was valid ; but in England, and in every state of the union, have been enacted what are familiarly known as Sunday laws, for the prevention of labor and business upon that day. Most of these statutes prohibit both labor and business ; and under the latter term the making of contracts has in many states been decided to be within the prohibition. Our own statute simply prohibits labor. . . . The thing prohibited is labor, and a contract made on any day to perform labor on Sunday, save the household offices of daily necessity, or other works of necessity or charity, is a contract to do a thing prohibited, and therefore void.”
The statute under consideration is not class legislation, nor does it violate any of the provisions of the constitution. It is clearly within the constitutional power of the legislature to require this cessation of labor for one day in seven, and to designate the day of rest. The act under consideration is therefore constitutional and a valid police regulation.
The appellant next contends that the complaint is wholly insufficient to charge an offense under that section of the statute. The complaint in substance charges the offense in the language of the statute. This is generally sufficient. There was no motion made to quash the complaint, or to make it more definite and certain. The only way in which the sufficiency of the complaint was challenged was by an objection to the introduction of any testimony at the trial, and by a motion in arrest of judgment. The proper time to raise the question of the sufficiency of a complaint, before a vexdict,.is by a motion to quash. It is not good practice to raise an objection to a complaint by an objection to the introduction of testimony. It is important that the sufficiency of the complaint be disposed of before arraignment, so that if the complaint be defective the same may be amended. If the complaint be indefinite and uncertain, these defects are waived by a plea of not guilty and by submitting to a trial thereon. (The State v. Pryor, 53 Kan. 657, 37 Pac. 169.) The complaint no doubt sets out the offense with more particularity than is necessary. It reads :
“That at said county, on-or about the 5th day of July, a. d. 1896, said John Nesbit did unlawfully labor and perform work ; that is, he, the said Nesbit, did then and there follow his usual and ordinary avocation or business of a barber on said day, which was the first day of the week, commonly called Sunday; said work was performed, to wit, shaving a person, not being the household offices of daily necessity, nor a work of charity or. other necessity. All in violation of the laws of Kansas.”
The complaint is indefinite and uncertain as to whether the offense was committed on the 5th day of July, but it is definite and certain in this, that Nesbit did unlawfully labor and perform work — did follow his usual, ordinary vocation or business of a barber on the first day of the week, commonly called Sunday, on or about July 5, 1896. The complaint charges an offense under the statute, and is sufficiently defhiite and certain to sustain the judgment of the court thereon. (The State v. Knowles, 34 Kan. 393, 8 Pac. 861; The State v. Rook, 42 id. 419, 22 Pac. 626; The State v. Combs, 47 id. 136, 27 Pac. 818.)
The contention is also made that the complaint is insufficient because it does not affirmatively appear that the appellant was not one of the-persons described in the exception in section 299, excepting certain persons from the operation of section 298, prohibiting labor on Sunday. This contention is not tenable. Where the exception is not incorporated with the clause defining the offense, nor connected with it in any manner by words of reference, it is not a constituent part of the offense, but is a matter of defense, and must be pleaded or given in evidence by the accused. (United States v. Cook, 17 Wall. 168). The contention is also made that the complaint is insufficient bécause the facts therein stated do not constitute a public offense; that shaving a person is not labor, within the meaning of the act.
The complaint alleges that the appellant is a barber by trade ; that he did unlawfully labor and perform work, and did follow his usual and ordinary vocation or business of a barber. The shaving of a person was within the appellant’s usual and ordinary vocation, within his usual course of business ; it was his trade ; it was the business by which he obtained his subsistence, his manner of earning a livelihood. It was labor. The shaving of a person by a barber in his usual and ordinary business is labor, within the meaning of the act under consideration. (Quarles v. State, 55 Ark. 10, 14 L. R. A. 192, 17 S. W. 269; Commonwealth v. Waldman, 140 Pa. St. 89, 11 L. R. A. 563, 21 Atl. 248; State v. Frederick, 45 Ark. 348.)
The- final contention of the appellant is that the finding of the court is not sustained by sufficient evidence. The bill of exceptions does not contain the evidence; it simply states what the evidence tended to show. It has been settled in this state that, in order to have the testimony considered on appeal, the evidence must be included in the bill of exceptions. (The State v. McClintocK, 37 Kan. 40, 14 Pac. 511; The State v. gibson, 52 id. 22, 34 Pac. 408.)
The judgment of the trial court must be affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was brought in the district court of Montgomery county by defendant in error to recover for an alleged breach of the following contract: ’>
“This Contract, Made and entered into this 1st day of March, 1894, by and between J. M. Hughes, party, of the first part, and the Sehrt-Patterson Milling Company, of Coffeyville, Kansas, party of the second part: .
“Witnesseth, That, the said party of the first part, hereby agrees to act as bookkeeper and keep the books, of the said party of the second part for the term of one year, beginning March 1, 1894, and ending February 28, 1895.
“ The said party of the second part hereby agrees ter employ and maintain in its service the said party of, the first part as its bookkeeper during the time aforesaid mentioned, and pay for such service the sum of, $600, payable monthly.
J. M. Hughes.
The Sehrt-Patterson Milling Co. -'
Per J. Sehrt, General Manager’
The petition alleges that Sehrt, as general manager, was fully authorized by the defendant SehrtPatterson Milling Company to make the contract; that the defendant failed and refused to keep its promise, in. that it did not pay to the plaintiff any money whatever for- said services, save and except the sum of fifty dollars, which defendant paid to-, plaintiff for and upon services rendered under said, contract. Judgment for the sum of $350 was demanded.
Defendant answered by a general denial, and
“ specially denied the authority of Sehrt to enter into, said contract, and alleged that the sole power to make such contract was vested in its board of directors ; that plaintiff never performed any labor for the defendant, except for the period of one month, for which he received full payment, to wit, the sum of fifty’ dollars, but that said payment was not made for labor performed undér the contract; that as soon as the board of directors was informed of the existence of said contract it was disapproved and was by the board unrecognized, and all of which the plaintiff had due notice.” '
The case was tried before a jury and a verdict returned in favor of the plaintiff for $126. The court overruled the motion' for a new trial and entered judgment on the verdict. The defendant brings the case here for review.
The Case was tried in the lower court on the theory that Sehrt had no power or authority to bind the defendant by such a contract as the one sued on. Plaintiff in error contends that the court erred in giving to the jury instruction No. 6, which is as follows :
“To constitute a ratification of an unauthorized contract upon the part of Sehrt, as such manager, the board of directors must have had knowledge of the terms and conditions of such contract, or must have had reasonable opportunity to have acquired such knowledge at the time of or prior to such ratification.”
The last clause o'f the instruction, which modifies the rule requiring knowledge of the terms and conditions of the contract as a condition precedent to its ratification, is the error complained of. Knowledge by the principal of the terms and conditions of an unauthorized contract entered into by an agent is not to be presumed from the fact that the principal had a reasonable opportunity to acquire such knowledge. (National Bank v. Drake, 29 Kan. 325; St. John v. Cornwell, 52 id. 717, 35 Pac. 785.) The following instruction was also given:
“You are instructed that under the provisions of by-law No. 9 the manager had no right to employ a bookkeeper without the consent of the board of directors, and such employment by him was not binding on the corporation, and the plaintiff cannot recover upon a contract of employment entered into between him and said .Sehrt without proof that, with knowledge of its terms and conditions, the board of directors accepted and ratified the same.”
Counsel for defendant in error insist that this instruction so modifies or qualifies instruction No. 6 that the jury could not have been misled. We are unable to concur in this conclusion. It is true that the court in positive terms tells the jury that plaintiff cannot recover without proof “that with knowledge of the terms and. conditions of the contract the board of directors accepted and ratified the same.” In instruction No. 6, the court, in effect, tells the jury that knowledge of the terms and conditions may be presumed if the board of directors had a “reasonable opportunity to have acquired such knowledge at the time of or prior to such ratification. ” We cannot concede this to be the law, and, construed in the light of the entire charge, the instruction was erroneous and misleading. We have carefully considered the able argument of counsel for defendant in error, as set forth in his brief, but the instruction complained of is sufficient to require a reversal of the case.
The judgment of the district court is reversed and the case remanded for a new trial.
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The opinion of the court was delivered by
McElroy, J.:
The defendant in error, E. A. Kitchen, commenced his action against the Oberlin Loan, Trust and Banking Company for the recovery of $940, with interest, and alleged that the defendant company was a corporation ; that, being insolvent, it made an assignment of its property to W. A. Smith, as assignee; that afterward Charles H. Tilden was elected assignee by the creditors, accepted the trust, and has ever since been the qualified assignee ; that Charles H. Tilden, as assignee, after having first given notice in the time and manner provided by law, passed on the claim of E. A. Kitchen presented for allowance, found that there was due from the defendant thereon the sum of $990, with interest at seven per cent., and allowed the same ; that such sum of money was justly due and remains wholly unpaid ; that the assignee paid, as dividends thereon, the sum of fifty dollars; that no other payments have been made, and that there remains due and unpaid from the Oberlin Loan, Trust and Banking Company to the plaintiff the sum of $940, with interest.
The defendant filed a motion that the court require the plaintiff to make his petition more definite and certain, in that he state the true nature, kind and character of the debt sued on; if on a contract, state whether express or implied, written or verbal, and if written, that he be required to set out a copy thereof, which motion was overruled, and the defendant then filed a general denial. The case was called for trial, and the parties waived a jury and submitted the case to the court on the pleadings and evidence. The court rendered judgment for plaintiff for the sum of $1029.30, with interest, the defendant’s motion for a new trial was overruled, and it presents the case to this court for review.
It is conceded that the action is founded on the decision of an assignee. His determination is treated as a judgment, and the action is brought thereon. The petition appears to be defective in that there is no copy of the judgment or determination of the assignee set out. If the determination of the assignee is such a judgment as can be declared on as a cause of action, it is necessary to set out a copy of it. A judgr ment, when declared on as a cause of action, is such a written instrument as section 118 of the code requires to be set out by copy attached to and filed with the petition. (U. P. Railway Co. v. McCarty, 8 Kan. 125; Burnes v. Simpson, 9 id. 663.) In Burnes v. Simpson, supra, the court says :
“There was no copy of the judgment sued on attached to the petition. We think this was such an instrument as the code requires to be filed with the pleadings ; but the defect was one to be corrected on motion, not by demurrer. In states like Indiana, where the code makes the instrument or account on which the pleading is founded a part of the record, the not filing it may well be taken advantage of by demurrer ; but in a code like ours such a practice is not logical, and ought not to be enforced.”
This leads to the inquiry as to the effect of the determination and judgment of the assignee on the original cause of action. Chapter 111, General Statutes of 1897 (Gen. Stat. 1889, ¶" 361), provides:
“ Sec. 16. The assignee shall appoint a day, within six months after the date of the assignment, and a place, which shall be at the county-seat of the county where the inventory is filed, when and where he will proceed publicly to adjust and allow demands against the estate and effects of the assignor.”
“Sec. 26. The assignee shall require such evidence, and no other, of the justice of such demands as is required to establish demands of a similar character in the district court in suits between the original parties to the contract.
“ Sec. 27. The assignee shall have power to administer all necessary oaths to debtors, creditors, and witnesses, and may examine them on oath touching any claim exhibited to him for allowance.
“ Sec. 28. The decision of the assignee in relation to all claims presented to him for allowance shall be final, unless a creditor or some other person interested shall, after a decision is made on any such claim, ask an appeal therefrom, and all appeals so asked shall be allowed by such assignee to the district court of the county having jurisdiction thereof.”
This brings us to the more important inquiry, whether an indebtedness, or cause of action, is merged in the findings, determination and judgment of an assignee, so that such determination can be used as an independent cause of action and form the basis of a recovery as against the assignor. The majority of courts of final resort in this country hold that the allowance and partial payment of a claim by an assignee will not prevent the statute of limitations running against the original claim. This would seem to indicate that the courts recognize the right of action to be on the original claim and not on the allowance of an assignee. The supreme court of this state, however, has taken a different view of the question, holding that the allowance and partial payment by the assignee does prevent the running of the statute of limitations on an original demand. (Letson v. Kenyon, 31 Kan. 301, 1 Pac. 562.)
The decision in the case of The State v. Kansas Ins. Co., 32 Kan. 655, 5 Pac. 190, is not in conflict with the views herein expressed. In that case a creditor presented his claim, which was disallowed by the assignee, from whose determination no appeal was prosecuted. The creditor procured a judgment on the original claim in another state, and subsequently attempted to have the same paid out of the assigned estate, which had passed into the hands of a receiver. It was held that the determination of the assignee was final, and that the creditor was not entitled to share in the distribution of the assets of the assigned estate. ■ The former adjudication was final so far as the assignment proceedings were concerned, and the court held it conclusive to the extent of refusing the creditor any benefits in the assigned estate, and to that extent only.
In the case of Limbocker v. Higinbotham, 52 Kan. 696, 35 Pac. 783, the court says :
“An assignment for the benefit of creditors haying been made, which is still open, can a creditor who has presented and had allowed in full a claim against the estate, which has not been paid, maintain an action upon the original claim against the assignor? No provision of the statute relating to assignments which would preclude or suspend the right of a creditor to recover a personal judgment against the assignor has been brought to our attention, and we find nothing in the nature and effect of such proceedings which would sustain such a claim. The act of assignmentcloes not pay the debts nor discharge the assignor from liability for their payment. The assignment proceeding is in the nature of a proceeding in rem, and all who desire to share in the assigned assets must conform to the procedure prescribed by the statute. The adjudication of the assignee is binding upon the interests of every person whomsoever in the res or property brought within his jurisdiction, but this adjudication is not personally binding upon the assignor like a judgment in personam, and is not enforceable by general process. . . . The effort of the creditor to receive his pro rata share of an estate, assigned for the benefit of all, should not preclude him from converting his claim into a judgment against the assignor, which might at once become a lien against the unassigned estate, or enforceable by execution against it. The allowance by the assignee cannot be so used, and is of no avail to him outside of the assignment proceedings. . . .We conclude that the plaintiff was entitled to recover a personal judgment against the defendant upon the original claim for any amount that might be due thereon, regardless of the assignment proceedings.”
In Cackley v. Smith, 47 Kan. 642, 28 Pac. 617, the court says :
“To make the merger complete, so as to be a bar to any future action upon the same obligation, there must necessarily be a judgment; and such a judgment, too, as can be enforced. Can it be said in this case that the plaintiff below obtained such an order in the common pleas court of Jackson county, Ohio, as he could make available in the collection of his debt after the property subjected to the payment of certain creditors of Cackley had been exhausted? Or, in other words, could he have brought suit upon the proceedings had in that court and obtained any relief ? There was only a finding of the amount due each one of the creditors ; and in the same finding of the court there was an order directing the payment of the proceeds to other creditors, which left the plaintiff below in the same condition as when he filed his answer. He had obtained nothing upon his note, and had no order, decree or judgment which he could enforce.”
It appears that the judgment of the assignee in such proceedings is a judgment in rem and affects only the assigned estate, and there is no merger of the original indebtedness in a judgment in rem. The assignee had no power or authority to render a judgment against the assignor which could be enforced, except to the extent of permitting the creditor to share with all other creditors in the assigned estate, or debar him from that privilege. The judgment is-not a judgment in personam and cannot be enforced by execution, nor does it become a lien on the debtor’s property. There is no merger of the original indebtedness. This court, in the case of Krider v. Coley, 7 Kan. App. 349, 51 Pac. 919, expressed the opinion that there was a merger of the original cause of action in the judgment and determination of the assignee. The question in that case was of minor importance and briefly argued. We are constrained to believe that in this respect the opinion in Krider v. Coley, supra, is incorrect, and, so far as that decision is in conflict with the views herein expressed, it is overruled.
The judgment is reversed and the cause remanded for a new trial.
Wells, J., concurring.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in' the district court of Cowley county by the plaintiff in error to recover from the defendant, in error the possession of certain buggies and spring wagons. The petition alleged the plaintiff to be owner of and entitled to the immediate possession of the personal property therein described. Upon the trial in the court below the plaintiff introduced its evidence, to which the defendant filed a demurrer on the ground that it failed to establish a cause of action in favor of the plaintiff and against the defendant. The court sustained the demurrer and rendered judgment for costs against the plaintiff, who brings the case here for review.
The evidence tends to prove that the plaintiff is a corporation engaged in manufacturing buggies, carriages and light vehicles at Indianapolis, Ind., and that one G. S. Bussart, being engaged in the retail implement business in Winfield, Kan., entered into a contract with the plaintiff in error, by the terms of which it was to furnish him with certain vehicles at prices agreed on therein, until the expiration of the contract, which was to be October 1, 1893, on a credit of four months by giving a note, and an extended credit on unsold goods for two months by giving a renewal note. It also tends to prove that the vehicles in controversy were furnished by the plaintiff in error to Bussart under the contract. The contract contained, among other things, the following stipulation :
“It is expressly understood and agreed by the parties hereto that the vehicles furnished under this contract shall in no case be disposed of except in the usual course of trade to bona fide purchasers for value, and that, until the purchase-price of all goods furnished under this contract of sale is paid, the title to said vehicles, or the proceeds of the sale thereof, said proceeds being received and held by said party-of the second part as agent of said party of the first part, shall be and remain in the party of the first part or their assigns ; and party of the second part agrees that, should the party of the first paid so elect at any time, upon receiving credit on or cancelation of the note or notes given by the party of the second part, the said party of the first part under this contract to store in good order or reship free of charge the vehicles for which said credit is given, subject to the order of the said party of the first part. Said party of the second part agrees to keep said vehicles insured against loss by fire for the benefit of said party of the first part as the interest of the said party of the first part may appear, and to render to said party of the first part a statement of all vehicles remaining on hand and in stock whenever said party of the first part may request same.”
The evidence also showed that Bussart, being indebted to the Buford & George Manufacturing Company, executed and delivered to it a"chattel mortgage, dated October 27, 1894, and it is admitted that the defendant in error purchased the property in controversy in good faith and for an honest and fair consideration, of the mortgagee, the Buford & George Manufacturing Company, and that the property was delivered to him and was in his possession at the time of the commencement of this suit.
The first question raised by the argument in the briefs is -whether, under the evidence, the plaintiff in error was the absolute owner of the vehicles under the contract, or whether they were sold to Bussart and a lien attempted to be reserved by the contract. It is conceded by the plaintiff in error that unless it was the absolute owner of the property the evidence was insufficient to establish the allegation of general ownership contained in the petition. It was held in Kennett v. Peters, 54 Kan. 119, 37 Pac. 999, that when the plaintiff claims as sole owner he must stand or fall on that claim, and cannot recover by showing a right to a lien. This question is entitled to a careful consideration, for the reason that, unless the evidence tends to prove that the plaintiff in error was the owner of the vehicles, the judgment of the district court must be sustained.
The evidence shows that the plaintiff in error furnished to Bussart the vehicles in question and other goods according to the terms of the contract, and at the prices named therein, and took from him his notes for the purchase-price due in four months. When these notes were due, or a short time afterward, Bussart paid a portion of the amount in cash and gave the renewal notes provided for in the contract for the balance due. He also turned over to the plaintiff in error certain notes as collateral security for the indebtedness created in the purchase of the goods bought of it, including the vehicles in controversy! The evidence shows that the plaintiff in error sold and delivered the vehicles to Bussart conditioned upon the title of said vehicles, or the proceeds thereof, remaining in it until the purchase-price was fully paid. The contract was complete between them. Payment by Bussart was the only unexecuted portion of it. Upon full payment full title passed to Bussart. Has such payment been made? We apprehend that if this action had been brought against Bussart for possession under the contract — provided he had remained in possession — the plaintiff would have been required to show in what amount Bussart was indebted to it. Full payment would have been a complete defense to its action. We also apprehend that the jury should have found the amount remaining unpaid and rendered an alternative verdict for the return of the property or for the amount of the debt if a return could not be made. Suppose Bussart had paid all but a few dollars of the purchase-price, could the plaintiff in error have taken possession of all the property as absolute owner without being required to ren der an accounting to Bussart? We think nob. While these questions are not involved in this case, they seem to us to decide the extent of the ownership of the goods in the plaintiff in error. The most that can be said in favor of that ownership is that, as between the parties to the contract, the plaintiff in error has alien on the vehicles in.controversy for the amount of the purchase-price remaining unpaid, and that the payment thereof would remove the lien.
Our conclusion on this question is decisive of the case and the other questions need not be decided. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
The appellant was convicted in the
district court of Allen county on ten counts of an indictment containing fifteen counts, charging violations of the prohibitory law. The questions presented in the record, except as stated below, are the same as those considered in the case of The State v. Joseph Nagley, just decided, and as to such questions that decision will be here followed.
The additional question arose on the hearing of the motion for a new trial. The affidavit in support thereof set forth the following facts : When the jury brought in their verdict it was handed to the court by the foreman, and the court thereupon stated to the jury that they had evidently made a mistake in the verdict. At that juncture, one of the jurors declared in a loud voice that the verdict was a compromise verdict. The court then directed the jury to return to the jury-room and to correct the verdict in certain particulars. The jury accordingly retired, and afterward returned into court with their verdict, which, as so returned and filed, specified the counts of the indictment on which they had found the defendant guilty. We think the foregoing facts did not vitiate the verdict. No complaint concerning the verdict was made by any juror after it was returned the second time. The nature of the compromise to which the juror referred is not shown, and his statement was not sworn testimony tending to impeach the verdict. In principle the question here presented is like that considered by the supreme court in The State v. Rhea, 25 Kan. 576. The court did not err in receiving the verdict of the jury and in entering judgment thereon. The motion for a new trial was properly overruled.
The judgment is affirmed.
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The opinion of the court was delivered by
Wells, J.:
The only real question in this case is, Did the Union Pacific Railway Company by its bill of lading contract to deliver the flour to the consignee at Hempstead, Tex., or was its contract ofily to carry it to the junction of its road with the Missouri, Kansas & Texas railway, and there deliver it to the connecting line? The issue is clearly stated by the attorney for the plaintiffs in error in these words: “If the responsibility of the defendant in error ceased upon the delivery of the flour to the Missouri, Kansas & Texas Railway Company at Junction City, the judgment of the district court should be affirmed; if not, it should be reversed.” This question must be decided on the bill of lading alone, as there was no other contract. The face of the bill of lading reads as follows :
“union pacific system, bill of lading, no. 470.
Enterprise, Kansas, Apr. 1, 189 — .
“Received of C. Hoffman & Son the following-described freight, in apparent good order, marked and consigned as noted below, contents and value unknown, to be transported to -- (do not insert point not on the lines of this system), and delivered in like good order to the consignee or owner at said station, wharf, or landing (or, if said freight is forwarded beyond the lines of this system, to such company or carriers whose line may be considered a part of the route to place of destination)., on payment of freight charges, together with such charges as shall have been advanced on the same.
“This contract, and the responsibilities of the parties thereto, is limited and controlled by the conditions as printed on the back thereof, as also by the terms and conditions of this company’s printed tariffs', which are hereby declared to be an essential part of this cbntract- The-Railway Company.
Original. By O. C. Tilton, Agent.
C. Hoffman & Son, Shipper.
“Consignee, shipper’s order; notify Isaac Heidenheimer. Destination, Hempstead, Tex.
“ (This original bill of lading must be filled out and signed with ink or indelible pencil and delivered to shipper.) -
“ S. C. O. R. & W. Car No. 35,598 ; initial, U. P. Via M. K. & T. Through rate, 45.”
Upon the back- of the bill of lading are printed conditions, the only part that has any bearing on the issues of this case reading as follows :
"As a part of this agreement, all other carriers transporting as a part of the through line the property herein receipted for shall be entitled to the benefit of all the exceptions and conditions above mentioned. The company agrees to forward the property to the place of destination named, but its responsibility as a common carrier is to cease at the station where the freight leaves this road, when the property is to be delivered to connecting road or carriers ; and in case it is necessary in order that such property reach its destination that it should be forwarded by an ocean route, such property is taken subject to all the terms and conditions contained in the ocean bill of lading of this company, or of any other company completing the transportation.”
On the trial the following stipulation was made :
" It is hereby stipulated and agreed by and between the parties to the above-entitled cause, that the following facts shall be taken as true for the purposes of this case, and that the same may be considered on the 'trial of this case, so far as the same may be material and relevant: On the 1st day of April, a. t>. 1892, plaintiffs delivered to defendant at Enterprise, Kansas, a car-load of flour, and the defendant then delivered to plaintiffs a bill of lading, which said bill of lading, with the conditions printed on the back thereof, constitutes the contract between said plaintiffs and said defendant. The paper attached to plaintiffs’ petition, with the conditions printed on the back thereof, and marked ‘Exhibit A,’ is a true copy of said bill of lading and contract. The words, ‘ Consignee, shipper’s order; notify Isaac Heidenheimer. Destination, Hempstead, Tex.,’ were intended to mean, and by plaintiffs and defendants were understood to mean, that said flour was to be shipped to Hempstead, Tex., that Isaac Heidenheimer should be notified of its arrival, and that the same should be delivered only upon the delivery of the bill of lading, and subject to such conditions as plaintiffs should name. Plaintiffs attached a draft to said bill of lading, and delivered the same to the cashier of the Bank of Enterprise, Kansas, for collection for the credit of said plaintiffs. ‘ Exhibit B ’ attached to plaintiffs’ petition is a true copy of said draft, with the indorsement of instructions written upon the back thereof. The Bank of Enterprise forwarded said draft and bill of lading, together with a statement of the account of said car-load of flour, copy of which said account is attached to plaintiffs’ petition and marked ‘ Exhibit C,’ to a bank at Galveston, Tex., for collection.
“ Said Isaac Heidenheimer neglected and refused to pay said draft upon presentation, and said draft, together with said statement of account and bill of lading, was returned by the bank at Galveston, Tex., to the Bank of Enterprise, and by the Bank of Enterprise returned to plaintiffs. Said draft remains unpaid.
“The defendant transported said car-load of flour from Enterprise to Junction City, Kansas, and the defendant there delivered the same in good order to the Missouri, Kansas & Texas Railway Company. The M. K. & T. Ry. Company transported the same to Denison, Texas, and there delivered the same, in good order, to the Houston & Texas Central Railway Company. The H. & T. C. Ry. Company transported the same to Hempstead, Texas, and there delivered the same to some person to the parties to this action unknown, such person not having been authorized by the plaintiffs to receive the same.’
“At the time of the receipt and the transportation of said car-load of flour, there was a joint interstate freight tariff in effect between the Atchison, Topeka & Santa Fe, Kansas City, Fort Scott & Memphis, Southern Pacific, Texas & Pacific, Missouri Pacific, and numerous other western railways, including the Union Pacific, Missouri, Kansas & Texas, and Houston & Texas Central railways; that said joint interstate freight tariff fixed the through rate of a car-load of flour from Enterprise, Kansas, to Hempstead, Texas, at forty-five cents per hundred pounds, of which through rate the Union Pacific received twelve and seven-tenths cents per one hundred pounds for carrying a car-load of flour from Enterprise, Kansas, to Junction City, Kansas, and there delivering the same to the Missouri, Kansas & Texas railroad ; the balance of said forty-five cents per one hundred pounds being divided between the Missouri, Kansas & Texas railway and the Houston & Texas Central railway ; that said tariff was agreed upon between the different roads in interest prior to the shipment of the car-load of flour in controversy in this case, and said shipment of flour was made under said tariff; that before the commencement of this action the defendant company received its portion of the through rate on said shipment of flour under said tariff.
“ Hempstead, Texas, is not, and was not at the time of the shipment of the said car-load of flour, located upon the lines of the Union Pacific system of railroads. Said consignment of flour was carried over the usual and ordinary route for the shipment of flour from Enterprise, Kan., to Hempstead, Tex.
“It is further stipulated- and agreed that either party to this action shall be at liberty to offer evidence to prove such other facts as shall be material to the issue in this case.”
The plaintiffs in error claim that the defendant in error was responsible for the loss of this flour, either for the reason that the three companies were copartners in this transaction or that the two other roads were the - agents of the defendant in error. Neither the theory of copartnership nor that of agency can be sustained unless we first assume that the defendant in error contracted to transport the flour to its final destination, . or that the English rule prevails in this country, that “where a railroad company receives goods to be shipped to a destination beyond its line, in the absence of any special contract it will be held responsible for the safe delivery of the goods at the place of destination.”
We do not think that this rule prevails in Kansas. In the first edition of the American and English Encyclopedia of Law, volume 2, page 862, it is said: “ In Kansas the question has arisen in a case in which the court intimates an opinion in favor of the adoption of the English rule,” and the case of Berg v. A. T. & S. F. Rld. Co., 30 Kan. 563, is cited. A careful reading of this case fails to show any such intimation. In the second edition of the work this is not repeated, but in volume 6, page 613, numerous Kansas cases are cited as supporting the rule that “the initial carrier is liable for losses on lines subject to its management; but where a railroad company receives goods for a destination beyond its line, but makes no express agreement to transport to such point, and does expressly provide that it is not to be responsible as 'carrier beyond its line, and that its liability is to terminate upon a delivery of the goods to the connecting carrier, it is not liable beyond its own line.” We think this rule is clearly deducible from the opinions cited and is the law of this state.
The syllabus of the case of Berg v. A. T. & S. F. Rld. Co., 30 Kan. 561, 2 Pac. 629, reads as follows :
“Where a railroad company received goods for transportation to a point beyond its lines upon a special contract in which is no express agreement to transport to such a point, but the place is only named as the point of destination, and in which it is expressly agreed that the goods are to be transported over the company’s road ancj. delivered in good order to the connecting carrier, and that the company is hot to be responsible as carrier beyond its line, and its liability as such is to terminate upon delivery of the goods to the connecting carrier, held, (1) that there is no uncertainty or ambiguity in the contract, and that it is clearly only a contract for transportation over its own line and delivery to a connecting carrier; (2) that such contract, being no contract for through transportation to the point of destination, presents no question of an attempt to limit the common-law liability of the carrier as to anything happening beyond its own line ; and (3) that the company transporting over its own line and delivering the goods in safety to the connecting carrier performs its contract, and is not liable for any subsequent loss or damage.”
This was cited and approved in A. T. & S. F. Rld. Co. v. Richardson, 53 Kan. 161, 35 Pac. 1115, and we think disposes of this case. The fair and reasonable construction of the bill of lading is that the defendant should transport the freight to the point where it made connection with the Missouri, Kansas & Texas railway and there deliver it to said connecting line, whe.n its liability should terminate, and this construction is not overthrown by the fact that said defendant by virtue of its through traffic arrangements received more than its usual local rate for its haul, or that it contracted for a through rate and that the other lines on the through route should have the benefit of all the exceptions and conditions by it required.
The judgment of the court below will be affirmed.
McElhoy, J., concurring.
Mahan, P. J., dissenting.
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The opinion of the court was delivered by
Mahan, P. J.:
This is an action for personal injury occasioned by a defective sidewalk. There was judgment for the plaintiff, and the defendant contends that the court erred in refusing to require the jury to answer these special questions of fact: 1. If you find for the plaintiff, state what sum you allow him for physical pain. 2. If you find for the plaintiff, state what sum you allow him for mental suffering. 8. If you find for the plaintiff, state what you allow him for actual damages. These are all questions of fact respecting the elements of damage to be considered by the jury in making up the verdict, requested to be submitted by either party. The court correctly told the jury in its charge that if they should find for the plaintiff, he would be entitled to recover for lost time, for physical pain suffered, and for diminished capacity to labor and earn a livelihood resulting directly from the injury, and that the amount of the verdict should be a fair and just compensation for the actual injury suffered. Hence the third finding of fact requested was answered by the general verdict.
Wherein can the defendant have suffered prejudice in the consideration of the case, either by the jury or by the court, by reason of its not having the answer of the jury to the first and second questions of fact? They in law comprise but one. (A. T. & S. F. Rld. Co. v. Dickerson, 4 Kan. App. 356, 45 Pac. 975; A. T. & S. F. Rld. Co. v. Lamoreux, 5 Kan. App. 814, 49 Pac. 152.) Had the jury been requested by either party to separate the other various elements of damage comprised in the court’s charge, by answers to appropriate questions propounded, then a refusal to require them to answer as to this element might have prejudiced the defendant. Any answer that the jury could have made, standing alone, would not control or affect the general verdict or the rights of either party or the result of the suit. In such case the refusal to submit the question is 'not reversible error. (Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 634; City of Wyandotte v. Gibson, Adm’x, 25 id. 236; Kansas City v. Bradbury, 45 id. 388, 25 Pac. 889; Swift v. Wyatt, 2 Kan. App. 554, 43 Pac. 984; Bickford v. Champlin, 3 id. 684, 44 Pac. 901.)
The next contention is that no such defect was shown to exist in'the sidewalk as would make the city liable. We cannot agree to this proposition. The walk was defective by reason of being out of repair. It was unsafe as a walk because the boards comprising it were removed and broken, and the walk tilted to one side by surface-water washing away the support, so that the plaintiff’s foot passed through the walk. He was thrown on his back, his foot being fastened by the fall, and 'his back and foot were severely sprained, whereby he was rendered a cripple for the -remainder of his life. The cases cited by counsel in support'of this contention are inapplicable to the facts here.
The third and final contention is that the court; erred in admitting in evidence a conversation between a witness and the city clerk. The court admitted it for the purpose of showing the notoriety.of the condition of the walk in controversy. If it was not competent for that purpose, which we do not say, yet the special finding of the jury on that fact shows conclusively that the jury did not consider the evidence at all. Without this evidence, on the facts as to the existence of the defect and the notice to the city thereof, the jury could arrive at no other result.
The judgment is affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the district court of Cowley county by the defendants in error against the plaintiff in error and one William S. Townsend, to recover for an alleged breach of a contract between the Yoemans and Trice. The Yoemans were the owners of 395 acres of land in Cowley county on which there were several mortgages and judgment liens. They were also the owners- of some personal property which was encumbered by chattel-mortgage liens, and were owing other amounts which were unsecured. The plaintiff in error was a real-estate broker, and, after some negotiations with the Yoemans, he entered into a contract with them by which he was to purchase the land. A deed was executed by the Yoemans to one William S. Townsend, a brother-in-law of Trice, and placed in the hands of Stafford & Albright. Afterward a letter or memorandum and an order for the delivery of the deed to Trice were signed by the Yoemans and delivered to Trice. The deed was thereupon delivered to Trice, who sold the land and paid all claims which were liens against it and a chattel mortgage and note to one Schuler, but paid no other claims or debts.
The petition alleged that the land was sold by the Yoemans to Trice on a verbal contract by the terms of which he was to pay all the encumbrances against the land and certain other indebtedness, including $1800 to one Schuler, which was secured by a chattel mortgage, and some personal debts owing by the Yoemans. The answer of Trice alleged that the only claims he was to pay were the liens against the land and the debt to Schuler which was secured by chattel mortgage. The verdict of the jury and the judgment were in favor of the plaintiffs below in the sum of $725, and the defendant below brings the case here for review.
One of the issues tried was whether the'sale to Trice was under the verbal contract or the written memorandum. It is contended by the plaintiff in error that the court erred in admitting evidence tending to prove an oral contract which contradicted or varied the terms of the written contract. While ordinarily it is not competent to permit the introduction of evidence to contradict or vary the terms of a written agreement, it is proper to show an original parol contract between the parties by which their contractual rights were to be determined. It is for the jury to determine whether the sale was made under the verbal contract or under the writing which was made four days after the execution of the deed. (Mo. Pac. Rly. Co. v. Beeson, 30 Kan. 298, 2 Pac. 496; Mills v. Ruehlin, 29 id. 89.) The court did not err in this case in receiving evidence tending to show that there was a parol contract under which the sale was made'and the terms thereof.
It is.also contended that if Trice agreed with the Yoemans to pay certain debts owing by them to third parties, the third parties, and not the Yoemans, could maintain the action, unless the Yoemans show that they have paid said debts. It was held in Mumper v. Kelly, 43 Kan. 256, 23 Pac. 558, that “whenever two persons make a contract for the benefit of a third, the third may maintain an action thereon for any breach thereof to his injury.” See also Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809. It will be observed that the third party “may,” not “ must,” maintain an action. If he fails or refuses to do so, we apprehend that the promisee may recover for a breach of the contract by the promisor. “A promise to pay to a third per son a debt due him by the promisee may be enforced by the promisee against the promisor without waiting for the third person to sue thereon.” (Ward Cowdry, 5 N. Y. Supp. 282. See also Kaufman v. U. S. Nat. Bank, 31 Neb. 661, 48 N. W. 738; Locke v. Homer, 131 Mass. 93, and cases cited; Stout v. Folger, 34 Iowa, 71; Town v. Wood, 37 Ill. 512; Elmer v. Welch, 47 Conn. 56; Belloni v. Freeborn, 63 N. Y. 383; Wilson v. Stilwell, 9 Ohio St. 467; Gregory v. Hartley, 6 Neb. 356; Learned v. Bishop, 42 Wis. 470; Wicker v. Hoppock, 6 Wall. 94; Clark v. Sidway, 142 U. S. 182, 12 Sup. Ct. 327.)
The plaintiff in error contends that the court erred in refusing to submit special questions Nos. 16 and 17, which relate to what personal property of theYoemans was sold to pay the debts which Trice was to pay, and its value. There was no evidence that-there was any personal property sold for that purpose ^ hence the court properly refused to submit the question.
The conclusions thus reached settle the questions raised by plaintiff in error, and they need not be further considered by us. The judgment of the district, court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This is an action to recover the possession of a certain strip of land 160 rods long and about nine rods wide at one end and four rods wide at the other. The defendant in error, plaintiff below, is the owner of the southeast quarter of section 12. The plaintiff in error, defendant below, is the owner of the northeast quarter of section 13. The question tried was, In which quarter is the strip located? Counsel for plaintiff in error in their brief say
“ Mr. Sackett owns the southeast quarter of section 12, and claims that this strip is'a part of his quarter and that he is entitled to immediate possession of it; Mr. Conrad owns the northeast quarter of section 13, and he and his grantors have been in possession of it, including the strip of land in dispute, for more than twenty years prior to the commencement of this action.”
The first contention is that the court erred in permitting a witness to give his opinion as to what quarter-section of land the disputed strip belonged.. The general rule is that the opinions of witnesses are not receivable as'evidence. This court has said : “When ownership is a material and ultimate fact to be determined in an action, and is-controverted upon the trial, witnesses should testify to the particular facts within their knowledge which bear upon such question, ^.nd not give their mere opinions and conclusions thereon.” (Broten v. Cloud County Bank, 2 Kan. App. 352, 42 Pac. 593.)
The witness had been employed in the government survey and had served a term as county surveyor. He had established one of the lines in dispute, and the question asked was “ What do you say as to in what section that portion of land belongs that lies between that hedge and the line that you established ; in what section is it?” His answer was, “In section 12.” The witness stated only that, according to the line he established, the land is in section 12. The admission of the evidence was not sufficient to require a reversal.
It is further contended that there was no evidence in the case on which to base the following instruction :
“ It is also admitted in this case that this defendant has been in possession of this tract or parcel of land, and his grantors, for more than fifteen years before the commencement of this suit, claiming to own the same, adverse to the rights of the plaintiff; and if you should believe from the evidence in this case that this defendant and his grantors have been in open, notorious and adverse possession of said tract or parcel of land, claiming the same, for more than fifteen year before the commencement of this suit, then, in that event, it would be your duty to find for the defendant in this case, notwithstanding the fact you might believe that under a proper and legal survey this tract or parcel of land would belong to the plaintiff ; but, upon the other hand, if you believe from the evidence in this case that this tract or parcel of land is included in the quarter-section of land as owned by ■the plaintiff, and that this defendant took possession of said tract or parcel of land, by mistake or inadvertently, not intending to claim any more than was called for in his deed, and not intending to extend beyond his boundary line, and that his true boundary line did not include this strip, then, in that event, it Would be your duty to find for the plaintiff in this case, as the action would not be barred by the statute of limitations.”
From an examination of the record, we are satisfied that there is sufficient evidence to justify the court in giving the instruction to the jury. The evidence is-slight, but sufficient to bring the case within the doctrine stated in Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, and Rasdell v. Shumway, 6 Kan. App. 45, 49 Pac. 631.
There are other objections presented but- they are not sufficient to reverse the case. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
A preliminary question is presented by the defendant in error, who contends that the case-made contains no certificate as to its contents, and is therefore not reviewable. We find a certificate, sufficient in form and substance and signed by the attorneys for the plaintiffs in error, immediately following the journal entry of final judgment in the case, and immediately preceding an acknowledgment of service of the case-made by the attorney for the plaintiff below, which is itself followed by a certificate of the trial judge in settlement of the case-made. Such facts bring the case within our decision in the case of Donnell v. Reese, 6 Kan. App. 563, 51 Pac. 584, and accordingly the objection is untenable.
This action was brought on November 24, 1894, by the defendant in error to recover damages for the alleged unlawful conversion by the plaintiffs in error of 900 bushels of wheat, the property of the defendant in error, and of the value of fifty cents per bushel. Other claims for incidental damages were alleged, including a claim for an attorney’s fee, but such additional claims were eliminated from the case before its final submission to the jury. The answer, among other things, averred that one Lyman Johnson, the real owner of the land on which the wheat in controversy was grown and of the wheat, for the purpose of hindering, delaying and defrauding his creditors, and especially the defendant bank, had conveyed the said land, without consideration, to the plaintiff, who knowingly and fraudulently participated in the transaction. The reply alleged that .the conveyance by Lyman Johnson to the plaintiff of the said land was made in good faith and for valuable consideration.
The evidence shows that on September 30, 1893, Lyman Johnson, being the owner of two quarter-sections of land in Cowley county, deeded one tract, his homestead, to Martha J. Lassiter, in consideration of the assumption of the mortgage against the same, and the other tract, which was worth about $3500, to his brother, Ithamar Johnson, subject to a mortgage of $2025, in consideration of indebtedness due the latter, partly for labor performed, but principally for money loaned at various times during a period of more than ten years, under a loose general agreement for repayment when practicable. Both were deeds of warranty, and that to Ithamar was executed in pursuance of an oral agreement made a few days before the date of the conveyance. As a result of such conveyances Lyman Johnson was insolvent, and at that time he was indebted to the Winfield National Bank in the sum of $2815.06. For that indebtedness he had, on the 4th of the preceding August, given his promissory note due in sixty days from that date, and secured by a •chattel mortgage which covered 1700 bushels of wheat then stored in granaries on the farms and other property. The bank afterward sold the mortgaged wheat, applying the proceeds thereof on the said indebtedness, and in 1894, in an action on the note for the balance due, obtained judgment against Lyman Johnson for $1744.45. In June, 1894, J. W. Skinner, as sheriff of Cowley county, had been appointed receiver in the action on the note, and was ordered to receive the wheat crop then maturing from the tenants who were farming the land conveyed to Ithamar Johnson, which wheat was sown in the fall of 1893, partly before and partly after the conveyance. The sheriff subsequently received the wheat and placed the same in granaries. Thereafter an execution was issued on said judgment and the sheriff levied the same on the wheat in his hands as receiver. On October 24,1894, the wheat so levied on was sold to the bank, after which the sheriff had no connection with the matter except to make return of the execution. The case was tried to a jury, which returned a verdict in favor of the plaintiff in the sum of $315.
. Plaintiffs in error allege that the court erred in the admission of certain evidence and in its instruction to the jury. The evidence alleged to have been improperly admitted consisted largely of letters written by Lyman Johnson to Ithamar Johnson during a period of more than ten years prior to the date of the conveyance to the latter, either asking for loans of money or acknowdedging the receipt of money remitted. A few letters from Ithamar to Lyman were also admitted in evidence. As it appears from the record independently of these letters that Ithamar Johnson did actually advance money at* various times to his brother Lyman, and in the aggregate between $1000 and |2000, and as counsel for plaintiffs in error in their brief admit that, “ under the evidence there can be no question that Lyman Johnson owed the plaintiff and deeded him the land,” we think that, while the letters written by Ithamar Johnson should not have been received in evidence, the error in their admission was immaterial. The letters from Lyman Johnson were properly admitted, as he was not a party to the present action. They were parts of the continuing transaction whereby the 'indebtedness was created.
Turning now to the instructions, we find that none was asked by the defendants below. We have read the entire charge with great care, to determine whether, as a whole, it was broad enough to cover the essential issues in the case, namely, Did Lyman Johnson deed away his land with the intent to defeat the Winfield National Bank in the collection of its. claim against him? and, if so, was Ithamar Johnson aware of such intention? In one instruction it was stated that a person, though insolvent and in failing circumstances, may convey his property to whomsoever he pleases, if the transaction be an honest omj, and that, if the conveyance be made in good faith and, for an adequate consideration, it matters not how many creditors may be prevented thereby from reaching the property. The instruction most favorable to the theory of defendants below is as follows :
“You will observe the vital question that you are to determine in this case is as to whether or not there was a bona fide indebtedness from Lyman Johnson to the plaintiff, and as to whether or not Lyman Johnson honestly and in good faith was indebted to this plaintiff, and whether or not this plaintiff honestly and in good faith accepted a conveyance of the title to the real estate for the honest purpose of securing his debt, and as to whether or not the value of the real estate was greatly in excess of the debt due from Lyman Johnson to the plaintiff; and if you find that Lyman Johnson was honestly indebted to the plaintiff, and the plaintiff honestly and in good faith accepted the title to the real estate in payment of his debt, and that the value of the real estate sustained a fair proportion to the amount of the debt, then, in that event, this plaintiff would have had a right to accept said real estate and no creditor would have any cause to complain by reason of that fact. But, upon the other hand, if this was not a just debt, or if the value of the real estate was greatly in excess of any just debt due from Lyman Johnson to the plaintiff, then the law would not permit this plaintiff to take the property of Lyman Johnson and withhold the same from his creditors.”
It was not stated unqualifiedly anywhere in any of the instructions that if the conveyance from Lyman Johnson to Ithamar Johnson was made for the purpose of hindering, delaying and defrauding the creditors of Lyman Johnson, and if Ithamar Johnson purchased the property with knowledge of such intention on the part of his grantor, then the conveyance would be void. (Haskett v. Auhl, 3 Kan. App. 748, 45 Pac. 608.) The instructions did not cover the issues presented by the pleadings and the evidence, and certain paragraphs were, we think, misleading. The jury were not sufficiently guided by the court in respect to a matter vital to the interests of the defendants below. All the issues in the case are for a jury and it appears just that the case should be tried again. The judgment of the district court will be reversed and the cause remanded for a new trial!
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The opinion of the court was delivered by
Milton, J.:
This action was brought by Mrs. Nannie Lee, a married woman, to recover from the plaintiff in error the sum of $5000, as damages resulting from personal injuries alleged to have been occasioned by the negligence of the defendant in the operation of the railroad while the plaintiff was being transported thereon as a passenger. The injury was received on August 9, 1892, near the city of Denver, and was caused by the derailment of a passenger-train carrying excursionists to that city during the Knights Templar conclave. The amended petition, filed on December 5, 1892, alleged that plaintiff was “cut, bruised and injured in and about the face, head, neck, shoulders, back, breast, and arms, and mashed, mangled, and disfigured, so that she, the said plaintiff, was lamed, sick, and disabled, and wholly unable to attend to the transaction of her ordinary pursuits and occupations.” It is also alleged that ever since the injury .was received, and by reason thereof, the plaintiff “has suffered intense physical and mental pain, injury, and affliction, and by reason of said injuries the plaintiff has become permanently and forever injured, crippled, and disabled.” The company answered by a general denial. The cause was tried May 10, 1893, and resulted in a verdict and judgment for plaintiff for $2000.
W. L. Baxter, a witness for plaintiff, who was near her when the car in which they were riding was derailed, described the occurrence and her injuries as follows :
“When the car turned and struck the ground plaintiff fell across to the opposite side of the car and was lying upon her back with her head near the opposite side and her feet toward the aisle. . . . The plaintiff was bleeding very profusely from the cut over one of her eyes. She wms also bleeding from a cut on one of her cheeks; also, there was a bruise on the front part of her neck. . . . Plaintiff was unconscious from the time the car turned over.”
This testimony was corroborated by that of other witnesses who were traveling with her. She was taken to a private house near by where she remained several hours. At four o’clock that afternoon, in company with her mother and other friends., Mrs. Lee left for Colorado Springs, where she remained until August 11, when she started for her home near Strong City, in Chase county, Kansas. She was confined to her bed most of the time for two weeks. The testimony as to the nature and effect of her injuries was very conflicting. The jury could have fairly found from the evidence that the plaintiff was severely shocked and bruised, that her right cheek bone was fractured, that she suffered physical and mental pain for some time after the injury, that thereafter she became subject to violent and prostrating attacks of neuralgia and headache, originating in the injured cheek and continuing for two or three days at a time. The jury found that if the plaintiff’s face was dis figured in any way it was not visible to them. Other special findings were as follows :
“1. If you find for the plaintiff in this case, then state how much, if anything, you find as damages for the plaintiff for pain and suffering. A. $500.”
“5. How much do you allow the plaintiff, if anything, for permanent injuries ? A. $1000.”
“8. How much, if anything, do you allow the plaintiff for mental suffering and distress ? A. $500.”
In another finding the jury said that plaintiff appeared to be well. They allowed nothing.as punitive damages, and nothing for loss of time or for medicine or medical attendance. One of the instructions reads :
“You can onty allow, if anything, such damages as will compensate the plaintiff for the injuries received, considering whether or not such injuries are temporary or permanent. In'such actual damages is included such as you see proper to allow, if any, for physical and mental pain that the plaintiff had to undergo by reason of the injuries.”
Counsel for plaintiff in error state this proposition :
“A recovery for pain and suffering includes all physical and mental suffering and distress which is the direct result of an injury; hence the judgment in this case, which includes $500 for ‘pain and suffering’ and $500 for ‘mental suffering and distress,’ is a double recovery, and excessive to the extent of $500 upon that ground alone.”
It is argued that the court erred in permitting the plaintiff below to give evidence of mental suffering and distress aside from and independently of the physical suffering resulting from the injury. The evidence referred to was the plaintiff’s own statement that she was still troubled from excessive nervousness and more easily excited than she was formerly, and that it was not “pleasant riding on the railroad any more.” • Counsel for plaintiff in error say that the case was tried by the plaintiff and the court on the theory that “the plaintiff was entitled to recover damages not only for pain and suffering but, in addition to that, for mental anguish and distress, independent of the pain and suffering which was the immediate and direct result of the injury.”
We think the jury were warranted in taking into account the plaintiff's mental suffering to the extent that such suffering resulted from her bodily injuries and was a concomitant of the physical pain she endured. (City of Parsons v. Lindsay, 26 Kan. 426; City of Salina v. Trosper, 27 id. 544; A. T. & S. F. Rld. Co. v. Lamoreux, 5 Kan. App. 813, 49 Pac. 152; Brown v. The Hannibal & St. J. Rly. Co., 99 Mo. 310, 12 S. W. 656.)
We think the record supports the proposition that «the allowance for physical pain and mental suffering was properly made by the jury. We also think that it is not necessary to regard the allowance of $500 as being intended to apply to future suffering. The jury allowed $1000 for permanent injuries. The evidence supporting this allowance indicates very slight injuries, so far as observation could go, but it tends to prove permanent injury to the nervous system of the plaintiff, and a special injury to the nerves of her face. The allowance is not so excessive as to indicate passion or prejudice.
The trial court relied on the decision in A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453, as authorizing a recovery for both physical pain and mental anguish growing out of personal injuries resulting from negligence. In the case of A. T. & S. F. Rld. Co. v. Lamoretix, 5 Kan. App. 813, 49 Pac. 152, the judgment of the trial court was approved notwith standing the special findings showed the jury had awarded the plaintiff “$115 for pain and suffering and $110 for mental suffering, the result of pain.” The court said :
“ In A. T. & S. F. Rld. Co. v. Dickerson, 4 Kan. App. 345, 45 Pac. 975, the counsel for the company contended that the trial court erred in not compelling the jury to divide these two elements of damage. In that case we held that there was no good reason for requiring these elements of damage to be divided into minor subdivisions. In 'this case they have been divided into minor subdivisions in answer to the questions propounded by the plaintiff in error. Although not necessary, it is not error, and the defendant in error is entitled to recover upon each of these elements of damage.”
In the present case, separation of these elements of damage was made at the request of the defendant. From the findings, it is evident that the j ury intended to allow $1000 for the plaintiff’s pain and suffering, both physical and mental, as one element of damage. The permanent injuries, for which the jury awarded $1000, were of such character that a recovery was properly had therefor by the defendant, notwithstanding she was a married woman. (City of Ellsworth v. Fletcher, 59 Kan. 772, 51 Pac. 904.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
In this action a temporary injunction was granted by the district judge of Finney county on the petition of the defendant in error, plaintiff below, restraining the plaintiffs in error from removing the sehoolhouse in district No. 8 of that county to a new site. The district judge had granted a restraining order at the commencement of the action. At the hearing, both the plaintiff and the defendants introduced testimony and the petition was treated as an affidavit on behalf of the plaintiff. The record shows that at the annual school meeting held on the 29th day of July, 1897, a proposition to change the schoolhouse site was carried by a vote of sixteen to eight. There were then forty-two qualified voters in the school district. The district meeting appointed the defendant in error and two other appraisers to determine the value of the schoolhouse, in conformity with the terms of section 69, chapter 63, General Statutes of 1897 (Gen. Stat. 1889, ¶ 5590). Defendant in error refused to join in the report of the appraisers, and the other two appraisers subsequently filed a report with the clerk of the district board, in which the schoolhouse was appraised at $125. The petition alleged that the schoolhouse was fairly worth the sum of $500 and that * ‘ there had been no appraisement of its value therefore as is required by law.” The law referred to is section 68 of chapter 63, supra, which provides that where the value of a schoolhouse exceeds $400 its site shall not be changed except by a vote of at least two-thirds of the legal voters'of the district in favor of the change.
The trial court permitted the plaintiff to introduce .testimony concerning the value of the schoolhouse. We think such testimony was incompetent. The statute points out the proper kind of evidence to prove the value of a schoolhouse where the removal thereof is decided on by a district meeting ; that is, the report of the appraisers appointed by such meeting. Such a report was made in the present instance, and it appears as a part of the evidence in the record. Nothing was alleged or shown to impeach the good faith of the appraisers in respect to the appraisement and report. We think, therefore, that the order granting a temporary injunction is erroneous, because based on incompetent evidence, while the competent evidence in the record is sufficient to support a contrary order.
Defendant in error contends that the appraisement mentioned in the statute must precede the action of the district meeting in voting to change a schoolhouse site, and that, since in this case the appraisement was made after the district meeting was held, such appraisement, and the vote of the district meeting for removal, were void. No sufficient reason has been shown or discovered why this contention should be sustained. When a district meeting votes to change the site of the schoolhouse of such district, it then becomes the duty of the district board to act in conformity with such vote. If two-thirds of all the qualified voters in such district vote in favor of a change of site, no appraisement is necessary. If the vote be below that limit the change cannot be made by the district board until it is shown by the report of the appraisers that the value of the schoolhouse is less than $400. In the present case, upon the filing of the appraisers’ report it became the duty of the district board to remove the schoolhouse to the new site, under the authority delegated to such board by the district meeting.
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The opinion of the court was delivered by
Schoonover, J.:
This is a foreclosure suit. A. G. Ireland sold certain real estate to O. V. Holmes for $650, and received $200 in cash and a note for $450 signed by Holmes, and secured by a mortgage executed by Holmes and wife-on the land sold. Holmes sold the land to E. A Beecher, plaintiff in error, and executed to him a warranty deed, subject to the mortgage of $450, which plaintiff in error assumed and agreed to pay. Beecher sold the property to William Rees, and he to E. N. Evans, who also assumed and agreed to pay the mortgage. Defendant in error commenced an action in the district court of Lyon county on tlxe note and mortgage, and made O. V. Holmes and wife, who executed the mortgage, and E. N. Evans and wife, who had the legal title, parties defendant. Holmes filed an answer alleging the execution of his deed to E. A. Beecher, and asking that Beecher be made a party defendant and that he be required to respond for any deficiency judgment. Summons was issued, service had, and judgment rendered against C. V. Holmes and E. A. Beecher for the amount of the debt; decree of foreclosure was entered and the property sold.
Meanwhile E. A. Beecher filed his motion to set aside the personal judgment rendered against him, on the.grounds that the summons which was served on him required him to answer the plaintiff's original petition only, and made no mention of the cross-petition of C. V. Holmes, that the first petition contained no proper allegations on which the personal judgment against him could properly be rendered, and that he was never properly in court. The supreme court sustained his view of the law, set aside the personal judgment as against E. A. Beecher, and remanded the case for further proceedings. (Beecher v. Ireland, 46 Kan. 97, 26 Pac. 488.)
When the case xvas remanded, the plaintiff, by permission of the trial court, amended his petition, setting out the grounds of the personal liability of E. A. Beecher on the mortgage and also setting out the proceedings connected with the sale of the property and the application of the proceeds to part payment of the judgment. A summons was issued and personal service had on E. A. Beecher, who filed the following motion, challenging the jurisdiction of the court:
“Comes now the defendant E. A. Beecher, specially and, for the purpose of this motion only and to chai lenge the jurisdiction of this court over both the person of him, the said E. A. Beecher, and the pretended claim of the plaintiff against him, and moves the court to strike from the files in said cause the paper marked ‘Amended and Supplemental Petition/ filed May 20, 1891, upon the grounds and for the reasons :
“1. That the said E. A. Beecher was not a party to-the original petition filed in said cause, and that said orginal petition fully performed all of its functions as a pleading in said cause long prior to the 20th day of May, 1891.
“ 2. That judgment having been rendered upon the original petition in this action in favor of the plaintiff, for everything demanded by the terms of said original petition and its prayer, at the September, 1888, term of this court, and this defendant not then being a party defendant in said original petition, the district court of Lyon county, Kansas, had not the power or authority, at the May, 1891, term of this- court, to permit any amended petition to be filed in said cause, or to allow this defendant to be made a party to the original petition by amendment, or in any manner to revive said cause on behalf of the plaintiff so as bring this defendant into the same, as more than nine terms of court had elapsed between the final disposition of said cause at the September, 1888, term of this court and the said attempted revivor by amendment at the May, 1891, term of this court, and more than two years had elapsed ; and that the order of the supreme court directing a reversal of the personal part of the j udgment rendered in 1888 against this defendant did not in any manner revive said action.
“ 3. That no notice was ever given to this defendant of any application to file any supplemental pleadings in said cause, and that the same was filed without any notice to this defendant.
“4. That the court was without jurisdiction to permit or allow, without notice to this defendant, any pleadings to be filed in said cause against this defendant.”
This motion was overruled. Beecher then filed' his demurrer to the amended petition, which was overruled ; he then filed his answer, which plaintiff put in issue by reply. The cause was submitted to a jury, and resulted in verdict and judgment for A. O. Ireland, plaintiff below, for $499.90. The defendant below brings the case here for review.
The first question to be determined is, Was E. A. Beecher a proper party to the foreclosure suit, and was he properly brought into court ? Sections 24 and 27, chapter 95, General- Statutes of 1897 (Gen. Stat. 1889, ¶ ¶ 4113, 4118 ), provide :
“24. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.”
‘ “27. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.”
Under these liberal provisions a large discretion is given to trial courts. Our supreme court has said that ‘ ‘ the filing of amendatory and supplemental pleadings rests largely within the discretion of the trial court, and, unless there is a clear abuse of that discretion, its ruling will not be reversed.” (Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732.) It is contended by plaintiff in error that the trial court erred in permitting the supplemental petition to be filed without notice, and our attention is called to section 144 of the code (Gen. Stat. 1897, ch. 95, § 144, Gen. Stat. 1889, ¶4227), which reads as follows :
“Either party may be allowed, on notice and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case occurring after the former petition, answer, or reply."
To permit a supplemental pleading to be filed without notice, to the prejudice of other parties to the action, would be such an abuse of discretion as would require a reversal, unless cured by the subsequent acts of the party aggrieved. In this case the amended aud supplemental petition was filed without notice. A summons was issued and served personally on plaintiff in error. He filed his motion challenging the jurisdiction of the court. The motion was overruled, and he then filed the following answer :
"Comes now the defendant, E. A. Beecher, and for his sole and separate answer in said cause says : That, protesting and. objecting to the jurisdiction of this court over him, and over the pretended cause of action against him, this defendant, for his answer to the pretended amended and supplemental petition of the plaintiff, says: (1) That he denies each and every allegation in said answer contained ; (2) and for a second and further defense, this defendant says : That he admits the receipt of the deed mentioned and described, but alleges that the pretended promise in said deed of conveyance to him, whereby it is stated that he assumed and agreed to pay the mortgage indebtedness in said deed mentioned, was and is wholly without any consideration whatever, and was placed in said deed without the knowledge or consent of this defendant."
By filing this pleading and going to trial the plaintiff in error waived all questions of j urisdiction raised by his motion. (Carter v. Tallant, 51 Kan. 516, 32 Pac. 1108; King v. Hyatt, 51 id. 504, 32 Pac. 1105; Meixell v. Kirkpatrick, 29 id. 679.)
The instructions of the court and the findings of the jury are complained of, but we find no error prejudicial to the rights of the plaintiff in error. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
In this action, H. W. Cushing, plaintiff below, obtained judgment against School District No. 40, Finney county, formerly School, District No. 24, Garfield county, the plaintiff in error, in the sum of $505.70 on thirty semi-annual interest coupons of fifteen dollars each, the same being coupons numbered 11,12 and 13 of each of ten bonds for the principal sum of $500, and bearing numbers from 1 to 10 inclusive, theretofore issued by said district No. 24. The coupons and a copy of one of the bonds were made a part of the petition. Each of the bonds recited the various acts of the legislature under tfiie authority of which the issue was made. They were signed by the director ■and clerk of the district and made payable “to- •or bearer.” Each bond contained this recital:
“And it is hereby certified and recited that all acts, ■conditions and things required to be done precedent to and in the issuing of said .bonds have been properly done, happened, and performed, in regular and due form as required by law.”
The answer of the school district admitted that the bonds and coupons “were signed by D. IT. Mandigo as director and G. M. D. Goff as clerk,” but denied that they were authorized so to sign by the district board of said district No. 24 ; denied that the issuing of the bonds had been duly authorized by a vote of the •electors of the district; and denied that a petition had been presented to the district board asking that an election be called to vote on the question of issuing the bonds. The answer affirmatively averred that the bonds were invalid because not issued in conformity with the statute under which they purported to have been issued, in that they did not specify on their face the date of the issue or to whom they were issued, and that the bonds were issued in an amount in excess of six per cent, of the taxable property of the district.
The record discloses nothing tending to impeach the good faith of the district officers or of the plaintiff in respect to the issuance, sale and purchase of the bonds. It shows that a schoolhouse was built by the district from the proceeds of the bonds and that the interest was paid in accordance with the terms of the bonds for a period of five years by the school district. The bonds purported to have been signed by the proper district officers on January 1, 1889, and to have been registered by the county clerk and certified to by the county superintendent of public instruction on the 30th day of that month. At the time these bonds were registered no others were outstanding against the district, a prior issue of ten bonds of $500 each having .been canceled on January 29, 1889. The record of the issuing and cancelation of the last-mentioned bonds appears to have been kept by the county •clerk of Garfield county. Such record was at first admitted in evidence and afterward rejected. The assessed valuation of the taxable property in the district was sufficient to sustain an issue of bonds to the amount of $5000.
The principal contention of the plaintiff in error is that the bonds were and are invalid for the reason that they do not state the date of issue and to whom issued. As to the date of issue, we think the bonds may be regarded as having been issued either when •signed, that is, on the 1st day of January, or when presented for registration by the county clerk and for •certification by the superintendent of public instruction, which was on the 30th day of the same month. By their terms the bonds began to draw interest from •January 1, the date when they purported to have been signed. The first coupons became due and payable on July 1, 1889, and were paid by the school district, as were all coupons falling due during a period •of four and one-half years thereafter. The statute under which the bonds were issued provides that ■such bonds shall be signed by the director and countersigned by the clerk, and after registration by the •county clerk shall be negotiable and transferable by •delivery, and may be disposed of by the district board at not less than ninety-five cents on the dollar. Under this provision such bonds can certainly be payable to the bearer, or to some particular person or bearer. It is,evident that the legislature intended to make bonds of this character negotiable and to give the district hoard the power and authority to transfer them by delivery — that is, without requiring that the bonds be transferred by a written assignment. Such being the intention of the legislature, the provision that the bonds state on their face to whom they are payable is complied with by making them payable “ to-or bearer,” as was done in the present instance.
Concerning the evidence offered by the defendant and rejected by the court, to the effect that bonds amounting to $5000 had been issued in December, 1888, by the district board, for the purpose of showing that the issue here concerned was greatly in excess of the statutory limit according to the assessment of the district, it may be said that the rejected evidence showed affirmatively that the first issue of bonds was canceled prior to the registration of the second issue. The evidence, if admitted, would therefore have proven nothing material to the defense.
The contention that the plaintiff should have alleged and proved that the bonds had been issued by order of the district board is not tenable. The recital in the bonds hereinbefore quoted, that all precedent acts and conditions required by law had been properly done and performed, covers the point contended for. This question has been set at rest by numerous decisions of the United States supreme court. The claim that the court erred in refusing to admit evidence to the effect that the issuance of the bonds had not been duly authorized by the electors of the school district may be answered in the language of the syllabus in the case of The State v. Kiowa County, 39 Kan. 657, 19 Pac. 925:
“The payment of negotiable county bonds in the hands of an innocent purchaser for value cannot be avoided on the ground that the elections authorizing their issue were irregularly called and held, although the irregularities were such that, had the question been raised in the proper manner and at the proper time, such bonds would have been held invalid.”
See also decisions of the United States supreme court which are cited in the opinion. We think, further, that within the doctrine of The State v. Scott County, 58 Kan. 491, 49 Pac. 663, the defendant district was estopped from denying its liability upon the coupons sued on in this case. The district recognized the validity of the bonds, availed itself of the benefits of the proceeds arising from the sale thereof, and paid the interest on the bonds for a number of years from the funds raised by taxation.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
A preliminary question is raised by the defendant in error’s motion to dismiss.- The ground of the motion is that the petition in error is not signed by the attorney for the plaintiff- in error or by any other person for it. Since this motion was filed the defendant in error served and filed its briefs on the merits of the case, and counsel for plaintiff in error have asked leave to sign the petition in error. This leave will be granted and the petition in error will be considered as though properly signed.
This action was begun on the 13th day of May, 1887, by E. G. Hoopes, as general assignee of the firm of Warner & Miller, to recover from the plaintiff in error the sum of $1000 on a policy .of insurance issued by the latter to Warner & Miller. The property insured, a business house in the city of Anthony, in Harper county, was burned on May 25, 1886. The defendant in error interpleaded in the action, alleging its right to the fund recoverable from the insurance company by reason of its having obtained a judgment at the January, 1886, term of the district court of said county, against Warner & Miller, and by virtue of attachment and garnishment proceedings in that action. The interplea further alleged that a notice of garnishment was issued on July 10, 1886, in the last-named action and was duly served on the insurance company, and that, by reason of such service and the failure of the insurance company to answer as garnishee, the latter became indebted to the interpleader in the sum of-$1000. The insurance policy, a copy of which was annexed to the petition and referred to in the interplea, but not made a part thereof, contained the following clause.:
“No suit or action of any kind against this com pany for the recovery of a claim under this policy shall be sustainable in any court of law or chancery unless begun within the term of one year from the date of the fire, but such lapse of time shall be deemed conclusive evidence against the validity of such claim, any statute of limitation or other law to the contrary notwithstanding.”
The interplea was filed on July 14, 1888. On March 24, 1891, the court, on motion of the plaintiff, dismissed his case, over the objection of the interpleader, entered judgment for costs against the plaintiff, and continued the action until the next term of court for a trial of the issues between the insurance company and the interpleader. Trial -was not reached until March 23, 1893. In the meantime the interplea was amended and supplemented, .and thereupon the defendant company demurred thereto on the ground of a failure to state facts sufficient to constitute a cause of action or to entitle interpleader to any relief against the defendant. The trial resulted in a verdict and judgment for the interpleader in the sum of $1478.14.
The overruling of the demurrer is one o'f the principal errors assigned. The clause in the policy limiting the time within which an action might be brought thereunder is like the provision which was considered in the case of McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. 478, and which was held valid and binding on the assured. In that case a general demurrer to the petition had been sustained by the trial court, and its action was approved by the supreme court. The doctrine of that case was followed in Insurance Co. v. Stoffels, 48 Kan. 205, 29 Pac. 486, and in Insurance Co. v. Bullene, 51 id. 764, 33 Pac. 467. In their brief, counsel for defendant say :
“The action of E. G. Iioopes, an assignee, against the American Fire Insurance Company was admittedly commenced in time ; and the interplea of the defendant in error was not a new action — did not claim on any new, additional or other indebtedness than that sued for by the said Hoopes, but simply said to the court that whatever amount was found due to Hoopes, as assignee, from the said insurance company, should be ordered paid to the defendant in error, for the reasons stated in the interplea ; and if the said insurance company, by and through its special agent, had not colluded with said Hoopes, and induced him to withdraw from said action, for the apparent purpose of preventing the defendant in error from collecting what was due to it, there would have been nothing to try between plaintiff in error and the defendant in error.”
This claim is disposed of by the case of Insurance Co. v. Bullene, supra. One of the important questions there considered was whether the claims of the three cross-petitioners, who had been joined with the insurance company as defendants, were barred by the provision in the policy to the effect that any suit brought thereon must be commenced within six months after loss by fire, it appearing that more than twelve months had elapsed between the date of the fire and the filing of the cross-petitions. The syllabus reads :
“Where certain defendants seek to enforce their demands against a codefendant, as to such demands the action will be deemed commenced as of the time when their answers setting up such demands are filed.”
As no cross-petition in error was filed, the action of the trial court in permitting the assignee to dismiss is not before us for review. The dismissal stands as a judgment of the trial court. It would seem, therefore, that according to the claim of counsel as set forth above, there was no .issue to be tried between the parties to the present proceedings after the judgment of dismissal was entered. We conclude that the filing of the interplea in this case marked the commencement of the interpleader’s action, and that its right to recover was then barred by the terms of the policy. We also hold that this question was raised by the demurrer. It is unnecessary to consider other alleged errors.
The judgment of the district court is reversed, and the cause is remanded with instructions to sustain the demurrer to the amended interplea.
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The opinion of the court was delivered by
Dennison, P. J.:
The question of our jurisdiction to decide this case on its merits has been raised by a motion to dismiss the petition in error. It is contended that the case-made was not served on certain parties who are necessary parties in this court and that the judge had lost jurisdiction at the time the oase-made was settled. After a careful examination of the record and briefs, we are unable to say that the interests of any of the parties below not brought into this court will be affected, or that their rights will be disturbed or changed by a reversal of the judgment in this case.
This action was tried before H. Fierce, Esq., as judge pro tem., who adjourned the March term of the district court of Reno county on August 1, 1893. The motion for a new trial was overruled June 26, 1893, and sixty days thereafter were given to make and serve .a case, and ten days thereafter to suggest amendments. On August 23 the case was served on the attorney for the St. John & Marsh Company, no amendments were, suggested, and on September 23, 1893, the case was settled in the presence of the attorneys for the plaintiff and defendant in error without objection. In Waterfield v. Bank, 6 Kan. App. 743, 50 Pac. 971, and Insurance Co. v. Nichols, id. 923, 50 Pac. 940, both of which were cases similar to this, we held that the judge had no authority to' settle the case-made. A careful reexamination of the statute and the-decisions of the supreme court on that subject satisfies us that the decisions in those cases were erroneous. Section 590 of chapter-95 of the General Statutes-of 1897 (Gen. Stat. 1889, ¶" 4650), in part, reads :
“When the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it-shall be his duty to certify, sign or settle the case in all respects as if his term had not expired."
We are now of the opinion that the proper construction of this statute is that, when the term of the trial judge expires before the time fixed for making and serving a case, he should settle the case the same as if his term had not expired; and if his term expires after the time fixed for making and serving a case, yet if' the time for settling a case had been fixed before the-expiration of his-term, which time fiid not expire until after the expiration of his term, he should also settle the case. In this case the time fixed for making and serving a case expired on August 25, but-the term of the judge pro tern, expired before that time. If the term of the judge pro teto. had expired after August 25 and no time had been fixed for settling the case while the judge was in office, he would have been without authority to settle the case. In the case of K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331, on which this court relied in the case of Insurance Co. v. Nichols, supra, the term of office of the trial judge expired ■after the time fixed for making and serving the case and after the time fixed to suggest amendments had •expired and no notice of the time when the case would be settled had been served, nor had any time been fixed by the court or judge for settling the case.
When no time is fixed, either by the court or by notice, for the signing and settling of a case, it cannot be said that the term of office of the trial court ■expired before the time fixed for signing and .settling the case, and we must be confined to the single inquiry, Did the term of office of the judge who tried the case expire before the expiration of the time fixed for making and serving the case? If so, he can settle the case the same as though his term of office had not •expired. If his term of office expired after the expiration of the time fixed for making and serving the •case, he is without authority to settle the case.
We shall hereafter be governed by the conclusions reached in this case instead of by the decisions in Insurance Co. v. Nichols, supra, and Waterfield v. Bank, supra. The case therefore was properly settled by the judge pro teto. and the motion to dismiss is overruled .
This action was originally commenced in the district ■court of Reno county by the Hutchinson Hardware Company to foreclose a mechanic’s lien on certain lots in the city of Hutchinson, Kan., owned by one Frank Kenner. Kenner, the plaintiff in error and the defendant in error were made defendants. Several others who had liens filed interpleas. The defendant in ■error answered, setting up a mechanic’s lien, and filed a cross-petition asking for its foreclosure. The plaintiff in error answered setting up a mortgage lien, and filed a cross-petition asking that Mrs. Kenner be made party defendant and asking for the foreclosure of its mortgage. Each claimed a prior lien. The inquiry in this case in the court below narrowed down to the question of the priority of the liens of these parties, plaintiff and defendant in error. It was admitted that each had a valid lien and that the mortgage of the plaintiff in error was filed and became a lien on May 15, 1889, and that the mechanic’s lien of defendant in error was filed September 30, 1889. The question of. fact to be determined by the court was as to-the time of the commencement of the building. It is-admitted that the commencement of a building is the digging or excavating for the foundation walls. The evidence on this point is conflicting.
A. N. Merrill testified that he was the stone-mason who put in the foundation, and that he did the work on the 14th, Í5th and 16th days of May, 1889. Other witnesses testified that the foundation was not commenced until after the 15th of May, 1889. The court found that the foundation was commenced on the-13th or 14th day of May and finished on the 16th day of May, 1889, and rendered judgment giving the lien of defendant in error priority. This finding being sustained by some competent evidence, we cannot disturb it.
It is contended by plaintiff in error that “ the court erred in admitting evidence that certain material was-delivered on the ground at a date earlier than the filing of the mortgage, . . . for the reason that it in no way tended to prove on what day or when construction of building was actually commenced.” The plaintiff in error introduced certain witnesses who testified that there was no material on the lots on the 15th of May. This evidence was proper only as tending to show the actual date of the commencement of the building.
It is also contended that the court erred in admitting certain books in evidence. The books are not contained in the record and we cannot say that their introduction was error. We have carefully examined the arguments of counsel and the record and are unable to say that the trial court committed error requiring the reversal of the judgment.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
This is a suit by the defendant in error against the plaintiffs in error upon a promissory note payable five years after date, as follows :
“Highland, Kan., June 1,1885.
“ On or before five years after date, we promise to pay to the order of the treasurer of Highland University $200, for value received, and payable without defalcation or discount, and with interest payable semi-annually from date until paid at the rate of seven per cent, per annum, at Highland, Kansas ; and if the interest is not paid punctually when due, it shall become a part of the principal and bear interest at the same rate. This note is given for the endowment fund of Highland University. The interest only to be used for general expenses.”
On the back thereof is written :
“This note to be void unless the first $20,000 is secured by September 1, 1885. And if the school ever fails to go forward the principal reverts to the giver.”
The defendants’ answer contained: (1) A general denial; (2) a plea of the statute of limitations as to the interest due prior to the 1st day of June, 1889; (3) an allegation that the note was a donation given on a condition that $20,000 was to be raised by September 1, 1885, in good, valid subscriptions by solvent ■subscribers, and was given on the further’condition that if the university should fail to go forward the principal should revert to the giver; that said sum was not raised in the time specified, and that the university had failed to go forward as specified in said condition, and that by reason thereof said note had failed; (4) an allegation that the note sued on was obtained by the false representations made by ■one Duncan Brown, plaintiff’s duly authorized agent, as to subscriptions already made, and particularly the pretended subscription of one J. P. Johnson; that it was represented to the defendants that Johnson had proposed to subscribe on the same conditions $10,000 if the citizens of Highland and vicinity would subscribe a like $10,000, and that Johnson had not in fact subscribed $10,000 before September 1,1885, on like conditions, or subscribed $10,000 at all.
Plaintiff demurred to the plea of the statute of limitations, and its demurrer was sustained. Plaintiff filed a reply to the other counts of the defendants’ answer, which contained : (1) A general denial; (2) a special denial that there were any conditions attached to the note sued on except such as were set out in the note, and an allegation that they were complied with ; (3) the claim that no representations were made to the ■defendants to procure the note sued on herein ; that the defendants attached thereto such conditions as they saw fit and such conditions were generally understood among the donors to the said endowment fund, and that the defendants, with full knowledge of all the conditions that may have been attached to any subscription, executed the note without any reference thereto ; (4) an allegation that the defendants at the time they signed the note -were fully aware of the manner in which all subscriptions were made and the conditions thereto attached, and with full knowledge thereof executed the note sued on as well as the other donors executed theirs, and such other donors have largely paid their donations and interest thereon ; (5) an allegation that J. P. Johnson had not,-at the commencement of the suit or at any other time, availed himself of any conditions attached to his subscription, and that the conditions attached by Johnson were a part of the act incorporating the plaintiff. There was a trial to a jury on the issues thus joined and a judgment for the plaintiff on the note.
The burden being on the plaintiff to show that the conditions on which the note was to be valid had been performed, or had happened, it offered the oral evidence of Duncan Brown, who solicited the subscriptions, and who was at the time one of the trustees of the university and authorized by the board to solicit the donations, who testified that J. P. Johnson and Doctor G-anse, secretary of the board of aid for colleges of the Presbyterian church, had a conversation in which Johnson proposed to give the college $10,000 on the condition that the citizens of Highland and vicinity would give a like $10,000 to endow the first chair in the university; that the conversation was reduced to writing, a typewritten copy furnished to him, and that he had copied that in a little book of his own; that the same had been read, either from the typewritten copy or his book, at a public meeting, before he began taking subscriptions and before any notes were given ; that hé did not know whether the defendants were at the meeting where the proposition was read or not; and that he had procured subscriptions to the university amounting altogether to nearly $12,000. He was asked from whom he obtained these subscriptions, and he said he could only answer by reading a book which he held in his hand in which he had put it down in the ordinary course of subscriptions; that ! ‘ there was really no such • thing as a subscription — the idea that seems to be in the mind of some people ; that is to say, it was not a subscription paper which people sign their names to. ” He was then asked : “I am not asking you about who signed the paper ; I am asking you to give the amount that you obtained of the different parties as a subscription to this endowment fund ? ’ ’ The answer was, ‘ ‘ It depends upon what you mean by a subscription.” He was then asked to state the ámount that he had obtained, and to this he replied, “ I can give that by reading from this book. Do you want me to read from the book the names ? I have them here ; of course I could not remember them.” He was asked to look at the book to refresh his memory; and whether he had an independent recollection of each man’s subscription — the amount subscribed by different parties. To this the defendants objected, as being incompetent and irrelevant. The court inquired: “ These entries were made at the time these-promises were secured, were they?” To this the witness answered in the affirmative, and the objection was then overruled, and the defendants excepted. The witness proceeded to state the names-and amounts that he claimed had been subscribed to make up the $10,000 which was to meet a like subscription proposed by Johnson. During this statement he was frequently asked by plaintiffs’ counsel whether the amount-was in note or in cash. The objection was again renewed from time to time that this oral statement was not the best evidence. At the conclusion of this statement he was asked :
“ Q,. Did Mr. Johnson subscribe anything? A. Yes, sir.
“ Q. How much ? ” Objected to by the defendants as incompetent and not the best evidence.' This objection was overruled and excepted to. “A. $10,000.
“ Q,. Now, I will ask you whether or not these subscriptions were obtained before September 1, 1885 ? A. They were.
“ Q,. Where you have testified to notes having been given, do you know whether or not they were given to you individually for the university ? A. No, sir, not in every case.”
The plaintiff then called its treasurer and asked whether Mr. Gates fulfilled his subscription by cash or by note prior to September 1, 1885. This was objected to as incompetent, irrelevant, and not the best evidence. The objection was overruled and excepted to, and the witness answered that Mr. Gates gave a note. 'He then testified that a number of other subscribers gave notes, and that as to others he knew nothing. The plaintiff then rested its case.
At the conclusion of the plaintiff’s evidence, the defendants moved to strike out all of the oral testimony of Duncan Brown and Treasurer Allen as to the subscriptions being made to the endowment fund as a performance of the condition in the note, which motion was denied by the court, the defendants excepting. The defendants demurred to the evidence for the reason that it was not sufficient to establish a cause of action against them. This demurrer was overruled and an exception to that ruling allowed. It appears from the record that the subscription of Johnson alluded to was reduced to writing, and amounted to an agreement to pay to the university seven per cent, interest on $10,000 during the life of Johnson, and a promise that he would make provision that his executors should continue to pay interest or pay the principal sum to the trustees after his death ; or, if he had invested $10,000 himself from which to raise the interest, that he would direct his executors under his will to turn these securities over to the board of trustees of the college. So that in point of fact there was no subscription by Johnson of $10,000 to the university as an endowment, within the meaning of the understanding of the parties proposing to-, raise the fund of $20,000 therefor.
The first specification of error is that the court erred in sustaining the plaintiff’s demurrer to the second count of the defendants’ answer, pleading the statute of limitations as to the interest. It was the agreement that if the interest was not paid it should become a part of the principal and likewise draw interest. It seems to have been intended by the parties, that the makers might, at their option, pay the interest or not; and if they did not, that it became a part of the principal of the endowment and drew interest-thereafter. So that no cause of action therefor really accrued independent of the note itself. So long as. the note remained a valid cause of action, the interest likewise-followed it.
It is next claimed that the court erroneously overruled their demurrer to the plaintiff’s evidence. The ground on which this contention rests is that the evidence did not show that the condition on which the note was to be payable had happened or been performed, and that it did not show that the plaintiff' had accepted the promise by any act of its board of trustees or by any unequivocal act done by the plaintiff on the faith of his subscription, so that there was no consideration for the promise to pay on the part of the defendants. It is true there was no competent evidence to establish the happening of the condition precedent. The third contention is that the court erroneously admitted this evidence, and the fourth is that the court erroneously overruled their motion to strike it out. A .subsciiption, according to the books, is a written undertaking to donate or pay a sum of money for a particular purpose. It is disclosed by the record in this case that the contracts, so far as any were actually made, were in writing. The motion should have been sustained. It was error to admit the evidence as proof of subscriptions, and was likewise error to deny the motion of the defendants to strike it out. So that in fact there was no evidence from which the court could say that the condition on which the note was made payable had been performed, and it was error to overrule the defendants’ demurrer ■thereto. There was an entire absence of any proof of an acceptance by the plaintiff, either formally or by unequivocal act, such as is required by law. It is true the giving of a note, according to our statute, imports a good consideration therefor ; but it appearing from the evidence partially and from the note itself that the promise was a mere voluntary one, the presumption of a consideration was overcome.
In rebuttal, for the apparent purpose of attempting to show that the plaintiff had, relying upon this subscription, done something that would constitute a consideration for the promise to pay, the following question was asked of Duncan Brown, who was recalled on behalf of the plaintiff: “Did you intro duce any new branches in the college proper on the faith of these subscriptions?” The defendants objected to using the words, “ on the faith of these subscriptions,” as calling for a conclusion of the witness. This objection was overruled and an exception to the ruling saved. The answer was: “We employed a music teacher and additional help in the arts department.” Counsel for defendants concede that it was a proper question, in so far as it tended to show that the college had gone forward. The objection ought to have been sustained. The facts and circum- ■ stances attending the expenditure of money might have been proper to show that expense was incurred on the faith of the subscription, but it was not proper to permit the witness to say, as a conclusion, that it was done on the faith of the subscription. The same objection was made to like questions a number of times, which the court also overruled.
For the apparent purpose of attempting to show that the college had so far performed the conditions on which Johnson had agreed to pay interest on $10,000, in rebuttal the plaintiff propounded to the witness Brown this question : “Do you know whether the presbytery of Highland approved of the act of the legislature in transferring the control of Highland University to the synod of the old Presbyterian church of Kansas — do you know whether the presbytery took any action on it?” This was objected to as being incompetent and calling for a conclusion of the witness. The presbytery could only take action, as we all must know, in the ordinary mode in which a body of men assembled officially act. If there was no record of such action retained, then secondary evidence might be used, but it was incompetent to show by oral testimony what the presbytery had done with out first showing that its action had not been recorded, or that the record was inaccessible to the plaintiff. Again, it was asked of this witness: “After the action of the presbytery, I will ask you whether the synod of the old school of the Presbyterian church of Kansas took charge of Highland University?” This could only be done by act of the body of the presbytery assembled in the usual course, which must necessarily have been evidenced by writing of some character. .It was objected to as being incompetent and being founded oh evidence which had not been introduced. This objection was overruled, and the question was answered, “They did.” Then followed the question: “Do you know whether they took charge or not with the consent of the presbytery at Highland?” This was objected to-as being incompetent evidence, which objection was overruled, and excepted to by the defendants. The answer was, “Yes.” Then followed the question: “Did they take charge by consent of the presbytery at Highland?” This was objected to by the defendants as being incompetent and not the best evidence. ' This objection was overruled, and excepted to by the defendants, and the question ■ was answered, “Yes.” The presbytery at Highland could only consent by action taken at a meeting of that body, evidenced by a record of their action.
The sixth assignment of error is that the court refused to give to the jury the instructions requested by the defendants numbered 6, 8, and 9. The sixth request was as follows :
“The jury are instructed that if they find from the evidence that the note sued on was executed to plaintiff on the promise and agreement made with them that the note of one John P. Johnson should be of the same tenor and effect, and with only like conditions as the note sued on, and the subscription of John P. Johnson was necessary to complete the endowment of $20,000, the jury will return a verdict for the defendants.”
It is claimed that Johnson gave no note whatever or that he gave no obligation to pay $10,000 at any time, except as hereinbefore stated. It is clear from the record, as well as from the note itself, that the proposed payment of $200 by the defendants was a conditional promise, conditioned on the subscription of full $20,000 to endow the first chair of the university. If, at the time these subscriptions purported to be made, they were for any reason not valid and binding subscriptions to pay money for the endowment of the chair, the defendants would not be held on their promise. This is the purport of the instruction requested and it should have been given. It is likewise true that if a part of the subscription for the enterprise failed by the act or neglect of the plaintiff, or the purpose for which the defendants proposed to pay the $200 failed by reason of the act and neglect of the plaintiff, it could not enforce payment from the defendants.
The eighth request was as follows :
“The jury are instructed that the subscription of J. P. Johnson depended for its validity upon the conditions therein named, and unless the Highland University Company complied with the conditions therein named said J. P. Johnson could avail himself to defeat the collection of his subscription.”
This instruction should have been given to the jury.
The ninth request was as follows :
“ Where a subscription is made as a donation, as ini this case, by one, on the promise that others shall, make like donations, the consideration of an instrument so executed and its validity depend upon the completion of the subscriptions in the amount and character contemplated. And if the jury find from the evidence that the defendants executed the note sued on as a donation to the endowment fund of the Highland University in the sum of $20,000, the balance of said subscription to be made by others, and with like binding effect, and the jury find from the evidence that other subscriptions of like effect necessary to make up said'subscription of $20,000 by September 1, 1885, were not made, they, the jury, are instructed that the consideration of the note sued on had wholly failed, and the jury will return a verdict for the defendants.”
This should have been given to the jury in connection with the eighth request. (24 A. & E. Encycl. of L. 328-331, and note 3 on p. 331 and cases there cited; The University of Des Moines v. Livingston, Administrator , 65 Iowa, 202, 21 N. W. 564.)
The seventh assignment of error is that the court erroneously instructed" the jury in its eighth, ninth and tenth instructions. The eighth instruction was as follows :
“You are further instructed, that the condition in regard to the school going forward does not mean that the school shall improve, either in regard to attendance of scholars, the buildings, or higher discipline and scholarship, but simply that the school shall continue to be carried on in a reasonably successful manner.”
The contention is over the clause in the note which provides that in case the school ever fails to go forward the principal reverts to the giver. The construction of the court, on the face of the note and the surrounding circumstances at the time of its execution, seems to be the correct one. The note never became valid unless the chair was permanently endowed by the securing of $20,000 as proposed. This condition nec essarily involves the prior happening of the former one; and further, that the money shall have been paid by the defendants ; and the provision means, as the court fairly construed it to mean, that the fund should not be used for any other purpose than the endowment of the chair in the university as a university. When it ceased to be so used it reverted to the donor, who necessarily must theretofore have paid the same.
The ninth instruction complained of was as follows :
“The court further instructs you, that if the defendants knew that one John P. Johnson had made a proposition to the plaintiff that if the people in Highland and vicinity would donate $10,000 toward the endowment of a chair in Highland University without inquiring as to whether any conditions were attached to said Johnson’s offer, agreed to subscribe $200, then they would become privy to the offer of said Johnson, and all conditions thereto attached, and could not complain of the same and offer any of the conditions as a defense unless the same was misrepresented by plaintiff’s agent and he was misled thereby.”
This instruction is not applicable to the facts in the case. There is no contention but that this subscription by the defendants was conditioned upon the raising of $20,000, and the contention is that the Johnson subscription is a valid subscription and a part thereof. It was competent for the defendants to show that the consideration to them had failed by showing that Johnson’s subscription was an invalid one, and was in fact no subscription at all. And it is further undisputed that the defendants at the time they made the subscription knew nothing about the conditions of Johnson’s offer except what was disclosed to-them by Duncan Brown. The court committed error in giving this instruction.
The tenth instruction complained of was as follows
“ The court further instructs the jury, that the fact of the defendants subscribing $200 to the endowment fund makes them privy to J. P. Johnson’s offer if they were fully conversant with its terms, and they cannot be heard to say that said Johnson was to execute a note similar to the one sued on, as the Johnson offer as known to them contained the terms thereof.”
The same remarks apply to this instruction as were applied to the ninth. It might be further pertinent to say that it is not disclosed anywhere in the record, save by one finding by the jury, which is unsupported by the evidence, that the defendants knew of the conditions attached by Johnson under his alleged subscription. Indeed, it is conceded that the contract of Johnson was not made and was not known until long avfter the defendants’ note was given.
By the eighth assignment of error the defendants complain that the court refused to submit to the jury certain special findings requested by them. The first request complained of was the following : “ Did said John P. Johnson, about June 1, 1885, execute and deliver to the plaintiff his subscription of $10,000 in writing to said endowment fund with other additional and different conditions?” There was no question about this. It was unnecessary to submit the question to the jury.
The seventh special finding requested was: “How many professorship chairs have been endowed in said university?” The purpose of this was to show the invalidity of Johnson’s subscription, and was proper to be submitted to the jury. The same remarks apply to the eighth request, as to whether additional chairs had been established as provided by the Johnson subscription. The same remarks apply to the ninth and tenth. The twelfth was immaterial. There was no question but that the fund, so far as it had been paid in by subscribers, was being used in the manner contemplated by the donors. The fourteenth was not a proper finding to be submitted. The fifteenth request should have been submitted to the jury, as it was intended to call the-jury’s attention to the fact as to whether Johnson’s subscription was a valid subscription or not. The validity depended on the fact inquired about in this request. The sixteenth is the same in substance, and should have been given.
The seventeenth was a broad interrogatory as to whether the conditions on which Johnson proposed to pay the interest on $10,000 as a part of the endowment fund, according to the terms of his written obligation, had been complied with by the university. Whether the conduct of the university had rendered the half of the subscription invalid within the time which the defendants took to pay their donation, and by reason of that act the object or purpose of the donation had become ineffectual, or had failed, was an important question to be decided in the case. The request should have been granted.
The ninth contention is that the court erred in overruling the motion of the defendants for judgment on the findings of fact. The findings of fact were not sufficient to entitle either party to a judgment thereon irrespective of the general'verdict. The motion was properly denied. The tenth assignment of error is that the court erred in refusing to set aside the verdict and special findings of the jury and grant a new trial. For the reasons hereinbefore stated a new trial should have been granted, and it was error to deny the motion. Some of the important special findings are without evidence to support them.
The judgment of the district court is reversed, and the case remanded with directions to the court to sustain the defendants’ motion for a new trial.
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The opinion of the court was delivered by
Schoonover, J.:
In this opinion we have quoted' at length the language of learned counsel in their carefully prepared briefs.
This action was brought-in the court below by the plaintiff in error, as receiver of the Wichita & Western Railway Company, against J. H. Williamson, as sheriff of Pratt county, the officers of that county, the trustee of Saratoga township in that county, and the Investment Guaranty Trust Company, Limited, to enjoin the defendants from levying a certain tax warrant in the hands of the sheriff on the property of the Wichita & Western Railway Company in the hands of J. PI, Mclntire, .receiver, and particularly from selling certain locomotives and other personal property of the railway company, located in Cullison, Pratt county, to satisfy said warrant.
It appears that on and prior to June 24, 1889, the Kingman, Pratt & Western Railroad Company owned and operated a line of railroad from Kingman to the western line of Kiowa county, Kansas, passing through the city of Saratoga and the county and city of Pratt. The Wichita & Western Railroad Company owned and operated a line of railroad from Wichita to King-man. On June'24, 1889, the two railroad companies were duly consolidated and merged into the Wichita & Western Railway Company, which succeeded to all the rights, property and liabilities of the two railroad companies. On July 1, 1886, the city of Saratoga issued its bonds for $12,000, bearing interest .at six per cent, per annum, payable semi-annually. The Investment Guaranty Trust Company, Limited, defendant, is, and has been since January 1, 1887, the owner of said bonds. The city of Saratoga paid interest on the bonds until about July 1, 1888, but nothing since of interest or principal. In 1889 the trust company recovered judgment, against the city of Saratoga for $195, interest then due. In 1891 the trust company recovered judgment against the city of Saratoga for $1945, interest then due.
In October, 1893, the Investment Guaranty Trust Company obtained a judgment and decree of mandamus' in the Pratt county district court against the mayor and councilmen of the city of Saratoga, and their successors in office, commanding the levy of a tax of 150 mills on the dollar of the taxable property in the city of Saratoga for the payment of the judgment. Prom 1884 to 1887 the city of Saratoga had grown to be a city of 1200 to 1500 inhabitants and had a large number of substantial buildings and business blocks. In 1887 the city began to decline. Many of the inhabitants and owners of real property removed from and abandoned the city, and many of the buildings and much personal property were removed from its limits, so that in April, 1893, no election for mayor and councilmen was held. Luring the year 1893, a majority of the councilmen elected in 1892 or before that date had moved from the city, so that in 1894, up to April 1, there were no councilmen in the city and no meetings of the mayor and council. In 1892, or before that time, W. H. Richardson was elected and qualified as mayor, and úp to April 1,1894, no successor had been elected, but he had removed from the corporate limits and in 1894 was not a resident of the city. ■
In 1894, on the day prescribed by law for holding the regular annual election in cities of the third class, thirteen persons, male and female, held an election for mayor and councilmen. On the same day the vote was canvassed, and certain persons were declared elected to the various .city offices, who qualified before a notary public, organized, appointed a clerk, and passed an ordinance levying 105 mills tax to pay a judgment of record in the district court .of Pratt county against the city of Saratoga and in favor of the Investment Guaranty Trust Company, and a tax of five mills to pay interest due and accruing on bonds. This ordinance was passed on the night of the election.
On April 23, 1894, there was held in the city of Saratoga an election dissolving the city as a body corporate and remitting it to the condition of a part of the township of Saratoga. Thereafter the township trustee made an additional levy on all property within the limits of Saratoga to pay a judgment against the city. On the 6th day of August, 1894, the county clerk of Pratt county made a levy of 0f a mill to cover a delinquency in the payment of state taxes for 1893, this tax being intended against all the property. A temporary injunction was granted, which upon final hearing was dissolved. The case is here as one belonging to the excepted class. The first assignment of error is “that the court erred in holding the mill state deficiency tax constitutional; that under the constitution the legislature should have levied a uniform tax on all property in the state to meet the deficits in the various counties in the state.”
The question presented under this assignment may be stated thus : A. pays his tax in Pratt county ; there are a large number of delinquents ; the state tax is deficient; a levy of mill on the dollar is made in addition to the' regular levy for state purposes. Is the property of A. subjected to such higher rate of taxation than the property of citizens of other counties in the state by reason of the delinquents in Pratt county as to be in violation of section 1, article 11, of the constitution, which provides that “the legislature shall provide a uniform and equal rate of assessment and taxation,” and of section 3, article 11, of the constitution, which provides “ that the legislature shall pro vide at each regular session for raising sufficient revenue to defray the current expenses of the state for two years”?
To provide a uniform and equal rate of assessment and taxation is an unsettled question. No state pretends to have attained perfection. The wisdom of many provisions of our law relating to this important matter may be questioned, but our system of assessment and taxation, if faithfully administered, is the equal of any devised and approved by legislative authority in this country. We shall not attempt to review the system in this opinion. It is not contended that the general assessment in the first instance is not uniform. The additional levy made on all property in the county for the payment of the delinquent tax is complained of. For convenience and economy the state is divided into taxing districts, each county constituting a district. Section 182, chapter 158, General Statutes of 1897 (Gen. Stat. 1889, ¶6951), provides :
“ Each county is responsible to the state for the full amount of taxes levied by law for state and other purposes, excepting such amount as is certified by the board of county commissioners and attested by the county clerk to be double or erroneous assessments, or returned by the sheriff £ not found,’ and £ no property,’ which certified amount shall be credited to the county by the auditor and treasurer of state.”
It is further provided, by sections 224 and 225, chapter 158, General Statutes of 1897 (Gen. Stat. 1889, ¶ ¶ 7023, 7024) :
“ The auditor of state shall on the fourth Monday in July report to the county clerk of each county any balances then due from such county on such delinquent taxes, and the county clerk shall then determine the rate per cent, necessary to raise the said amount, and shall place the same upon the tax-roll in addition to the rate required to raise the amount of state tax for the current year; provided, that the ..additional levy herein provided for shall never exceed one-half mill, and shall be continued each year until the amount of delinquent tax of such county is fully paid.
“ 225. If after the settlement by the county treasurer of any county in November of each year, as provided in section 99, chapter 34, of the Session Laws of 1876, there shall remain due from such county any such portion of the state tax levied for the preceding year, the auditor of state, on the second Monday of July in each year succeeding the said November settlement, shall report to the county clerk of such county the amount of such unpaid tax, and the county clerk shall determine the rate per cent, necessary' to raise the said amount, and shall place the same on the tax-roll in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury, as are other state taxes.”
These sections fix the liability of the county and furnish authority for the levy in this'case,,. We see no good reason for declaring this deficiency tax unconstitutional. The method of assessment as provided by law is uniform, the method of levying the tax on the assessments made is uniform, the penalties for the non-payment of taxes are uniform, and the method of collecting the tax is uniform, but to insure absolute uniformity in the payment of taxes is not within the constitutional requirement. All the legislature can do is to adopt such a method of collection of taxes and penalties for non-payment as.will insure approximate 'uniformity in payment. It appears to us just to hold responsible, so far as possible, each taxing district for any delinquency occurring therein, and especially to the limit' of one-half mill prescribed by the present law. This limitation is uniform and equal and makes even the payment of taxes approximately so. It carries the taxing districts over until a new assessment and equalization of valuation again put several counties and the different classes of property on.an equality, while the district is incited to greater diligence and effort in collection of its taxes.
. The prompt taxpayer is protected, by his discount and by the .penalties imposed and the high rate of interest charged against the property of the delinquent, which when collected even up the deficiencies, and by prescribing one-half mill per annum as the limit of the deficiency for which he shall be assessed.
It is further contended that four per cent, is the limit of the levy which could be, made by the mayor and councilmen of the city of Saratoga, a city of the third class, for the year 1894, under the following provisions. Sections 81 and 75, chapter 38, General Statutes of 1897 (Gen. Stat. 1889, ¶ ¶964, 965), provide :
“81. The city council are authorized and required to levy annually taxes on all the taxable property within the city, in addition to other taxes, and in sufficient amount, for the purpose of paying the interest and coupons as they become due on all bonds of the city now issued or hereafter to be issued by the city, which taxes shall be payable only in cash.”
“ 75. At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city, as shown by the assessment books of the preceding year.”
In construing these sections, we conclude that section 75 is a limitation on and not an exception to section 81. The city council are authorized and required to levy a tax for the purpose of paying interest and coupons, but all taxes levied in each year by the city council shall not exceed four per cent, of the taxable property within the city.
The plaintiff in error, having made no payment or tender of that portion of the tax levied by the township trustee, and having made no payment or tender of the city tax up to the four-per-cent, limitation, is' not entitled to an injunction. (Bank of Garnett v. Ferris, 55 Kan. 120, 39 Pac. 1042; Wilson, Treasurer, v. Longendyke, 32 id. 267; Gulf Railway Co. v. Morris, 7 id. 210.)
It is further contended that the election held in the city of Saratoga in April, 1894, was not a valid election, and that the officers elected, or who assumed to act, had no authority to pass the ordinance levying a portion of the tax complained of. We have examined the record, and,comment on the proceedings is unnecessary. We conclude from the evidence that the findings of the trial court are sustained, and that the election was legal, and the ordinance levying the tax legally passed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
In the district court of Edwards county, the plaintiff in error was adjudged to be the father of the illegitimate child of the complaining witness and ordered to pay the sum of fifty dollars annually for its support for a period of twelve years, and costs of suit. The prosecuting witness testified that the first intercourse took place about the 15th of July. The plaintiff in error testified that the first intercourse took place on August 3. The plaintiff in error doubted his paternity of the unborn child and the chastity of the witness at the time of his first connection with her. Plaintiff in error proposed that witness be examined by a competent physician and, if the examination disclosed that her pregnancy was of not more than four months’ duration, he would regard himself as the author of the girl’s trouble and would marry her. The offer was finally accepted, and Doctor Pearson, a reputable practicing physician, was agreed on to make the examination. The examination was made, and, in the judgment of the examining physician, it disclosed that the pregnancy was more than six months advanced. On the trial of the case, Doctor Pearson testified as to the result of the examination, but the trial court refused to permit him to testify that during the examination the complaining witness stated to him that the first connection took place, as stated by defendant, on August 3. The refusal of the trial court to admit this testimony is the first error assigned.
The evidence was excluded on the theory that it was a confidential communication, and therefore incompetent. Paragraph 4418, General Statutes of 1889 (Gen. Stat. 1897, ch. 95, § 334), provides: “The following persons shall be incompetent to testify: A physician or surgeon, concerning any communication made to him by his patient with reference to any physical disease, or any knowledge obtained by a personal examination of such patient.’’ The provisions of this section cannot be construed to cover the facts as disclosed by the record in this case. Doctor Pearson was not present as the physician of the complaining witness; she was not his patient; the examination was not made for the pur pose of treating her for any physical or supposed physical disease. She agreed and submitted to the examination for the sole purpose of satisfying the plaintiff in error as to whether he was the father of the child. She knew that the result of the examination was to be made known to her parents and to the plaintiff in error, before she submitted to it. Under such circumstances, statements made by her to the physician during the examination as to the time when the first connection took place cannot be regarded as confidential. (K. C. Ft. S. & M. Rld. Co. v. Murray, 55 Kan. 336; People v. Cole, 71 N. W. 455.)
In the case of Nesbit v. The People, 19 Colo. 441, 36 Pac. 221, it is said:
“ The testimony of Doctor Eskridge was further objected to on the ground that his consultation with the accused was professional and confidential, and that any communication made by the accused, and any information gained by the physician in the course of such consultation, were privileged, and could not be divulged without the consent of his patient, the defendant. This ground of objection is not sustained by' the record. The consultation was mutual, ^not confidential. It was not secured by the accused in his own behalf and for his own sake alone. It was agreed to between the prosecution and the defendant for the express purpose of enabling the physician to testify as to defendant’s mental condition. It cannot be that defendant could seek and obtain such an examination at the hands of the court, and with the consent of the prosecution, with the privilege of introducing the testimony if the result of the examination should be favorable to him, and yet reserve to himself the power of excluding the testimony if it should be unfavorable. The objection to the admissibility of the testimony was properly overruled. Its weight was for the jury, to be considered in connection with other testimony upon the same subject.”
Under the circumstances, the statements made by the relatrix, during the examination, to the physician were competent. Several errors are assigned, but for reasons given the judgment of the district court is reversed and a new trial ordered.
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The opinion of the court was delivered by
McElroy, J.:
On October 14, 1897, there was filed with the police judge of the city of Topeka a complaint charging “that the defendant, Frank Raynor, in a certain one-story frame building at house No. 420, on West Curtis street, in the city of Topeka, Shawnee county, Kansas, on the 14th day of October, 1897, did then and there wrongfully and unlawfully keep and maintain a place where whisky, lager beer and other intoxicating liquors were kept for sale, barter, and delivery, and permitted persons to resort to such place for the purpose of drinking intoxicating liquors as a beverage, without first taking out and having a permit therefor, in violation of ordinance No. 1909 of the city of Topeka.” Thereupon a warrant was issued and the defendant arrested and brought into court. A trial was had in the police court and the defendant found guilty. He appealed to the district court.
When the case was called for trial in the district court the defendant moved to quash the. complaint. This motion was overruled, to which ruling the defendant excepted. A trial was had before the court and a jury, and the defendant was found guilty. A motion in arrest of judgment and for a new trial was filed and overruled. The court passed sentence on the defendant that he pay a fine of $150 and the costs of the proceedings, and that he be imprisoned in the city prison of the city of Topeka for thirty days. He presents the record to this court for review, and alleges error in the proceedings of the trial court, first, in overruling his motion to quash the complaint. Under this assignment of error, the complaint is made thát the ordinance under which the defendant was prosecuted and convicted is unconstitutional, for the reason that the title is not broad enough to cover section 3 of the ordinance in question. The defendant was prosecuted under section 1 of the ordinance. The title and section 1 read :
“An Ordinance defining and relating to common nuisances, and providing for the abatement of the same.
1 ‘ Section 1. All places in the city of Topeka where intoxicating liquors are sold, bartered or given away in violation of any of the provisions of this ordinance, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this ordinance, are hereby declared to be common nuisances, and upon the judgment of the police judge finding such places to be a nuisance under this ordinance the chief of police.of the city of Topeka shall be directed to shut up and abate such places, by taking possession thereof and by taking possession of all such intoxicating liquors, together with all signs, screens, bars, bottles, glasses and other property used in keeping and maintaining such nuisance, and such personal property so taken possession of shall be forthwith publicly destroyed by such officer, and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than $100, nor more than $500, and by imprisonment in the city jail not less than thirty days nor more than ninety days.”
This is the section under which the defendant was charged and convicted. The defendant was not prosecuted under section 3 of the ordinance. The title of the ordinance may, or may not, be sufficiently broad to include the provisions of section 3. We will not examine that question until it is properly presented for the consideration of the court.
The contention is next made that section 2 of the ordinance, providing for a search and seizure, is unconstitutional and void for certain reasons. The record fails to show that in this proceeding the defendant’s premises were searched, or that any property was seized. The return of the officer simply shows that he executed the warrant by arresting Frank Raynor, whose body the officer returned into court. The validity of section 2 of the ordinance is not brought in question by this proceeding.
It is further contended that that part of section 1 of the ordinance which provides that “All places where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage are common nuisances,” is in violation of sections 1 and 15 of the bill of rights. The complaint appears to have been verified by the oath of complainant. This was sufficient to authorize the issuance of a warrant. The city of Topeka is a city of the first class, and cities of the first class are authorized and empowered by statute to pass ordinances to suppress common nuisances. The provisions of our statute on this subject are as follows :
“The mayor and council shall have the care, management and control of the city and its property and finances, and shall have power to enact ordinances for the purposes hereinafter named, not repugnant to the constitution and laws of this state, and such ordinances to alter, modify and repeal; and shall have power— . . .
“Eleventh. To make regulations to secure the general health of the city; to prevent and remove nuisances . . .”
“Twenty-eighth. To prohibit and suppress tippling shops, saloons, dram-shops, club rooms, to restrain, prohibit and suppress slaughter-houses, houses of prostitution, disreputable houses, games and gambling houses, dance houses, keno rooms, desecration of the Sabbath day, and all kinds of indecency and other disorderly practices, disturbance of the peace, assault and battery, petit larceny, and' to provide for the punishment thereof.”
“Thirty-third. To make all needful police regulations necessary for the preservation, good order and peace of the city, and to prevent injury to or destruction or interference with public or private property.” (Gen. Stat. 1897, ch. 32, § 88 ; Gfen. Stat. 1889, ¶555.)
The fact that the legislature has empowered the state to suppress saloons and tippling shops as nuisances nowise lessens the power of the state to authorize cities to pass ordinances for the same purpose. A city may pass an ordinance making the same transaction an offense that is a crime under the statute. (Rice v. The State of Kansas, 3 Kan. 141; City of Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113.) In In re Thomas, Petitioner, 53 Kan. 659, 37 Pac. 171, the court said : ‘ ‘ The fact that the state by its legislature has made provision prohibiting and restricting the liquor traffic does not prevent municipalities from enacting provisions for the control of the traffic within the limits of the same.” It is apparent to us that a city of the first class in this state is acting within the constitution and laws in the passage of an ordinance declaring the place where intoxicating 'liquors are sold, bartered, or given away, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter, or delivery, a common nuisance.
It is next contended that the complaint does not specifically state what kind of intoxicating liquors were sold or drunk as a beverage. The complaint reads : “Did then and there wrongfully and unlawfully keep and maintain a place where whisky, lager beer and other intoxicating liquors were kept for sale.” The evidence shows that both whisky and beer were kept for sale and sold for drinking as a beverage on defendant’s premises. There was no motion by defendant that the city be required to make its complaint more definite and certain in this regard. We think that, in the absence of any attack made on the complaint, it was sufficiently definite and certain in describing the kinds of liquor.
Complaint is further made that the defendant was forced to trial on a complaint and warrant that were not certified to as the original complaint and warrant. No such objection was made in the trial court. The record shows that the defendant objected “because, the complaint and warrant were not certified prior to the first day of this term.” To support this contention, we are referred to The State v. Anderson, 17 Kan. 89. That was an appeal from a conviction in justice’s court, the justice, instead of certifying the original complaint, sending to the district court a certified copy. When the case was called for trial the defendant objected to a trial on such copy. The supreme court held that the trial court erred in requiring the defendant to go to trial on such certified copy. In the case at bar, it appears beyond any question that the complaint and warrant on which the defendant was tried were the original ones. The record shows that “on the 18th day of October, 1897, there was filed in the office of the clerk of the district court a complaint and warrant and the transcript from the police judge.” The caption of the complaint reads : “‘Before the police judge of the city of Topeka,” and concludes : “ Subscribed and sworn to before me, this 14th day of October, 1897. —Wm. E. Atchison, Police Judge.” _ The warrant contains the same evidence of being the original. We think it affirmatively appears from the record that the defendant was tried on the original complaint and warrant. It is not necessary that any certificate should appear on the complaint. The complaint and warrant may have been properly certified as being the originals, for anything that appears in the record. The record does not purport to contain all of the proceedings had by and before the police judge.
The second assignment of error is that the court erred in instructing the jury that “any person who keeps or maintains or aids or assists in keeping and maintaining such a place shall upon conviction therefor be punished by a fine in the sum of not less than $100 nor more than $500, or by imprisonment in the city jail not less than thirty days nor .more than six months.” The particular complaint urged against this instruction is that the court used the disjunctive conjunction “or” instead of the copulative conjunction “and.” The court was not required to inform the jury as to what punishment could be meted out to the defendant in case he should be found guilty, and a misdirection in this regard cannot affect the substantial rights of the defendant. Under the evidence disclosed by the record, there was but one verdict which could be returned by the jury. The jury could not have been misled by this instruction. If it was error, it was immaterial error.
There are other formal assignments of error, but they are not argued. It follows from what we have said that the court properly overruled the defendant’s motion for a new trial and in arrest of judgment. There was no substantial error committed at the trial on which to predicate a motion for a new trial. The judgment must be affirmed.
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The opinion of the court was delivered by
Wells, J.:
This action was begun in the district court of Brown county on December 16, 1895, by Charles Sutheimer. The petition alleged the ownership in plaintiff of certain personal property therein described, of the aggregate value of $250; that the defendant M. B. Goodwin unlawfully took and detained the same, to the damage of the plaintiff in the sum of $100; that a demand had been made for the possession of said property and its return refused; .and praying judgment for the return of the property, or its value, and damages. To this petition the defendant answered by a general denial. On the issues thus joined a trial ivas had to the court and a jury. At the close of the evidence the court instructed the jury that under the law and the evidence the plaintiff was entitled to recover the property, or the value thereof in case a return could not be had, and all that remained for them to do was to determine the value of the property. This was found by the jury to be $201. There also appear in the case certain special questions of fact and answers thereto, but how the same came to be submitted, if they were submitted, does not appear. On this verdict and the answers to the special questions of fact, judgment was rendered for the plaintiff against the defendant, and to reverse this the matter is brought to this court by proceedings in error.
The first question raised by the plaintiff in error seems to be whether a party can recover exempt property from an officer who took the same under some mesne or final process without filing the affidavit and giving the bond required by sections 177 and 178 of the code (Gen. Stat. 1889, ¶ ¶ 4259, 4260, 4261, Gen. Stat. 1897, ch. 95, §§177, 178), and to sustain the negative of this question we are referred to Blair v. Shew, 24 Kan. 280, and McGlothlin v. Madden, 16 Kan. 466. Án examination of these cases shows that in each the right to the property was founded exclusively on the supposed invalidity of the proceedings under which they were held by the officer, the court in the first case cited using this language :
“The question.now under consideration is whether replevin will lie to recover from an officer property which was taken by virtue of an irregular or void levy of process, merely because of the irregularity of the levy. The question whether the property is exempt or not does not enter into this present question.”
We have no doubt but that under our code of civil procedure the plaintiff may institute an action for the recovery of specific personal property, or the value thereof, and damages for the unlawful detention of the same, without securing the immediate delivery thereof, as provided in sections 176, 177, and 178, and subsequent sections of that article. The plaintiff has the right to immediate possession under the conditions therein prescribed, but he is not required to assert said right, but may rely on an ordinary civil action to furnish the desired relief, and that is what the plaintiff in this case seems to have done.
The only other question necessary to be considered in this case is, Was the court justified under the evidence in instructing the jury to return a verdict for the plaintiff? At the trial the plaintiff offered evidence tending to sustain the allegations of his petition and rested. Thereupon the defendant offered his evidence evidently tending to show that he held the property by virtue of a levy under a legal attachment. This evidence consisted of the transcripts from the dockets and files of the justice of the peace before whom the case had been pending and under which the authority of the defendant was claimed, and other evidence, but no copy of any order of attachment appears in the record, nor any positive statement in the transcript or elsewhere that one was issued. There was evidence of an inventory and appraisement under some order of attachment, but there is nothing that would justify a court in holding that the property was in the legal possession of the defendant, or that the attachment, if one was issued, did not appear to be void on its face. This being true, the judgment could not have been otherwise than it was.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by plaintiff in error, Green, against J. H. Keller and Luther Keeney to recover on two promissory notes. For his first cause of action the plaintiff alleged that on the 19th day of February, 1889, Franklin Sloyer and J. M. Sloyer made, executed and delivered- their certain promissory note in writing to Luther Keeney, whereby they promised to pay to Luther Keeney or order, on December 1, 1889, the sum of $262.50, with interest; that before" maturity J. PI. Keller guaranteed the payment of the note by his indorsement on the back thereof ; that Luther Keeney, for value, indorsed, assigned and sold the note to plaintiff before maturity ; and that there is due plaintiff from J. H. Keller on the nóte the sum of fifty-five dollars, with interest. Wherefore plaintiff■ prayed judgment in the sum of fifty-five dollars, with interest.
For his second cause of action the plaintiff alleged that on the 19th day of February, 1889, Franklin Sloyer and J. M. Sloyer made, executed and delivered their certain promissory note in writing to Luther Keeney, whereby they promised to pay to Luther Keeney or order, on January 1, 1890, the sum of $262.50, with interest; that afterward, and before maturity of the note, for a valuable consideration, J. H. Keller guaranteed the payment thereof by his indorsement on the back of the note ; that Luther Keeney, for value, indorsed, assigned and sold the note to plaintiff before maturity; that no part of the note had been paid, and that the same was due and payable ; and that at maturity the note was duly protested for non-payment, and there was written across the face of the note, “Protested for non-payment January 4, 1889." Wherefore plaintiff prayed judgment in the sum of $262.50, with interest.
The defendant Keller's answer was in substance : (1) A general denial; (2) a specific denial that he guaranteed the payment of the notes, or either of them, and a denial that plaintiff was the owner of the note set out in the second cause of action; (3) a denial that payment of the note was demanded at maturity, that the note was protested, or that notice of protest was served on the defendant; (4) an allegation that defendant, at the request of plaintiff, without consideration, indorsed the notes for the purpose of enabling him to use them as collateral security.
The plaintiff filed a reply in substance : (1) A general denial; (2) a reaffirmance of demand, protest, and notice, and an averment that protest and notice of non-payment were unnecessary to fix the defendant J. H. Keller’s liability. A trial was had before the court and jury, which resulted in a judgment for the defendant and against the plaintiff. Motion for a new trial was filed and overruled, and the case is presented to this court for review.
The plaintiff in error contends that the court erred in sustaining the demurrer of the defendant J. H. Keller and in taking the case from the jury, and that the court erred also in overruling and denying plaintiff’s motion for a new trial. From the record, it appears that the notes in suit were each dated “ Holton, Kans., February 19th, 1889,” and were executed by Franklin Sloyer and J. M. Sloyer as makers, payable to the order of Luther Keeney, each for the sum of $262.50. One of the notes was payable December 1, 1889, and the other was payable January 1, 1890. Each note was indorsed on the back as follows: “Luther Keeney; J. H. Keller.” These notes were sold by Luther Keeney to K. C. Green before maturity. At the time of the sale of the notes, and before delivery, both of the foregoing indorsements were made on the notes. The plaintiff offered the following testimony, which was all the evidence offered on the trial of the case, and rested :
“Q,. You are the plaintiff in this case? A. Yes, sir.
“Q. State to the jury how you came into the ownership of these notes in controversy. A. Luther Keeney came to my brother’s store in the morning of the day that I bought these notes and asked me if I would buy two notes, amounting to $525, on Sloyers. He told me of the security on the notes, the rent and chattel-mortgage security. I told him I did not care to buy the notes under that security ; that I did not consider it ample. He went away, but during the afternoon he came again and asked me if I would buy those notes if J. H. Keller would guarantee the payment of them. I told him I would. He went away and returned with the notes signed by himself and Mr. Keller, and I bought the notes and paid for them.”
Cross-examination: ‘‘Q,. Mr. Green, did you have any conversation with Keller at all about these notes before you purchased them? A. I did not.
‘‘Q. Didn’t your brother have something to do with the purchase of these notes in some way? A. Not that I know of ; not at my solicitation.
“ Q,. Were you not in Mr. Keller’s office on the day that you purchased these notes? A. No, sir.
“Q,. Were you not there afterwards and brought with you. these notes? Did you not, after you purchased these notes, take them to Judge Keller’s office —right shortly afterwards? A. No, sir.
“ Q,. What did you do with the notes when you got them? A. I kept them in my pocket; they were in my possession all the time. Never was out of my hands until they were placed for collection.
“Q,. Where were they placed for collection? A. With Keller and Noble.
“Q. Did you have any conversation with Mr. Keller about the security on these notes before Mr. Keller wrote his name on there?”
The plaintiff in error contends that J. H. Keller was not an indorser but a guarantor of the notes. Within the authority of Cornett v. Hafer, 43 Kan. 60, 22 Pac. 1015, Keller was not a guarantor but an indorser, and as such he was entitled to all the rights and privileges of an indorser and subject to all of the obligations and burdens of an ordinary indorser. In order to fix the liability of an ordinary indorser of a promissory note, there must be a legal presentment, demand on the maker for payment, and, if payment is not made, there must be protest and notice of nonpayment. The plaintiff in error contends that for” the reason that Keller had the notes before and at maturity for collection, and advised the plaintiff in error, therefore no formal protest or notice was necessary to fix his liability thereon as an indorser. A sufficient answer to this argument is that there is no evidence in the record that the notes or either of them were in Keller’s hands for collection at the time of the maturity thereof. Such fact is, however, alleged in the petition, but it is denied in the answer. In the absence of evidence, the court and jury could not assume that Keller had the notes for collection before maturity. There was no evidence offered at the trial of a demand, protest, or notice, nor of a waiver thereof ; therefore the court properly sustained the demurrer to the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Wells, J.:
This action was originally brought in. the district court of Logan county by Rowley against. Wilkinson, to recover the possession of certain lands, in that county. The defendant filed a general denial,, and on the issues thus formed a trial was had, judgment rendered and set aside, and a second trial granted. A second trial was had to the court, which resulted in a judgment for the defendant for costs. The matter is brought here for review.
The undisputed evidence in this case shows that the plaintiff is the owner of the land in question and entitled to the possession, unless the title was transferred to the defendant by his tax deed, which was based on a sale for the taxes for the year 1892. Luring the season of 1892, Louis Burk, who took the assignment from the county of the certificate on which the tax deed was founded, cultivated a portion of the land under an agreement made between the plaintiff and James Neil that said Louis Burk and James Neil should have the use of the land and should pay the taxes thereon. Louis Burk denies that he agreed to pay any taxes, but admits that he worked the land under a lease from Neil but paid nothing therefor... He also admits that he exercised authority over the land, in the interest of the owner, as late as 1894. "We do not think a valid tax deed can come through such a channel. In Duffit v. Tuhan, 28 Kan. 293, the principle was announced that where a person, with the consent of the owner of- real estate, but without any agreement as to the payment of rent or taxes, goes into possession thereof and receives all the benefits, without paying or offering to pay rent therefor, such person cannot divest" the owner of the title to the property by purchasing it at a tax sale for taxes levied and payable while he was in the actual occupancy thereof. This is eminently correct and just, and compels a reversal of this case. From the record before us-, it seems that a preponderance of the evidence is to the effect that Neil and Burk agreed to pay the taxes, but we are not required or permitted to weigh the evidence. The evidence that is not contradicted is sufficient to require a reversal.
The judgment of the district court is reversed and a new trial directed.
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The opinion of the court was delivered by
Milton, J.:
In this case J. J. Neally recovered judgment before a justice of the peace of Osage county, in 1890, against N. Frankhouser, who was then sheriff of that county, the action being on an implied contract for the value of 1200 bushels of corn improperly seized and sold by the sheriff under an execution against W. L. Neally, W. Z. Neally, and George W. Neally. The defendant appealed to the district court, where, at the June term, 1890, the plaintiff obtained judgment in the sum of $172.64. That judgment was reversed by the supreme court. (Frankhouser v. Neally, 54 Kan. 744, 39 Pac. 700.) The action was again tried in the district court of Osage county on November 21, 1890, resulting in a verdict and judgment for the plaintiff below. The defendant filed no pleading. The jury in. the last trial allowed $168 for the value of 1200 bushels of corn at fourteen cents per bushel, and $59.36 as interest on the value of the corn, and found specially that the sheriff levied on and sold 1200 bushels of corn, while the sheriff’s return on the execution showed that he sold 945 bushels and 60 pounds at six cents per bushel.
The jury also found that the valúe of the corn at the time it was sold was fourteen cents per bushel; that the corn, which was in an uncovered pile in a pasture, was not in a marketable condition at the time of the sale by the sheriff, for the reason that a herd of cattle had broken in and trampled on the corn and had eaten a considerable quantity thereof before the sale, but that there was no evidence as to how much was eaten. There was evidence that the plaintiff accepted from the owner of the cattle which had damaged the corn a certain sum in settlement of the claim for such damages. The testimony showed that the highest market value of marketable corn was fourteen cents per bushel. The court instructed the jury that they should take that fact into account in estimating the amount of the plaintiff’s recovery, and that he was not entitled to recover “more than the value of the corn that was left and in its said damaged condition.” A witness for the defendant testified that the cattle were at the corn four different nights, and that the whole pile of corn was injured, and that from three to four hundred bushels were destroyed.
While, under the evidence, the plaintiff was entitled to a recovery for the value of the corn, it is clear that some of the special findings of the jury are inconsistent, and in certain respects contrary to the evidence. It is apparent, also, that the jury overlooked or disregarded the court’s instruction to the effect that they could allow for the value of the corn in its damaged condition only. It is evident, also, from the general verdict that no allowance in the defendant’s favor was made on account of the money received by the plaintiff for damage done to the corn by the cattle.
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The opinion of the court was delivered by
Milton, J.:
Two issues are presented by the record in this case. The first is an issue of fact: Were Terry and Patterson, the interpleaders herein, subtenants in good faith of Albert Berry, the lessee under the lease from Carrie Berry, plaintiff in error and plaintiff below? The second issue is one of law: Does a landlord’s lien extend to and include crops grown by a subténant of the original lessee? The issue of fact has been settled in favor of the inter-pleaders by the verdict and judgment, which in this respect are abundantly supported by the evidence.
The facts necessary to an understanding of the issue of law are in brief as follows : Albert Berry entered into possession of the “Berry ranch,” located in Morris and Chase counties, and containing nine sections of land, on April 1,1891, under a written lease of that date, providing for a three-years term, at an annual rental of $3000, the last $2000 of which was payable on the 15th day of October of each year. The payment of the rental was guaranteed in writing by two sureties. The lease contained no provision as to distraint and none prohibiting subletting. The present action was brought by the lessor to recover the sum of $2000, it being the rental due on October 15, 1892. At the commencement of the action, an order of attachment was issued and a levy made thereunder on certain crops raised in 1892 on portions of the ra.nch subject to cultivation, in the aggregate about 560 acres. Patterson and Terry interpleaded, Patterson claiming to be the owner of the attached property to the extent of the crops grown on about 450 acres, and Terry claiming to be the owner of two-thirds of the crops grown on 111 acres. The interpleaders also averred that Patterson had paid $800 in cash, and that Terry was to pay one-third of the crop grown by him, as rental, to Albert Berry, for the use of the lands so farmed by the interpleaders.
By agreement, the sheriff of Chase county was appointed receiver of the attached property, by the district court of that county, and the property was sold and the proceeds held for distribution in accordance with the judgment of the court thereafter to be entered. Judgment was rendered against Albert Berry by default for the amount claimed by the plaintiff to be due, and the jury found in favor of the following distribution of the proceeds arising from the sale of the attached property: To the plaintiff, $228.58, as the value of one-third of Terry’s crop ; to Terry, $457.17, as the value of two-thirds of his crop ; and to Patterson $805, as the value of his crop. Plaintiff’s motion for a new trial having been overruled, judgment was rendered in accordance with the verdict.
Section 26, chapter 121, of the General Statutes of 1897 (Gen. Stat.-1889, ¶"3633), reads :
“Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided.”
Section 13 of the same chapter provides that no tenant for a term not exceeding two years shall transfer his term or any interest under his lease to another without the written assent of his landlord. In construing said section 26, as then designated, the supreme court has said :
“Under section 24, chapter 55, Compiled Laws 1879, any rent due for farming land is a lien on the crop growing or made on the premises, independent of the attachment proceedings specifically prescribed by the subsequent sections of chapter 55.” (Neifert v. Ames, 26 Kan. 515.)
In Knowles v. Sell, 41 Kan. 171, 21 Pac. 102, the syllabus reads: “A landlord has a lien upon every part of the crop raised upon the leased preihises.” The code of Iowa provides as follows: “A landlord shall have a lien for his rent upon all crops grown upon the demised premises and upon other personal property of the tenant which has been used upon the premises during the term.” Construing the first part of the provision, the supreme court of that state, in the case of Houghton v. Bauer, 70 Iowa, 314, 30 N. W. 577, said:
“ There can be no question, we think, as to the effect of this provision. The lien attaches.to ‘ all crops grown upon the demised premises.’ It cap make no difference that they were grown by a subtenant, for the question whether the lien attaches to them does not depend upon whether they were grown by the ■tenant, but upon whether they were grown upon the demised premises. The language of this provision is clear and explicit. There is no room for construction.”
The court also held that the crops of the subtenant could be appropriated under a landlord’s attachment in an ordinary action against the original tenant for the rent. After a somewhat extended reading of decisions bearing upon the question before us, we have reached the conclusion that the section quoted from our statutes will bear no other construction than that given by the supreme court of Iowa to the foregoing provision of the code of that state. We hold, therefore, that the court erred in instructing the jury that the crops grown by the subtenant were not subject to the landlord’s lien. This error requires a reversal, unless the record discloses a waiver by the lessor of such lien by taking security for the payment of the rental. The trial court referred to such a waiver in an instruction to the jury, which instruction was duly excepted to by the plaintiff below. An examination of the pleadings shows that the waiver was not pleaded. It was therefore error to embrace this proposition in the instructions. (Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; Gillett v. Insurance Co., 53 id. 108, 36 Pac. 52.) In the first of these two cases the court said : “There is nothing in the pleadings on the subject of waiver. The plaintiff could not prove a'waiver without first having plead it.”
The judgment of the district court will be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the district court of Linn county by the defendant in error to recover from the plaintiff in error, the city of Pleasanton, the damages alleged to have been sustained by her by reason of falling on a defective sidewalk in said city. The jury returned a verdict for the plaintiff below for the sum of $175, and the court rendered judgment thereon. The jury also returned the fol lowing answers to the special questions submitted to them :
“2. Was there any apparent defect in the sidewalk upon which plaintiff claims that she was hurt, at the particular place she was hurt, if, in fact, she was hurt?” “No”.
“3. In what respect, if any, was said sidewalk defective at the place plaintiff was injured, if she was injured at the time she claims she was hurt, if she was in fact hurt at the time she claims she was hurt? ” “ Loose board.”
“4. Was said defect, if any existed, so apparent that persons passing near, over or by said sidewalk could readily discover said defect on the 4th day of April, 1891, before plaintiff was hurt, at the place where plaintiff was hurt, if in fact she was hurt? ” “No.”
“7: Do you find from the evidence that the mayor or any of the city officers had any notice of the alleged defect in said sidewalk at the particular place where plaintiff was hurt prior to the time that plaintiff claims she was hurt.” “ No.”
“8. If you find from the evidence that the mayor or any of the officers of said city had any notice of any defect in said sidewalk at the particular place where plaintiff was hurt prior to the time of the alleged injury, state which one of them got said notice, when they obtained such notice, and by what means such notice was given.” “None.”
“9. Did said city or the mayor or any of the officers of said city have notice of any defect in said sidewalk at the particular place where plaintiff was hurt, if she was hurt, long enough before the time of the alleged injury to have repaired said sidewalk before said injury happened? ” “ No.”
“ 11. If the mayor or any of the city officers had at any time any notice of any defect in said sidewalk at the place where the plaintiff was in fact injured, if she was injured, was said defect promptly repaired upon the receipt of such notice? ” “Yes.”
“13. About how far from the corner óf Main street and. Seventh, street was plaintiff hurt, if she was hurt?” “Near half way.”
“14. Was the place where plaintiff received her alleged injuries at a point on said sidewalk nearer to Main street than to Vine? ” “Yes.”
“ 15. What amount do you find for plaintiff on account of permanent injury?” “None.”
“16. What amount do you find for plaintiff on account of loss of time since her alleged injury?” “None.”
“ 17. What.amount do you find for plaintiff on account Of physical pain?” “None.”
“ 18. What amount do you find for plaintiff on account of physician’s bills? ” “ $100.”
' “19. What amount do you find for plaintiff on acpount of money paid out by her for the hire of a nui'se for her after her alleged injury? ” “ $50.”
“20. What amount do you find for plaintiff for medicine purchased by her on account of her alleged injury?” “$25.”
The plaintiff in error filed a motion for judgment on the special findings of the jury, notwithstanding their general verdict. This motion was overruled by the court and the case is brought here by the plaintiff in error for a review of the order of the court in overruling said motion. Counsel have filed an elaborate brief citing many authorities on the elementary proposition that, where special findings are inconsistent with the general verdict, the former control the latter, and judgment may be rendered on them, but no -authority is cited concerning the extent of the knowledge, if any, on the part of the city officials of the defective condition of the sidewalk necessary to render the city negligent and liable'for damages.
“To make a city liable for injuries resulting from a defect in a sidewalk, it must appear, either that the pity had notice of the defect, or that it was a patent defect and had continued so long that notice might reasonably be inferred, or that the defect was one which with reasonable and proper care should have been ascertained and remedied.” (Jansen v. City of Atchison, 16 Kan. 358. See also Riggs v. City of Florence, 27 Kan. 194; City of Salina v. Trosper, id. 545; City of Emporia v. Schmidling, 33 id. 485, 6 Pac. 893; Kansas City v. Bradbury, 45 id. 381, 25 Pac. 889.)
The defendant in error has filed no brief. The plaintiff in error was entitled to judgment on the special findings. The judgment of the district court is reversed, and the case remanded with instructions to render judgment in favor of the city on the special findings.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the district court of Butler county by the plaintiff in error to recover the sum of $387 from the defendants in error. The second amended petition alleged that the defendants were the directors of the Bank of Augusta, and that the plaintiff had deposited therein the amount claimed when the bank was insolvent and known to be insolvent by the defendants at the time it received his deposit, but that the fact of the bank’s insolvency was not known to him at the time of making said deposit. The defendants demurred to the second amended petition, which demurrer was by the court sustained.
The question involved in this case is the statute of limitations. Since this case was tried in the district court the question has been decided by our supreme court in Frame v. Ashley, 59 Kan. 477, 53 Pac. 474 adversely to the contention of the defendants in error. They have filed an exhaustive brief on the construction of chapter 47, Laws of 1897 (Gen. Stat. 1897, ch. 18), claiming that the decision of the supreme court in Frame v. Ashley, supra, is erroneous. It is our duty to follow that decision.
The judgment of the district court is reversed, and the case remanded with instructions to overrule the demurrer of the defendants to the second amended petition of the plaintiff.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by D. Thomas against the John V. Farwell Company, a corporation, to recover the sum of $3626.26, alleged to be due under an agreement between the said parties for the distribution of funds arising from the sale, at Emporia, Kan., under attachment proceedings, of a stock of-merchandise belonging to M. Thomas & Sons. Verdict and judgment -were rendered in favor of plaintiff below in the sum of $1908.18. The instructions given by the trial court present a clear statement of the facts and issues in the case. They are as follows :
“1. It appears, gentlemen, that about the middle of December, 1892, M. Thomas & Sons, merchants in Emporia, Kan., found themselves in failing circumstances, and were indebted to the defendant in the sum of about $7000 ; to Burnham, Hanna, Munger & Co., in about $2677.68 ; and, as plaintiff alleges, they were also indebted to him in the sum of about $3000. It seems this plaintiff had agreed in writing to secure the debt due this defendant, in case he found it necessary to do so, with his own ; and the plaintiff further alleges that he took the chattel mortgage which has been introduced in evidence from M. Thomas & Sons to himself to secure the alleged indebtedness due him from M. Thomas & Sons for about $3000 and said $7000 due the defendant. It also appears that shortly after the taking of said mortgage the plaintiff put a Miss Evans in charge of the goods mortgaged, as his agent, and proceeded to sell the same to satisfy the debt secured by said mortgage. Shortly thereafter the said Burnham, Hanna, Munger & Co. brought suit on their claim and garnisheed Miss Evans, the agent of plaintiff in charge of said stock, and then this defendant brought suit in attachment for his claim and attached said goods, and the sheriff, by virtue of said writ of attachment in the action, took possession of the goods for this defendant. It also appears that at the time said actions in garnishment and attachment were instituted the plaintiff was at Geuda Springs, and that about the 21st day of December, 1892, the defendant’s agent, Mr. Norton, went down to see him, and plaintiff claims that an agreement was then made by and between him and said Norton, acting for defendant, whereby defendant was to take charge of said stock of goods and dispose of them for the best interests of themselves, the plaintiff was not to resist the attachment suit of defendant, and the proceeds of the sale of the goods, after the settlement of the claim of Burnham, Hanna, Munger & Co., were to be divided pro rata between the plaintiff and defendant. Plaintiff claims that defendant aid sell out the stock of goods as per the agreement and appropriated all of the proceeds of such sale to his own use, and this action' is brought by him to recover of the defendant his share of such proceeds to which he is alleged to be entitled, amounting, as he alleges, to $3626.26.
“2. The defendant denies that any such contract as the plaintiff alleges was made or was ever entered into, and also denies any liability to the defendant (plaintiff) whatever.
“3. If you find from the evidence that said M. Thomas & Sons were, as claimed by plaintiff, indebted to him, and such mortgage was taken in good faith to secure said indebtedness, you will then determine whether or not the contract was, as plaintiff claims, entered into at Arkansas City between the plaintiff and defendant; and if you should find such a contract was entered into, you will then proceed to determine the amount there is due to this plaintiff from the proceeds of the sale of said goods.
“4. If you should find from the evidence that said indebtedness was not due from M. Thomas & Sons to plaintiff and that said mortgage was not made in good faith to him by them, and that said contract was not entered into as claimed by plaintiff, then you will find for the defendant.
“5. The burden of proof is upon the plaintiff to show his right to recover by a preponderance of the evidence, and he must also by a preponderance of the evidence show to you that the contract was entered into as claimed by plaintiff at Arkansas City.
“6. It is admitted that Burnham, Hanna, Munger & Co.’s claim was settled by the defendant for $1375.53, and that defendant received of the proceeds of the sale of the goods $7100.08. The claim of Burnham, Hanna, Munger & Co. is to be deducted from the $7100.08 which would leave $5724.55 as the net proceeds of the sale of such goods ; and if you should find that the plaintiff and the defendant agreed to prorate the proceeds of the sale of such goods, then you will use said sum as a basis to calculate from.
“7. You are the exclusive judge of the evidence, of its weight, and of the credibility of the witnesses. And in determining the credibility of a witness and the weight that you shall give his testimony you may properly take into consideration the interest of such witness, if any he may have, in the result of the action ; his bias or prejudice, if any, for or against the party for or against whom such witness testifies ; his opportunities for knowing the facts about which he testifies ; his powers of memory and observation ; his demeanor on the witness-stand; his intelligence and the general reasonableness and consistency of his statements, and any other fact or circumstance dis closed by the evidence which, in your judgment, adds to or detracts from the credibility of such witness.”
Indorsed:. “Filed December 14, 1893. — M. Q. Starr, Cleric.”
The principal errors specified and discussed by counsel for plaintiff in error are that the court failed to give full and complete general instructions, and that instruction No. 4, as given, was erroneous. Counsel for defendant in error objects to the consideration of the alleged errors on the ground that the record fails to show affirmatively that it contains all the instructions given. We think the words introducing the instructions, the general nature of instruction No. 7 and the filing marks immediately following such instructions sufficiently show that all the instructions given by the court are preserved in the record.
No instructions were asked by the plaintiff in error. Its counsel contends that the court erred by reason of its failure to give more complete and comprehensive general instructions, especially as to the meaning of the phrases, “preponderance of evidence” and “burden of proof.” In Guthrie v. Merrill, 4 Kan. 187, it was said :
‘ ‘ In this case it no doubt would have been proper for the court to havé charged the jury further than it did and upon some points which he did not touch upon, as it appears by the record. But inasmuch as such instructions as were asked do not seem to have been put in writing and presented to the court for allowance or refusal, and as the same state of facts may not arise on a new trial, we do not feel called upon to pursue this part of the case further.”
In Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039, the court said :
“ It is the duty of the court to instruct the jury on the law governing the case as he may think is shown by the pleadings and evidence ; and if a party to the suit desires other or different instructions he must make his request for them in writing, under section 275 of the code ; and if he fail to do so, then the instructions given stand as the law governing that case for that trial. . . . The plaintiff did not request the court to give any further or other instructions, and cannot now be heard to complain that other instructions were not given.”
To the same effect is the following from the opinion in The State v. Peterson, 38 Kan. 211, 16 Pac. 263 :
“As a general rule, where the court properly instructs the jury, except that it omits some matter which might properly be given, no available error is -committed unless the court has been properly requested to instruct with reference to such matter.”
In view of .the foregoing, the position of counsel is not well taken.
As to instruction No. 4, counsel for plaintiff in error contends that the jury were there told that before they could find for the defendant they must first find there was nothing due from M. Thomas & Sons to D. Thomas; that the mortgage to the latter was not made in good faith; and that the agreement was not entered into at Arkansas City, as claimed by D. Thomas. Counsel argues that the instruction required too much from the defendant, and that the latter was entitled to judgment for costs as against the plaintiff, unless the jury believed that the agreement at Arkansas City was as D. Thomas claimed it to be. The third and fourth instructions must be read together. They might have been given as one instruction, and if so given the objection urged by counsel would scarcely have been made. A careful reading of the third instruction will show that the court required the plaintiff to prove, in order to entitle him to a verdict, that M. Thomas & Sons were actually indebted to him in the amount claimed, and that the chattel mortgage was taken in good faith to secure such indebtedness. Such findings were thus made conditions precedent to a determination by the jury of the important and controlling question in the case — that is, whether the agreement made at Arkansas City w;as as claimed by the plaintiff. It was thus in effect clearly stated that all the foregoing should precede a determination of the amount due to the plaintiff from the proceeds of the sale of the goods at Emporia..
Instruction No. 4 amounts to no more than a statement that a failure on the part of the plaintiff to prove all the propositions embodied in the third instruction would require a verdict for the defendant, and when the two instructions are read together, it appears that the burden was placed entirely on the plaintiff to prove each of such propositions. The record shows that the Farwell company sought to prove that the agreement made at Arkansas City was not of the character claimed for it by the plaintiff, and also that the chattel mortgage was not given to D. Thomas in good faith, to secure an actual debt owing to him by M. Thomas & Sons. If the jury had believed that the indebtedness was not due from M. Thomas & Sons to the plaintiff, they could not have found that the mortgage was taken in good faith. In that state of the case, they could not, in keeping with instruction No. 3, have returned a verdict for the plaintiff. The general verdict is certainly a finding of all the facts stated in the third instruction favorably to the plaintiff below. In this view, the giving of instruction No. 4 cannot be regarded as reversible error.
The verdict appears to be sustained by a preponderance of the evidence. The judgment of the trial court will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
Plaintiff in error brought this action against the defendants in error before a justice of the peace in Reno county to recover the sum of $275, which he claimed as agent's commission for selling certain real estate in the city of Hutchinson. The defendants appealed from the judgment rendered against them by the justice of the peace, and at the trial in the district court their demurrer to the plaintiff's evidence was sustained. A joint judgment was rendered in favor of the defendants for costs. In the petition in error this judgment is complained of and a reversal thereof is asked. After the proceedings in error were commenced L. C. Welton died, and no steps to revive or substitute had been taken within the time allowed by law. The National Bank of Commerce, one of the defendants in error, moved to dismiss the petition in error for the reason that its codefendant, L. C. Welton, died on June 15, 1896, and an administrator of his estate was duly appointed on July 1 thereafter, and no steps had been taken to revive the action.
The bill of particulars, the journal entry of judgment and the petition in error all indicate that L. C. Welton was a necessary party to the proceeding in error. In the case of Larkin v. Lane, 4 Kan. App. 774, 46 Pac. 997, in which Jesse C. Crall, a party to the proceedings in error, died during the pendency of such proceedings, the court said :
“Jesse C. Crall was a necessary party to the proceedings in error. His death, without an order of revivor having been applied for or made in this court, leaves the case in the same condition it would be in had he, in the first place, not been made a party thereto.”
In the case of Janis v. Bank, 59 Kan. 771, 51 Pac. 886, decided by the supreme court of this state, one paragraph of the syllabus reads: “Where necessary parties in error have died, and no proceedings to revive or substitute are had within the time allowed by law, the petition in error should be dismissed.” See also Bank v. Van Doran, 59 Kan. 776, 53 Pac. 130. The petition in error will be dismissed.
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The opinion of the court was delivered by
Wells, J.:
On December 13, 1894, the Phcenix Loan Association, of St. Joseph, Mo., filed its petition in the district court of Brown county against C. B. Toppan, Maggie A. Toppan, and W. P. Todd, charging said defendants with liability on a bond given by them to the plaintiff, conditioned that said Maggie A. Toppan should pay off and discharge all liens on the buildings and improvements to be erected on certain described town lots in Horton, on which plaintiff had made a loan, by reason of the failure and refusal of said Maggie A. Toppan to pay a certain lien of the Chicago Lumber Company, which had put its claim in judgment and'secured an order for the sale of the lots to satisfy the same, to the damage of plaintiff in the sum of $745.02.
For answer to this petition, the defendant W. P. Todd admitted the execution of the bond sued on, the erection, of the improvements, the making the loan to plaintiff, alleged the payment to the Chicago Lumber Company for the material used, denied the validity of the Chicago Lumber Company’s lien, and averred that the property was sold at sheriff’s sale and purchased by plaintiff at less than two-thirds of its actual value and that plaintiff is the owner and holder thereof. An answer was also filed for C. B. Toppan and Maggie A. Toppan, by Means & Smith, their attorneys. At the beginning of the trial Means & Smith appear to have withdrawn as the attorneys of the Toppans, or of C. B. Toppan, the journal entry in relation thereto being as follows: “Means & Smith asked to withdraw from said case as attorneys for C. B. Toppan, and Maggie. Toppan not appearing nor being served with summons in the action thereon as required by law, said cause came on for trial as aforesaid, C. B. Toppan not being present in person or by attorney.” A trial was had, findings of fact and conclusions of law made by the court, and judgment rendered in favor of the plaintiff and against C. B. Toppan and W. P. Todd for $664.72 and costs of suit. The defendant W. P. Todd brings the case here for review.
We do not deem it necessary to consider the motion to dismiss the proceedings in error on account of the absence of necessary parties in this court, as our views on the merits of the case are such as to render a decision on the motion unnecessary. The main question requiring our consideration in this case is, What liability did the plaintiff in error assume by the execution of the bond sued on? Was it only to indemnify the beneficiary thereof against loss by reason of any just, equitable and legal claim which should be lawfully established against the mortgaged property ; or was it to indemnify against any loss- or damage it might sustain on account of the neglect or failure of said Maggie A. Toppan to pay off and discharge any such demand, claim of lien as she might cause, permit or allow to be established against said property? The bond reads as follows :
“Know all Men by these Presents : That we, Maggie A. Toppan, of Horton, county of Brown, state of Kansas, as principal, and W. P. Todd and C. B. Toppan, both of Horton, county of Brown, state of Kansas, as sureties, are held and firmly bound unto the Phcenix Loan Association, of St. Joseph, Mo., a corporation duly incorporated and existing under and by virtue of the laws of the state of Missouri, in the sum of twelve hundred and no-100 dollars, lawful money of the United States of America, to be paid to the said association at their office in St. Joseph, Mo., their successors, or their certain attorneys or assigns, for which payment well and truly to be made we jointly and severally bind ourselves, our heirs, executors, administrators, and assigns, firmly by these presents.
“ Sealed with our seals, and dated at Horton, Kan., this 3d day of June, 1891.
“The conditions of this obligation are such, that whereas, the said Maggie A. Toppan, principal in the said obligation, has constructed and is constructing a building and other improvements on lots 29 and 30, in block 8, in the Kansas City addition to the city of Horton, in the county of Brown, in the state of Kansas ; and whereas, the said Phoenix Loan Association is to furnish, advance and loan to said Maggie A. Toppan, money to be used in paying for labor done and material furnished in the construction of said building and improvements, or for other purposes, the payment of the money so furnished, advanced and loaned to said Maggie A. Toppan, secured to the said Phoenix Loan Association by a mortgage or deed of trust on the lot and premises herein above described : now, if the said Maggie A. Toppan shall fully pay and discharge all claims and demands of every kind and-description for and on account of labor done and material furnished in, for and about the construction of said building and improvements, and shall pay off and discharge all such demands and claims before any lien’ is filed against said property, and shall pay off and discharge all liens which may exist against said property, and shall fully indemnify the said Phoenix Loan Association for and on account of any loss or damage it may sustain on account of the neglect or failure of said Maggie A. Toppan to pay off and discharge any such demand, claim, or lien, then this obligation shall be void; otherwise it shall remain in full force and effect.
“Witness our hands and seals, this the day and year above written. Maggie A. Toppan. [seal.]
W. P. Todd. |seal. |
C. B. Toppan. [seal.]”
We think the plain import of said obligation is to keep any claim from becoming a lien on said property, and if so, the question of res judicata is not involved. The only questions are, Did the obligors keep said property from becoming encumbered with liens ? And if not, what damages did the obligee sustain by reason thereof? These questions were correctly answered by the trial court and we see no reversible error herein.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Wells, J.:
On the 4th day of September, 1895, the defendant in error caused a writ of mandamus to be issued against the plaintiff in error, the board of county commissioners of Doniphan county, reciting in substance the recovery by said Albright of a judgment •of award against said commissioners ; that no appeal or proceedings in error had been taken from said judgment ; that it was now in full force and effect; and that demand had been made for payment thereof and refused, although the necessary funds are on hand ; and said commissioners were commanded to pay said award or show cause why they should not. To this writ the commissioners made return and answer, that said award was obtained on an appeal for damages allowed for the laying out and opening of a private road under chapter 112, Laws of 1874; that after a demand was made on them for said award they rescinded the order to open the road, and notified the applicant therefor that said action had been taken and that the road would not be declared open until the damages and costs were paid ; and that the same had not been done. To this return and answer the plaintiff demurred on the ground that it did not state facts sufficient to constitute a reason why a peremptory writ should not issue. This demurrer was sustained and a peremptory writ issued. To reverse this the case is brought to this court.
The law under which the road was located provides that no portion, of the expense shall be chargeable to the state or county, but shall be paid by the person for whose benefit the road is located, and the road shall be declared open when the damages are paid. In Commissioners of Shawnee County v. Carter, 2 Kan. 115, the court said :
“The county is a political subdivision of the stace or territory acting as a corporation with specific powers, through its officers as agents, whose duties are not only pointed out -by law, but the mode of performing them is laid down with accuracy and precision. When laid down there is no discretion in the officers as to the manner in which they are to act. In that respect they are ministerial officers, and bound to observe the limitations imposed upon them by law. . . . When the statutes confer special ministerial authority, the exercise of which may affect the rights of property, or incur a municipal liability, it shall be strictly observed, and a material departure will vitiate the proceedings. . . . If an affirmative statute directs anything to be done in a certain manner, that thing shall not, even though there are no negative words, be done in any other manner.”
On this subject, see also Hovey v. Comm’rs of Wyandotte Co., 56 Kan. 577, 44 Pac. 17. Under these authorities, the county commissioners had no right to open the road until the party applying therefor had paid the expenses thereof, and no right to pay any part of the costs out of the county funds.
It is claimed by the defendant in error that the judgment of the court making the award is not appealed from and cannot be collaterally attacked. If the court had jurisdiction to make this award, this is true so far as the judgment actually goes ; but there is nothing in the record to negative the presumption that the court in making said award made such an one as it ought under the law to have made. This road was located as a private road for the benefit of one individual under a general law. The law provides for the appointment of viewers who shall locate said road and assess the damages, and the road shall be declared open when the damages are paid, and no portion of the expenses shall be chargeable to the state or county. No provision is made for the commissioners to review the award of damages, or for an appeal either from the award of the jurors or the action of the commissioners, and it may be seriously doubted if such right exists. But waiving these questions, which are not necessarily at issue in this case, and assuming for the purposes of this case that the commissioners had jurisdiction to review the action of the viewers, and that an appeal was properly taken from their decision to the district court, and that the district court, upon trial, rightfully increased the award of damages in favor of the defendants in error from $50 to $131.25, this amounts simply to a final adjudication of the damages that the applicant for the road must pay before it can be opened for his use. This is all that the record before us justifies us in assuming, and this is not sufficient to fix a liability on the county to pay that for which the law expressly declares it shall not be liable.
The judgment of the district court granting the peremptory writ of mandamus is reversed, and said court is directed to overrule the demurrer of the plaintiff to the return to the alternative writ and proceed with the trial of the case.
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The opinion of the court was delivered by
MAhan, P. J.:
This action was begun in the district court of Wyandotte county by the defendants in error against the plaintiff in error, under section 422 of the code of civil procedure (Gen. Stat. 1897, ch. 95, §418), to recover damages on account of the death of the infant daughter of the plaintiffs, whose death, the petition alleges, was occasioned by the operation of defendant’s passenger-train on the 16th day of June, 1893. ■ The child was about thirty-four months old at the time she was killed. The petition alleged that the child was killed on the right of way of the railway, not at the crossing of any public highway or street, within the corporate limits of the city of Kansas City, Kan. ; that the train was being run at a high, dangerous and reckless rate of speed within the city limits, in violation of the ordinances of the city ; and that the servants of the defendant in charge of the train were also negligent in not stopping the train or making any effort to slacken its speed or get it under control after they had observed the child upon the railway track.
The defendant answered, first, by a general denial of all of the allegations of the petition except such as are confessed. He admits the incorporation of the railway company, and that he was the duty appointed, qualified and acting receiver of the road, as alleged in the petition. He denies specifically that there was any ordinance in the city of Kansas City regarding the speed of trains. He denies that the train was run at an excessive rate of speed, and alleges that if the deceased was injured as alleged it was not the result of any negligence on the part of the defendant, his agents or employees, but was the result of the negligence of the plaintiffs in their failure to use reasonable and ordinary care regarding the child.
The plaintiffs replied by general denial to the allegations of the answer made by way of defense. The case was tried to a jury and resulted in a verdict for $1020 for the plaintiffs. The jury also returned with their general verdict answers to thirty-six special interrogatories submitted by the defendant, many of which the trial court ought to have refused to submit to them. The material findings of the jury are that the child was killed on the right of way of the railroad company ; that that part of the railway right of way where the child was killed is within the corporate limits of the city of Kansas City, Kan. ; that the house in which the plaintiffs lived at the time the child was killed was 125 feet south of the railroad-track, and that the plaintiffs had lived there about two months prior to the accident; that trains passed to and fro on this line frequently, and the plaintiffs knew this, and that it was dangerous for their children to be on or near the track; that they knew further that there was nothing to prevent this child from going on the track if left unattended ; that the parents were not negligent with regard to their care of and attention to the child ; that the right of way of the railroad company, at the time of the accident, was grown up with weeds some two or three feet high nearly to the end of the ties; that the engineer and fireman were in their proper places looking' ahead in the direction the engine was moving at the time of the accident; that the bell was being rung continuously; that the engineer and fireman did not, as soon as they discovered the child in a position of danger, do everything that might have been done to stop the train and prevent the death of the child ; that if the engineer had been observing the provisions of the ordinance as to speed within the city limits, the child would not have been killed ; that the failure to observe the requirements of the ordinance resulted in the death of .the child; and that the engineer and fireman did not wantonly and willfully run the engine over the child after they discovered her. There was a motion by the defendant for judgment on the special findings notwithstanding the general verdict, which was denied, a motion for a new trial on the statutory grounds, which was likewise denied, and the plaintiffs thereupon had judgment on the verdict.
We will consider the errors assigned in the order in which they appear in the brief of the plaintiff in error. It is first contended that the verdict and findings of fact are not sustained by sufficient evidence. There is no doubt in our minds that the evidence fully warranted the verdict and findings of the jury. The second assignment is of a general character, and is of errors of law occurring at the trial and duly excepted to at the time. Under this assignment counsel contend, first, that the petition was defective, in that there was no sufficient allegation of pecuniary or special damage to the plaintiffs as next of kin. It is suffi cient to say that as to special damages there were none claimed or allowed, but only such general damages as are contemplated by the provisions of the statute giving the right of action. It is not necessary for the petition to contain allegations of the particular loss to plaintiffs occasioned by the death of the infant nor the evidence by which they expected to sustain the allegation of damage. The general allegation was sufficient. While the question of pleading was not specifically in controversy or passed on in K. P. Rly. Co. v. Cutter, 19 Kan. 83, yet this deduction logically follows the decision in that case. See, also, Railroad Co. v. Barron, 5 Wall. 90. There was no motion to require the plaintiff to make it more definite and certain, but the objection was a general one to the introduction of the evidence under the petition, and the only question to be decided is whether the petition stated a cause of action.
The next assignment is that the court erred in receiving incompetent evidence ; and under this head counsel contend that the court erred in admitting in evidence ordinance No. 522 of the city of Kansas City, Kan., over the objection that the ordinance was on its face void because of the provisions of section 8, which are as follows : ‘ ‘ The provisions of this ordinance shall not apply to the Inter-State Rapid Transit Railway Company, except with reference to funerals or other processions.” Upon this objection being made, the plaintiffs introduced evidence tending to show that the Inter-State Rapid Transit Railway Company was in fact a street-car line operated with electrical engines and was not within the provisions of section 2 of the ordinance at all, which is the section applicable to the case. The ordinance in our view was not void and was competent evidence to be ad mitted in the case. (Meek v. Pennsylvania Co., 38 Ohio St. 632; Correll v. The B. C. R. & M. R. R. Co., 38 Iowa, 120.)
There was a further objection to the introduction of the ordinance, that it was unreasonable and in restraint of commerce, because of the fact that the part of the city where the accident occurred was uninhabited, and, therefore, there was no reason to impose this restraint on commerce such as exists in the more populous parts of a city. Had the track of the railroad company been fenced, as in'some of the cases referred to by counsel in the brief, and had the country where the accident occurred been agricultural grounds, the objection might have been tenable ; but the evidence in the record discloses the fact that that portion of the city where the accident occurred is not thinly populated and is not agricultural lands ; that the track of the company was not fenced ; and that all the dangers to which the inhabitants of the city were subjected existed in that part of the city as well as in any other part, though probably not to so great degree, but it was simply a matter of degree.
It is further contended that the ordinance is obnoxious to the provisions of the fourteenth amendment to the constitution of the United States. This contention cannot be sustained. (Railroad Co. v. Richmond, 96 U. S. 521.)
It is again contended that the ordinance is obnoxious to the provision of the state constitution in that it is not uniform in operation. It is only necessary that an ordinance of a municipality affect all in the same situation or under the same conditions alike, and so far as concerns the application of this ordinance to railways it is uniform in its operation. The exception of the Inter-State Rapid Transit Railway, as heretofore stated, was unnecessary, as the same conditions did not exist with respect to that road that existed at the time of the passage of the ordinance with respect to-the class to which the plaintiff in error belongs. It is true that at the time of the enactment of the ordinance f as contended by counsel for plaintiff in error, the railroad excepted used dummy engines. It is true that they are dangerous and capable of a higher rate of' speed that the limit fixed by the ordinance ; but it was a street-railway carrying passengers from street to street and point to point within the cities of Kansas City, Kan., and Kansas City, Mo., and the parks, being-suburbs of Kansas City, Kan. There was no occasion for the passage of this ordinance so far as this road was concerned, as its provisions were not applicable to it. Even if they might have applied, and even if the conditions of the Inter-State Rapid Transit road were such as to make all the conditions of the ordinance applicable to it, and conceding for that reason that that provision of the ordinance was unreasonable and void, it would not necessarily follow that the other provisions of the ordinance would be void, under the rules stated and authorities cited in counsel’s brief. This exception was not an essential part of the ordinance. It does not appear that the council would not have passed the ordinance itself but for the exceptiozi.
Under the second assignment of error, and in the fifth paragraph of counsel’s brief, they argue the question that the court erred in overruling the demurrer to the plaintiff’s evidence. In our view of the case, there was sufficient evidence to go to the-jury, and especially in view of the fact that the defendant was running its train in violation of an express ordinance of the city. It is contended that this, ordinance did not apply to the case because the acci dent did not occur at any street crossing. We cannot agree with, counsel in this contention. The ordinance does not limit its application in terms to the highways of the city, but says “within the city limits.” The track of defendant’s railway was unfenced. The passengers upon the defendant’s train were subjected to wreck, damage and death there as much as upon the part of the track crossing highways or within the limits of a highway. When the ordinance was passed the council doubtless had in view the facts as they existed at the time, and the ordinance was doubtless intended as much to prevent accident to the passengers being carried by railways as to protect the lives of the inhabitants of the city. And it was just as necessary, under the conditions that existed, that the ordinance should apply to that part of the defendant’s right of way and track not within the limits of a highway as within such limits. The application would be a reasonable one, and there can be no reasonable objection urged against it.
' The next assignment of error is that the court erred in refusing to give certain instructions requested by the defendant. The substance of the third, fourth, fifth and seventh requests was given clearly and expressly by the court in its general charge. The thirteenth instruction complained of by counsel is as follows : “ The jury are instructed that, as a question of law, great reduction of speed cannot be required outside of the built-up portion of the city.” This instruction is not applicable to the case. It would have been misleading had it been given. The substance of the fourteenth request was given.
The fifteenth request is 'that no rate of speed would be negligence as affecting one who was on the track of the railway company without right. We cannot construe this to be a correct principle of law. Put in plain English, it is: “You are a trespasser on our line. We have the right to the exclusive use of our track. We owe you no duty except not to deliberately murder you, and we cannot be held accountable unless the conduct of our agents would warrant their conviction on a charge of murder or at least manslaughter ; therefore the city ordinance cannot aid you, cannot add to our duty toward you. As to a trespasser, it is immaterial whether we were conducting our business in express violation of law.” It was frequently contended, but we cannot concede, that an infant, by going upon a railroad-track without license from the company, is without right of protection under the law of the land. As we have said, this ordinance was doubtless intended to apply as much to that part of the track of the defendant company as to any part of it, and it was intended for the protection of citizens who might be upon the track of the railway outside of the highway as well as upon other parts, under the circumstances as they existed. Had the railway company seen fit to fence its track with such a fence as would have excluded infants and possibly others from being upon its tracks, then the rule contended for might have some reasonable application. But so long as railroad companies operate, within cities, engines with trains of cars attached, which are conceded to be highly dangerous to life and limb, without excluding the public from their tracks, they ought not to be heard to say that an infant at least is without the protecting provisions of the rules governing the inhabitants of the city simply because she was there without a license from the company. We cannot concede that it is of greater importance to society — and laws are for the government of society at large — that a train should reach a given destination at a given hour or minute than that the lives of persons who may possibly be trespassers upon the unfenced right of way of a railway company should be preserved or protected.
The real question is, Was there any duty, public or private, which the defendant owed to the deceased infant which it failed or omitted to perform?. Admitting that it had the right to the exlusive use of its track, that the infant was there on the track without a license, yet under the ordinance of the city, as well as by the dictates of humanity, the company owed to the infant, as well as to every other member of the public, a resident of the city or sojourning therein, not to run its trains at a dangerous speed within the city limits — a speed that would be dangerous to persons on the track with or without license — and in this it failed. It was conducting its business in violation of the laws of the city in which it was. It is found by the jury that, but for this violation of duty, the death of the child could and would have been avoided.
The sixteenth, twenty-first, twenty-second, twenty-third and twenty-seventh requests were given in the ■court’s general charge. Number 1, of which special complaint is made, is a direction to the jury to find for the defendant. Under the facts as they existed, as heretofore stated, it was not error to refuse this. The foregoing are all the instructions specifically mentioned in brief of counsel for plaintiff in error.
The next assignment of error is that the court overruled the motion of the defendant in error for judgment on the special findings. The special findings support the verdict of the jury. It would have been error to sustain the motion. While there are some slight apparent inconsistencies between some of the findings, there is nothing of such nature as would have warranted the court in granting the motion for judgment as against the substantial findings which determined in fact the rights of the parties in the case.
Counsel contend further that the material findings of the jury were not supported by any evidence. If the ordinance complained of was eliminated from the record, there might be a fair ground for contending that the court erred in sustaining the findings of the jury that the child’s death was caused by the negligent act of the servants and agents of the defendant. Or, had the accident occurred outside of the city limits, in a rural district, a sparsely populated community, it might be said with some show of reason that the evidence did not disclose but that the engineer and fireman did all they could to preserve the life of the child after they say that they recognized her as a child.
The seventh assignment of error is that the court overruled the defendant’s motion for a new trial. A careful scrutiny of the record, aided by the diligence of counsel, has not enabled us to discover anything in the record which was error materially affecting the rights of the defendant. There was no ground for granting a new trial. The eighth assignment is that the verdict is contrary to law. It follows,- from what we have said heretofore, that this assignment cannot be sustained; and these remarks likewise applj- to the ninth, which' is that the verdict is not sustained by sufficient evidence.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by Nancy Wright against Joseph J. Shimek, Barbab Shimek, Winzel Kasha, Vincel Kasha, the Mutual Benefit Life Insurance Company, and Bartlett Brothers. The plaintiff alleged : (1) That the defendants Joseph Shimek and Barbab Shimek, on May 1, 1886, executed and delivered to W. J. Neill a real-estate bond secured by mortgage on lands in Republic county, and thereby agreed to pay Neill, or order, $2200, on the 1st day of May, 1891, with interest at seven per cent, per annum, payable semiannually, according to the terms of ten coupons thereto attached; (2) an assignment of the notes and mortgage by Neill to the plaintiff; (3) that Shimek and wife conveyed the lands to Kasha, who assumed payment of the indebtedness, the note, and mortgage ; (4) that other defendants had, or claimed to have, an interest in the real estate, which interest, if any they had, was inferior to the mortgage lien of the plaintiff.
The defendants Shimek and wife and Kasha and wife answered: (1) Payment to the plaintiff; (2) payment to the payee without notice of the assignment. The defendants, the Mutual Benefit Life Insurance Company and Bartlett Brothers, pleaded payment by the defendants, Shimek and Kasha, and alleged that they had a valid and prior lien on the mortgaged premises on account of a loan of $1500, made to the defendant Kasha, with which to pay off the claim of plaintiff. The plaintiff’s reply was, in substance, a general denial. A trial was had by the court, without a jury, which resulted in findings and judgment for the plaintiff for $1869.35, and foreclosure of the mortgage. The findings and judgment were not satisfactory to the plaintiff, nor to any one of the defendants. The plaintiff and all of the defendants filed motions for a new trial, which motions were overruled, and the case is presented to this court for review on a petition in error by the plaintiff and cross-petition by the defendants.
The plaintiff in error alleges that the trial court erred in its conclusion that the payment of the $700, on July 14, 1891, by Shimek and Kasha to the Western Farm Mortgage Trust Company was a good and valid payment, for which the defendants should have credit. The record discloses the following facts: The Western Farm Mortgage Company was a corporation at Lawrence, organized for the purpose of negotiating loans. The defendants Joseph Shimek and Barbab Shimek, on May 1, 1886, procured a loan of $2200 from the mortgage company, for which they executed and delivered their certain real-estate bond -secured by a mortgage on land in Republic county, whereby they promised to pay to W. J. Neill, or order, the amount thereof on the 1st day of May, 1891, with interest at seven per cent, per annum. W. J. Neill was a clerk in the employ of the mortgage company, and the loan was made by that company, the bond and mortgage being taken in the name of Neill for the convenience of the mortgage company. Neill had no interest in the bond or mortgage at any time.
The Western Farm Mortgage Company sold the bond and mortgage, with others, to Kendall Brothers, of Reading, Pa., and Neill transferred the same by writing on the back of the bond the words : “ For value received, I hereby assign and transfer the within bond, together with all my rights, title and interest in the mortgage deed securing the same, to or order. — W. J. Neill.” This assignment does not constitute a commercial indorsement. After the execution of the bond and mortgage in question, the Western Farm Mortgage Company transferred its business to Denver, Colo., where it was reorganized as the Western Farm Mortgage Trust Company. The Western Farm Mortgage Trust Company thereupon succeeded to all the business of the Western Farm Mortgage Company. Shimek paid to the mortgage company and to its successor, the trust company, each coupon as it became due and received in return the coupons. The note and mortgage become due and payable May 1, 1891. Shimek and Kasha, on July 14, 1891, paid $700 on the principal to the trust company. Afterward, on July 25, Í891, they paid the trust company $1560.70, the remainder of the principal, with interest from the maturity of the note.
The bond or note in question is not a negotiable instrument; it is something more than a promise to pay money. The following stipulations were written in the body of the bond :
“It is further expressly agreed, that in case of de fault of the payment of any instalment of interest or any principal thereof for the space of ten days after it becomes due and payable, or in case of breach of any of the covenants or conditions in the mortgage deed securing this bond contained, to which said deed reference is hereby made and which is made a part of this contract, in either said case the principal sum, with accrued interest, shall at the election of the legal holders hereof at once become due and payable without further notice, may be demanded and collected, anything herein contained to' the contrary notwithstanding.”
This makes the mortgage and note one contract. Among the stipulations of the mortgage which are thus made a part of the contract are stipulations for the payment of the taxes, for the insurance of the property against strip or waste, and to keep improvements in repair. These provisions rendered the note non-negotiable. (Chapman v. Steiner, 5 Kan. App. 326, 48 Pac. 607; Killam v. Schoeps, 26 Kan. 310.)
The assignment of the mortgage from Neill to Wheeler was not acknowledged. It was therefore not entitled to record, and if recorded the record thereof would not impart constructive notice of such assignment to the maker of the note and mortgage. The recording of the unacknowledged assignment does not, of itself, give notice that the note and mortgage have been transferred. (Chapman v. Steiner, supra; Briggs v. Latham, 36 Kan. 206, 13 Pac. 129; Fox v. Cipra, 5 Kan. App. 312, 48 Pac. 452.)
The trial court properly found that the -$700 payment made July 14, 1891, to the Western Farm Mortgage Trust Company was a good payment on the bond and mortgage, and extinguished the indebtedness to that extent. The motion of the plaintiff in error for a new trial was properly overruled.
The defendants in error allege that the trial court erred in finding that Sprengle was the agent of Shimek and Kasha, so that his knowledge of the assignment was their knowledge, and in finding that Sprengle had knowledge of the assignment of the mortgage prior to the final payment of the amount due on the principal and interest. The record shows that Shimek and wife on the — day of July, 1891, sold and conveyed the mortgaged premises to Kasha, who assumed the payment of the mortgage in question. The final payment of $1560.75 was made on July 25, 1891, by Sprengle for Kasha. There is no evidence that Shimek or Kasha had actual, personal notice of the assignment of the indebtedness, the bond or mortgage, to Wheeler or to the plaintiff prior to the date of this payment. The contention was that Sprengle, as the agent of Kasha, had such notice, and that Kasha was bound by the notice to his agent. Sprengle was the local agent for Bartlett Brothers, loan agents, of St. Joseph, Mo. Kasha applied to him for and procured a loan of $1500, to be secured by a mortgage on the farm in question, with which to pay the Shimek mortgage. Sprengle examined the records of the mortgage in question in the register of deeds’ office for the sole purpose of ascertaining the date, amount, maturity of the loan, and description of the property. He procured this information, and satisfied himself that there was nothing against the land except the $2200 mortgage in suit, $700 of which had been paid. He ordered an abstract of the title, which was made and forwarded to Bartlett Brothers without examination by him. The abstract showed the record of the unacknowledged assignment from Neill to Wheeler. Sprengle testified as follows :
“Ques. Did you procure an abstract? Ans. I left an order with D. C. Baker & Co.
“Q,. Did that abstract show that the assignment had been made? A. I presume it did.
“ Q. Don’t you know it? A. I don’t remember. I paid out after having satisfied myself that there'was nothing against the land except the $2200 mortgage.
“Q,. When you got the abstract then you discovered there was an assignment? A. I don’t remember that I did; I didn’t pay any attention.
“ Q. Didn’t you read the abstract? I ask you if you didn’t read that abstract. A. I cannot say that I did,
“ Q,. Do you mean to say that you took the abstract and didn’t read it? A. I am familiar with the records in the recorder’s office and paid out on my own examination.
“ Q,. Do you mean to say that you didn’t discover the note in the abstract that there was this kind of an assignment upon the mortgage? A. I have no recollection whatever in regard to it.
“ Q,. How long did you keep that abstract in your possession? A. Just from the time it came on one mail and I sent it on next to Bartlett Brothers.
“ Q. (By the court) When did it come into your possession with reference to the time this money was paid? A. Well, I could not say as to that, but drew on Bartlett Bros, the next day. We were in a great hurry and I was very particular to satisfy myself that the title was all right. The abstracter went over the record with me and I was convinced that the title.was all right.
“Q,. Was the abstract sent to you before or after you paid the money? A. I would not say, for it may have been kept until the mortgage was recorded and then sent by Baker & Co. to Bartlett Bros.
“ Q. (Mr. Angevine) Now, at the time you paid the money had you seen 'the abstract? A. I think not. I think I had not seen the abstract until recorded.
“ Q,. Now, as a matter of fact, was n’t the abstract made out after you paid the money out, and after the/ $1500 mortgage was paid and then carried on the ab stract? A. Yes, it was after. On my way I went by Cuba, satisfied myself that the $700 had been paid, and went on to Washington and got a sight-draft of $1500 and sent on.
“ Q,. At that time had you seen the abstract? A. I had not.
“Q,. How long after that before you saw it after-wards? A. I do not know that I ever saw one. It may have been sent right on to Bartlett Bros., and I presume that Baker & Co. sent the mortgages and sent the abstract right on to Bartlett Bros.
“ Q,. ( Mr. Bradford ) I understand you to say that •you went over the record with Mr. Baker and looked at the pages? A. I went over the index of the records to satisfy ourselves that the title was all right and that there was nothing against it except the $2200 mortgage, and looked up the taxes.
“ Q,. You did look at the index and the mortgage? A. Yes, we looked at the mortgage, I suppose to see that the amount was all right.
“Q. (Mr. Angevine) Do you remember that you looked at the mortgage? A. I do not, but my judgment would be that we looked at the mortgage to see that the a'mount was all right.
“ Q,. And you didn’t look at it any further? A. No, sir.
“ Q,. And you don’t know whether you looked at it that far? A. My judgment is that I looked at it to see that the amount was all right.
“ Q,. (By the court) When did you learn that the mortgage had been assigned? A. I suppose it was months after. I waited a long time for the papers and kept writing ; wrote them frequently for several weeks, and they kept promising that they would send them, but never came.
“ Q,-. (Mr. Angevine) If you looked at the records at all did you see any assignment in connection with it? A. I am very positive that I did not.
“ Q,. You may state -whether you sent the $1500 loan and the two mortgages and the ' abstract and papers pertaining thereto, that you have heretofore ■ testified about, before or after you made the remittance to Denver of the $1560.75. A. The remittance was sent to Denver before the papers were sent to Bartlett Bi’os.”
This is the substance of all the testimony which tends to show that Sprengle had knowledge of the assignment. This testimony is uncontradicted, and shows that at the time Sprengle remitted the final payment the abstract was not made-out. It also fails to show that Sprengle saw the assignment of the mortgage on the margin of the record. This is all the evidence showing or tending to show that the defendants or either of them had notice of the transfer of the note and mortgarge before or at the time of the last payment. The trial court found from this evidence :
“That Sprengle examined the record, found the title perfect in Kasha, subject only to the Shimek mortgage. He examined the record of the mortgage on the page where recorded to ascertain the date, amount, maturity of the loan, and description of ,the property. Sprengle is not positive that he saw the record of the assignment, but, being recorded on the margin of the record of the mortgage, it would be an impossibility to see and examine the record of the mortgage without also seeing the record of the assignment. He must have seen and did see. His seeing it, however, probably did not make any lasting impression on his mind.”
The Shimek mortgage was recorded at pages 632 and 633, book “R” of mortgages. The plaintiff in error in his brief says : “At the time Sprengle examined the records the assignment was of record, as shown on page 206 of the record herein.” The assignment appears by the record of the case-made to be on the left margin at page 633, outside the leaded line, and at right angles to the copy of the mortgage, so that the assignment was not readable except by turning the record book a distance of one-fourth of a circle. It-also appears that the date, amount, maturity of the loan and description of the property are all shown on page 632, the page preceding the one on which appears the record of the assignment. It was therefore necessary for one to look at the page on which the assignment was recorded for the information desired by Sprengle. There is no evidence that he did examine the page containing the assignment. The finding that Sprengle saw the record of the assignment is not supported by the evidence.
The assignment from Neill to Wheeler was not acknowledged, and the record thereof did not impart constructive notice. Actual notice •was required. In the absence of actual notice of an assignment of nonnegotiable paper, payments may be made to the original payee. The payment thus made was a valid payment, for which the defendants were entitled to credit. For the reasons herein expressed the motion of the defendants in error for a new trial should have been sustained. The judgment will be reversed and the case remanded for a new trial.
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The opinion of the court was clelivered by
Milton, J.:
This action was brought by A. P. Waterman, as trustee of the estate of W. B. Paddock, deceased, to foreclose a mortgage executed by Peter Smith and Louisa J. Smith, conveying certain real estate in Crawford county to secure a coupon note of $1100. The mortgage and note were made payable to W. J. Neill, who was a clerk employed by the Western Farm Mortgage Company, and in whose name mortgages were generally taken by the company.
The mortgage debt matured October 1, 1891, and shortly after that date Peter Smith sent a drait to the Western Farm Mortgage Trust Company, of Denver, Colo., the successor of the Western Farm Mortgage Company, for a sum sufficient to pay the principal and the last semiannual interest coupon of the mortgage note. By their terms, the note and its coupons were payable at the Third National Bank, in New York. Interest payments had always been remitted by the mortgagors to the Western Farm Mortgage Company or to its successors, in response to written notices that such payments would be expected and required. In like manner, the trust company demanded payment of the principal of the note at its Denver office, and the draft in payment thereof was actually received by the company a day or two before the maturity of the note. The plaintiff did not at any time part with the possession of the note and mortgage. The company failed to remit to Waterman the money received by it from Smith, but shortly after receiving the same paid the amount of the last interest coupon to an attorney in Denver, to whom Waterman had sent the coupon for collection.
The practice of the company was to pay interest coupons at the Third National Bank, in New York, and all the coupons of the Peter Smith mortgage had been there paid. A jury trial was had, resulting in a verdict for the defendant. The plaintiff’s motion for a new trial was overruled and judgment for costs was rendered against him. The jury returned a large number of special findings, from which we quote the following:
“ 29. After the plaintiff purchased the bond and mortgage sued upon, did he ever authorize the Westeim Farm Mortgage Trust Company to receive payment of the note and mortgage sued on? A. Yes.
“ 30. If you answer the next preceding question in the affirmative, then state when said authority was given, and whether said authority was given in writing and in .what way given. A. From organization of company, in writing.”
“64. When the defendants paid said note did they suppose that the Western Farm Mortgage Trust Company was the owner thereof? A. Yes.
“65. When defendants paid said money .to said company at Denver, did they know or believe that the Western Farm Mortgage Trust Company was acting as agent for any one? A. Yes.
“ 66. If you answer the next preceding question in the affirmative, then state who said defendants supposed said company was acting as agent for. A. Waterman.”
“ 73. Was it not, up to September, 1891', the custom of the Western Farm Mortgage Company and the Western Farm Mortgage Trust Company to pay the principal and interest of maturing bonds and coupons, regardless of whether the borrower had forwarded this money or not? A Yes.
“74. When did Waterman first learn that Peter Smith had made any payments of interest or principal to the Western Farm Mortgage Trust Company? A. February, 1891.”
Findings Nos. 29 and 30 were material to the is sues in the case. They were entirely unsupported by the evidence. Finding No. 64 is in accordance with the evidence, while finding No. 65 has nothing in the record to sustain it. These two findings are inconsistent with each other. Findings Nos. 73 and 74 are based on the evidence, and are inconsistent with findings Nos. 29 and 30. We think it is clear that the jury either misconceived the import of certain portions of the evidence, or else did not give proper consideration to the matter of answering the special questions. The case falls within the doctrine of A. T. & S. F. Rld. Co. v. Brown, Adm’r, 33 Kan. 757, 7 Pac. 571, wherein the syllabus reads:
“Where important and material special findings of the jury aré without any support in the evidence, and where other findings are contrary to the evidence, and still other findings. evasive and inconsistent, and it appears from such findings that the jury either misconceived the import of portions of the testimony, or else did not make fair and impartial answers to the questions of fact submitted, the general verdict cannot stand, although it has been approved by the trial court.”
It is unnecessary to consider other alleged errors. The judgment of the district court will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Milton, J.:
A preliminary question arises on the motion filed by the defendants in error to dismiss the petition m error for the reason that the mortgagors were not made parties to the appellate proceedings. We think the motion ought to be overruled, as it appears that a reversal of the judgment in favor of the plaintiff might benefit but could not in anywise injure the mortgagors. The exclusion of the offered testimony of the mortgagors in respect to the alleged transaction between themselves and William Coulter, jr., deceased, whereby the latter orally assumed and agreed to pay the mortgage in controversy, is complained of by counsel for plaintiff in error in their brief, their principal contention being that the Barbers were not adverse parties in their relation to the other defendants. We are unable to agree with this view. While the mortgagors did not plead in the action, their interests were clearly adverse to those of Mrs. Coulter and her children. Had the offered testimony been received, its effect might have been to charge the decedent’s estate with the primary liability for the payment of the mortgage debt, a result clearly advantageous to the mortgagors.
In the case of Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, Mrs. Mott, one of the defendants, testified in behalf of the plaintiff, her minor son, and at the same time in her own behalf, concerning a transaction or communication with William Judd, deceased, the executor of the decedent’s will, being a party defendant. The court, after holding the reception of this testimony erroneous, said : “On account of this error the judgment must be reversed ; but as Mrs. Mott has now disclaimed any interest, she will be a competent witness as to the alleged marriage, on the next trial.” From the above decision, it appears that the words “ adverse party,” as used in section 322 of the code (Gen, Stat. 1889, ¶ 4417, Gen. Stat. 1897, ch. 95, §333), are not to be limited to the adversary positions of plaintiff and defendant, but affect any party, whether plaintiff or defendant, whose interests are actually adverse to those of another party to the action who appears in the capacity of an executor, administrator, heir at law, next of kin, surviving partner, or assignee, where the latter has acquired title to the cause of action immediately from a deceased person.
Another important contention of counsel for plain tiff in error is that the reception record and the index records in the office of the register of deeds of Rice county imparted constructive notice to William Coulter, jr., and to his grantee, Laughlin, as to the fact that plaintiff’s mortgage was intended to cover the Barber land in that county. The extent to which indexes of registration records impart constructive notice has received much attention from the courts of last resort in many of the states, but does not appear to have been fully determined by the supreme court of this state. In the case of Poplin v. Mundell, 27 Kan. 138, the court considered the effect of the delay of the register in making an entry in his receiving book of deeds deposited with him for record. On this point the opinion reads :
“It seems to us that when the party holding the title presents his deed, duly acknowledged and certified, to the register of deeds for record and demands that it be placed upon record, and the register thereupon accepts the same, and duly indorses it filed of the date it was so presented, such party has discharged his whole duty to the public, and his muniment of title cannot be shaken by any subsequent purchaser.”
Further on in the opinion occurs this statement:
“The conveyance itself was properly recorded at length, and although, taking the evidence of plaintiff alone, it may be said that she was misled by the temporary omission on the receiving book, we cannot bring our minds to the conclusion that the delay in making the entry deprived the record of the power of imparting constructive notice of its existence and contents to her.”
The court also said :
“ If the question of total omission on the part of the register of deeds was before us, we would be inclined to hold the law does not impose upon the party holding the title the responsibility of seeing that the duties prescribed by the statute upon the register for the protection and security of other parties are in fact faithfully discharged by such officer."
The inference from this decision is plain that, in the opinion of the supreme court, the indexes alone do not impart constructive notice as to the contents of registration records.
In Wade on Notice (2d ed.), section 165, it is said : “ Where, however, the question has come up directly for decision, it has been held, in the majority of cases, that the failure to index is an act of misprision, for which the officer is liable to the searcher of the record who is thereby misled to his injury." And in section 173 : “ But the current of authority seems to be decidedly against the doctrine that the index is an essential part of the record.”
It may be said, however, that the entries in the reception record and in the indexes were sufficient to put William Coulter, jr., and M. R. Laughlin upon inquiry, at the date of their respective purchases of the land, concerning the title thereof. The question then arises, How far should such inquiry have been pursued? The reception record showed that the mortgage in question had been filed for record; the general index disclosed that such mortgage described the land as being in range 17 ; the numerical index, while indicating by its heading that the land was in range 7, in the description thereof gave its location as being in range 17. Which index should be regarded as sufficient to put a seacher upon inquiry as to the existence of the mortgage against the land which was finally conveyed to Laughlin? Certainly not the general index, for it stated that the land was in range 17. It is evident that the numerical index was, at the best, ambiguous. From either of these indexes a searcher would have ascertained that the instrument was recorded in book 32. Referring to book 32 he would have found the land described as being in range 17. In our opinion that would have ended the inquiry, and nothing short of proof of actual notice or knowledge on the part of the subsequent grantees as to the mistake in the descriptive portion of the mortgage would have entitled the plaintiff to a reformation thereof as against such grantees.
• In the case of Shoals v. Wilsey, 11 Iowa, 261, the land was described in the mortgage as being in the northwest quarter of the northeast quarter of a certain section, and the owner of the mortgage sought a reformation thereof so as to describe the southwest quarter of the northeast quarter of the section and to foreclose the same against the last-named tract, after the sale of a portion thereof to an innocent purchaser without notice of the existence of the mortgage against said lands other than the notice imparted by the public record. The law of that state required the recorder to keep an index or entry book, in which, when an instrument was filed for record, he should enter the names of the parties thereto, the date of filing, the date and nature of the instrument, the book and page where recorded, and the description of the property conveyed. The court, after referring to the requirements of the registry law, and remarking that under the system of that state titles to and encumbrances on property could be traced and searched for, not only through the names of parties, but by the description of the property as contained in such index, said :
“A searcher for encumbrances, for instance, would have no occasion to look beyond the index book until he found a piece of property which, in description, would correspond with that the title of which he was investigating, and it would be strange indeed that he should, under such circumstances, be charged with a knowledge of facts recited in a mortgage given on another and distinct piece of property.”
If we follow the doctrine of the foregoing case, it would be necessary to hold that the indexes were insufficient to impart notice to the grantee of the Barbers that the latter had mortgaged, or intended to mortgage, land in range 7 ; and if we hold that such indexes would have required the searcher to find and read the record of the mortgage given by the Barbers to the plaintiff, the reading thereof would end the inquiry, as already remarked.
In Lessee of Jennings v. Wood, 20 Ohio, 261, the court, in its opinion said: “The reason that a party is chargeable with constructive notice is that by an examination of the record he will have actual notice.” And in the syllabus of the same case the court declared “ that a party can only be chargeable with constructive notice from the record when the record would give him actual notice.”
We shall not attempt to lay down any general rules relating to registry records and indexes thereof, as it is generally true that each case involving entries in such records must be decided according to its own peculiar facts. Under the facts of the present case, we hold that neither actual nor constructive notice was shown on the part of William Coulter, jr., and M. F. Laughlin, or either of them,' as to the existence of a mortgage, actual or intended, against the west one-half of the southeast quarter of section 6, township 18, range 7, in Rice county. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
Plaintiff in error contends that the court below committed prejudicial error in admitting in evidence, over his objection, certain declarations made by Green, his vendor. An examination of the record convinces us that these declarations undoubtedly show a fraudulent intent on the part of Green, but plaintiff in error maintains that they are not' competent to defeat his title. From the record, it appears that the declarations were made either a short time before or a short time after the sale, and evidence of such declarations would, we think, be admissible-as forming a part of the res gestse. It was said by the court in the case of Haskett v. Auhl, 3 Kan. App. 749, 45 Pac. 610:
“ The general rule undoubtedly is that.the declarations of a vendor of property, made after the sale, are not admissible for the purpose of invalidating it; yet-where the transfer is claimed to have been fraudulent, and the intent of the vendor is a material subject of inquiry, great latitude is allowed in showing the facts- and circumstances surrounding the transaction. In such case, it is proper to' show the acts and declarations of the vendor, at the time of and immediately after the sale, for the purpose of establishing the intent with which it was made on his part. (Douglass, Sheriff, v. Hill, 29 Kan. 527; National Bank v. Beard, 55 id. 773, 42 Pac. 320; Bowersock v. Adams, 55 id. 681, 683, 41 Pac. 971.)”
Plaintiff in error, however, contends that even though the declarations were admissible as showing-fraudulent intent on Green’s part, nevertheless his title would not be affected unless the evidence shows-that he had knowledge of such intent, or at least of such-facts and circumstances as would put a reasonably prudent and careful man on his guard and cause him to make such investigation as would disclose the-fraudulent purpose on the'part, of-the vendor. We think that the contention is well grounded. It is a. well-settled principle of law that a purchaser obtains a good title, notwithstanding the fraudulent intent of the vendor, when he purchases in good faith and without notice of such fraudulent intent. (Diefendorf v. Oliver, 8 Kan. 365; Wilson v. Fuller, 9 id. 185; Bump, Fr. Conv., 4th ed., § 189.)
The only evidence introduced by the defendants in. error upon the trial of the cause was as to the declarations of Green, and this being insufficient to defeat the title of plaintiff in error, we must turn to the evidence introduced by him, in order to determine whether he was cognizant of such facts and circumstances as would put a reasonably prudent man on his- guard and thus charge him, with notice of the fraudulent intent of his vendee. A careful examination of the record fails to disclose any actual knowledge by Hood of Green’s intent, and we think that the evidence, if any, was an insufficient foundation on which to base a presumption of knowledge of Green’s fraudulent intent.
Counsel for defendants in error argue that because Green had come from his home in Cowley county,, where the wheat was located, to Emporia, nearly 100 miles distant, and offered to sell the wheat to Hood,, this fact was a circumstance that should have put Hood on his guard and caused him to make investigation, and that because he failed to make such investigation he is chargeable with knowledge. We think that the circumstance could at most excite but a-slight suspicion, and besides, Green was not really a stranger, as counsel assert. The record shows that Green’s daughter had been Hood’s stenographer and, confidential clerk for several years, and this factwould doubtless cause Hood to place a greater reliance on Green’s representations ; moreover, it is further shown that Hood actually instituted an investigation. He held $490 of the purchase-price of $500 in the bank, of which he was president, as a special deposit, until he could communicate with his attorneys at Winfield, in the same county where the wheat was located, and it was only after receiving a favorable report from them that he paid over the balance of the amount- agreed on to Green's daughter. We think that the evidence of plaintiff in error strongly tends to show good faith on his part. It was not shown that he even had knowledge of any indebtedness of Green's, except such as was involved in certain foreclosure proceedings, and he certainly knew that he could not acquire title as against the mortgagees.
It cannot be said that fraud may be presumed from inadequacy of consideration. The price paid was $500. The value, as fixed by the appraisers in the attachment proceedings, was $600. Allowing for ordinary risks and a reasonable margin of profit, we think that a fair price was paid for the wheat.
Counsel for the defendants in error further contend that the retention of the possession of the wheat by Green after the alleged sale was presumptive evidence of fraud. We do not think that this contention has any force in this instance.- -The evidence shows that at the time of the sale the wheat was growing and unmatured on land held by a tenant. Green himself was not in possession, and could not, therefore, give actual possession. In the case of Howell v. Pugh, 27 Kan. 705, the supreme court held that on a sale of growing crops, if made in good faith, and for a valuable consideration, if it was the intention of the parties to the contract that, a present vesting of title was to take place, the title did, in fact, pass at once, although the actual delivery was to be made to the vendee upon division and separation of the crops.
Nor do we think that the contention that “section 3 of the statute of frauds, and the fact that there was no change of possession, place the burden of proof of showing the sale to be bona fide upon Hood,'' should be given any weight. As was said in the case of Farlin v. Sook, 30 Kan. 404, 1 Pac. 123: “It (the statute of frauds) must not, however, be so strained as to make' it receive an interpretation which it was not intended to bear. Such a construction, moreover, is not to be made in support of creditors as will make third persons suffer when they act in good faith.” Since there could be no actual change of possession, we do not think that the operation of the statute is such as to throw the burden-of proving the sale to be bona fide on the plaintiff.
Other assignments of error are discussed in the briefs of counsel, but, in view of the foregoing, it is not necessary to consider them. The judgment of the district court is reversed.
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The opinion of the court was delivered by
Wells, J.:
In the court below, it was agreed by the parties in open court that the only matter to be decided was a question of law, and that if, under the laws of the state of Kansas, the plaintiff was entitled to fees as sheriff for attending the probate court, when not expressly requested by the probate judge to do so, he would be entitled to judgment in the case. But if, on the other hand, sheriffs are entitled to fees only for attending probate courts on the first and last days of the terms, and when expressly requested by the probate judge to attend, then the plaintiff would not be entitled to judgment.
Section. 7, chapter 88, General Statutes of 1897 (Gen. Stat. 1889, ¶1766), reads as follows:
‘ The sheriff, in person or by his under-sheriff or deputy, shall serve and execute according to law all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.”
Section 9, chapter 131, Laws of 1897 (Gen. Stat. 1897, ch. 31, §§ 13-18), provides that the sheriffs shall receive, for “attending any court of record, one dollar and fifty cents per day.” The plaintiff in error says : “The foregoing is the law, and all the law, bearing upon this case.” Conceding this to be true, what is the meaning of the words, “shall attend upon the several courts of record held in his county” ? Do they mean that the sheriff, in person or by his under-sheriff or deputy, shall attend upon every court of record in his county during every moment of time said court is in session? If so, then he is surely entitled to receive one dollar and fifty cents per day therefor. A reasonable and fair interpretation of the meaning is that the sheriff shall, when required or when necessary, attend upon the several courts of record held in his county, and when he does so attend he shall receive one dollar and fifty cents per day for so doing. This interpretation is in harmony with the commonly accepted meaning of the words used and with what we are bound to conclude were the objects and intention of the legislature in enacting the law.
Plaintiff in error says : “It is not for the district court to say whether the law is wise or unwise. The language of the statute is plain and the intent of the legislature cannot be mistaken.” With this we cannot agree. If the statute had said that “the sheriff shall attend upon every day of every session of each court of record held in his county,” the claim of the plaintiff might be sustained, and the authorities cited would be in point; but where the language requires interpretation or construction, “the effect which would result from one or the other construction may guide us in deciding which construction we ought to adopt.” (Lieb. Plerm., rule 10, page 136.) “ The fair-
est and most rational method to interpret the will of the legislator is by exploring his intentions at any time when the law was made, by signs, the most natural and probable. And these signs are either the words, the context, the subject-matter, the effect and consequence, or the spirit and reason of the law.” (1 Bla. Com. 59.) To find that the legislature intended to compel the people to pay for unnecessary and useless services would require language less ambiguous than that relied on.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
DennisoN, P. J.:
This action was commenced in the district court of Cowley county by the defendant in error to recover from the plaintiff in error damages sustained by the burning of fruit-trees and hedge which were growing on his farm near Winfield. The petition alleged that the fire was caused by the plaintiff in error in the negligent operation of its railroad. Verdict and judgment were rendered for plaintiff below in the sum of $891.50 as damages, and $150 attorneys’ fees. The railroad company brings the case here for review.
Counsel for plaintiff in error contend that the court erred : (1) In permitting the introduction of certain testimony ; (2) in the giving of certain instructions ;■ (3) in refusing to give certain instructions; (4) in discharging the jury without requiring them to answer certain questions; (5) in refusing to render judgment for plaintiff in error on the special findings of the jury; and (6) in overruling the motion of the plaintiff in error for a new trial.
The first ruling complained of was in permitting the cross-examination of the witness Hawkins as to the contents of a report from which he refreshed his memory during his examination in chief. In Stephen’s Digest of the Law of Evidence, article 137, it is 'said : “Any writing referred to under article 136 (to refresh memory of witness) must be produced and shown to-the adverse party if he requires it; and such party may, if he pleases, cross-examine the witness thereupon.” See 7 A. & E. Encycl. of L. 111.
We have carefully examined the instructions given by the court as well as those refused, and have followed closely the argument of counsel thereon, and conclude that the court fairly and fully instructed the jury on the law as applicable t’o the pleadings and the evidence'.
The special questions to which the jury made the- answer “ Do n’t know ” all relate to the competency and skill of the engineer and the condition of the engine and its appliances to prevent the escape of fire. We think the jury could have answered these questions under the evidence and should have been required to do so. However, the jury found that the negligence of the company consisted of “ allowing accumulation of grass and combustible material on its right of -way.” We therefore cannot say that the plaintiff in error was prejudiced by the refusal of the court to require answers to the questions.
Counsel for plaintiff in error contend that, as the jury found that the company was negligent only in allowing the accumulation of grass and other combustible material on its right of way, the company is not guilty of such negligence as would make it liable, and cites Kansas Pac. Rly. Co. v. Butts, 7 Kan. 308, and A. T. & S. F. Rld. Co. v. Riggs, 31 Kan. 622, 3 Pac. 305. These decisions were made prior to the passage of the law of 1885 (Laws 1885, ch. 155; Gen. Stat. 1889, ¶ 1321; Gen. Stat. 1897, ch. 70, § 32) t which provides that it shall only be necessary for the plaintiff to show that the “ fire complained of was. caused by the operation of said railroad and the' amount of his damages” to make a prim,a facie case.: of negligence against the railroad company, and hence* are not applicable to this case.
Counsel for plaintiff in error contend, also, that the' motion for a new trial should be sustained, for, the' reason that the plaintiff below tried the case on the' wrong theory as to the-measure of damages.'" Hays, owned the land, and the trees were permanent improvements. The damages were found from evidence' as to the number of trees destroyed and the value of each tree, and the rods of hedge destroyed and its value/ instead of the value of the land before and after the fire. It was held by the supreme court in Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, that the plaintiff’s recovery would be limited to the actual diminution in the value of the realty ; but that while this may be shown either on cross-examination of the plaintiff’s witnesses or as a matter of defense, it does not prevent proof by the plaintiff of the value of the thing destroyed as a part of the realty. The plaintiff in error in this case made no attempt to show the diminished value of the realty in any way, and made no proper objection to the introduction of evidence as to the value of the trees and hedge. ' The only objection was : “ Defendant objects to the question and to the competency of the witness to answer the question.” No objection will be considered unless the grounds thereof are stated. The only objection is, therefore, as to the competency of the witness to answer the question.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The plaintiff in error complains of the action of the trial court in overruling its motion to confirm a sale and in sustaining the motion of W. H. Humphrey, defendant in error, to set aside the sheriff's sale of certain lands in Chase county. Complaint is made that, on the hearing of the motion, the trial court permitted evidence to be introduced and that it tried and determined the question of title. It is true that certain evidence was introduced in support of the motion, but there was no abuse of discretion such as to require a reversal of this case. Without giving a synopsis of the evidence introduced, it is sufficient to say that it was competent and material.
In tlie case of Harrison & Willis v. Andrews, 18 Kan. 535, the supreme court says :
“Where the public records, and all the written evidence applicable.to the subject, apparently show that certain land was subject to be sold on execution, a party moving to set the sale aside may nevertheless show by competent and proper parol evidence, embodied in affidavits, that the land was not in fact subject to be sold on said execution.
“ The right of the party moving to set aside a judicial sale is subject to an extensive discretion in the-court hearing the motion, and the final decision of the court upon such motion is not conclusive as to the ultimate rights of either of the parties."
In our opinion, the facts in the case under consideration should be governed by the rule stated in the case cited. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Wells, J.:
This action was brought in the district court of Atchison county to foreclose an equitable mortgage on real estate, consisting of deeds executed by the defendants to the plaintiffs, and a defeasance executed by the plaintiffs to the defendants. The first error alleged is in overruling a demurrer to the petition. The petition alleges the indebtedness, the execution of the deeds to secure the same, the execution, •delivery and acceptance of the defeasance, and the default in the performance of the conditions thereof. The demurrer was properly overruled.
The next error alleged is in refusing a continuance. The application was made on the ground that Mrs. Degan was a material witness, but no attempt was made to comply with the provisions of the statute in such cases. The motion appealed entirely to the discretion of the court and we cannot see that the court abused its discretion.
The next allegation of error is in overruling the de fendants’ demurrer to the evidence of plaintiffs. The evidence sustained the allegations of the petition and the demurrer thereto was properly overruled.
The next allegation of error is in refusing instructions asked by the defendants. Our attention is not called to any specific question of law embodied in these instructions that was relevant to the issues in -the case that was not given by the court, and we have not found any such.
Complaint is also made of instructions 5, 6, and 8, as given by the court. Did the court assume in these instructions as a fact any disputed matter? In No. 5 it is said :
“From the undisputed evidence, it would seem that Henry C. Solomon was the attorney of said Lawrence Degan in consideration of the matter in dispute between the city of Atchison and said Lawrence Degan ; and it would seem also from the testimony that the alleged contract of which exhibit ‘C’ is a copy had been prepared by said Henry C. Solomon in settlement of the claim made by the city of Atchison against said Lawrence Degan, and that the said Henry C. Solomon, as attorney for said Lawrence Degan, after having agreed to the amounkdue to the city of Atchison from the said Lawrence Degan, went before the city council of the city of Atchison and solicited said council to accept said contract for the purpose of protecting the said Lawrence Degan in the right to redeem the land he had deeded to the city on or before the 5th day of March, 1895, by paying into the city treasury of the said city the sum of $1285.29, with six per cent, interest thereon from March 5, 1894, in which case the said J. F. Tufts, trustee, or his successor, should convey the property described in the two deeds, copies of which are attached to plaintiff’s petition, to the said Lawrence Degan or any person designated by him.”
This, and the assumption in the sixth instruction that J. F. Tufts was authorized to act for the city, are the only facts assumed in said instruction, and we think they Avere justified by the evidence ; at least our attention has not been called to any conflict of evidence in relation thereto.
In the eighth instruction the burden of proving the lack of indebtedness and affirmative answers to spe-. cial questions 1, 2, 3 and 4 was placed on the defendants. From the record, the court undoubtedly, assumed that the deeds and defeasance constituted one completed contract, and that the execution of the deed by the defendants and the preparation of the defeasance and procuring it to be accepted by the city, by the defendants’ attorney and agent, was prima facie evidence of the indebtedness alleged therein.
The next error alleged is in refusing the defendants the right to open and close the argument. The court held that the burden of the only material issues in the case was on the defendants and they should have been allowed to open and close the argument. This is the only material error we find in the case, but the right to open and close the argument to the jury is a valuable right and should not be denied to the party who has the burden of the main-issues in the case.
The judgment of the district court Avill be reversed and a new trial directed.
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The opinion of the court was delivered by
Milton, J.:
This action was commenced March 20, 1890, by plaintiff in error on a promissory note, and during its pendency a writ of attachment was issued at the instance of the plaintiff and levied on the property of the defendant J. H. Rather, who thereafter filed a verified denial of the grounds of the attachment affidavit. The defendants pleaded that Benson was principal and the others sureties on the note, and averred that the note was given for usury. On March 27, 1893, the defendant Rathpr filed his motion to discharge the attachment, and on the 29th of the same month the defendants moved the court to dismiss the action at the cost of the plaintiff, fpr the reason that the issues therein had been fully adjudicated by the same court in three other actions, in each of which the Attica State Bank was plaintiff and L. E. Benson a defendant, he being the sole defendant in one of the cases and the principal defendant in each of the others. Two of the actions referred to were tried at the term at which the hearing on the motion to dismiss was had, and one at the preceding term, and each of said actions was on a promissory note. In two of the cases no judgment had been rendered on the verdicts of the juries therein.
The plaintiff objected to the' consideration of the motion to dismiss the action and to the introduction of evidence in support thereof, for the reason that such proceedings were in effect a trial on a motion, by the court, of facts and issues which the plaintiff was entitled to have submitted to and tried by a jury. This objection was overruled. Thereupon, the defendants offered in evidence the pleadings in cases numbered 2371, 2376 and 2370 of that court, the verdicts in the three cases all being in favor of the defendants therein ; the journal entry of judgment in one case ; the origi nal stenographic notes of the testimony in two cases as taken down by the official stenographer; and the special findings returned by the jury in one of the cases. The trial court stated that he was not able to read or .-understand the stenographic notes. The plaintiff’s objection to the introduction of this evidence was overruled. The court sustained the motion to dismiss the .plaintiff’s action and also the motion to discharge the attachment,.and entered an order to that effect.
Defendants in error have filed a motion to dismiss the proceedings in error. We have given each of the various -grounds stated careful consideration and have concluded that the motion must be overruled. The first and the second grounds in the motion are that no motion for a new trial'was filed. We find'that on the day the action was dismissed the plaintiff filed a motion “for a rehearing of the motion filed herein by the defendants on the 29th day of March, 1893, to dismiss said action,” for the reason that said ruling was contrary to law and not. sustained by sufficient evidence, and for errors of law occurring at the hear7 ing. We think this motion was proper under the circumstances of the case, and was equivalent to a motion for a new trial. The motion for a rehearing was considered by the court and overruled and time given to make a case.
Another ground of the motion to dismiss is that the plaintiff bank, having turned over its assets to another corporation, is defunct. This proposition has been decided adversely to the present contention. (Eureka Light Company v. City of Eureka, 5 Kan. App. 669, 48 Pac. 935.) . ....
Still another ground of the motion to dismiss is that the record does not affirmatively show service of notice of the time and place of settlement of the case-made. It does show that the attorneys for the defendants acknowledged service of the case-made, and the certificate of the trial judge states that no suggestion of amendments was made and that the parties appeared and assented to the settlement and signing of the case-made. In Fire Ins. Co. v. Amick, 36 Kan. 99, 12 Pac. 338, the court said:
“ It does not affirmatively appear in the record that the defendant in error was present, or had notice of tiie time when the case would be settled and signed. It does appear, however, that amendments were suggested by the defendant in error, some of which weré allowed by the judge and others disallowed. The reason that notice is required to be given to the defendant in error is, that he may appear and have the case-made amended in accordance -with his suggestions. If the amendments suggested by. the defendant in error are made by the judge, he cannot complain of the want of notice.”
We think the present case falls within the principle of that decision. The other grounds of the motion do not require special mention.
Coming now to the merits of the case, we think it must be held that a motion to dismiss is not a proper mode of raising the defense of former adjudication. (9 Encycl. PI. & Pr. 613, and cases there cited.) This is shown very clearly in the case at bar. Counsel for defendants in error have contended that no motion for a new trial was filed. It may be answered that there was no trial, although evidence was offered ‘to sustain the plea of res judicata. The issue arising on a plea of former adjudication, where evidence is necessary in support thereof, is generally a question for a jury.
• It was error to receive in evidence the files of the two cases wherein final judgments had not béen rendered. In Auld v. Smith, 23 Kan. 65, it was held that only a final determination on the merits can be considered as an adjudication amounting to res judicata, and that verdicts of juries can be considered such only in cases where the verdicts are final or have become embodied in final judgments. See also Black on Judgments, section 682.
We are unable tqdetermine from the record whether or not the decision of the trial court on the motion to dismiss is supported by competent evidence tending to prove a former adjudication of the issue arising on the plaintiff’s cause of action. The testimony offered in the form of stenographic notes might have supplied that wherein the record is now wanting. It affirmatively appears however, that the trial court could not read such notes and that they were not in fact in evidence at the hearing of the motion to dismiss. We think, therefore, that the record must be regarded as containing all the evidence on which the decision of the trial court was based, and that such decision is not sustained thereby.
No question is presented respecting the discharge of the attachment. For the errors which we have pointed out, the judgment of the district court will be reversed and the cause remanded for a new'trial.
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The opinion of the court was delivered by
Schoonover, J.:
This action was brought by the plaintiff in error in the district court of Greeley county, on two school-district warrants issued by the defendant school district on October 1, 1891, payable to W. G. Shaffer, the plaintiff, in one year from date, in the sum of $700 and $50, respectively. The petition alleged the incorporation of the district, the due and re'gular issuing of the warrants by the officers of the district, and that the issue of the warrants was afterwards ratified by a school-district meeting, and that plaintiff was the owner and holder of the warrants, a copy of them being set out as a part of the petition. The defendant demurred to the petition and the demurrer was overruled. At the July term, 1895, of court, and before the issues were made up, the plaintiff, by leave of court, amended his petition by filing a supplemental petition setting up the passage of an act of the legislature of 1895, entitled “An act legalizing the issue of certain school warrants therein named,” being chapter 356 of the Laws of 1895, which act of the legislature was passed after the commencement of the suit. To that supplemental petition the defendant demurred, and the demurrer was sustained by the court.
The principal question in the case is, Did the trial court err in sustaining a demurrer to the supplemental petition, showing the passage of an act of the legislature legalizing the issue of the warrants sued on? The title of the act in question is : “An act legalizing the issue of certain school wai’rants therein named.” The act says, “ and said warrants are made legal and valid claims against said school district.” The school district had no power to issue the warrants. The legislature had the right to give it that power. Then, if there was an equitable obligation on the school district to pay these warrants, the legislature could pass an act legalizing them and making them valid claims against the'school district. That is, it could put the school district in such a position that it could not plead ultra vires and avoid the warrants on the technical ground that it had no authority to issue them, when in fact it realized a benefit from the money for which they were issued. This act simply puts the school district in the same position that it would have been in had it been able to issue the warrants when it did so. They are legal on their face, in that the law may be read into them, and people looking at them can say they are prima facie legal, because the school district had the authority to issue warrants for this purpose.
The passage of the act legalizing the issue of the warrants sued on is a fact material to the case, arising since the filing of the original petition, and on notice, and 'on such terms as the trial court might prescribe, it was proper so to allege in a supplemental petition. The demurrer to the supplemental petition should not have been sustained. The plaintiff should have a trial on the warrants the same as if the school district had the authority to issue them, subject to all legal defenses.'
Numerous errors are assigned, but for the reasons given the judgment of the district court will be reversed.
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The opinion of the court was delivered by
Milton, J.:
As the petition in error fails to assign for error the overruling of the motion for a new trial, the only question for our consideration is whether the judgment rendered in favor of the deféndant in error for the amount claimed in his petition is supported by. the pleadings in the case. (National Bank v. Jaffray, 41 Kan. 691, 19 Pac, 626.)
This action was commenced on May 20, 1895, by. the defendant in error, to recover on a promissory note alleged to have been duly indorsed to him before its maturity, which note, with its indorsements, reads as follows :
No. 164. P. 10. Eureka, III., Jan. 2,1892.
Three years after date, for value received, I promise to pay to the order of the Treasurer of the Board of Trustees of Eureka College One Hundred Sixty-six Dollars, at the Farmers Bank of Eureka, with six per cent, interest per annum from date, interest payable annually.
This-note belongs to the Endowment Fund of Eureka College.
$166.67. Due Jan. 5, 1895. S. Wright.
Indorsed : Pay to the order of G. W. Darst. — G. W. Darst, Treasurer of the Board of Trustees of Eureka College, Eureka, Ill.
2-10-93 Pd. Int. to 1-2-93, $10 00
1-16-94 “ “ “ 1-2-94, $10 00
1-17-94 “ “ “ 1-2-95, $10 00
The principal defenses set up in the verified answer were that the indorsement of the note by the treasurer of the college to himself was invalid; that the note had been given by the defendant in renewal of a former note for the same amount; that the original note was given with the express understanding and agreement between the defendant and the trustees of the college that the interest only on said note should be paid by the donor during his lifetime ; and that when the note sued on herein was presented for payment by the National Bank of Pittsburg, Kan., the defendant tendered to said bank the interest due and a new note in renewal of the note in controversy, which tender was refused. The original note was set out in the answer. It was dated January 2, 1894, and was a promise to pay to the treasurer of Eureka College, on or before five years from its date, the sum of $166.67, with six per cent, interest, payable annually. By its express terms, the note was to be void if the college should be removed from or cease to be conducted as an institution of learning in the village of Eureka. It also provided that it should become due and payable in the event of the death of the maker thereof prior to its maturity, or if the interest thereon should not be promptly paid when due and called for ; and that “ the maker of this note shall have the privilege of renewing the same at maturity, subject to the same conditions and at the same rate of interest as above mentioned.” The indorsements on the original note showed payment of interest thereon for the years 1884 to 1890, inclusive, at irregular dates, and the answer averred that the interest for 1891 was paid when the renewal note was given. The answer also averred the willingness of the defendant again to renew the note sued on and contained an offer so to do.
The reply alleged that the defendant had not paid the interest on the first note promptly when the same became due ; that at the maturity of that note he denied liability on the same and refused to pay, and refused to renew the note ; and that upon such refusal the owner and holder thereof declared the same to be due, and that the same was due and payable according to its terms. It also alleged that after the said note became due and payable, and in settlement of the dispute and controversy existing between the defendant and the payee thereof, the defendant made and delivered the note set out in the petition, whereby he promised to pay the sum therein named at the maturity of the note, absolutely and unconditionally, and that there was no other agreement or understanding except such as the last-named note itself contained.
Construing the pleadings, it appears that the first note given by the plaintiff in error would mature upon the happening of any one of three contingencies, namely : The death of the maker of the note prior to its maturity, failure to pay interest thereon promptly as it fell due, or the maturity of the note, five years from its date, with no offer on the part of the maker thereof to renew the same. The indorsements on the first note show that the interest wras not paid promptly, the interest for the year 1890 having been paid on November 28, 1891, and the second note by its date purports to have been executed on January 2, 1892, three years after the maturity of the first note. These facts are inconsistent with the theory of the exercise of the option to renew the first note at its maturity, and support the allegations of the reply that the second note was given in settlement of the controversy between the parties, and was an unconditional promise to pay the sum therein stated. The proper inference from these facts is that the judgment of the trial court in favor of the plaintiff below for the amount of the note sued on was correct. In this view it is not important to consider whether or not the indorsement of the note to the plaintiff freed it from the defenses set up in the answer.
The judgment of the district court is affirmed.
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Bryan E. Nelson, of Overland Park, Kansas, an attorney admitted to the practice of law in the state of Kansas. The formal complaints filed against the respondent consist of four counts and allege violations of MRPC 1.4 (1993 Kan. Ct. R. Annot. 267); MRPC 1.15 (1993 Kan. Ct. R. Annot. 299); MRPC 3.3 (1993 Kan. Ct. R. Annot. 314); MRPC 4.1 (1993 Kan. Ct. R. Annot. 327); and MRPC 8.4(a), (b), (c), (d), and/or (g) (1993 Kan. Ct. R. Annot. 347). The respondent filed an answer admitting and denying allegations contained in the formal complaint.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held November 19 and December 6, 1993, at the Kansas Judicial Center in Topeka, Kansas. Disciplinary Administrator Bruce E. Miller appeared in person and the respondent appeared in person and proceeded pro se. The panel made the following findings and conclusions:
“COMPLAINT NO. B4845 — COUNT I
FINDINGS OF FACT
“We find the following facts and conclusions were established by clear and convincing evidence as to this charge.
“1. Bryan E. Nelson, is an attorney at law, Kansas Attorney Registration No. 09344. His last registration address with the Clerk of the Appellate Courts of Kansas is 6900 College Boulevard, Suite 430, Overland Park, Kansas 66211.
“2. On September 10, 1992, Respondent pled guilty to attempted possession of cocaine, a class D. felony.
“3. As a result of Respondent’s conviction, he was sentenced to a prison term of one and one-half (IV2) to five (5) years. Although Respondent has appealed his sentence, he has not appealed his conviction.
“4. Respondent was imprisoned from December 15, 1992, to March 23, 1993. He was granted probation on or about March 23, 1993.
“5. While in prison, on or about March 8, 1993, Respondent’s license to practice law was temporarily suspended by the Kansas Supreme Court pending final resolution of these disciplinar)' proceedings.
"6. Since February 1990, Respondent has been undergoing random urinalysis tests. All tests have been negative for illegal substances.
“7. Herbert C. Modlin, M.D., testified that he believes Respondent has completely recovered from his previous drug abuse and/or addiction.
“8. Respondent’s legal competence of law and procedure are not in question. He is an extremely knowledgeable litigator. Moreover, many witnesses and testimonial letters, as to Respondent’s outstanding legal abilities, were introduced and admitted into evidence during the hearing.
“CONCLUSIONS OF LAW
‘We conclude the following law is applicable to this charge.
"RULE 8.4 Misconduct
“It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.
'We conclude Respondent’s actions violate MRPC Subsections 8.4(b), (d), and (g).
“COUNT II
“FINDINGS OF FACT
‘We find the following facts and conclusions were established by clear and convincing evidence as to this charge.
"1. During the course of the criminal prosecution against Respondent (State v. Nelson, District Court Case No. K-62670), he and his attorneys made certain allegations that the police had planted cocaine in his automobile which he later admitted were false.
“2. At his plea hearing, Respondent testified to the following:
‘Q. [By Mr. Fox] As Ms. Boettcher entered your car that night, it was your intention to receive cocaine from her; is that correct?
‘A. [By Respondent] That’s correct.
‘Q. You, additionally, have a statement that you wanted to make associated with the case. Would you make that statement.
'A. Any statements that I previously made which inferred or indicated that law enforcement planted the contraband in my car on the date in question were false, and that I believe the District Attorney's Office and law enforcement acted professionally in both the investigation and prosecution of this case.’ ’’
“CONCLUSIONS OF LAW
‘We conclude the following law is applicable to this charge.
“RULE 8.4 Misconduct
“It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.
‘We conclude Respondent’s actions violate MRPC Subsections 8.4(c), (d), and (g).
“COMPLAINT NO. B5695 — COUNT III
“FINDINGS OF FACT
‘We find the following facts and conclusions were established by clear and convincing evidence as to this charge.
“1. In July 1992, Lisa Hays retained Respondent to represent her in a workers’ compensation claim. Hays left several documents concerning her claim with Respondent.
"2. When Hays attempted to call Respondent in March of 1993, she learned his phone had been disconnected.
“3. Respondent failed to reasonably keep Hays informed about the status of her case and his temporary suspension from the practice of law.”
“CONCLUSIONS OF LAW
‘We conclude the following law is applicable to this charge.
“RULE 1.4 Communication
"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
‘We conclude Respondent’s actions violate MRPC Section 1.4.
“COMPLAINT NO. B5698
"FINDINGS OF FACT
‘We find the following facts and conclusions were established by clear and convincing evidence as to this charge.
“1. On or about July 27, 1992, Marcia Huehn retained the services of Respondent to represent Reginald Carter, who was incarcerated in the Missouri State Penitentiary. Huehn and Carter were later married in a ceremony conducted at the prison.
“2. Respondent was retained to prepare a petition for habeas corpus for Carter. The parties agreed, however, Respondent would not commence work on Carter’s case until Respondent received a total retainer of $2,000. On or about February 8, 1993, the full retainer of $2,000 was paid to Respondent by Huehn.
“3. None of the aforesaid retainer was placed in Respondent’s trust account.
“4. In early April 1993, Respondent telephoned Huehn to tell her he was temporarily suspended from the practice of law. He also told her he had referred her husband’s case to Gregory Vleisides, who would proceed with the case. Additionally, Respondent gave Huehn his home telephone number.
“5. Previously, Respondent had spoken with attorney Vleisides about representing Carter while Respondent was in prison. Vleisides agreed to talk with Carter about his case if Carter would call Vleisides.
“6. When Huehn had not heard from Vleisides by late May 1993, she wrote Vleisides concerning his representation of her husband. Vleisides, however, wrote her a letter, dated June 1, 1993, stating he had never heard of Carter and that Respondent had not referred this case to him.
“7. Shortly after June 4,1993, Huehn and Carter both received letters from Respondent stating Vleisides was handling Carter’s case and again confirming his earlier temporary suspension from the practice of law.
“8. On or about June 21, 1993, dissatisfied with little or no representation of her husband, Huehn wrote Respondent requesting the return of the $2,000 retainer.
“9. Respondent admits he owes Huehn approximately $2,000; however, he claims his dismal financial condition has prevented him from repaying Huehn.
“10. At the hearing, Vleisides confirmed that Respondent had phoned him about representing Carter while Respondent was in prison, but Vleisides testified that he had forgotten about his earlier conversation with Respondent. Furthermore, he stated that his June 1, 1993, letter to Huehn, stating he had never heard of Reginald Carter, was clearly a mistake on his part.
“11. Vleisides, however, is not now representing Carter, nor has he ever represented Carter in this matter.”
“CONCLUSIONS OF LAW
‘We conclude the following law is applicable to this charge.
“RULE 1.4 Communication
"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
“RULE 1.16 Declining or Terminating Representation
“(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
“We conclude Respondent’s actions violate MRPC Section 1.4 and Subsection 1.16(d).”
The panel noted the following mitigating and aggravating circumstances, concluding with a recommendation for a plan of dis cipline involving indefinite suspension but recommending that the discipline be probated and that the respondent be placed on supervised probation under terms and conditions as set forth below:
“MITIGATING CIRCUMSTANCES
“We take official notice of the following mitigating circumstances:
“1. Respondent has practiced law in this state for 17 years and during this period of time, his only other discipline involved an informal admonishment for neglecting a matter entrusted to him. This action was taken on June 1, 1988.
“2. Many witnesses and testimonial letters have been introduced and admitted into evidence substantiating Respondent’s outstanding legal abilities and general good character.
“3. Respondent has undergone substance abuse therapy which is continuing and has refrained from the use of illegal substances for over three years. Moreover, Respondent has submitted to random drug screen testing and is agreeable to continue with said testing process.
“4. The Disciplinary Administrator has failed to present evidence of a pattern of misconduct on the part of Respondent.
“AGGRAVATED CIRCUMSTANCES
“We take official notice of the following aggravating circumstances:
“1. Respondent has failed to repay the $2,000 retainer collected from Marcia Huehn.
“RECOMMENDATION
“The Disciplinary Administrator has recommended that Respondent be disbarred. Although we agree that Respondent’s breaches of conduct were extremely serious and could warrant disbarment, we are reluctant to recommend such unconditional discipline in this case.
“Although we do not condone Respondent’s actions in these cases, we believe Respondent has already been sufficiently punished by the criminal justice system for his lapse of good judgment. He pled guilty to attempted possession of cocaine, a class D felony; however, he spent four months in prison for a crime for which many first-time offenders receive probation and/or community corrections.
“Additionally, it appears Respondent has completely recovered from his previous substance abuse. Moreover, in view of these mitigating factors, Respondent’s disbarment would be inappropriately severe. We, therefore, recommend the Court enter and publish an Order of Discipline of the following:
“1. Respondent be disciplined by indefinite suspension from the practice of law in accordance with Supreme Court Rule 203(a)(2); however, this discipline shall be probated on the following terms and conditions as set out in Supreme Court Rule 203(a)(5).
“2. Judge Herbert Walton, Administrative Judge of the 10th Judicial District, retired, will supervise Respondent’s legal practice for a period of three (3) years from the Supreme Court Order authorizing this plan.
“3. Judge Walton shall be acting as an officer of the Court and as agent for the Court as supervisor of probation in monitoring the legal practice of Respondent. Judge Walton shall be afforded all immunities granted by Supreme Court Rule 223 during the course of his activities as directed by the Supreme Court Order.
“4. Respondent will allow Judge Walton access to his files, his case inventory, his secretary, and his trust account. He shall periodically, but at least once per month, check the following:
a. The status of each case on Respondent’s case list;
b. Responses to client requests for information;
c. Respondent’s trust account.
Judge Walton shall furnish quarterly reports to the Disciplinary Administrator regarding Respondent’s performance.
“5. Judge Walton shall, by separate writing, acknowledge that he has read this proposed plan and that he agrees to serve in the capacity of supervising Respondent as outlined herein, and, further, that he has already reviewed the case inventory of Respondent, familiarized himself in a general way with the client files and general type of practice of Respondent, and states that there appears to be no apparent, significant problems with the case inventory of the Respondent.
“REHABILITATION
“1. Respondent shall not possess or use any controlled substances, as defined in K.S.A. 65-4101(e), except as prescribed by Respondent’s personal physician and under his/her direct care.
“2. Respondent shall submit to random drug tests, at his own expense, to be conducted not less than four (4) times per year.
“3. Respondent shall attend meetings of Narcotics Anonymous, or other approved organization, on a regular basis.
“4. Respondent shall fully cooperate with all lay persons, health care providers, and other members of the bench and bar as may be required or approved by Judge Walton in the interest of completing his personal and professional rehabilitation.
“5. During each year of Respondent’s probation, he shall perform at least one hundred (100) hours of pro bono legal services for either the Johnson or the Wyandotte County Legal Aid Societies. The Disciplinary Administrator shall approve the pro bono legal sendees to be performed and verify Respondent’s compliance with this order.
“FINANCIAL AFFAIRS
“1. Respondent shall cooperate with Judge Walton and/or his designee to bring his financial affairs in order and to keep his obligations with the state and federal taxing authorities current. Respondent shall make arrangements with the appropriate taxing authorities to provide for payment of any arrearages on any existing tax liability.
“2. Respondent shall make restitution to Marcia Huehn at the rate of $150 per month until the entire balance of $2,000 plus interest, at the rate of 10% per annum from February 8, 1993, has been fully paid and satisfied. In the alternative, Respondent may, upon the acceptance and approval of Marcia Huehn and Reginald Carter, pursue post-conviction remedies on behalf of Mr. Carter in accordance with the agreement previously entered into between Huehn, Carter and Respondent. Respondent shall make arrangements for local counsel and shall be obligated to provide whatever compensation is required by local counsel to assist Respondent in presenting any motions for post-conviction relief in the Missouri courts.
“CONCLUSION
“Upon report of any misconduct or non-compliance with these Orders by Respondent, the Disciplinary Administrator shall promptly inform the Supreme Court and an Order shall be issued directing Respondent show cause why these Orders should not be vacated and such discipline imposed by the Court as it deems just and proper without further formal proceedings.
“Upon receipt of executed affidavits by Respondent and Judge Walton that Respondent has fully complied with the terms and conditions of this Order, and that supervision is no longer necessary, the Disciplinary Administrator shall advise the Supreme Court in writing that the discipline of Respondent should be terminated. If Judge Walton declines or fails to file an affidavit of compliance, the Disciplinary Administrator shall investigate to determine whether Respondent should be fully reinstated. In that event, the Disciplinary Administrator may recommend reinstatement, continuation of discipline on specified terms and conditions, or that other discipline be imposed.
“We unanimously adopt this plan of discipline. Costs shall be assessed to Respondent.”
In the response to the findings, conclusions, and recommendations of the panel, Biyan E. Nelson, by written declaration, indicated he did not wish to file exceptions to the final hearing report, findings, and recommendations of the State Board for Discipline of Attorneys.
As we noted in State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), the reports and recommendations of the Board for Discipline of Attorneys and its hearing panel are advisory and not binding upon this court. At the same time, the findings of fact entered by the panel and its conclusions of law, particularly when no exceptions are filed by the respondent, are entitled to serious consideration by this court. We concur with the findings and conclusions of the panel and adopt them as our own. The findings are supported by clear and convincing evidence.
The respondent’s act of attempting to possess cocaine was a felony offense under Kansas law. In accord with the panel’s conclusion, we conclude that the respondent did engage in professional misconduct by committing a criminal act that reflects adversely on his honesty, trustworthiness, and his fitness to practice law. MRPC 8.4 (b), (d), and (g) (1993 Kan. Ct. R. Annot. 347).
The question of whether the respondent made any false statements to the court in defending himself in his criminal case was a contested factual issue before the hearing panel. The respondent vigorously denied that he misrepresented anything to the court and basically claimed that his attorneys provided the information to the court indicating that the cocaine found in his car was planted by the police or by police informants. He defended this issue before the panel on the basis that no witness was brought forward to show that the respondent ever directly said that the cocaine was planted in his car. He claimed before the panel that he should have been more careful about monitoring what his attorneys may have said in pleadings before the court. A large portion of the record was devoted to this issue.
Based upon controverted evidence, the panel concluded that the evidence established violations of MRPC 8.4 (c), (d), and (g); that is, the respondent engaged in professional misconduct involving dishonesty, fraud, deceit, or misrepresentation. The panel based its conclusion on the evidence presented as well as a statement of the respondent to the court at the time of sentencing:
“Any statements that I previously made which inferred or indicated that law enforcement planted the contraband in my car on the date in question were false, and that I believe the District Attorney’s Office and law enforcement acted professionally in both the investigation and prosecution of this case.”
While the respondent filed no exceptions to the report of the hearing panel, before this court the respondent steadfastly denied that he engaged in any conduct involving dishonesty, fraud, deceit, or misrepresentation and, as he did before the panel, claimed that he was not careful with his attorneys in monitoring what they said before the court in his criminal case.
With very few exceptions, this court has imposed either suspension or disbarment as a sanction when an attorney has been convicted of a felony offense. See In re Leitner, 254 Kan. 940, 869 P.2d 738 (1994); In re Pomeroy, 252 Kan. 1044, 850 P.2d 222 (1993); In re Jarczyk, 252 Kan. 4, 847 P.2d 1190 (1992); In re Evans, 252 Kan. 1, 841 P.2d 461 (1992); In re Morris, 251 Kan. 592, 834 P.2d 384 (1992); In re Wilson, 251 Kan. 252, 832 P.2d 347 (1992); In re Dickson, 250 Kan. 1, 824 P.2d 197 (1992); In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992); In re Laing, 246 Kan. 334, 788 P.2d 284 (1990); In re Lerner, 244 Kan. 342, 767 P.2d 1319 (1989); In re Sowers, 244 Kan. 594, 771 P.2d 933 (1989); In re Barritt, 243 Kan. 519, 757 P.2d 730 (1988); In re Sturgis, 239 Kan. 527, 720 P.2d 1118 (1986); In re Hyter, 235 Kan. 1, 677 P.2d 1017 (1984); In re Wriston, 231 Kan. 576, 645 P.2d 376 (1982); State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981); In re Hutton, 230 Kan. 3, 630 P.2d 161 (1981); In re Evans, 229 Kan. 182, 621 P.2d 991 (1981).
In the case of In re Smoot, 243 Kan. 589, 757 P.2d 327 (1988), this court imposed the penalty of public censure upon the respondent for his activity in possessing less than a gram of cocaine. Smoot entered a plea of guilty in the federal district court under a federal charge to one count of possession of cocaine in violation of 21 U.S.C. § 844 (1982), a misdemeanor charge at that time under federal law. The respondent in this case entered a plea of guilty to a State charge of attempted possession of cocaine, which is a class D felony under Kansas law.
In this case, the panel was unanimous in concluding that respondent’s conviction violated MRPC 8.4 (b), (d), and (g); that is, that the respondent did commit a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a láwyer in other respects; that he engaged in conduct that is prejudicial to the administration of justice; and that he did engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law. The respondent takes no exceptions to these conclusions, and we adopt these conclusions as our own.
We would note that in the case of In re Smoot, the single allegation was a federal misdemeanor conviction for cocaine pos session. In this case, we have concluded that the respondent’s felony conviction violated MRPC 8.4(b), (d), and (g); that during the course of the criminal prosecution against the respondent, he and his attorneys made certain allegations and that his action violated MRPC 8.4(c), (d), and (g); and that his dealing with two clients violated MRPC 1.4 (1993 Kan. Ct. R. Annot. 267) and 1.16(d) (1993 Kan. Ct. R. Annot. 305). Clear and convincing evidence established all of the above violations.
We disagree with the panel’s conclusion that supervision under the circumstances of this case is appropriate. We note that in approaching the panel the respondent did not propose to the panel that he be supervised by a member of the Johnson County Bar Association. The respondent did not believe supervision was necessary: “I don’t have any problem with that. I do not believe that I need supervision. I think my law practice that I engage in is impeccable.” It was on the recommendation of the panel and the allowance of an additional seven days’ time that moved the respondent to present a plan of supervision to the panel. We agree with the respondent that, for the most part, he does in fact practice at a level which would not indicate a necessity for supervision.
We partially agree with the recommendations of the hearing panel when it concludes: “Although we agree that Respondent’s breaches of conduct were extremely serious and could warrant disbarment, we are reluctant to recommend such unconditional discipline in this case.” We also are reluctant to impose such unconditional discipline, but we do believe that indefinite suspension from the practice of law without probation is warranted under all the circumstances in this case.
It Is Therefore Ordered that the respondent, Biyan E. Nelson, be indefinitely suspended from the practice of law in the state of Kansas and this suspension date from the date of his temporary suspension which incurred on March 8, 1993. It is further ordered that the respondent shall comply with the provisions of the Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187).
It Is Further Ordered that any time after the expiration of three years’ suspension and upon full restitution being made to Marcia Huehn for the fee advanced by her to the respondent, the respondent may apply for reinstatement under Supreme Court Rule 219 (1993 Kan. Ct. R. Annot. 192).
It Is Further Ordered that this order be published in the official Kansas Reports and the cost of this action be assessed to the respondent.
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The opinion of the court was delivered by
Davis, J.:
This appeal comes before us on the defendant’s petition for review of the judgment of the Court of Appeals in State v. Rush, 18 Kan. App. 2d 694, 859 P.2d 387 (1993). The question is whether criminal trespass is a lesser included offense of burglary. We granted the defendant’s petition for review because of conflicting decisions by two separate panels of the Court of Appeals. For reasons set forth below, we conclude that the Court of Appeals in this case was correct in its decision that criminal trespass is not a lesser included offense of burglary. However, we reverse on other grounds.
Early one October morning in 1991, police were dispatched to a burglary in progress at McCorry’s Grocery. The store occupies the first floor of the building; unoccupied apartments are located on the second floor. The only outside entrance to the apartments is located in the back of the building.
The responding police officers found the window screen pried up, pry marks on the front door, and the outside light broken. The front entrance, however, was secure. When the officers checked the back door, they found that it had been kicked in. They searched the upstairs apartments and found the defendant. The officers also found a crowbar on the floor near the defendant, just inside the apartment door that he was exiting when the officers found him.
No one else was in the building. A doorway leading from the apartment to the store had been kicked and pried open. Nothing was missing from the store or the upstairs; the officers found nothing on the defendant’s person except his personal belongings.
The defendant testified that he was unemployed, homeless, and cold that night. He testified that he slept in the building the night before his arrest and that the door was open both nights. He stated that he intended only to sleep in the building and that he did not intend to take anything. He denied causing any damage to the building.
The defendant was charged with and convicted of burglary. The court denied his request for an instruction on criminal trespass.
K.S.A. 21-3107(3) requires a trial court to instruct the jury on all lesser included offenses:
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
In State v. Dixon, 248 Kan. 776, 783-84, 811 P.2d 1153 (1991), we set forth the test for determining when the trial court’s duty to instruct arises under K.S.A. 21-3107(3):
“[W]e have adopted a two-prong test to determine whether a particular offense is a lesser included offense [under K.S.A. 21-3107(2)(d)] which requires a jury instruction thereon. [Citation omitted.] First, the court must determine whether all the statutory elements of the alleged lesser included offense are required to prove the greater crime charged. [Citation omitted.] A jury instruction on a particular lesser offense is required whenever all of its statutory elements will be proved if the State establishes the elements of the crime charged. [Citation omitted.] ....
“If a comparison of the lesser offense and greater offense fails to disclose an ‘identity of the elements,’ the court must apply the second prong of the test. This analysis requires the trial court to examine the crime charged and determine if proof of the crime charged also proves a lesser crime. If so, an instruction on the lesser crime is required. [Citation omitted.]
“. . . [U]nder the two-part analysis set forth in [State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987),] and [State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988)], a lesser crime may become a lesser included offense of a greater offense if the information actually alleges a lesser crime and the evidence which must be established to prove the crime charged also proves the lesser crime.”
In State v. Williams, 220 Kan. 610, 556 P.2d 184 (1976), we determined that criminal trespass was not a lesser included offense of burglary. At the time Williams was decided, K.S.A. 21-3721 (Weeks) defined criminal trespass:
“Criminal trespass is entering or remaining upon or in any land, structure, vehicle, aircraft or watercraft by one who knows he is not authorized or privileged to do so, and,
(a) He enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to him by the owner thereof or other authorized person; or
(b) Such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are fenced or otherwise enclosed.”
In Williams, the defendant was charged with aggravated burglary, which differs from burglary because of the addition of one element, viz., a human being is present on the premises at the time of the alleged burglary. K.S.A. 21-3716 (Weeks) defined aggravated burglary as:
“knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein.”
We noted in Williams that criminal trespass required proof of something more than a knowing and unauthorized entiy or remaining within the property because the statute prohibited knowing and unauthorized entiy and set forth the actual or constructive notice requirements in subparagraphs (a) and (b). 220 Kan. át 614. The defendant in Williams argued that the constructive notice in (b) was satisfied by the inherent nature of a building that “is enclosed by its walls and roof.” We rejected this argument, concluding that such an interpretation would render the notice provisions in (a) and (b) superfluous. 220 Kan. at 614-15. We held that because the notice required by either (a) or (b) was not a necessary element of aggravated burglary, criminal trespass was not a lesser included offense of aggravated burglary. State v. Williams, 220 Kan. 610, Syl. ¶¶ 3 and 4.
In 1980, four years after the Williams decision, the legislature amended the criminal trespass statute. The amended statute reads as follows with the pertinent additional language italicized:
“Criminal trespass is entering or remaining upon or in any land [or] structure ... by a person who knows such person is not authorized or privileged to do so, and:
(a) Such person enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person; or
(b) such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are locked or fenced or otherwise enclosed, or shut or secured against passage or entry." L. 1980, ch. 99, § 1.
See K.S.A. 1993 Supp. 21-3721.
The first Court of Appeals case to interpret the above statute in the context of the question we must resolve was State v. Ponds, 18 Kan. App. 2d 231, 850 P.2d 280 (1993). Ponds concludes that the legislature eliminated the notice requirement in 21-3721(b) in certain circumstances by its amendment. The decision in Ponds indicates that this court’s opinion in Williams was based on the conclusion that the inherently secured nature of a building could not amount to constructive notice because it would render the notice provisions of 21-3721(a) and (b) superfluous. See Williams, 220 Kan. at 614-15.
Ponds states that the present crime of criminal trespass “specifically includes structures or areas which are locked or shut or secured against passage.” 18 Kan. App. 2d at 234. Additionally, Ponds notes that “[i]n addition to the statutory amendment, the Supreme Court has broadened the notion of lesser included crimes.” 18 Kan. App. 2d at 234 (citing State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 [1988]. Ponds concludes that because the State’s proof was that the defendant entered the property knowingly and without authority through the locked front door, the State necessarily proved criminal trespass in proving aggravated burglary. 18 Kan. App. 2d at 235. Thus, under our holding in Fike, Ponds concluded that the trial court erred by not instructing the jury on criminal trespass as a lesser included offense of aggravated burglary.
The Court of Appeals in this case disagreed with the statement in Ponds that “the legislature has 'eliminated’ the notice requirement for the crime of criminal trespass ... in certain circumstances.” 18 Kan. App. 2d at 698. The Court of Appeals concluded that the language added in the 1980 amendment of the criminal trespass statute “merely provides an additional alternative method for proving constructive notice.” 18 Kan. App. 2d at 698. We agree.
The Court of Appeals also correctly pointed out that the Ponds court misapplied Fike. Ponds reasoned that because the State’s evidence was that the defendant entered the property without authority through a locked door, the State necessarily proved criminal trespass. 18 Kan. App. 2d at 235. However, as the Court of Appeals in Rush noted, the test is not what the State may prove, but what the State is required to prove. 18 Kan. App. 2d at 699 (citing Dixon, 248 Kan. at 784). The Court of Appeals concluded that because the State was not required to prove entry through a locked door to establish the crime of burglary, criminal trespass is not a lesser included offense of burglary.
The defendant quotes in his brief the legislature’s background notes regarding Senate Bill No. 826 and argues that this legislative history of the 1980 amendment suggests that the legislature intended to fill in the gap noted by our Williams decision:
“S.B. 826 is designated to fill a gap in the Criminal Trespass statute. The Kansas Supreme Court, in . . . State v. Williams, 220 Kan. 610 (1976), interpreted the criminal trespass statute as not applicable to the situation where a person trespasses on property but there is neither a command not to enter nor an order to leave the premises or the premises are not posted with notice sufficient to alert the person that trespassing is prohibited.”
This portion of legislative history, however, tends to support the Court of Appeals’ decision in Rush more than it supports the defendant’s contention that criminal trespass is a lesser included offense of burglary. We read the Senate’s concern and expression as an intent to insure that a locked, shut, or otherwise secured entry satisfies the constructive notice requirement under the criminal trespass statute. In other words, it “merely provides an additional alternative method for proving constructive notice.” Rush, 18 Kan. App. 2d at 698.
The criminal trespass statute is not a model of clarity, and it could be said that the notice provision under the statute seems to be superfluous because the statute also requires knowing unauthorized entry. Our responsibility, however, is to give effect to all portions of the statute and reconcile different provisions “in a way that makes them consistent, harmonious, and sensible.” State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990). If reasonably possible, this court is to avoid statutory constructions that make part of a statute surplusage. “The cardinal rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature govern when the intent can be ascertained from the statute.” 246 Kan. at 719.
We do not read the legislature’s 1980 amendment as significantly changing the criminal trespass statute. The amendment does not appear to do anything more than- add an alternative means of constructive notice that entry to property is unauthorized. We do not deem it necessary to abandon our analysis in Williams. Williams construed the statute as it did because the legislature used the term “and” to connect what is now subsection (a)(1) with subparagraphs (A) and (B). The legislature did not change that key language when it amended the statute in 1980, 1986, 1992, or 1993. The one thing the legislature did do was to make sure that when property is “locked or fenced or otherwise enclosed, or shut or secured against passage or entry,” notice requirements are satisfied.
Based upon the statutoiy language and our decision in Williams, we conclude that the legislature intended that a trespasser must enter property knowingly and without authority and the State must present evidence of actual or constructive notice in order to support a criminal trespass conviction. Because of the additional requirement imposed by 21-3721(a)(l)(A) or (B), criminal trespass is not a lesser included offense of burglary. Given this interpretation, our later decisions in Fike and its progeny do not alter our conclusion. Williams remains the law in this state. Accordingly, we conclude that K.S.A. 21-3107(3) did not require the trial court to instruct the jury on criminal trespass and the trial court did not breach its duty under K.S.A. 21-3107(3).
The defendant also contends that the trial court had an independent duty to instruct on criminal trespass under various other theories. He argues that the trial court is required to provide the jury with instructions that “ 'cover every issue or theory in the case which has support in the evidence.’ ” In support of this contention, he cites State v. Clark, 214 Kan. 293, 297, 521 P.2d 298 (1974) (quoting State v. Cunningham, 120 Kan. 430, 243 Pac. 1006 [1926]). Both Clark and Cunningham, however, addressed the trial court’s' duty to instruct not only as to the crimes charged, but also to instruct on “lesser offenses included therein as may be justified by the evidence.” Clark, 214 Kan. at 296-97. See Cunningham, 120 Kan. at 431 (“the court should instruct the jury not only on the evidence adduced by the prosecution in support of the higher offense, but also upon the whole evidence and especially upon the lower degrees of the offense, if there is substantial evidence applicable to the lower degrees”). Clark and Cunningham do not address a duty to instruct on lesser offenses independent of the duty to instruct on lesser included offenses under K.S.A. 21-3107(3). Indeed, this court’s opinion in Clark makes clear that it is discussing the common-law rule “now codified in K.S.A. . . . 21-3107(3).” 214 Kan. at 297.
The defendant also contends, however, that the trial court erred in instructing the juiy on the crime of burglary. More specifically, the defendant contends that the trial court in its burglary instruction set forth all the elements of the crime but did not instruct the jury on the elements of theft. That is, when the trial court instructed on burglary, it mentioned as one of the elements that the defendant knowingly entered the building “with intent to commit a theft therein” but then failed to instruct the jury on the elements of the crime of theft.
The Court of Appeals in its decision here attempted to distinguish our decision in State v. Linn, 251 Kan. 797, 840 P.2d 1133 (1992), on the basis that Linn presented evidence of several underlying felonies (theft, aggravated battery, or robbery), but here we have only one underlying felony, that being felony theft. Linn’s holding was clear: “An instruction as to the offense of aggravated burglary is defective unless its specifies and sets out the statutory elements of the offense intended by the accused in making the unauthorized entry.” 251 Kan. at 802. We find the distinction by the Court of Appeals is not supported based on the very specific holding in Linn. We hold, therefore, that the trial court committed reversible error in instructing the jury as to the offense of burglary because it did not “set out the statutory elements of the offense intended by the accused” in its burglary instruction.
Reversed and remanded.
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The opinion of the court was delivered by
Lockett, J.:
Defendant Kenneth Morris appeals his convictions on one count each of first-degree murder and aggravated burglaiy, claiming the district court erred in: (1) failing to suppress his confession; (2) failing to allow the defense to admit certain evidence; (3) improperly responding to a jury question; (4) giving an erroneous instruction on eyewitness identification; and (5) failing to give an instruction on a lesser crime.
James Turner and his friend Danny Davis went out together on the night of August 7, 1991. During the time they were together, Davis drank quite a bit. At about 1:45 a.m. they returned to Davis’ Lawrence residence. Davis had forgotten his key. A man and a woman approached and began talking to Davis. Turner could not positively identify Kenneth Morris as the man in question, but he testified there was a resemblance. After the two people left, Davis entered the house through a basement window.
Joseph Whitten was living with Davis and Albert Mauk. Whit-ten knew Morris and had previously allowed Morris and Morris’ wife to stay overnight at the residence. Morris had also been to the house a few other times. Whitten had spent the night of August 7, 1991, at a friend’s house. When Whitten arrived home at approximately 12:15 p.m., he heard a wheezing sound and went to see what it was. He found Davis lying on the bed, seriously injured. Whitten went to a neighbor’s and called for an ambulance. Medical personnel Subsequently transported Davis to the hospital.
When Davis was brought to the hospital, he had a skull fracture and several open deep cuts on his hand. Davis continued to deteriorate and later died from the head wounds. The autopsy of Davis’ body revealed, in addition to the head wounds, a variety of bruises on both sides of the arms and legs. There had been five separate blows to his head, which had caused internal injuries to the brain. The medical examiner testified these blows could have been caused by a golf club.
The crime scene was processed. Some of the windows were unlocked. One of the basement windows was open, and its screen was setting outside the house. There were no signs of forced entry. A set of scales belonging to Davis was missing from the house. There appeared to be blood, tissue, or some hair on the head of a golf club found on the bed with Davis. Eighty-seven fingerprints were lifted from various items found at the crime scene, but none were sufficient for an identification. A pair of Morris’ jeans was later tested, and blood found on the jeans, as well as on the golf club, was consistent with Davis’ genetic blood markers. The golf club was part of a set owned by Mauk.
On August 16, 1991, nine days after the attack on Davis, Morris was arrested in Phoenix by Detective Michael Smith, a Phoenix, Arizona, police officer, for committing several recent burglaries in Phoenix. At the police station, Morris initially told Smith he was Lee Hall. When officers explained they were going to fingerprint him, Morris gave his real name and informed the officers that he had a Kansas probation violation warrant outstanding. The Arizona police informed the Kansas authorities that Morris had been arrested in Arizona. Smith then received a phone call from Sergeant Crossfield of the Lawrence, Kansas, police department. Crossfield told Smith he was going to fly down to Phoenix to talk to Morris about a murder investigation. Crossfield did not say Morris was a suspect.
After talking to the Kansas authorities, Smith returned to question Morris. Smith informed Morris that he had been arrested because Morris was suspected of committing burglaries and thefts in Phoenix. Smith gave Morris the Miranda warnings. When asked by Smith, “Do you understand these rights?”, Morris replied, “I’m not sure what I want to do.” Although Morris did not specifically state he understood the rights, Smith believed that Morris did understand them. But because of Morris’ answer, Smith was unsure whether Morris had invoked his Fifth Amendment right to remain silent, and Smith did not ask any more questions. Without being asked additional questions, Morris was transported to the county jail. Detective Smith could not remember if, during the ride to the county jail, Morris asked when an attorney would be appointed to represent him for the Arizona charges. During the booking process, Morris did not request a lawyer.
Smith could not remember whether the Lawrence police detectives had asked Morris prior to interviewing him if he had previously been Mirandized or had an attorney appointed. After the Kansas officers informed Morris of the crime under investigation in Kansas and his rights under Miranda, Morris made incriminating statements. Morris was subsequently returned to Kansas and charged with the felony murder of Davis and aggravated burglary.
Prior to trial, Morris moved to suppress his confession and any evidence obtained as fruit of that confession. He alleged violations of his right to remain silent under the Fifth and Sixth Amendments of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. That motion was denied. Morris was tried and convicted of first-degree murder and aggravated burglary. Morris now appeals those convictions.
Failure to Suppress Confession
Morris makes several separate arguments as to why his confession should not have been admitted into evidence. Morris first asserts his confession should be suppressed because the State failed to show his confession was voluntary. He claims that his statement was not voluntary because the interview lasted five hours; during the interview he was questioned about two separate deaths; there were promises and threats made to induce his statement; he became ill at one point; he had only limited access to communication with the outside world; voices were raised in the discussion; he was homeless; he was 28 years old; and he was addicted to drugs at the time of the interview.
At the suppression hearing, Detective Smith, who had arrested Morris in Phoenix, testified as to what had occurred in Arizona. Detective Crossfield then testified that while investigating the murder of Davis, he was informed that Morris was in custody in Phoenix. Crossfield called Smith in Arizona and told Smith that Morris was a suspect in the homicide. Crossfield interviewed Morris in Phoenix the morning of August 17, 1991. No criminal charges had been filed against Morris in Kansas. When Crossfield gave Morris the Miranda warnings, Morris said that he understood his rights and waived his right to remain silent. Crossfield stated the Kansas officers never discussed the Arizona charges with Morris or knew Morris had an Arizona attorney appointed for him. During the interview, Morris never asked for an attorney, nor did he invoke his right to remain silent.
Crossfield testified that Morris stated that he and his wife had gone to Davis’ residence to purchase some cocaine but no one was there. Eventually Davis and another man drove up. Morris purchased cocaine from the other person. Morris later discovered he had received baking powder instead of cocaine. Morris and his wife returned to Davis’ place to get their money back. When no one answered the door, Morris entered Davis’ house through a bedroom window, took some loose coins and a set of scales, and gave them to his wife.
Morris reentered the house and picked up a golf club. Morris discovered Davis asleep in a bedroom. Morris stated he was mad at Davis because Davis had betrayed him in the drug deal and had previously “messed around” with Morris’ wife. Morris said he struck Davis several times with the golf club. Morris left the house and had a friend take him and his wife to the bus station. After giving the statement to Crossfield, Morris wrote a letter to his wife and asked the officers to give it to her. The letter stated Morris had told the officers what had happened and informed his wife she would not to go to jail if she told the truth. The letter instructed the wife to give the scales that Morris had taken from Davis’ place to the officers.
Crossfield then testified that Morris indicated he did not want a detainer from Arizona while serving time in Kansas; he was willing to waive extradition to Kansas if the Arizona charges were dropped. Crossfield denied discussing the death penalty with Morris or telling Morris he was “damn lucky that they don’t kill people in Kansas anymore.” Two days later, Crossfield again interviewed Morris. After being given the Miranda warnings, Morris did not ask for an attorney or invoke his right to remain silent, and made a second statement.
Morris testified that when he was interviewed by the Kansas officers, he informed them that he had a court-appointed attorney on his Arizona charges. Morris admitted that he had voluntarily talked to Crossfield and understood that he could quit talking at any time. Morris stated he told Crossfield he had purchased some bad drugs at Davis’ residence but did not want to discuss the drug related matters because he was afraid he would be labeled a snitch and be at risk when placed in the prison population.
Morris claimed Crossfield threatened him by stating he could get a “snitch jacket” placed on Morris whether Morris cooperated or not. Morris stated that Crossfield told him he was going to jail for first-degree murder and that he was lucky Kansas did not have the death penalty. When Morris asked if that was a threat, Cross-field replied it was a promise. Morris said Crossfield then told how Crossfield, at age 17, had singlehandedly whipped three grown men in a barroom fight. Morris took that as a threat of physical violence against him.
Morris stated he attempted to terminate the interview, but Crossfield kept asking questions. After a break, Crossfield again brought up the Davis case. Morris stated, “I thought we were done with that.” Shanks, the other Kansas officer, responded, “Not quite.” Morris testified that Crossfield then began asking questions about the death of Randy Smith, a friend of Morris’. Morris asked Crossfield if he thought Morris had killed Smith. Crossfield said no. Morris replied: “You’re damn right I didn’t kill him. . . . You police mother fuckers are the ones that killed him.” Morris then testified Crossfield started screaming that he had never killed anybody and he knew it was Morris who had killed Davis.
Morris testified Crossfield then offered a series of scenarios of how Morris’ wife could have been involved in the killing of Davis and threatened to charge his wife unless Morris confessed. Cross-field also promised Morris that if he would cooperate, Crossfield would talk to the prosecutor about reducing the first-degree murder charge. Morris claimed that during the five-hour interview he told Crossfield at least four times that he wanted the interview to stop. Morris stated that he continued to answer questions because he felt threatened.
The judge found that when interviewed in Arizona, although Morris had an attorney appointed to represent him for the Arizona burglary charges, Morris did not inform the Kansas officers that he had been appointed counsel for the Arizona charges. The Kansas officers were not aware counsel had been appointed to represent Morris on the Arizona criminal charges. The judge determined that Morris understood his Miranda rights and voluntarily agreed to talk to the Kansas officers. The judge found that although the interview lasted about five hours, Morris never requested that the interview be terminated. The judge noted the room where the interview took place was about 6 feet by 18 feet with a 5- or 6-foot-long table. During the interview, Morris was given the opportunity to take breaks, use the restroom, smoke cigarettes, and eat lunch. The judge found there were no threats or promises made by the Kansas officers. The judge determined that any comments made by the officers about applying a snitch jacket, barroom fights, death penalty, or striking deals with the prosecutor either did not occur or occurred in a different context and time than Morris claimed. The judge concluded the confession was voluntary and admissible.
Voluntariness
The first question for this court to determine is whether there is substantial competent evidence to support the district judge’s finding that the confession was voluntary. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990). When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, an appellate court accepts that determination if it is supported by substantial competent evidence. See State v. Johnson, 253 Kan. 75, 83-84, 853 P.2d 34 (1993).
Although the interview took place over five hours, it occurred during the daytime, breaks were allowed, Morris apparently never requested to communicate with “the outside world,” and the detectives’ testimony indicated the interview was conducted fairly. The other factors cited by Morris, e.g., his homelessness or the alleged promises or threats made to induce the confession, either are immaterial or contradicted by testimony of the detectives. Morris was in his twenties, and there is no indication his intellect was of a level that militates against finding he made a voluntary confession of his own free will. Despite Morris’ protestations, when the totality of the circumstances is considered, there is clearly substantial competent evidence to support the district court’s finding Morris’ confession was made freely and by his independent will.
Request for Counsel
Morris asserts that even if his statement was voluntary, it was not admissible as evidence because he had invoked his Fifth Amendment right to remain silent by exercising his Sixth Amendment right to counsel when questioned as to the Arizona charges. See, e.g., Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). Morris claims his response to Detective Smith, “I’m not sure what I want to do,” when asked if he understood his rights, constituted an invocation of his right to counsel. Morris concludes that because he had invoked his Sixth Amendment right to counsel, the subsequent waiver of his Fifth Amendment right to remain silent, when questioned by the Lawrence detectives, was invalid. The State contends that the defendant’s comment “I’m not sure what I want to do” is too equivocal to be an invocation of the defendant’s Fifth and Sixth Amendment rights.
We have stated that when a suspect makes a statement which may be ambiguous as to whether die suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify whether the suspect is asserting a right to remain silent or to confer with counsel. State v. Fritschen, 247 Kan. 592, Syl. ¶ 4, 802 P.2d 558 (1990). In Fritschen, the defendant, while in custody, stated, “I don’t want to talk about [the homicide] any more, it hurts too much.” 247 Kan. at 606. This court held that statement was not an ambiguous request to remain silent. It noted that after that statement by the defendant, the defendant was told he had a right to counsel, he was free to leave, and the officers would take him home. When the officers asked if Fritschen wanted to continue talking, Fritschen agreed to continue the interview. The Fritschen court concluded that under the facts, a reasonable person in the defendant’s situation would not believe he or she was in custody; therefore, the confession was voluntary and admissible.
In State v. Ninci, 19 Kan. App. 2d 192, 865 P.2d 1078 (1993), rev. denied 254 Kan. 1009 (1994), the Court of Appeals limited the scope of an investigator’s questioning of a suspect who makes an ambiguous, indecisive, or equivocal request for counsel during an interrogation. In Nind, the defendant was being interviewed regarding a murder. After being given Miranda warnings, the defendant admitted that he was present when the homicide took place. Ninci was requested to sign a consent form to search his house. He was informed that if he did not consent the officers would obtain a search warrant. The defendant stated, “I don’t know, do I need to have a lawyer right now?” 19 Kan. App. 2d at 194. The officer did not answer the defendant, continued the interview, obtained the consent, searched the defendant’s home, and seized incriminating evidence. Ninci filed a motion to suppress his statements and all evidence seized via the search warrant. Ninci claimed the evidence was obtained through a violation of his Miranda, rights. The district court granted the defendant’s motion to suppress. The State appealed the order to suppress.
The Ninci court, after reviewing Fritschen and relying on several federal appellate court decisions, determined that if a suspect makes an ambiguous, indecisive, or equivocal request for counsel during an interrogation, all interrogation must immediately cease, with the exception of further questions designed to clarify whether the suspect desires to consult with an attorney before continuing the interrogation. It stated that such questioning must be limited to the subject of clarification and cannot be used as a means of eliciting any incriminating statements from the suspect relating to the subject matter of the interrogation. 19 Kan. App. 2d 192, Syl. ¶ 2. The Ninci court determined that if a suspect makes an ambiguous, indecisive, or equivocal request for counsel during interrogation, failure of the interrogating authorities to clarify whether the suspect’s desire to consult with an attorney before resuming the interrogation renders that portion of a suspect’s statement, taken after such request was made, inadmissible. 19 Kan. App. 2d 192, Syl. ¶ 3. It found that a suspect’s alleged request for counsel must be given a broad interpretation in favor of the right to counsel when the suspect’s words, understood as ordinary people would understand them, are ambiguous. 19 Kan. App. 2d 192, Syl. ¶ 4. The Ninci court ruled that whether a statement made by a suspect during interrogation was an ambiguous, indecisive, or equivocal request for counsel is a question of fact to be resolved by the trial court from a totality of the evidence presented and affirmed the district court. 19 Kan. App. 2d 192, Syl. ¶ 1.
Subsequent to oral argument in this case, the United States Supreme Court ruled on this issue in Davis v. United States, 512 U.S __, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). Davis, a member of the United States Navy, was a suspect in the murder of another sailor. Davis initially waived his rights to remain silent and to counsel during an interview by Naval Investigative Service agents. Approximately an hour and a half into the interview, Davis said, “Maybe I should talk to a lawyer.” 129 L. Ed. 2d at 368. The agents inquired if Davis was requesting counsel. Davis said he was not. The agents took a short break, reminded Davis again of his rights, and continued to interview Davis for another hour. At that time, Davis asked to have a lawyer present before he said anything else. Questioning ceased. Davis moved to have the statement suppressed. A military judge subsequently denied a motion to suppress statements, holding that Davis’ statement was not a request for counsel. Davis was convicted of murder.
In affirming Davis’ conviction, the United States Supreme Court noted a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. 129 L. Ed. 2d at 373. If the suspect invokes that right at any time, the police must immediately cease questioning die suspect until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 484-485. It noted that the Edwards rule serves the prophylactic purpose of preventing officers from badg ering a suspect into waiving the suspect’s previously asserted Miranda rights and requires courts to determine whether the accused actually invoked the right to counsel. The test to determine if a suspect is asserting Miranda rights under Edwards is an objective inquiry, requiring some statement that can reasonably be construed to be an expression of a desire for an attorney’s assistance. However, if a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect. The United States Supreme Court determined that extending Edwards to create such a requirement would transform the Miranda safeguards into wholly irrational obstacles to legitimate investigative activity by needlessly preventing the police from questioning a suspect in the absence of an attorney, even if the suspect does not wish to have one present. The Edwards rule was formulated to provide a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. The clarity and ease of application of Edwards would be lost if officers were required to cease questioning based on an ambiguous or equivocal reference to an attorney, since they would be forced to make difficult judgment calls about what the suspect wants, with the threat of suppression if they guessed wrong. The Court found that while it will often be good police practice for officers to clarify whether a suspect making an ambiguous statement really wants an attorney, they are not required to ask clarifying questions. Davis, 129 L. Ed. 2d at 373. It concluded that after a knowing and voluntary waiver of rights under Miranda law enforcement officers may continue questioning until and unless a suspect clearly requests an attorney.
The Arizona police officer testified he was unsure whether Morris was requesting counsel, but he did not believe that the defendant was invoking his Fifth Amendment right. The officer did not follow up with any inquiry to clarify Morris’ comment. Davis and Fritschen both permit and encourage officers to ask questions to clarify whether a suspect is asserting his rights. Davis, 129 L. Ed. 2d at 373; Fritschen, 247 Kan. at 607. While further questions by Detective Smith could have cleared up the matter, die rule adopted in Davis prefers clarification but does not require it.
Morris’ statement, “I’m not sure what I want to do,” was not an invocation of any particular right, let alone a complete invocation of all rights. The admission of the statement was not barred by the Fifth or Sixth Amendments to the United States Constitution. In light of Davis and our holding in this case, syllabus ¶ ¶ 2, 3, and 4 of Ninci and the corresponding statements in the opinion are overruled.
Morris next contends the district judge improperly admitted the confession under McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), which involved the Sixth Amendment right to an attorney, not the Fifth Amendment right to remain silent. In McNeil, the defendant was charged with armed robbery. He was represented by a public defender at the bail hearing. While in custody on that charge, he was questioned by police from another jurisdiction about a murder and related crimes committed in the other jurisdiction. He was advised of his Miranda rights, signed waivers, and subsequently made incriminating statements regarding the murder. McNeil was then charged with the murder and related crimes. McNeil’s pretrial motion to suppress his statements was denied, and he was convicted of the charges. McNeil appealed to the state supreme court, and his conviction was affirmed. The United States Supreme Court accepted review of the case and noted that the question presented was whether the accused’s invocation of his Sixth Amendment right to an attorney during a judicial proceeding on the armed robbery charge constituted an invocation of his Fifth Amendment right to counsel for the murder charge in the other jurisdiction. It noted that the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for the accused’s defense. In Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the United States Supreme Court had held that once the right to counsel has attached and has been invoked, any subse quent waiver during a police-initiated custodial interview is ineffective. It was undisputed in McNeil that at the time McNeil provided the incriminating statements regarding the murder charge, his Sixth Amendment right had attached and had been invoked with respect to the armed robbeiy, for which he had been formally charged.
The Supreme Court noted that the Sixth Amendment right, however, is offense specific. It observed that the Sixth Amendment right cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” United States v. Gouveia, 467 U.S. 180, 188, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 [1972]). And just as the right is offense specific, so also the Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense specific.
The McNeil court observed that in Edwards v. Arizona, 451 U.S. 477, the Supreme Court had established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but “the suspect may not be approached for further interrogation until counsel has been made available,” 451 U.S., at 484-85, which meant that counsel for the suspect must be present. See Minnick v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990). If the police subsequently initiate an encounter in the absence of counsel, assuming there has been no break in custody, the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and the suspect’s statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990). The Edwards rule, moreover, is not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, the suspect may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).
Having described the nature and effects of both the Sixth Amendment right to counsel and the Miranda-Edwards “Fifth Amendment” right to counsel, the Supreme Court then discussed the issue presented by McNeil. It observed that the petitioner sought to prevail by combining the two rights. McNeil contended that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those waivers were the invalid product of impermissible approaches because his prior invocation of the offense specific Sixth Amendment right with regard to the first set of charges was also an invocation of the non-offense specific Miranda-Edwards right. The McNeil court opined, “We think that [contention] is false as a matter of fact and inadvisable (if even permissible) as a contrary-to-fact presumption of policy.” 501 U.S. at 177.
Morris had counsel appointed for him on the Arizona charges. Under McNeil, Morris’ Sixth Amendment right to counsel during formal judicial proceedings, which is offense specific, did not prevent interrogation outside the presence of counsel for crimes unrelated to the charges for which counsel had been appointed. See 501 U.S. at 178-79. Morris argues that McNeil, however, is in-apposite because he claims he invoked both his Fifth and Sixth Amendment rights to counsel when questioned by the Arizona officers. Morris asserts that although die right to counsel under the Sixth Amendment is “offense specific,” see McNeil, 501 U.S. at 175, once a Fifth Amendment right to counsel had been invoked, he may not be questioned by the Kansas officers unless counsel is present. See Michigan v. Jackson, 475 U.S. at 626; State v. Norris, 244 Kan. 326, 331, 768 P.2d 296 (1989).
The flaw in Morris’ argument is that he never invoked his right to counsel or his right to remain silent. Appointment of counsel on the Arizona burglary charges was offense specific and did not prevent the detectives from questioning Morris on unrelated matters. Morris’ equivocal comment to the Arizona officer was not an invocation of his right to counsel; therefore, the waiver of his right to remain silent was valid.
Moms recognizes that the United States Supreme Court in McNeil rejected a combination of the right to counsel in custodial interrogations under the Fifth Amendment with the right to counsel during formal judicial proceedings under the Sixth Amendment. 501 U.S. at 177-78. Morris, however, points out that § 10 of the Kansas Constitution Bill of Rights, unlike the federal Constitution, combines the Fifth and Sixth Amendment rights to counsel in one provision. He asserts that because the rights are combined, the two provisions are to be treated together arid equally. Morris argues that combining the rights to counsel in § 10 of the Kansas Constitution Bill of Rights “rejects the offense-specific distinction” of McNeil and extends to die accused more protection than the federal Constitution.
We disagree with Morris’ assertion. The Fifth Amendment right to counsel stems from language in that provision that states “nor shall any person ... be compelled in any criminal case to be a witness against himself.” The Sixth Amendment provides that in all criminal prosecutions the accused shall have the assistance of counsel in defending against the charges brought. We recognize § 10 of the Kansas Constitution Bill of Rights combines several protections found in the Fifth and Sixth amendments into one provision. It states:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel [Sixth Amendment]; to demand the nature and cause of the accusation against him [Sixth Amendment]; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf [Sixth Amendment], and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed [Sixth Amendment]. No person shall be a witness against himself [Fifth Amendment], or be twice put in jeopardy for the same offense [Fifth Amendment].”
The double jeopardy provisions of the federal and Kansas Constitutions have previously been held by this court to be co-equal. In re Habeas Corpus Petition of Lucas, 246 Kan. 486, 489, 789 P.2d 1157 (1990). (“Section 10 of the Bill of Rights of the Kansas Constitution entitles a defendant to the same protection against double jeopardy afforded under the United States Constitution.”) Other provisions in the Kansas Constitution Bill of Rights have also been held to extend the same or similar protection as the analogous federal bill of rights provisions. See, e.g., State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 583, 701 P.2d 1314 (1985) (section 1 of the Kansas Constitution Bill of Rights is given much the same effect as the Equal Protection Clause of the Fourteenth Amendment).
In State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993), we noted that the scope of § 15 of the Bill of Rights to the Kansas Constitution and of the Fourth Amendment to the United States Constitution is identical or is usually identical. The State was investigating Schultz’ purchasing of surplus property. The State subpoenaed his bank and telephone records. Schultz filed a motion to suppress the use of the records, claiming he had a legitimate expectation of privacy in information he voluntarily turned over to a third party, the bank. The trial court denied the defendant’s motion, determining that the defendant had no reasonable expectation of privacy in bank records. The Schultz court found that the Fourth Amendment to the United States Constitution does not prohibit the government’s obtaining information revealed to a third party and conveyed by that third party to government authorities, even if the information is revealed to the third party on the assumption that it will be used only for a limited purpose and that the confidence placed in the third party will not be betrayed. We noted that “this court has never extended state constitutional protections beyond federal guarantees.” 252 Kan. at 826. Although the Schultz court elected not to extend the protection afforded under the state constitution past the reach of the federal Constitution, it did not foreclose extending state constitutional protection in a later case involving different issues. 252 Kan. at 834. The Schultz court noted that Schultz had offered “intriguing reasons” for expanding protection afforded defendants based on the state constitution, including interpreting § 15 in light of both of the other provisions of the Kansas Bill of Rights and of our state’s constitutional and common-law history. 252 Kan. at 826, 834. However, we declined to expand the protection.
To support his claim, Morris also cites a variety of cases from other jurisdictions where other states have relied on state constitutional grounds in deciding right to counsel issues. Some of the cases cited do not support Morris’ argument, either through co-equal treatment of state and federal constitutional provisions, or relying on state common law or evidentiary law to avoid the otherwise controlling effect of United States Supreme Court constitutional edicts, or due to material differences in wording between the federal and state constitutions. In light of this court’s decision in Schultz, what other states choose to do is not sufficiently persuasive to cause us to apply those cases to this matter.
This court is free to construe our state constitutional provisions independent of federal interpretation of corresponding federal constitutional provisions. See Oregon v. Hass, 420 U.S. 714, 719, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975). In Hass, the United States Supreme Court recognized that a state is free as a matter of its own law to impose greater restrictions on police activity than those the Court holds to be necessary upon federal constitutional standards. See Schultz, 252 Kan. at 824. The provisions of § 10 of the Kansas Constitution Bill of Rights grant no greater protection against self-incrimination than is afforded by the Fifth Amendment to the United States Constitution. The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness. The liberal construction which must be placed upon constitutional provisions for the protection of personal rights requires that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation. State v. Faidley, 202 Kan. 517, 520, 450 P.2d 20 (1969). Morris offers no compelling reason to expand protection afforded defendants, instead relying only on the fact that the state constitution combines protection contained in two separate amendments to the federal Constitution.
Refusal to Admit Evidence
In the State’s opening argument, the prosecutor indicated that Morris’ incriminating statements made during the interview would be introduced into evidence. The defense counsel, in his opening remarks, countered that when the jury took into account the evidence of the confession, it would also have evidence of Arizona “court documents” that would show Morris had counsel appointed the night prior to the interview.
Crossfield admitted on cross-examination that before they interviewed Morris the Lawrence police officers were “concerned” whether Morris had been to court on the Arizona charges and had not determined if Morris had an attorney appointed. During the cross-examination of Shanks, Morris’ counsel attempted to introduce into evidence an order from the Arizona court showing counsel had been appointed to represent Morris on the Arizona crimes prior to the interview. The State objected to admission of the order on hearsay grounds and also because the Arizona court order might mislead the jury into believing counsel had been appointed to represent Morris for the Kansas murder investigation prior to the interview. The trial judge ruled that evidence was not relevant and that its introduction would confuse the jury. The trial judge then ordered that the-jury was not to be informed of the fact that Morris was in custody on the burglary charges in Arizona because of its prejudicial effect.
It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her defense to the charge so the jury may properly weigh the evidence and reach its verdict. State v. Humphrey, 252 Kan. 6, Syl. ¶ 3, 845 P.2d 592 (1992). Morris contends this district court’s attempt to insure that the juiy did not become aware of the fact that Morris was in custody on burglary charges at the time of the interview is misplaced because from other testimony adduced it was “quite apparent” the jury was aware Morris had been in some type of criminal trouble in Arizona. He argues the exclusion of the Arizona court order deprived him of his right to a meaningful opportunity to present a complete defense. He asserts that if the jury had seen the order it would have demonstrated the testimony of Shanks and Cross-field regarding Morris’ confession was unreliable and that Morris’ confession was coerced.
The State notes that under K.S.A. 22-3215(5), once a court has ruled a confession is admissible, the admissibility of that confession will not be submitted to the jury. The State acknowledges a defendant may still introduce evidence that bears on the weight to be given the confession. The State contends the evidence in question goes solely to the issue of the Sixth Amendment right to counsel and therefore the admissibility of the confession and not the weight to be given to the confession itself.
The admissibility of evidence is governed by its relevancy to the issue in question. State v. Reynolds, 230 Kan. 532, Syl. ¶ 4, 639 P.2d 461 (1982). Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). The determination of relevancy is a matter of logic and experience, not a matter of law. State v. Steadman, 253 Kan. 297, 305, 855 P.2d 919 (1993). Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. State v. Friberg, 252 Kan. 141, 147, 843 P.2d 218 (1992). If the statement or confession is voluntary, the credibility of the witnesses and the weight to be given to the statement are left to the province of the jury and should be submitted at the trial. The trial judge has discretion in determining relevancy and should keep the inquiry within the proper bounds. State v. Duncan, 221 Kan. 714, 720-21, 562 P.2d 84 (1977). If reasonable people could differ about the propriety of the trial court’s decision, this court will not find that the trial court abused its discretion. State v. Cromwell, 253 Kan. 495, 511, 856 P.2d 1299 (1993).
Review of the admission or the exclusion of evidence is governed by K.S.A. 60-261, the harmless error rule, which provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. State v. Getz, 250 Kan. 560, 569, 830 P.2d 5 (1992).
Two recent cases discussed a defendant’s claim that the trial judge improperly excluded relevant evidence. In State v. Getz, the defendant was charged with theft of two horses. Getz stated that when she returned home one day she discovered the horses on her property. Getz claimed that Patton, who was living with her, informed her he had purchased the horses and had asked her to sell the horses for him. Patton disappeared prior to trial and could not be located. Because Patton was not available to testify, the trial judge found Patton s statements to Getz were hearsay and refused to allow Getz to testify that Patton had told her he had purchased the horses and wanted her to sell them for him. The Getz court found that the evidence had been improperly excluded, noting that the jury could have concluded that Getz'did not intend to permanently deprive the true owner of the horses. It observed that without the intent to permanently deprive the owner of the property, Getz could not be guilty of theft. It reversed the conviction, finding that the erroneous exclusion of the evidence was not harmless error.
In State v. Mays, 254 Kan. 479, 487-88, 866 P.2d 1037 (1994), the victim claimed that Mays, whom she knew, raped and robbed her while armed with a handgun. Mays did not deny the victim was raped. He claimed the victim named, him as the offender at the urging of her boyfriend because of their feud over money that belonged to the boyfriend that Mays had lost gambling. The excluded evidence in Mays included testimony about a witness’ financial dependence on her boyfriend and that boyfriend’s threat to “get even” with the defendant. 254 Kan. at 485. The Mays court noted that the only evidence supporting the defendant’s conviction was the witness’ testimony and that the evidence bearing on her credibility was “an integral part of the defendant’s defense.” 254 Kan. at 486. It noted that the exclusion of relevant, admissible, noncumulative evidence bearing upon the credibility of a critical prosecution witness can unfairly prejudice the defendant and determined that the exclusion of that evidence violated Mays’ right to a fair trial.
The issue of the admissibility of a confession or admission shall not be submitted to the jury. The circumstances surrounding the making of a confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission. K.S.A. 22-3215(5).
In both Getz and Mays, the excluded evidence was relevant. Here, the offered evidence was not relevant. Morris’ purpose in adducing the evidence was to impeach the credibility of the de tectives’ testimony regarding Morris’ inculpatory statements. The evidence excluded would have only established Morris had counsel appointed for him on the Arizona burglary charges. The detectives did not testify that Morris did not have counsel already appointed; instead, they testified they were unaware that counsel had been appointed. The Arizona court document would not contradict the detectives’ claim that they were unaware of the appointment of counsel for Morris. It would not tend to prove or disprove any material fact; therefore, it was not relevant.
Response to Jury Question During Deliberations
The jury was instructed that to find Morris guilty of aggravated burglary, it had to find that Morris had knowingly entered into and remained in the residence without authority and with the intent to commit theft and that there was a human being in the residence at that time. During the deliberations, the jury sent out a written question that read:
“On Page 7 (‘The defendant is charged with aggravated burglary. . .’
“Item 4, that there was a human being . . . etc.
“A question has been raised by a juror that to meet this criteria, did the defendant need to know someone was in the house when he entered, or did someone simply have to be in the house? Can you advise us on this?”
Over Morris’ objection, the court answered:
“Knowledge of the presence of another human being in the structure is not an element of the charge of aggravated burglary. Please refer to instruction number 7, element 4.”
Morris does not argue that the response was incorrect, only that the judge’s response was unnecessary because the existing instructions adequately explained the relevant law. He does not clearly state how the trial judge’s giving this answer to a jury’s request is an abuse of discretion. The State argues that under State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1979), the trial court had a “positive duty” to respond to the jury and, even absent that duty, the response given was within the discretion of the court.
The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question pre sented by the jury involves the basic elements of the criminal offense on which the defendant is being tried. Bandt, 219 Kan. at 824. Whether to respond to requests for additional information or instructions after a jury has commenced deliberation is addressed to the trial court’s discretion. State v. Sully, 219 Kan. 222, 228, 547 P.2d 344 (1976); State v. Thomas, 6 Kan. App. 2d 925, 932, 636 P.2d 807 (1981). If reasonable people could differ about the propriety of the trial court’s decision, this court will not find that the trial court abused its discretion. Cromwell, 253 Kan. at 511.
K.S.A. 1993 Supp. 21-3716 provides a more severe offense, aggravated burglary, where the burglary is committed in a structure in which there is some human being. In State v. Mogenson, 10 Kan. App. 2d 470, 475, 701 P.2d 1339, rev. denied 238 Kan. 878 (1985), the Court of Appeals noted that although the aggravated burglary statute requires knowing entry into a building, etc., it does not mention knowledge in connection with the element that “there is some human being” present. K.S.A. 1993 Supp. 21-3716. Neither party cites a case that discusses whether aggravated burglary requires knowledge that a person is inside the building. In State v. Price, 215 Kan. 718, 721, 529 P.2d 85 (1974), this court commented that, clearly, knowledge of entry and intent to commit a theft or a felony is required by the statute, but there is no requirement of knowledge that there was someone within the building at the time the entry was made. See State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973) (evidence of unauthorized entering and remaining in a building that is unoccupied, which later becomes occupied, is sufficient to support an aggravated burglary charge).
The additional instruction in the present case was a correct statement of law and within the court’s discretion to give. No error occurred on this ground.
Eyewitness Instruction
The jury was given the following instruction on eyewitness identification;
“The law places the burden upon the state to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony you should first determine whether any of the following factors existed and if so the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of time of observation, and any limitations on observation like' an obstruction or poor lighting.
2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or threat of violence.
3. Whether the witness had observed the defendant on earlier occasions. .
4. Whether a significant amount of time elapsed between the crime charged and any later identification.
5. Whether the witness ever failed to identify the defendant or made any inconsistent identification.
6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.
7. Whether there are any other circumstances that may have, affected the accuracy of the eyewitness identification.”
Morris did not object to the giving of this instruction. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Johnson, 253 Kan. 75, 91-92, 853 P.2d 34 (1993).
Morris recognizes the instruction follows PIK Crim. 3d 52.20 and that there was no objection to giving the instruction. He notes that the giving of an eyewitness instruction, where the identification by the eyewitness is a critical part of the State’s case, has been recommended by this court in State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981), but he contends that in this case the eyewitness identification was not critical to the State’s case. He asserts the giving of the instruction “could create an incorrect impression that there actually was some witness to the killing, or that a witness had identified Mr. Morris as the killer.” He argues this was clear error, and in light of the other alleged errors in this case, requires a reversal of the conviction.
The State notes this court in State v. Shepherd, 232 Kan. 614, 617, 657 P.2d 1112 (1983), stated the giving of the instruction as contemplated by the Warren decision was a discretionary decision by the trial judge. It contends the giving of the instruction was not error, to suggest it could have misled the jury is “inane,” and that in any event it was not clearly erroneous.
The State’s eyewitness, James Turner, did not identify Morris as the person Turner saw talking to Davis. Turner testified that Morris resembled the person. The giving of the instruction did not suggest there was an eyewitness to the killing. The jury was aware that Turner only saw a person.resembling Morris talking to Davis, at which point the person left and Davis entered the house through a basement window. Giving this instruction was within the trial court’s discretion. Under such circumstances, there was no abuse of discretion in giving the instruction, and it was certainly not clearly erroneous.
Lesser Included Offense
Morris’ final complaint is that the trial judge failed to follow his statutory duty to instruct the jury on criminal trespass as a lesser included offense of aggravated burglary. See K.S.A. 21-3107(3). Morris notes that whether criminal trespass is a lesser included offense of aggravated burglary is the subject of opposite conclusions by separate Court of Appeals panels in State v. Ponds, 18 Kan. App. 2d 231, 850 P.2d 280 (1993) (Judges Elliott, Brazil, and Adrian J. Allen, District Judge Retired, assigned, finding it is a lesser included offense), and State v. Rush, 18 Kan. App. 2d 694, 859 P.2d 387 (1993) (Chief Judge Briscoe, Judge Brazil, and Judge Rulon, finding it is not, with Judge Brazil dissenting based on the opinion in Ponds). Morris mistakenly asserts Ponds is controlling.
The conflict between the Court of Appeals decisions in Ponds and Rush was resolved by this court in State v. Rush, 255 Kan. 672, 877 P.2d 386 (1994). The Rush court noted that the issue is not whether there was sufficient evidence to support a conviction of the claimed lesser included offense. The question is whether criminal trespass is necessarily proved if the crime of aggravated burglary is proved. The Rush court determined criminal trespass is not a lesser included offense of burglary under K.S.A. 21-3107(2)(d) because criminal trespass requires proof of something more than knowing and unauthorized entry or remaining within property; criminal trespass also requires proof of actual or constructive notice. It concluded that the legislature’s 1980 amendments to what is now K.S.A. 1993 Supp. 21-3721 provided an additional method for proving constructive notice. The Rush court found that State v. Williams, 220 Kan. 610, 556 P.2d 184 (1976), correctly concludes that criminal trespass is not a lesser included offense of burglary.
The trial court did not have a duty under K.S.A. 21-3107(3) to instruct the jury on criminal trespass as a lesser included offense of aggravated burglary.
Affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Charles E. Johnson appeals his jury trial convictions of aggravated burglary (K.S.A. 21-3716); unlawful possession of a firearm (K.S.A. 1990 Supp. 21-4204); and two counts of first-degree murder (K.S.A. 1990 Supp. 21-3401).
On July 9, 1990, several individuals were in a crack house situated at 441 North Indiana in Wichita. Two men forced their way into the building, shot and killed James Brehon and Chris Taylor, and left. Defendant’s convictions all arise from this incident.
The first two issues arise from motions in limine filed by defendant. In the first motion, defendant sought to exclude any reference to his alleged connection with a gang or gang-related activities. In the second motion, defendant sought to exclude any evidence of other crimes committed by him. Both motions were heard. The trial court reserved its ruling on the first motion pending developments at trial. The second motion was denied. No objection was made at trial to any gang-related evidence or evidence of other crimes.
If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Synoracki, 253 Kan. 59, Syl. ¶ 8, 853 P.2d 24 (1993); State v. Clements, 252 Kan. 86, Syl. ¶ 1, 843 P.2d 679 (1992); and State v. Bailey, 251 Kan. 156, Syl. ¶ 6, 834 P.2d 342 (1992). The same rule applies when a trial court reserves its ruling on a motion in limine until trial. The failure to request a ruling on the motion at trial or otherwise object to the evidence at trial results in the issue not being preserved on appeal.
Defendant asks us to abandon our prior decisions requiring a contemporaneous objection to preserve the issue on appeal and adopt the clearly erroneous exception set forth in. K.S.A. 22-3414(3) relative to appellate review of juiy instructions. This we decline to do. The contemporaneous objection rule is required by K.S.A. 60-404. We therefore conclude that neither of the first two issues has been preserved on appeal.
For his third issue, defendant contends the trial court abused its discretion in refusing to admit the taped statement of Emma Jacobs. In support thereof, he argues: (1) The trial court’s determination that Ms. Jacobs was not unavailable as a witness and was unreliable is not supported by the evidence, and (2) the State opened the door to the admission of the tape by asking' a police officer a question about what Ms. Jacobs had told him. We find no merit in either argument.
K.S.A. 1990 Supp. 60-460 provides, in pertinent part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
K.S.A. 60-459 provides in pertinent part:
“(g) ‘Unavailable as a witness’ includes situations where the witness is . . . (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.”
We shall first consider the “unavailable as a witness” aspect of the issue. On Friday, October 18, 1991, (three days before the trial commenced) Bradford Bentley, a special process server, was given a subpoena to serve on Ms. Jacobs. On that Saturday and Sunday, Bentley attempted to locate Ms. Jacobs. He tried to lo cate her at her current and prior residences, one of which he erroneously determined did not exist. He also contacted two neighbors and checked the cross-reference directory. Bentley admitted he did not contact the County Treasurer's Office to determine if Ms. Jacobs had a vehicle registered in her name, or contact the Clerk of the District Court to see if she was the subject of any lawsuits, or contact the Sedgwick Court Adult Detention Facility to determine her presence there, or contact other eyewitnesses to the murder to ascertain if any of them knew Ms. Jacobs’ present whereabouts.
Ms. Jacobs was identified as a prostitute who had been in the crack house when two possibly gang-related homicides had occurred. When interviewed by the officer, she had initially denied being present at the murder scene and was reluctant to be involved in the investigation. These facts should alert anyone that Ms. Jacobs might be difficult to locate on the eve of trial. The trial court’s finding that Ms. Jacobs was not unavailable as a witness rests on the lack of diligence in attempting to locate her.
In State v. Ransom, 239 Kan. 594, 598, 722 P.2d 540 (1986), we stated:
“The finding of unavailability of a witness is entirely within the court’s discretion. State v. Waite, Heard and Heard, 223 Kan. 337, 341, 574 P.2d 1368 (1978); see State v. Alderdice, 221 Kan. 684, 687, 561 P.2d 845 (1977). In Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984), quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973), the court said:
‘ “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying the discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” ’ ”
In State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983), we held that a trial court is given considerable discretion in admitting statements under 60-460(d)(3). We find no abuse of discretion in the trial court’s determination that defendant had not established that Ms. Jacobs was unavailable as a witness. We therefore do not need to consider the trial court’s determination relative to her reliability.
We should perhaps note that the defense wanted the taped interview in evidence as Ms. Jacobs had identified an individual known as Kelvin Ramsay as one of the shooters in the crack house. Another witness at trial did identify Kelvin Ramsay as one of the shooters.
We turn now to the question of whether the State opened the door to the admission of the tape. In the State’s case in chief a police officer testified that he had learned the true identity of eyewitness Cherie Burch through Ms. Jacobs. That was the witness’ only reference to Ms. Jacobs and had nothing to do with the material defendant sought to introduce. Further, this “opening the door” argument was not made to the trial court. This is a separate ground asserted for the admission of the tape. Trial court error in the exclusion of evidence cannot be predicated on a ground not presented to the trial court for its consideration.
For his fourth issue, defendant contends the jury instruction on the State’s burden of proof was clearly erroneous.
The instruction in question stated:
"The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced after considering all the evidence in the case that he is guilty.
‘You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. The test you must use is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of any of them, you should find the defendant guilty.
"A reasonable doubt, if there is one, must arise after a careful consideration of all the evidence and it must arise out of the evidence, or lack of evidence, admitted in the trial of the case.”
Defendant did not object to the instruction.
A trial court has discretion in giving instructions to the jury. On appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts. State v. Hamons, 248 Kan. 51, Syl. ¶ 5, 805 P.2d 6 (1991). A party may not assign as error the giving or failure to give an instruction unless the party objects to the instruction, stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the instructions given are clearly erroneous. State v. Mason, 250 Kan. 393, Syl. ¶ 1, 827 P.2d 748 (1992). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Johnson, 253 Kan. 75, Syl. ¶ 9, 853 P.2d 34 (1993). When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state die law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Whitaker, 255 Kan. 118, Syl. ¶ 3, 872 P.2d 278 (1994).
On appeal defendant complains of the use of the words “innocence” and “innocent” in the instruction and the use of “should” rather than “must” in finding defendant not guilty if the jury had reasonable doubt about the truth of the State’s claims; he also objects to the entire third paragraph concerning “reasonable doubt.”
We shall first consider the issue as it relates to the usage of the terms “innocence” and “innocent.”
A similar issue was raised in State v. Keeler, 238 Kan. 356, 361-62, 710 P.2d 1279 (1985), wherein we stated:
“It is the appellant’s position that, by using the words ‘innocent’ and ‘innocence,’ the jury may be misled as to the proper burden of proof. ... It is true that the defendant does not have to prove his innocence and that the burden is upon the State to prove a defendant guilty beyond a reasonable doubt. Failure to do so requires a jury to find the defendant not guilty under the evidence; it does not require the jury to find the defendant is innocent. In the instant case the confusion between the terms not guilty and innocent is compounded by the court’s final instruction on the duty of the jury, which included:
‘You are instructed that your only consideration in this case is the guilt or innocence of the defendant.’ ”
Following a lengthy excerpt from one authority on the use of the word “innocent” in a criminal trial, we continued:
“The Advisory Committee on Criminal Jury Instructions recognized the problem in part and now PIK Crim. 2d 52.02 refers to a determination of ‘whether the defendant is guilty or not guilty’ rather than the earlier version which directs the jury to ‘determine the innocence or guilt of the defendant.’ A very similar issue was raised in State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316, rev. denied 236 Kan. 876 (1984), where the defendant complained of the use of the word ‘innocence’ instead of ‘not guilty’ in the instruction. The court affirmed the trial court’s instruction, stating ‘although the present wording of PIK Crim. 2d 52.02 (1983 Supp.) may be preferred, it still remains that the Kansas Supreme Court has previously approved PIK Crim. 52.02. Accordingly, use of this instruction was not erroneous.’ 10 Kan. App. 2d at 69.
“The questionable use of the term innocent in referring to the State’s burden of proof has not been confined to state trial and appellate courts. In the oft-cited case of Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), the Supreme Court referred to the ‘guilt or innocence’ of the defendant on numerous occasions. 378 U.S. at 374, 379, 387, 394. As additional examples, see Taylor v. Kentucky, 436 U.S. 478, 485, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978); Williams v. Florida, 399 U.S. 78, 82, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970).
“We conclude that while the proper use of the term ‘not guilty’ rather than the term ‘innocent’ is certainly preferable in a trial court’s instruction to the jury, the use of PIK Crim. 2d 52.02 and the earlier version when read in conjunction with other appropriate instructions does not constitute reversible error. Here, when the instructions are read together and as a whole the substance of the State’s burden of proof and the duty of the jury was adequately covered. See State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984).” 238 Kan. at 363-64.
The usage of “should” instead of “must” in criminal jury instructions on burden of proof has been before us in two recent cases. In State v. Whitaker, 255 Kan. 113, Syl. ¶ 5, we held:
“Although K.S.A. 21-3109 states that where there is a reasonable doubt as to defendant’s guilt, defendant ’must’ be acquitted, it is not reversible error for the trial judge to instruct a jury: ‘If you have no reasonable doubt as to the truth of any of the claims made by die State, you should find the defendant not guilty.’ The better practice, however, as recognized in the recent amendment to the pattern juiy instructions, is to instruct the jury that if there is reasonable doubt, it ‘must find the defendant not guilty.’ PIK Crim. 3d 52.02.”
Whitaker was followed and held to be controlling in State v. Crawford, 255 Kan. 47, 872 P.2d 293 (1994). Whitaker is controlling on the same point raised herein.
Defendant’s final point on the burden of proof instruction is that the final paragraph relative to reasonable doubt is clearly erroneous. The complained-of paragraph does not attempt to define reasonable doubt and, accordingly, does not involve Sullivan v. Louisiana, 508 U.S __, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993). Defendant has cited a number of our cases wherein we have held that “reasonable doubt” does not need definition because the words themselves describe the meaning. See, for example, State v. Dunn, 249 Kan. 488, Syl. ¶ 4, 820 P.2d 412 (1991). We conclude the complained-of paragraph does not rise to the level of being "clearly erroneous.”
In State v. Whitaker, 255 Kan. 113, Syl. ¶ 1, we held:
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.”
This issue clearly shows the validity of that determination. PIK Crim. 3d 52.02 provides:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove (he)(she) is not guilty. You must presume that (he)(she) is not guilty until you are convinced from the evidence that (he)(she) is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find flie defendant not guilty, if you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.”
Had PIK Crim. 2d 52.02 in the form in effect at the time of the trial herein been given, two of the three points relative to the burden of proof instruction would not have arisen. The third point (should v. must) has been taken care of in the new PIK Crim. 3d version.
We have carefully considered the three points raised relative to the burden of proof instruction given herein and conclude that neither individually nor collectively do they constitute reversible error. As in State v. Keeler, 238 Kan 356, when the instructions are read together and as a whole, the substance of the State’s burden of proof and the duty of the jury were adequately covered.
For his fifth issue, defendant challenges the sufficiency of the evidence supporting his convictions. The primary issue at trial was identity.
We have often stated the appellate standard of review concerning the sufficiency of evidence. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Van Winkle, 254 Kan. 214, Syl. ¶ 5, 864 P.2d 729 (1993); State v. Bradford, 254 Kan. 133, Syl. ¶ 3, 864 P.2d 680 (1993); State v. Ferguson, 254 Kan. 62, Syl. ¶ 4, 864 P.2d 693 (1993).
Two eyewitnesses identified defendant at trial as being one of the two men who had entered the crack house and committed the homicides. A shell casing found at the scene of the homicides was identified as having been fired from a gun in defendant’s possession both a few days before and after the homicides. It was also established that this gun killed victim Brehon, which was consistent with the testimony of the eyewitnesses. The killers left the scene in an automobile similar to that known to have been used by defendant. Further, defendant told an acquaintance he was involved in the Wichita crack house shooting. There was also additional evidence from which defendant’s guilt could be implied. We have no hesitancy in concluding there was sufficient evidence supporting the convictions.
For his final issue, defendant contends that the trial court abused its discretion in sentencing defendant.
At sentencing, the court reviewed the presentence investigation report, defendant’s prior criminal record, and the statutory guidance and factors of K.S.A. 21-4601 and K.S.A. 21-4606 and sentenced defendant as follows: (1) 5 to 20 years for the aggravated burglary conviction; (2) life imprisonment on' each of the two murder convictions; and (3) 3 to 10 years on the unlawful possession of a firearm conviction. The court ordered that the sentences run consecutive to each other and consecutive to any other sentence defendant is serving.
It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering the sentencing factors set forth in K.S.A. 21-4606(2), all of the reports, defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. State v. Turner, 252 Kan. 666, Syl. ¶ 1, 847 P.2d 1286 (1993). Whether separate sentences imposed on the same day should be concurrent or consecutive is discretionary with the trial court. K.S.A. 1990 Supp. 21-4608(1); State v. Pioletti, 246 Kan. 49, 68, 785 P.2d 963 (1990).
Defendant makes a unique argument relative to his sentencing. The State had sought the imposition of the “hard 40,” but the jury deadlocked on this question. The applicable statute is K.S.A. 1990 Supp. 21-4624(5), which provides:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of imprisonment of 40 years, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of imprisonment for life with eligibility for parole and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, the court shall follow the requirements of this subsection in determining the sentence to be imposed.” (Emphasis supplied.)
The controlling term herein is 38 years. By running the sentences consecutive to .sentences being served on other convictions, defendant will serve at least 40 years before release. Defendant argues that to permit the imposition of such a sentence after the jury could not agree on the hard 40 is tantamount to allowing the trial judge to impose the hard 40 after the jury could not agree on its imposition.
There is nothing in K.S.A. 1990 Supp. 21-4624 which precludes a court from imposing maximum consecutive sentences after a jury has hung on or rejected a hard-40 sentence. We find this argument to be without merit.
We will now consider whether the sentence was excessive. Defendant had prior felony convictions, but let us just focus on defendant’s criminal activities in July and August of 1990.
On July 7, 1990, defendant obtained the nine millimeter gun in the Tulsa, Oklahoma, armed robbery of Wendell Rivers. Defendant pled guilty to this crime.
On July 9, 1990, the crimes involved herein occurred. The two men forced their way into the crack house. The first victim (Taylor) was shot six times as he lay on the floor. Brehon was shot twice. There was no argument or altercation. No robbery or other crime was attempted. The men entered the residence with the intent to do personal injury.
On July 17, 1990, Rick Haney was shot and killed by the same nine millimeter weapon in a crack house in Tulsa. Defendant was present at the scene, admitted giving the gun to the killer, and pled guilty to being an accessory after the fact.
On August 4, 1990, Trooper Edward Vohs of the Kansas Highway Patrol attempted to stop on the Kansas Turnpike a GMC truck which had been reported stolen. Defendant was in the truck and jumped out and shot the officer in the chest with the nine millimeter gun. Defendant pled guilty to aggravated battery of a law enforcement officer.
The trial court reviewed the facts, applied the sentencing guidelines set forth in K.S.A. 21-4606, and concluded that defendant was an intelligent young man who could have had a positive future but who chose the criminal life. He found defendant was a man bent on serving himself at the expense of society. The classification report on defendant from the Topeka Correctional Facility is one of the most negative reports ever to have been before us. Defendant is a violent and dangerous man with no regard for human life. We find no abuse of discretion in the sentences imposed herein.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Tyrone L. Baker, Sr., appeals his jury trial convictions of two counts of first-degree murder (K.S.A. 21-3401); two counts of aggravated kidnapping (K.S.A. 21-3421); and one count of aggravated assault (K.S.A. 21-3410), as well as the sentences imposed thereon.
The events giving rise to these Douglas County convictions commenced in Shawnee County. During the evening hours of December 3, 1989, defendant broke a window in the Topeka residence of Ida Mae Dougherty and entered. Ms. Dougherty was killed. The following morning, two neighbors, Verne Home and Lester Haley, became concerned with Ms. Dougherty’s welfare and, using Haley’s key, entered her residence. Both were taken prisoner by defendant as was Haley’s wife, Nancy, who later came over to check on the situation. Defendant forced the three neighbors into Ms. Dougherty’s automobile and drove them to rural Douglas County. By virtue of these events, defendant was convicted in Shawnee County of first-degree murder, aggravated burglary, conspiracy to commit aggravated burglary, and three counts of kidnapping. We affirmed these convictions in State v. Baker, 249 Kan. 431, 819 P.2d 1173 (1991).
The case before us concerns the events occurring thereafter in Douglas County. Baker forced the three neighbors to leave the vehicle and made them walk at gunpoint down a worn track. He then ordered them to lie face down on the ground. The three sat down. Ms. Home told defendant she “could not lie down, that whatever he had to do, he would have to do to my face.” Ms. Home maintained a conversation with defendant and, apparently, convinced him that Ms. Dougherty might not be dead and that, accordingly, he had no reason to kill them. Defendant then left to check on the matter after being assured by Ms. Home that the three captives would wait one hour for his return.
The Haleys were physically infirm. After the sounds of the Dougherty vehicle died away, Ms. Home told the Haleys to hide and she would go for help. She had difficulty finding help, but ultimately obtained a ride in a passing vehicle. Ms. Home directed law enforcement officers to the area where she had left the Haleys, but they were no longer there. On December 5, 1989, the bodies of the Haleys were found about three miles from that location but still in Douglas County. The cause of death in each instance was bullet wounds. Defendant was charged and convicted in Douglas County with two counts of first-degree murder, two counts of aggravated kidnapping, and aggravated assault of Verne Home. Defendant appeals therefrom.
DOUBLE JEOPARDY AND MULTIPLICITY
For his first issue, defendant contends that the Douglas County prosecution for the aggravated kidnapping of the Haleys was barred by the double jeopardy clauses of the United States and Kansas Constitutions as he had previously been convicted of kidnapping these individuals in Shawnee County. He further argues the aggravated kidnapping charges were multiplicitous.
The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offesnce to be twice put in jeopardy of life or limb.” The double jeopardy clause has been made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). The Fifth Amendment guaranty against double jeopardy provides separate constitutional protection against multiple prosecutions for the same offense and against multiple punishments for the same crime. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
Section 10 of the Kansas Constitution Bill of Rights also provides a double jeopardy protection (“No person shall be . . . twice put in jeopardy for the same offense.”). In State v. Mourning, 233 Kan. 678, 679, 664 P.2d 857 (1983), we stated:
“Under the doctrine of double jeopardy a person cannot be put twice in jeopardy for different degrees of the same offense arising out of a single act. Stated another way, the State may not split a single offense into separate parts, and where there is a single wrongful act, such act will not furnish the basis for more than one criminal prosecution.”
Whether the offense is the “same offense” as to double jeopardy protection is a matter of state law. See Brown v. Ohio, 432 U.S. 161, 167, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977).
In State v. Grissom, 251 Kan. 851, Syl. ¶ 12, 840 P.2d 1142 (1992), we stated the rules with regard to multiplicity:
“Multiplicity exists if the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplieitous if each charge requires proof of a fact not required in proving the other. Charges are also not multiplieitous if the offenses occur at different times and in different places.”
If there is a break in the action, or if offenses occur at separate times and in separate places, the charges are not multiplieitous. State v. Smith, 254 Kan. 144, Syl. ¶ 1, 864 P.2d 709 (1993).
The determinative question in this issue is whether each victim was kidnapped twice (once in each county), or whether one continuous kidnapping of each of the two victims occurred. Defendant argues that by virtue of (1) the physical infirmities of the Haleys and (2) their promises to remain at the same place for one hour, they were in the status of constructive capture after defendant drove away to check on Ms. Dougherty. This is a novel concept for which defendant cites no authority. The State argues that the Shawnee County kidnapping of the Haleys ended when defendant drove away. The Haleys’ recapture by defendant and their transportation to another location some miles away constituted a second kidnapping of the same two individuals which occurred wholly within Douglas County. We agree with the State.
When defendant drove away, there was a break in the action which ended the first kidnapping. The Haleys could have fled successfully, hidden, or been aided. None of these options occurred, but until their recapture they were free. This was a significant break in the events.
In State v. Smith, 254 Kan. 144, defendant and codefendants believed they had beaten their victim to death in defendant’s home. They moved the victim’s body to a car to dispose of it in a nearby sand pit. En route, they stopped to get gas. At the gas station the victim, who was in fhe back seat of fhe car, sat up and cried out. They left the gas station and subsequently stopped the car. The victim jumped out, only to be deliberately run over by the automobile. The victim survived. 254 Kan. at 146-48. Defendant was convicted of, inter alia, two counts of attempted second-degree murder. She appealed, contending the two attempted second-degree murder charges were multiplicitous. We found that the acts which constituted the attempted second-degree murder at defendant’s house were separate and distinct from those that occurred at the sand pit, that they were committed at different times and at different places, did not arise out of the same wrongful act, and were, therefore, not multiplicitous. 254 Kan. at 151. See State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981).
We conclude each of the Haleys was fhe victim of two separate kidnappings. Defendant’s convictions of the aggravated kidnapping of each in Douglas County were not violative of the double jeopardy clauses contained in either the federal or state constitutions, and there was no multiplicity among the kidnapping charges.
COMPULSORY JOINDER
For his next issue, defendant contends that, because the various offenses committed in two counties “were part and parcel of the same continuous criminal episode,” they could have been prosecuted in a single action in Shawnee County and that the State’s failure to do so was violative of K.S.A. 21-3108, which provides in pertinent part:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”
Three elements must be present to bar a subsequent prosecution pursuant to K.S.A. 21-3108. First, the prior prosecution must have resulted in a conviction or an acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and, third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Brueninger, 238 Kan. 429, Syl. ¶ 2, 710 P.2d 1325 (1985); State v. Freeman, 236 Kan. 274, 286, 689 P.2d 885 (1984); State v. Fisher, 233 Kan. 29, 32, 661 P.2d 791 (1983); State v. Mahlandt, 231 Kan. 665, Syl. ¶ 2, 647 P.2d 1307 (1982).
The object of K.S.A. 21-3108(2)(a) is to prevent the prosecution from proving a crime in a trial in which the crime is not charged, and then in effect retrying a defendant for the same offense in a trial where it is charged. State v. Brueninger, 238 Kan. 429, Syl. ¶ 3.
The State concedes that the first elements were satisfied: (1) convictions occurred in the Shawnee County case, and (2) evidence of the Douglas County crimes was introduced in the Shawnee County trial. The State disagrees that the third element has been satisfied, that is, that any of the crimes charged in Douglas County could have been included in the Shawnee County prosecution.
We agree with the State as to the aggravated kidnapping and murder convictions. As noted in the preceding issue, there was a clear break in the action. The Shawnee County kidnappings ended and the ultimate recapture of the Haleys constituted a second kidnapping of each which became aggravated kidnapping upon the murder of each of the respective victims. Thus, the aggravated kidnappings and murders occurred wholly within Douglas County and could not have been included in the Shawnée County prosecution.
This conclusion is also consistent with K.S.A. 22-2614, which provides:
“A person charged with the crime of kidnapping may be prosecuted in any county in which the victim has been transported or confined during the course of the crime.”
The Shawnee County kidnappings might have been charged in Douglas County under the statute, but the Douglas County aggravated kidnappings and murders occurred wholly within Doug; las County and could only be prosecuted in Douglas County.
A different result must be reached, however, as to the aggravated assault conviction relative to Ms. Home. This occurred while Ms. Home was, herself, still a kidnap victim and before the break in the action. She, along with the Haleys, was forced to walk down the lane in Douglas County and threatened with the gun while seated. The State categorizes the car ride itself as a sufficient break in the action to require prosecution for the aggravated assault in Douglas County. We do not agree. The assault was part of the Home kidnapping and could have been prosecuted in Shawnee County. We must, under the mandate of K.S.A. 21-3108(2)(a), reverse the aggravated assault conviction.
LIMITING INSTRUCTION
The whole pertinent scenario of events occurring in Shawnee County was introduced in evidence in the trial herein. For his third issue, defendant contends the trial court erred in admitting the same as part of the res gestae and refusing to give a requested limiting instruction under K.S.A. 60-455.
K.S.A. 60-455 permits the introduction of evidence of other crimes or civil wrongs for limited purposes and provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to'prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Generally where evidence of other crimes is admitted solely pursuant to K.S.A. 60-455, a limiting instruction should be given. State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974). This is logical as evidence, otherwise inadmissible, is being admitted for a limited purpose. The jury must be advised of the limited purpose for which it may consider such evidence.
Evidence admitted as a part of the res gestae is in a quite different category.
Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instrucT tion and is not rendered inadmissible because it may disclose other or independent offenses. The law allows the admission of evidence as part of the res gestae of acts made before, during, or after the principal event. State v. Bowman, 252 Kan. 883, Syl. ¶¶ 2, 5, 850 P.2d 236 (1993). If the evidence is a part of the res gestae of the offenses for which a defendant is being tried, such evidence may be introduced independent of K.S.A. 60-455. State v. Gilder, 223 Kan. 220, 228, 574 P.2d 196 (1977).
Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish. State v. Davis, 236 Kan. 538, 539, 694 P.2d 418 (1985).
The Shawnee County events, including the murder of Ms. Dougherty and the kidnappings of the three victims, explain and are necessary to the jury’s understanding of why defendant and his three captives were on the isolated Douglas County road in the first place, the argument made by Ms. Home to defendant that Ms. Dougherty might still be alive, defendant’s leaving the scene to check on her, the need to hide and/or seek help, and the threat defendant was to the kidnap victims. The Shawnee County events were so much a part of the subsequent Douglas County events that the latter could not be fully understood without the inclusion of the former. This is a classic res gestae situation.
In State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988), defendant kidnapped, raped, sodomized, and brutalized a former girlfriend over a 10-day period, believing she had stolen money and drags from him. On appeal, defendant contended the trial court erred in failing to give a limiting instruction to the jury concerning evidence of prior drag crimes committed with the victim and others. 242 Kan. at 665. We rejected this argument, stating:
“ ‘Res gestae evidence is that evidence which does not constitute a portion of the crimes charged but has a natural, necessary or logical connection to the crime.’ State v. Peck, 237 Kan. 756, Syl. ¶ 2, 703 P.2d 781 (1985). The evidence of Redford’s drug dealings had a logical connection to the case in explaining why events happened, both according to Donna’s testimony and according to Redford’s testimony. The evidence is thus res gestae and no limiting instruction is necessary. State v. Peterson, 236 Kan. 821, 828-29, 696 P.2d 387 (1985); State v. Ferris, 222 Kan. 515, 517, 565 P.2d 275 (1977).” 242 Kan. at 666.
We note the trial court had previously admonished the jury that the Shawnee County case was not being retried in the Douglas County action and invited defense counsel to argue accordingly in their closing arguments.
We conclude there was no error in either the trial court’s admission of this evidence as a part of the res gestae or the court’s refusal to give a limiting instruction under K.S.A. 60-455.
SUFFICIENCY OF EVIDENCE
For his next issue, defendant contends that the evidence was insufficient for a jury to find beyond a reasonable doubt that defendant was sane at the time of the crimes. In the alternative, defendant argues that the evidence clearly indicates that he lacked the capacity at the time the acts were committed to form the requisite specific intent to commit first-degree murder or aggravated kidnapping.
The appellate standard of review is clear. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Van Winkle, 254 Kan. 214, Syl. ¶ 5, 864 P.2d 729 (1993).
At trial, defendant relied upon the defense of insanity and diminished capacity. The jury was instructed on the M’Naghten test for insanity. The M’Naghten test/rule is that an accused is to be held not criminally responsible (1) where the accused does not know the nature and quality of the accused’s act, or in the alternative, (2) where the accused does not know right from wrong with respect to that act. We adopted the M’Naghten test in State v. Nixon, 32 Kan. 205, Syl. ¶ 1, 4 Pac. 159 (1884), and have steadfastly adhered to that test. See State v. Wood, 235 Kan. 915, 921, 686 P.2d 128 (1984), and cases cited therein
The jury was instructed on diminished capacity. Evidence of a defendant’s diminished capacity to commit a crime is admissible to negate specific intent but not to remove criminal responsibility. State v. Jackson, 238 Kan. 793, Syl. ¶ 1, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986). See State v. Friberg, 252 Kan. 141, 143, 843 P.2d 218 (1992); State v. Maas, 242 Kan. 44, 52, 744 P.2d 1222 (1987).
Defendant’s medical expert, Dr. Gilbert Parks, a psychiatrist, testified that defendant suffered from paranoid schizophrenia and was legally insane at the time of the Haleys’ murders. On cross-examination, the doctor admitted much of his conclusion was based on defendant’s inability to recall the criminal acts. Defendant testified that he had a friend other people could not see who took over from time to time and that he, defendant, did not know how the Haleys were killed.
The State called Dr. Herbert Modlin, a psychiatrist, who testified defendant had the mental capacity to think and deliberate about his actions, could reason, and was not insane during the time period of the crimes. Nonexpert witnesses testified as to defendant’s words, conduct, and demeanor during the period of time in question. Particularly significant among these witnesses was the testimony of Ms. Home and Lisa Pfannenstiel. Ms. Home observed defendant over a period of time — from her capture at the Dougherty residence until defendant’s departure from the scene in Douglas County. She intentionally engaged him in conversation and reasoned with him, an approach which probably saved her life. Her testimony was directly contrary to the picture the defense was attempting to paint of a legally insane man or one so deficient in reason as to be unable to form the requisite criminal intent.
Lisa Pfannenstiel, defendant’s accomplice herein, also gave evidence highly damaging to defendant’s insanity/diminished capacity claims. She also testified that he told her he killed the Haleys but that Ms. Home had gotten away.
It was for the jury to consider and weigh the evidence and testimony of both expert and nonexpert witnesses relative to this issue. In State v. Sanders, 225 Kan. 147, 153, 587 P.2d 893 (1978), the only expert testimony introduced concluded that defendant was legally insane at the time of the commission of the crimes. In affirming the convictions, we stated:
“Although the medical experts are unanimous in their diagnosis of defendant, this court does not treat medical testimony as conclusive merely because it is not disputed by other medical testimony. State v. Chase, 206 Kan. at 362. The testimony of nonexpert witnesses who observed the actions of the accused immediately before, during and after the shooting, may be considered by the jury along with testimony from expert witnesses. State v. Sagebiel, 206 Kan. 482, 489, 480 P.2d 44 (1971). In our judgment, the lay facts and testimony offered by the state were sufficient to sustain its burden of proof and send the question of defendant’s sanity to the jury.”
Viewing the evidence in the light most favorable to the prosecution, as we are required to do, we are convinced that a rational factfinder could have found beyond a reasonable doubt that defendant was not legally insane and that he possessed the necessary specific criminal intent at the time of the commission of the crimes.
PSYCHIATRIST’S REPORT
For his next issue, defendant contends the trial court’s refusal to admit the written report of Dr. Gilbert Parks, its medical expert, into evidence denied him his constitutional right to present his defense.
In denying the admission of the report, the trial court stated:
“My feeling is that reports like this, when they go to the jury, in effect, let a witness testify twice, and put undue influence upon that witness’s testimony. I think the jury has heard now for a day and a half what this witness knows about this case. They have heard it on direct and they have heard it on cross examination. I don’t find adding his report done a year ago is going to add anything to their knowledge of the case. I think it would be wrong to admit it and I will not.”
Defendant’s position is that the State damaged Parks’ credibility during its cross-examination and the defense wanted to introduce the report as a means of damage control. This method was apparently preferred to redirect examination of the witness as it offered no further exposure to cross-examination.
In support thereof, defendant cites State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992), where we reversed a murder conviction on the basis the trial court had erroneously excluded expert testimony on the effect of sleep deprivation. In Humphrey, no testimony was permitted on the subject as opposed to excluding a written report offered after a witness has exhaustively testified on the subject.
The admissibility of the written report was a matter of judicial discretion, and the trial court will not be reversed on appeal absent a showing of an abuse of discretion. See State v. Humphrey, 252 Kan. 6, Syl. ¶ 2; State v. Colwell, 246 Kan. 382, Syl. ¶ 7, 790 P.2d 430 (1990); State v. Graham, 246 Kan. 78, Syl. ¶ 3, 785 P.2d 983 (1990). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Reed, 254 Kan. 52, Syl. ¶ 3, 865 P.2d 191 (1993).
In the circumstance herein, we find no error or abuse of discretion in the trial court’s exclusion of the written report.
REFUSAL TO COMMIT
For his final issue, defendant contends the trial court abused its discretion when it sentenced defendant in lieu of committing him to the State Security Hospital under K.S.A. 22-3430. The statute has been amended since defendant’s sentencing but not in any manner affecting the issue herein. The pertinent portions of K.S.A. 1993 Supp. 22-3430 are as follows:
“(a) If the report of the examination authorized by K.S.A. 22-3429 and amendments thereto shows that the defendant is in need of psychiatric care and treatment, that such treatment may materially aid in the defendant’s rehabilitation and that the defendant and society are not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment, in lieu of confinement or imprisonment, the trial' judge shall have power to commit such defendant to: (1) The state security hospital or any county institution provided for the reception, care, treatment and maintenance of mentally ill persons, if the defendant is convicted of a felony ....
“(c) The defendant may appeal from any order of commitment made pursuant to this section in the same manner and with like effect as if sentence to a jail, or to the custody of the secretary of corrections had been imposed.”
At the time of sentencing, defense counsel requested the court to commit defendant to the State Security Hospital in lieu of sentencing under authority of the statute. The trial court declined, and this determination is the basis for this issue. In his brief, defendant argues mainly why such commitment would have been appropriate.
In State v. Adkins, 236 Kan. 259, 689 P.2d 880 (1984), Adkins contended (as defendant herein contends) that the refusal of the trial court to commit him under 22-3430 constituted a breach of judicial discretion. In Syl. ¶ 1 of the opinion, we stated:
“K.S.A. 22-3430 is discussed and held (a) to be a conditional grant of authority to a trial judge to commit a criminal defendant to a state mental institution in lieu of imprisonment; and (b) the refusal of a trial court to commit a criminal defendant to a state mental institution in lieu of imprisonment is wholly a matter of trial court discretion and such refusal is not reviewable on appeal.”
K.S.A. 1993 Supp. 22-3430 gives authority to the trial court to commit a criminal defendant to a state mental institution in lieu of imprisonment and provides that a defendant may appeal from any order of commitment. The refusal of a trial judge to commit a defendant to a state mental institution in lieu of imprisonment is, accordingly, not reviewable on appeal.
In conclusion, we affirm the convictions and sentences imposed as to the first-degree murders and aggravated kidnappings. The conviction and sentence as to aggravated assault is reversed. This leaves in place the four life sentences to be served consecutively to each other and consecutive to the sentences imposed in the Shawnee County case.
The judgment is affirmed in part and reversed in part.
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The opinion of the court was delivered by
Holmes, C.J.:
Howard S. Borders pled guilty, pursuant to a plea bargain, to three counts of first-degree felony murder, K.S.A. 1992 Supp. 21-3401(a)(l), and pled no contest to three counts of attempted rape, K.S.A. 1992 Supp. 21-3301 and K.S.A. 21-3502. The defendant now appeals, asserting that the sentencing procedures of the district court compromised his due process rights. We affirm.
The gruesome details of the heinous crimes committed by the defendant need not be set forth in detail to address the issues on appeal. Suffice it to say, on November 23, 1991, the defendant broke into the residence of his estranged girlfriend, repeatedly stabbed her and her two small daughters, ages five and three, brutally sexually molested all three by inserting foreign objects into their vaginas, and then set the house on fire. When police and firemen arrived, all three victims were dead. A third child, an eight-month-old boy, was found unconscious but was resuscitated and was otherwise unharmed.
On January 28, 1992, pursuant to the terms of a plea bargain, the defendant pled guilty to three counts of first-degree felony murder and pled no contest to three counts of attempted rape in exchange for the dismissal of three counts of rape, one count of aggravated burglary, and one count of aggravated arson. At the plea hearing the court set the sentencing for 2:30 p.m. on February 27, 1992, and ordered a presentence investigation (PSI). At approximately 10:30 a.m. on February 27, 1992, the defendant was sentenced to three consecutive life sentences for the first-degree felony murder charges and 5 to 20 years for each of the three attempted rape charges, with the latter sentences to run concurrent to each other but consecutive to the three life sentences. On December 9, 1992, the district court denied the defendant’s motion to modify sentence. On December 14, 1992, the defendant filed a timely notice of appeal. Additional facts relating to the procedure at sentencing will be set forth as needed in considering the issues on appeal.
The defendant’s issues on appeal read:
“Issue I: Mr. Borders’ due process rights were violated when the Court moved his sentencing to the morning without sufficient notice to enable counsel to recontact Mr. Borders’ family and inform them of the new time, and alternatively, the court refused to grant a continuance, which deprived Mr. Borders of the opportunity to present testimony by his family in mitigation of his sentence.
“Issue II: The sentencing procedure denied Mr. Borders the opportunity to be fairly sentenced with appropriate consideration by the district court of an accurate presentence investigation report in violation of due process.”
No issue is raised concerning the guilt of the defendant, and he concedes that portion of the sentence which imposed three consecutive life sentences on the three counts of first-degree murder is appropriate. Nor does he take issue with the three concurrent sentences for the three counts of attempted rape. His only objection to the actual sentences imposed appears to be that he was hoping the sentences on the attempted rape charges would run concurrent with the three consecutive life sentences imposed on the murder charges.
The defendant’s first issue on appeal is based upon the time of sentencing at 10:30 a.m. on February 27, 1992, rather than at 2:30 p.m. as originally scheduled. Under his initial argument, the defendant maintains that the sentencing judge failed to provide sufficient notice of the rescheduled sentencing hearing. Specifi caUy, the defendant argues the lack of notice resulted in his inability to notify his family, thus precluding the introduction of their testimony as evidence in mitigation of punishment. The circumstances surrounding the rescheduling of the time for sentencing are not clear from the record. The appearance docket included in the district court file reflects that on February 19, 1992, an order or notice was filed with the clerk of the district court setting the time for sentencing at 10:30 a.m. on February 27, 1992. However, defense counsel apparently failed to receive notice until shortly before the time of hearing. At the time the case was called, defendant sought a continuance, and the following colloquy transpired between defense counsel and the sentencing judge:
“MR. WURTZ: May it please the Court, I respectfully move this Court to continue the sentencing of this case for the following reasons: The first being is that the Court’s notice to me and my client was this sentencing was set at 2:00 o’clock this afternoon or 2:30 this afternoon. I only found out this morning that it had been changed to 10:30. As a consequence, Mr. Borders’ family has not been notified of this hearing and is unable to be present.
“But your Honor, that is not the main reason that I request a hearing — a continuance on this. The main reason which I request — for which I request a continuance is that after reading the presentence report, it has been made to appear that Mr. Borders refused or faded to cooperate with the presentence investigation process. That is not the case. . . .
“THE COURT: . . . [W]ith regard to the notice, I would have to agree with Mr. Wurtz that no formal notice was given, but it was the Court’s understanding that all parties were advised that this would be in the morning by reason of the Court’s schedule this afternoon and also by reason of the fact of wanting to give this case sufficient time and attention, which I would not have been able to do this afternoon in light of my other commitments.
“So I believe the, the Defendant and his counsel have had substantial notice at least that this would be, would be held this morning, so I’m going to deny the request for — request for a postponement.”
Defendant’s argument in support of his first issue on appeal is two-pronged: First, he contends that the trial court abused its discretion in failing to grant a continuance of the sentencing hearing and, second, he contends that the change in scheduling the sentencing hearing, without sufficient notice, deprived him of his right to present evidence, in violation of K.S.A. 1992 Supp. 22-3424(4) (c). In relevant part the statute provides:
“(4) Before imposing sentence the court shall: . ... (c) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment. . . .” (Emphasis added.)
The State argues that the burden is on the defendant to demonstrate that the sentencing judge’s refusal to grant a continuance was an abuse of discretion and resulted in prejudice to the defendant. Here, the State maintains that the defendant has failed to establish how he was prejudiced by the court’s ruling. Specifically, the State contends that both the defendant’s failure to present proffered evidence of expected family testimony and his failure to make a personal statement in mitigation of punishment illustrate the defendant’s failure to meet his burden on this question. Additionally, the State notes that while the defendant filed a subsequent motion to modify sentence, the defendant failed to assert any additional evidence in mitigation of his sentence.
The record states that the sentencing judge rescheduled the hearing in order to give the “case sufficient time and attention.” In Logan v. McPhail, 208 Kan. 770, Syl. ¶ 1, 494 P.2d 1191 (1972), we held: “A trial court must be afforded considerable latitude in controlling its docket to the end that procrastination and delay be avoided and the orderly process of its business be expedited.”
“In a criminal case, the granting or denial of a continuance rests in the sound discretion of the trial court. The ruling of the trial court will not be disturbed on appeal absent a showing of an abuse of discretion and a showing of prejudice to the substantial rights of the defendant. Discretion is abused only where no reasonable person would take the view adopted by the trial court.” State v. Snodgrass, 252 Kan. 253, Syl. ¶ 5, 843 P.2d 720 (1992).
While our research has not disclosed any case in which we have reviewed the matter of the granting or denial of a motion for a continuance in a post-trial setting such as this, we deem it sufficient to state that a defendant has no greater rights to a post-trial motion for a continuance than would be afforded before trial or during trial. Numerous courts have so held. See People v. Bol ton, 859 P.2d 311 (Colo. App. 1993); Rose v. State, 461 So. 2d 84 (Fla. 1984); People v. Peeples, 155 Ill. 2d 422, 616 N.E.2d 294 (1993); State v. Walton, 440 So. 2d 850 (La. App. 1983); State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477 (1994); State v. Lewchuk, 232 Neb. 229, 440 N.W.2d 229 (Neb. 1989); State v. Woldegiorgis, 53 Wash. App. 92, 765 P.2d 920 (1988).
The defendant, in his principal argument relating to the failure to grant a continuance, asserts that such failure denied him the opportunity to notify his family and thus precluded him from presenting evidence in mitigation of punishment as provided in K.S.A. 1992 Supp. 22-3424(4)(c). Following statements and arguments of counsel, the court addressed the defendant as follows:
“Thank you, Mr. Wurtz. Okay, Mr. Borders, you now have an opportunity to address the Court in the way of whatever, whatever you wish to say, in the way of what the Court sentence might or should be. And this is not a — this is not a formality. This is a significant right that the Court [sic] has and the Court does protect. And if you wish to address the Court, you may. Obviously you don’t have to if you don’t want to, Mr. Borders.”
The defendant declined to make any statement and instead indicated his desire to stand on what defense counsel had already told the court. Although the defendant phrases his first issue on appeal as a denial of due process because the change in the scheduled hearing time denied him the opportunity to present his evidence, consisting of family testimony, his argument is inextricably combined with a claim that his rights under K.S.A. 1992 Supp. 22-3424(4)(c) were violated. Thus, it is necessary that we not only consider whether the denial of a continuance was an abuse of discretion but also whether the court failed to comply with the statute.
K.S.A. 1992 Supp. 22-3424(4)(c) clearly requires the court to address the defendant personally and “ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.” The defendant does not allege that he was not granted the opportunity to make a statement, and obviously he was given the chance to do so.
K.S.A. 22-3422 and K.S.A. 1992 Supp. 22-3424(4) provide the defendant with what has been historically known as “allocution.” In State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988), this court traced the historical background of the right of a criminal defendant to allocution. We held:
“K.S.A. 22-3424(4) establishes the right of a defendant to allocution, which right is not waived by the defendant’s silence or by argument of counsel. The right to allocution is waived, however, when a defendant fails to raise the issue of denial of allocution in a motion to modify sentence.” 242 Kan. 519, Syl. ¶ 1.
In Webb, the trial court did not address the defendant directly and all responses were made solely by counsel. However, this court held that the issue of denial of allocution was waived when it was not raised in the motion for modification of sentence.
Several cases involving issues of allocution have been addressed by the appellate courts since Webb. In State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991), the defendant pled guilty to a number of serious felonies. At the time of sentencing, the trial court “addressed Heide and asked if he had any legal reason why judgment, order, and sentence should not be imposed. Heide responded in the negative,” and the court then proceeded to impose sentence. 249 Kan. at 726. Following the imposition of sentence the court again addressed Heide and asked if he had any comments. Heide then made a lengthy statement. On appeal Heide argued that the trial court violated his absolute statutory right to make a statement on his own behalf and to present evidence in mitigation of punishment before imposition of sentence. There was no indication in Heide that the defendant filed a motion for reconsideration, so the Webb waiver rule was not applicable. In agreeing that the defendant was entitled to be resentenced, this court stated:
“We must decide whether the trial court’s inquiry of Heide as to whether there was any legal reason why sentence should not be imposed satisfied Heide’s K.S.A. 22-3424(4) right to make a statement in his own behalf and to present any evidence in mitigation of punishment. There are no Kansas cases directly addressing the issue.
“Before imposing sentence, K.S.A. 22-3424(4) unambiguously requires the court to address the defendant personally and ask if tire defendant wishes to make a statement and present evidence in mitigation of punishment. K.S.A. 22-3424(4) is an additional requirement to K.S.A. 22-3422, tire traditional allocution statute. Satisfying K.S.A. 22-3422 does not satisfy the requirements of K.S.A. 22-3424(4).
“We hold that K.S.A. 22-3424(4) must be followed before sentence is imposed. Sentence is imposed under K.S.A. 22-3424(4) when pronounced by the trial judge.” 249 Kan. at 729-31. (Emphasis added.)
We vacated Heide’s sentence and remanded the case for re-sentencing on the basis that the inquiry required by 22-3424(4) must be made prior to sentencing.
In State v. Spencer, 252 Kan. 186, 843 P.2d 236 (1992), the defendant was sentenced to life imprisonment following a plea of guilty to first-degree murder. Following his plea of guilty, Spencer asked for immediate sentencing. The court had been provided with a previous PS I report and proceeded to comply with the defendant’s request. The trial court then addressed Spencer as follows:
“THE COURT: Mr. Spencer, before I proceed to sentencing, are there any comments that you want to make to the Court?
“THE DEFENDANT: No.
“THE COURT: Very well. Is there any reason why the Court cannot now impose sentence?
“MR. WURTZ [Defense counsel]: We know of none.
“MR. HENDERSHOT [Prosecutor]: I know of none, Your Honor.” 252 Kan. at 187.
The court then proceeded to impose sentence. The defendant appealed, asserting he was entitled to be resentenced because he was not personally given the opportunity to offer evidence in mitigation of his punishment. On appeal this court found that the court’s inquiiy of Spencer violated K.S.A. 22-3424(4) by failing to afford the defendant his statutory right to offer evidence in mitigation of punishment. However, the court found the error to' be harmless as the statute required the imposition of a life sentence and the court had considered and rejected probation, the only alternative available. We held:
“Before sentence is imposed, K.S.A. 22-3424(4) unambiguously requires a court to address a defendant personally and ask if the defendant wishes to present any evidence in mitigation of punishment.”
“Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.” 252 Kan. 186, Syl. ¶¶ 1, 2.
In State v. Bafford, 255 Kan. 888, 879 P.2d 613 (1994), the trial court addressed the defendant in similar fashion as was done in this case. The judge “failed to explicitly ask Bafford if he wished to present evidence in mitigation of punishment.” 255 Kan. at 891. Bafford did not file a motion to modify his sentence and we therefore held that the Webb waiver rule was not applicable. The State, in Bafford, concluded that the statute was not fully complied with and that the rule set forth in Syl. ¶ 1 of Spencer was applicable. No attempt was made to assert harmless error, even though Bafford in his brief set forth in detail factual circumstances and possible evidence which might have led the court to impose a more lenient sentence. It appears the State agreed or at least impliedly conceded that the error in Bafford was not harmless. Bafford was remanded to the district court with directions to re-sentence the defendant.
Following oral argument before this court, the defendant in the instant case submitted a statement of additional authorities, citing Webb, 242 Kan. 519, and State v. Wielgus, 14 Kan. App. 2d 145, 783 P.2d 1320 (1989), in support of his argument that he had an absolute right to present evidence in mitigation of his sentencing. In Wielgus, the trial court apparently refused to allow the defendant to make a statement at allocution, in clear violation of 22-3424(4). The defendant filed a direct appeal and did not file a motion to modify his sentence, so there was no issue of waiver of the right to allocution as occurred in Webb. The court, in a two-page opinion, held the defendant had been denied his statutory right. No facts were included in the opinion, and the opinion is of little help in the case now before us.
None of the foregoing cases precisely fit the factual situation and issues now facing us. Previous cases have turned primarily on the question of strict compliance with the statute. While that is also an issue here, the State has also raised issues of waiver, lack of prejudice, harmless error, and failure of the defendant to proffer evidence in support of his position.
Here, the defendant was given full opportunity to address the court, but he declined to do so. While counsel argued that defendant had been denied the opportunity to notify his family of the time of sentencing, there has never been any assertion that any family member desired to attend the sentencing, or that the defendant had any evidence to present. Even though the defendant was present and heard his counsel’s argument about lack of opportunity to notify the family, he made no assertion of any evidence or testimony he wanted to present through his family.
K.S.A. 60-405 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
In essence, the defendant is arguing that there was an erroneous exclusion of evidence based upon a lack of opportunity to present the alleged evidence. He further claims an absolute right to that opportunity based upon K.S.A. 1992 Supp. 22-3424(4). Where the defendant’s argument breaks down, however, is that there was not, and has not been to this date, any indication that there was any evidence to present. Even when addressed directly by the court and given the opportunity to assert anything pertaining to “what the Court sentence might or should be,” the defendant failed to indicate that he had any evidence that he desired to present. Absent some proffer that the defendant had evidence to present in mitigation of the sentence, we fail to find any reversible error. The mere fact that the defendant’s family could not be notified in time to be present would not be grounds for relief absent some showing the family had evidence to present. The statute provides that the court may allow the victim or the victim’s family to address the court but makes no such provision for the defendant’s family.
Considering that the Topeka Correctional Facility (TCF) report reveals that the defendant referred to his mother as a “Royal pain in the ass” and as a “Royal fucking bitch,” the failure to actually claim that his family had any mitigating evidence or testimony to present is understandable.
The State also argues that there has been no showing of any prejudice to the defendant by the denial of a continuance or by the alleged noncompliance with the allocution statute. K.S.A. GO-261 provides:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
While it has long been recognized that alleged trial errors will not be grounds for reversal absent a showing of prejudice to the substantial rights of the defendant, we have not specifically addressed the issue of the need to show prejudice when it is claimed that a defendant’s rights to allocution have been violated. In Webb, we recognized that “[m]any jurisdictions have held that noncompliance with a mandatory statute is, of course, error but, unless prejudice to the defendant is shown, not reversible error.” 242 Kan. at 525. However, we went on to further discuss the history of allocution and made no specific determination of the necessity to show prejudice. Webb was finally determined on the basis of waiver for failure to assert the alleged violation of the statute in the motion for modification. Here, the issue of lack of prejudice has been asserted by the State. We believe the requirement of a showing of prejudice to the substantial rights of the defendant is equally applicable to alleged violations of the allocution statute as it is to the many other areas of criminal procedure where prejudice must be shown to justify a reversal. The defendant here has shown absolutely no prejudice, and while failure to comply with a mandatory statute, such as K.S.A. 1992 Supp. 22-3424(4), is error, but not reversible error unless prejudice to the substantial rights of the defendant is shown.
In Webb, we held that failure to raise the issue of a failure to provide full allocution in a motion to modify sentence constituted a waiver of any objection to the allocution. The rule of waiver set forth in Webb was subsequently limited in Spencer to cases where an actual hearing on a motion to modify was held. We conclude our statements in Spencer were overly broad. Here, the defendant’s motion to modify his sentence reads:
“COMES NOW the defendant, by and through Ronald E. Wurtz, District Defender, and moves the Court to modify his sentence pursuant to K.S.A. 21-4603. The defendant further moves the Court to return him to the Shawnee Counfy Jail for the purpose of a sentence modification hearing.
“Defendant bases his Motion on the report from the State Reception and Diagnostic Center. The one hundred twenty (120) day time period expires on June 27, 1992.”
The motion contained no facts, assertions, or claims that the defendant’s right to allocution had been denied or violated. The sole basis for modification was defendant’s reliance on the TCF report. The report recommended that the defendant serve an appropriate sentence and then stated:
“Regardless of one’s understanding of this inmate’s behavior in the instant offenses, it becomes very clear he is a violent, sadistic and hostile predator on the weaknesses of others, and his presence is a grave threat and danger to others near him, whether in a free society, or while incarcerated and in a prison population. If he is ever even considered for placement outside of a maximum security setting, he should be thoroughly re-evaluated. We would strongly caution against such consideration.”
The TCF report certainly contained no support for a modification of sentence.
Whether a defendant is entitled to a hearing on a motion to modify sentence is discretionary with the trial court based upon the record before the court at the time. State v. Pierce, 246 Kan. 183, Syl. ¶ 1, 787 P.2d 1189 (1990). While it is true the court ruled on the motion to modify sentence without a hearing, the defendant has the duty to set forth in such a motion sufficient allegations and facts that would justify a hearing. When the motion for modification is based upon assertions that the defendant was denied statutory rights to allocution, allegations to that effect must be set forth with particularity in the motion. Absent any such allegations in the pleading or motion, the defendant waives any issue as to the sufficiency of the allocution or compliance with K.S.A. 1992 Supp. 22-3424(4). The waiver rule recognized in Webb applies not only where there is an actual hearing but also when the court properly exercises its discretion and rules without a hearing based upon the record before it. Implications to the contrary in Spencer are disapproved.
For all of the foregoing reasons, we find no merit in the defendant’s arguments relating to the failure to grant a continuance and that such failure violated his rights to allocution under K.S.A. 1992 Supp. 22-3424(4)(c) by precluding him from presenting evidence in mitigation of punishment. The defendant was not denied his due process rights and substantial justice has been done. K.S.A. 60-261.
The defendant’s next issue on appeal is that he was denied the opportunity to be fairly sentenced because of an inaccurate PSI report. The facts, as disclosed by the sparse record before us, indicate that the court services officer assigned to do the PSI attempted to interview the defendant at the Shawnee County Jail on February 11, 1992. At that time, the defendant refused to cooperate. He refused to give the court services officer any information and refused all discussion, stating: “I ain’t going to tell you nothing man. I told you all I’m going to tell you already.” The interview was then terminated at the defendant’s request. Subsequently, there was an attempt to proceed with a second interview, but due to a change in administrative procedure it was never accomplished. Thus, the PSI report submitted to the court did not include anything of substance from the defendant and, in addition, indicated that the attempts to conduct an interview were thwarted by the defendant’s refusal to cooperate at the first interview and that the second proposed interview was canceled at defense counsel’s request.
In addition, the defendant complains of the failure of the report to indicate that the original counts of aggravated burglary and aggravated arson had been dismissed as part of the plea bargain. However, a complete reading of the report clearly indicates this failure was due to clerical errors and that the two dismissed counts were not considered or relied upon by the court services officer in making his report. The final recommendation was that the defendant be sentenced for an appropriate period of time and “[bjecause these are actually six separate violent acts, I recommend the Court run the sentences consecutive to each other.” (Emphasis added.)
At the time of sentencing, the State as well as the defense pointed out the errors in the PSI report, and defense counsel and the defendant were clearly given a full opportunity to explain and comment upon the discrepancies. In doing so, the record reflects the following took place:
“MR. WURTZ: . . . The main reason which I request — for which I request a continuance is that after reading the presentence report, it has been made to appear that Mr. Borders refused or failed to cooperate with the presentence investigation process. That is not the case. And the presentence writer, Mr. McMillan, I think, will testify to that.
“In the report, it indicates that a second interview was scheduled. That second interview, then, the way the report reads, was aborted after a conversation between the probation officer, Mr. McMillan, and myself wherein it appears that I said that we don't have time to do it, so just write your report, or words to that effect.
“There’s a great deal more to it than that. And, in fact, Mr. McMillan, and I believe in his first report, first drafted a report, explained it adequately as to what occurred but his supervisors ordered him to take it out. And that puts Mr. Borders in a bad light. It likewise puts me in a bad light. And in effect, Your Honor, it denies Mr. Borders the opportunity to a full and complete presentence investigation.
“I just finished talking with Mr. McMillan. That is the reason that I am late to court. And I apologize for that. And he is on his way up to court, which I would like to put that on the record to correct it, unless the Court is willing, based upon my statement at this time, to continue the sentencing of this case so Mr. Borders may have a fair hearing.
“THE COURT: Okay. Mr. Ossmann, do you have any comments?
“MR. OSSMANN: Well, Judge, I think that the Defendant has a right at this hearing to allocution, which is to address the Court and tell the Court whatever he has to say in mitigation of punishment. And I think that the presentence report generally is another opportunity for a Defendant to explain his actions.
‘With regard to the presentence report and that portion of the report that deals with tire second attempt to interview the Defendant, it’s my recollection that the Division 1, the Administrative Judge, passed a new administrative order that prohibited Court Services people from face-to-face contact with prisoners at the jail and that they were going to be required to conduct those interviews by way of the television look-out that we have with the jail. The Court Services people hadn’t been sufficiently briefed on how that worked, so that that wasn’t a possibility, and that there was some suggestion that Mr. Wurtz then make arrangements to have that interview take place. We have no reason to doubt Mr. Wurtz’s recitation of what happened, but think that allocution at this time would be sufficient to advise the Court of whatever mitigating facts and circumstances the Defendant would present.
“THE COURT: Okay.
“MR. OSSMANN: Judge, I — I’d indicate as well in summary of the presentence report it indicates that Defendant was convicted of three counts of first degree murder, one count of aggravated burglary, one count of aggravated arson, and three counts of attempted rape. And as the Court’s already noted, that should be corrected to simply show three counts of first degree murder and three counts of attempted rape.
“THE COURT: Okay, Well, I think that certainly better procedure probably would have been that the Defendant be interviewed. I believe that he did have— he did have at least one opportunity to be interviewed and chose not to participate in that. I believe that I’ll take Mr. Borders’ and Mr. Wurtz’s word for it that they did want to cooperate with the — with the interview process. And I’m not going to hold it against — hold any comments in the presentence report against Mr. Borders that he was uncooperative. I’ll just consider that not — to not have happened and not to have been a part of this process.
"And I agree with Mr. Ossmann that the Defendant certainly at this time will have an opportunity to be heard in a full and comprehensive manner and our recent cases protect that right to a significant extent. So I believe that that would cure any defect in the, in the report.
“MR. WURTZ: Well, I have an additional concern. Mr. McMillan’s just come in the courtroom. I think he heard most of Mr. Ossmann’s statement. I have a concern that there’s now something in the record that I have done something to obstruct this process. And as long as the Court is agreeing in substance to correct the presentence report to the point that I did not obstruct this process and that I tried and I believe Mr. McMillan tried but was substantially hindered by new court orders and supervisory rules from conducting this report, and I think that that deprives Mr. Borders of a significant right, and that’s why I’m objecting to proceeding at this time.
“THE COURT: Well, . . . (Pause)
“MR. WURTZ: If the Court ruling stands, we’re ready to proceed.
“THE COURT: Well, I don’t agree. I think that all protections that have been necessary have been provided. And I certainly don’t hold it that Mr. — Mr. Wurtz or Mr. McMillan intentionally tried to obfuscate or obstruct the procedures. I think it was just a matter of circumstances and timing. So I’ll let the record stand in that regard and we’ll go ahead and proceed.”
The court was fully aware of the discrepancies in the PSI report and the defendant’s concern about them. The court also made it clear that the discrepancies in the report and the failure of the second attempt to interview the defendant would not be held against him and in fact were considered by the court not to have occurred.
K.S.A. 1992 Supp. 21-4604 states in pertinent part:
“Whenever a defendant is convicted of a felony, the court shall require that a presentence investigation be conducted by a court services officer or in accordance with K.S.A. 21-4603, and amendments thereto, unless the court finds that adequate and current information is available in a previous presentence investigation report or from other sources.”
In considering the sufficiency of a PSI report certain rules have been recognized. “Presentence reports are valuable tools and should be given close attention by sentencing judges to the end that offenders may receive fair sentences based on the best available information rather than on inadequate guesswork.” State v. James, 223 Kan. 107, Syl. ¶ 5, 574 P.2d 181 (1977).
“The United States Supreme Court has held that a sentence predicated on false information denies the defendant due process of law, Townsend v. Burke, 334 U.S. 736, 740-41, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948), and a sentence so rendered requires vacation and remand for resentencing. United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). To meet due process requirements, the sentencing procedure must afford a defendant tire opportunity to deny or explain information considered in determining tire appropriate sentence. Gardner v. Florida, 430 U.S. 349, 362, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977); Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949).” State v. Grantom, 229 Kan. 517, 518-19, 625 P.2d 499 (1981).
“Defendant 'bears the burden of proving that his right to due process was violated because his sentence resulted from inaccurate information.” State v. Brewer, 11 Kan. App. 2d 655, 664, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).
The defendant’s principal complaint on appeal is that his PSI report contained inaccurate information and that the sentencing judge may have relied upon that information in violation of the defendant’s due process rights. Additionally, the defendant argues that he was deprived of a significant right by not being afforded an interview in conjunction with the PSI.
It is important to note that the initial interview failed due to the defendant’s refusal to cooperate and answer questions. While the PSI report seems to indicate that the second failed interview was also due to the defendant’s lack of cooperation, the record demonstrates that the defendant was given the opportunity to challenge and rebut the information provided in the report. The defendant’s counsel stated that the second interview was aborted due to administrative complications unrelated to the defendant. The State agreed, and the court was fully advised of the fact that the aborted second interview was not as a result of any action or inaction by the defendant or his trial counsel. The court recognized and adopted that position.
The defendant’s second allegation of inaccuracy emanated from portions of the PSI report which incorrectly listed two charges against the defendant which had previously been dismissed pursuant to the plea bargain. Here, the defendant contends that the PSI report recommendation resulted in part from the consideration of the aggravated burglary and aggravated arson charges which were dismissed. As previously stated, the court services officer made his recommendation based solely on the six crimes to which the defendant pled either guilty or nolo contendere.
The defendant’s final argument maintains that his lack of participation in the PSI denied him a significant right and was violative of his due process rights. We disagree. The sentencing judge determined that any error caused by the lack of the defendant’s participation was cured by his statutory right to allocution. The defendant was given the opportunity of an interview and declined. The defendant cannot refuse to participate in the PSI interview process and then use the failure of an interview as a ground for appeal. We know of no rule of law that requires the court services officer to continue making attempts at a personal interview with the defendant after the defendant has refused the opportunity and refused to cooperate.
The defendant’s due process rights were fully protected by the trial judge in this case, and the defendant has shown no prejudice. We find no abuse of discretion by the trial court in any of the issues asserted on appeal.
The judgment is affirmed.
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The opinion of the court was delivered by
Yalentine, J.:
That the City of Leavenworth had ample power to grade streets and assess the cost of grading the same to the lots adjacent thereto, and require that the contractor should loolc exclusively to such assessment for compensation, will not be denied by the plaintiffs below, nor by Dugan’s administrators. But they contend that there were many irregularities, which released the lots and the lot owners from liability and made the city itself liable for the grading.
These supposed irregularities are as follows: Rogers’ bond was not double the amount of the contract price of the grading; no plats, plans or specifications, of the grading were ever made out; the city council never prescribed how the grading should be done; no grade was ever established; the contract with Rogers was assigned to Dugan, which they claim could- not be done; Dugan did not give bond; the certificates of grading were given to Dugan, when they should have been given to Rogers; the work was not done within the time prescribed by the contract. And they further claim that the city council could not, by a resolution, extend the time for doing the work, and could not, either by resolution or ordinance, ratify what had already been done, so as to cure any of the said irregularities.
On the other hand the city claims : First, There were no irregularities; and, Second, That if there were, the contractor knew of them as well as the city, and that, therefore, in no event is the city liable.
All the transactions which form the subject of this litigation, were had under chapter 69, laws of 1864, §§ 3 to 12. Said sections gave to cities and city counoils the most ample and complete powers in grading and improving streets, alleys, etc. While the legislature clothed the city council with full powrer in the premises, yet they, did not attempt to define just how said power should be exercised. They left the city coun cil to exercise a great deal of discretion in the nse of such power. We do not think it can reasonably be contended that the city or any of its officers went beyond the scope of the authority given to them by the legislature, or that they infringed or violated any law of this State or of the United States, from the time the contract was made up to the time of levying the special tax. The contract was regularly made; the bond was regularly approved; the contract was assigned according to the terms of the contract itself; the grading was done under the supervision of the city engineer, as provided by the contract, and was approved by the city, and the special tax to pay for the grading was regularly levied by the city council.
It is contended, however, that the provisions of a certain city ordinance (No. 90, passed June 14, 1863, under the laws of 1862,) were violated. We have already decided in other cases, (City of Leavenworth v. Laing, et al., ante p. 274, and Paine v. Spratley, 5 Kas., 525,) that portions of that ordinance never had any force or effect; and we now decide that other portions of the same were repealed and greatly modified by the said laws of 1864. After the passage of the laws of 1864, the city council was at liberty to obey that ordinance (where the ordinance did not itself violate the law) or not, just as they chose.
The principal objection urged against the validity of the said special tax is: “ That the contract had expired by its own limitation before any of the work was done, and could not, therefore, be revived by any resolution of the city council.” The city also urges this as an objection to any recovery against itself. It will be perceived, by reading the contract, that the. city was not bound, by the'terms of the contract, to consider time as of the essence of the contract. Probably the city might have done so if it had so chosen; but it did not so choose. It extended the time for the grading to be done by a resolution of the city council.
But it is claimed that the time could not be extended by a resolution, but, if extended at all, that it must be done by an ordinance. The statute, however, nowhere requires that such a thing should be done by an ordinance; nor does it even require that the grading of the streets should be ordered by an ordinance. In the absence of such statutory requirement we suppose that the city council might extend the time as well by a resolution as by an ordinance. 3 Butcher, N. J., 493, 498; 17 N. Y., 449; 29 N. Y., 215, 217; 39 Barb., 266, 269. But after this work was all done and completed, it was ratified by an ordinance levying said special tax.
Up to and including the levying of said special tax we think the proceedings were sufficiently regular to be valid' under the law, and binding upon all parties. But the city stopped at that point. The city provided no means of collecting said speeiál tax. The city did not sue the lot owners, nor provide for selling their lots under section six of said chapter 69, Laws of 1864.
Under such circumstances, what are the rights of all the parties ? The city treasurer had no authority to sell said lots, nor to advertise them for sale : City of Leavenworth v. Laing, and Paine v. Spratley, supra. The contractor and his representatives had no authority to sell said lots, nor to enforce the payment for the contractor’s. services, in any other manner, from the lot owners. The lot owners are never directly or primarily liable to the contractor for grading done by him. They o J are liable to the city only, and the city is primarj.]y †0 the contractor. (Argentius v. City of San Francisco, 16 Cal., 255, 258, 268, 281.) Wheri the city fails to provide any means for collecting the value of the grading from the lot owners and paying the same to the contractor, it leaves the contractor without any possible means of ever obtaining compensation for his services, except by suing the city. The city is liable to him; and the only way by which the city can relieve itself from such liability is by levying a legal tax, (§ 11, Laws of 1864, p. 129;) and to levy a legal tax, does not in such a case mean to simply make an assessment; it means to make the assessment, and also to provide some means for its collection. In this case the city did not take the necessary steps to relieve itself from liability to the contractor, and hence the judgment of the court below, against the city and in favor of the representatives of the contractor, for the value of the grading was correct.
While it follows from what we have already said, that the city treasurer is liable to be restrained by order of injunction from selling the plaintiffs’ lots, it by no means follows that the city itself is so liable. The city is not so liable, because, first, the city had full and ample power to provide for the sale of said lots; second, the city never attempted to exercise that power. Hence, it was error for the court below to allow the injunction, as it did, against the city. Without deciding in this, case, whether the city still has power to collect this spe cial tax from the lot owners, by selling their lots, or by suit, we may say that it would seem that it has such power: Mayor, etc., v. Colgate, 12 N. Y., 140; McLunnery v. Reed, 23 Iowa, 410, 417.
There is one question raised by the counsel for the defendants, which we hardly think is presented by the record. Said counsel claims that the city did not except to the conclusions of law as stated in the findings of the court. It is true that the city did not except . . . . . , m form or in terms, but it did except m substance. The court found only two conclusions of law, and the second is only a corollary from the first. Immediately after the court announced its findings, the city moved for a new trial, among other grounds, for the reasons, “that said findings are contrary to law; that the findings of laxo are against the laxo of the land, and against the evidence in the case.” The court overruled said motion. The city excepted, and the court then entered judgment against the city, and the city again excepted. After an examination of such a record it would be exceedingly technical to say that the city had not saved said questions of law, so as to present them properly to this court.
After a careful examination of all the questions involved in this case, we are of the opinion that the judgment of the court below in favor of the administrator of the estate of John Dugan, deceased, and against the city, for the value of the grading should be affirmed. That the judgment in favor of the plaintiffs below, and against the city, forever restraining the city from selling said lots, should be reversed. That the judgment in favor of the plaintiffs below, and against the city treasurer, (which is virtually against the city) forever restraining him from selling said lots, should be so modified that the city treas urer shall be forever restrained from selling said lots, unless the city shall first make a legal provision for their sale.
The judgment in favor of the plaintiffs below, and against Dugan’s administrator, forever restraining him from selling said lots, cannot of course be disturbed in this court, as said administrator is not here complaining, and the judgment against him does not affect the rights of the other parties.
This case is remanded for further proceedings in the court below, in accordance with this opinion.
All the justices concurring.
[ * In Paine v. Spratley, the Court say: “The city council of Leavenworth acted without authority of law in the passage of those provisions of Ordinance No. 90 which attempted to provide for the sale and conveyance of real estate for the non-payment of special taxes for the improvements of streets and alleys.” 5 Kas., 549.]
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The opinion of the court was delivered by
Holmes, C.J.:
This is an appeal by the City of Wichita (City) from the district court’s ruling that the mandatory minimum fine provision for repeat offenders, as set forth in § 5.66.055(b) of the Code of the City of Wichita, is unconstitutional. This appeal is taken upon a question reserved by the City pursuant to K.S.A. 1993 Supp. 22-3602(b)(3).
The facts are not in dispute. James Lucero was arrested on December 2, 1992, for violating § 5.66.055(a)(1) of the Code of the City of Wichita. The ordinance makes it unlawful for any person to intentionally interfere with or obstruct the conduct of a lawful business. The defendant was arrested while participating in a pro-life demonstration at a women’s clinic located in Wichita.
On February 18, 1993, the defendant appeared pro se before the Wichita Municipal Court and was found guilty of violating § 5.66.055(a)(1). He was ordered to pay the mandatory minimum fine of $250, serve six months in jail, and pay court costs. On February 25, 1993, the defendant appealed his conviction to the Sedgwick County District Court. On April 19, 1993, the defendant, who again appeared pro se, was found guilty in a jury trial of violating the ordinance.
On April 20, 1993, the defendant was sentenced by the district court. During sentencing, Assistant City Attorney Sharon Chalker informed the court of the defendant’s prior conviction under the same ordinance. The City recommended that the defendant be fined the mandatory minimum fine of $250 and be placed on six months’ probation with credit for time served. The City further recommended that the defendant be required to perform community service in lieu of paying the fine if the court found the defendant indigent. The court examined the defendant as to his assets, employment, and possible indigency. The defendant denied having any assets or employment. The court then proceeded to sentence the defendant, stating:
“Here’s the sentence: the jury has found you guilty and I’ve accepted their verdict. I’D enter the same as a judgment finding you guilty of having violated the City’s ordinance numbered 5.66.055(1).
“I will impose a sentence of 90 days in the Sedgwick County Adult Detention Facility and a fine of $250 and I’ll find that you are indigent as that term is used in the Kansas Code of Criminal Procedure and to follow the dictates of the City’s ordinance would be violative of due process of law as set out in [Sections] 1 and 2 of the Kansas Constitution [Bill of Rights] and applicable U.S. Constitution provisions.
“You are, therefore, paroled outright on time served.”
The journal entry signed by the trial judge provides in pertinent part:
‘Thereupon, a Jury haying been duly impaneled, having heard the statements of Plaintiff’s counsel and the Defendant, the evidence presented, instructions of the Court and having duly deliberated, returned their verdict, finding die Defendant guilty of Interference with a Lawful Business contrary to Section 5.66.055 of the Code of the City of Wichita.
“Thereupon, the Court having received and accepted the verdict of the jury does proceed to sentence the Defendant on the 20th day of April, 1993.
“Thereupon, the Court, after inquiring of the defendant of his financial status, determines that he is indigent within the meaning of the Kansas Criminal Code.
“It Is Further Ordered that the mandatory fine imposed in die City of Wichita’s Ordinance Section 5.66.055(b)(2) is unconstitutional in violation of the defendant’s constitutional rights as enumerated in Sections I and 2 of the Bill of Rights of the Kansas Constitution.
“It Is The Sentence Of The Court And It Is Hereby Ordered And Adjudged that the defendant be imprisoned for a period of 90 days in the Sedgwick County Detention Facility.
“It Is Further Ordered that the defendant receive credit for time served and is to be paroled outright.
“It Is So Ordered.”
The City appealed and states the question on appeal as follows:
“Did the District Court err in holding that the mandatory fines, as set forth in Section 5.66.055(b) of the Code of the City of Wichita, violated die defendant’s constitutional rights as set forth in Sections 1 and 2 of the Bill of Rights of the Kánsas Constitution?
The Code of the City of Wichita § 5.66.055, entitled “Interference with the conduct of a lawful business,” provides:
“(a) Interference with the conduct of a lawful business is:
“(1) Intentional conduct at or in any building owned, operated or controlled by a private individual of corporation that causes an obstruction to or interference with the free and uninterrupted use of such property as a lawful business by any employee, patron, patient or other invitee on such premises, or which prevents the free and uninterrupted ingress, egress or regress therein, thereon or thereto;
“(2) Wilfully or intentionally refusing or failing to leave any such building owned, operated or controlled by a private individual or corporation upon being requested to do so by the owner thereof, any law enforcement officer or other authorized individual.
“(b) Any person who violates any of the provisions of this chapter within the corporate limits of the city shall be deemed guilty of a misdemeanor and upon conviction hereof shall be punished by the following fines:
“(1) Upon a first conviction, not more than two thousand five hundred dollars;
“(2) Upon a second conviction, not less than two hundred fifty dollars nor more than two thousand five hundred dollars;
“(3) Upon a third conviction, not less than five hundred dollars nor more than two thousand five hundred dollars;
“(4) Upon a fourth conviction, not less than seven hundred fifty dollars nor more than two thousand five hundred dollars;
“(5) Upon a fifth conviction, not less than one thousand dollars nor more than two thousand five hundred dollars;
“(6) Upon a sixth conviction, not less than one thousand two hundred fifty dollars nor more than two thousand five hundred dollars;
“(7) Upon a seventh conviction, not less than one thousand five hundred dollars nor more than two thousand five hundred dollars;
“(8) Upon a eighth conviction, not less than one thousand seven hundred fifty dollars nor more than two thousand five hundred dollars;
"(9) Upon a ninth conviction, not less than two thousand dollars nor more than two thousand five hundred dollars;
“(10) Upon a tenth conviction, not less than two thousand two hundred fifty dollars nor more than two thousand five hundred dollars;
“(11) And upon an eleventh or subsequent conviction, not less than two thousand five hundred dollars.
“In addition to the preceding fines such person may be punished by a term of imprisonment which shall not exceed six months, or by both such fines and imprisonment.
“(c) The imposition of the fines established in subparagraphs (b)(2) through (11) herein shall be mandatory and the court shall not waive, remit, suspend, parole or otherwise excuse the payment thereof except that the court may order that the defendant perform community service specified by the court but such an order shall be entered only after the court has required the defendant to file an affidavit of such defendant’s financial condition as required by Section 1.04.210(e) and amendments thereto, and the court has found from the information contained in the affidavit that the defendant is financially unable to pay the fines imposed, herein.
“(d) For the purposes of determining whether a conviction is a first or subsequent conviction in sentencing under this section, conviction includes being convicted of a violation of this section, and it is irrelevant whether an offense occurred before or after conviction for a previous offense.”
During sentencing, the court was advised that the defendant had one prior conviction under the same ordinance and therefore was subject to a mandatory minimum fine of not less than $250 under § 5.66.055(b)(2) of the ordinance. Based upon its determination that the defendant was indigent, the court paroled the defendant outright rather than sentencing the defendant to perform community service in lieu of the fine as authorized for indigent defendants under § 5.66.055(c).
We now turn to the question reserved for appeal. In doing so, we are somewhat handicapped in that the trial judge made his apparent determination that to require this defendant to pay the mandatory fine would violate his constitutional rights sua sponte without meaningful explanation of the ruling. The issue of the constitutionality of § 5.66.055 was not raised by either party in the trial court. The trial judge made his ruling without any notice to or argument from counsel for the parties. In addition, the trial judge failed to provide any legal reasoning in support of his ruling and failed to explain or clarify just what he considered unconstitutional about the ordinance. As a result, this court, along with counsel, is left to speculate as to the basis for and rationale behind the court’s ruling.
Counsel for the State argues (1) that there is nothing unconstitutional about mandatory sentences, including fines, or mandatory increased penalties for habitual offenders and (2) that the court had discretion under § 5.66.055(c) to sentence the defendant to perform community service in lieu of the mandatory fine. Counsel for the defendant argues primarily that the trial court was correct because § 5.66.055(a) is unconstitutionally vague, thereby violating defendant’s due process rights, and in addition that the ordinance is subject to arbitrary and discriminatory enforcement and violates the First Amendment right of free speech.
At the outset, it is deemed appropriate to set forth certain basic principles applicable to our consideration of this appeal. As to our standard of review, we are being asked to interpret the constitutionality of § 5.66.055 of the Code of the City of Wichita. In terpretation of an ordinance is a question of law. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The general principles and guidelines to be followed in considering the constitutionality of a statute or ordinance have been enumerated many times. In Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 697 P.2d 1310 (1985), we stated:
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt. The propriety, wisdom, necessity and expediency of legislation are exclusively matters for legislative determination. Courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute to be in the public interest; what the views of the members of the court may be upon the subject [are] wholly immaterial. It is not the province nor the right of courts to determine the wisdom of legislation touching the public interest, as that is a legislative function with which courts cannot interfere.” 237 Kan. at 74.
The first argument asserted by the City is based upon the assumption that the trial court may have concluded that the imposition of a harsher penalty for repeat offenders was unconstitutional. While it appears to us that the trial court’s decision was based primarily on the defendant’s status as indigent, we have no way of being absolutely certain why the judge ruled as'he did. Under the circumstances, we will consider both of the arguments and alternatives advanced by the City.
The ordinance now before the court is a self-containéd mandatory habitual offender ordinance. The ordinance provides for graduated minimum fines which progress from $250 for a sécond conviction to $2,500 for an eleventh and all subsequent convictions. In addition, the imposition of the finé is not only mandatory, but subsection (c) provides “the court shall not waive, remit, suspend, parole or otherwise excuse the payment” of the minimum fine. However, the ordinance does provide that the court-may order performance of community service in lieu of the fine if the defendant is determined to be indigent and financially unable to pay the fine. The court apparently rejected the community service option and presumably concluded that the mere imposition of harsher penalties for repeat offenders was unconstitutional. In doing so the court stated the ordinance violated “due process of law as set out in [Sections] 1 and 2 of the Kansas Constitution [Bill of Rights].”
While this case affords this court the first opportunity to examine a self-contained habitual offender city ordinance, similar type statutes have been previously examined and found constitutional. 'Self-contained habitual offender statutes and city ordinances create a special legal category for repeat or habitual offenders. Generally, habitual offender statutes impose a harsher penalty against those individuals with repeat criminal offenses. Like die instant city ordinance under review, habitual offender statutes increase the severity of the penalty in proportion with the number of convictions an individual has for commission of similar criminal acts. This type of legal category or status has long been recognized by this court as a legitimate basis for the imposition of tougher penalties. In State v. Adams, 89 Kan. 674, 677, 132 Pac. 171 (1913), this court held: “Former conviction of crime is a sufficient basis for the classification of offenders with respect to the severity of the punishment they shall receive.”
In State v. Woodman, 127 Kan. 166, 171, 272 Pac. 132 (1928), this court noted: “[I]t is a salutary provision of law that criminals whom the law’s discipline has hitherto failed to reform by prior conviction and punishment should form a class to be more severely punished than first offenders.” And, in State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975), the court described the purpose and philosophy behind recidivist or habitual offender statutes:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.”
This court on numerous occasions has examined and upheld the constitutionality of self-contained habitual offender statutes. In State v. Miles, 233 Kan. 286, 662 P.2d 1227 (1983), the defendant was convicted for possession of both marijuana and heroin, in violation of the Kansas Uniform Controlled Substances Act. Pursuant to K.S.A. 65-4127a (Ensley 1980), the defendant’s heroin conviction was elevated from a class C to a class B felony due to a prior heroin conviction. The defendant maintained that the enhancement was improper, arguing that his prior conviction in the state of Iowa was not in violation of Kansas law, and thus not a prior conviction as set forth in 65-4127a. In rejecting the defendant’s flawed interpretation of the statute, the court again recognized the validity of imposing harsher penalties for repeat offenders:
“The propriety of inflicting severer punishment on second or subsequent offenders has been long recognized in this state. The offenders are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies increased penalties when they are convicted. The Kansas Supreme Court has recognized the validity of a habitual criminal act, State v. Collins, 215 Kan. 798, 528 P.2d 1221 (1974); that such an act does not violate due process or equal protection, State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976); and is constitutional, State v. Levier, 226 Kan. 461, 601 P.2d 1116 (1979). Prior convictions can be limited to those which were committed in the sentencing state or may include prior convictions of other jurisdictions.” 233 Kan. at 298.
In State v. Salyer, 196 Kan. 32, 410 P.2d 248 (1966), the court examined a statute which elevated a misdemeanor offense to a felony based upon prior convictions. The court stated:
“The validity of a statute which authorizes an enhanced penalty by reason of prior convictions has long been recognized. The theory is not repugnant to or in violation of the due process clause of the United States Constitution. (See, Graham v. West Virginia, 224 U.S. 616, 56 L. Ed. 917, 32 S. Ct. 583; and 25 Am. Jur., Habitual Criminals, § 3, p. 261, et seq.) A similar statute is K.S.A. 21-107a, commonly known as the habitual criminal statute. The validity of 21-107a has been upheld in many of our decisions. (Browning v. Hand, 184 Kan. 365, 336 P.2d 409, cert. den. 361 U.S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 295; State v. Messmore, 175 Kan. 354, 264 P.2d 911; and Scott v. Hudspeth, 171 Kan. 320, 232 P.2d 464.” 196 Kan. at 36.
In the present case, if the trial court’s ruling was based upon the increased nature of the penalty for subsequent violations of the ordinance, its determination was clearly erroneous. The ordinance does not violate the Equal Protection and Due Process Clauses of the Kansas Constitution Bill of Rights or the United States Constitution for such reason.
We now turn to what we perceive as the more probable basis for the trial court’s decision. From the language used by the judge, it appears that he was concerned about the constitutionality of an ordinance (or statute) that would inflict a mandatory fine upon an indigent defendant who had no apparent means of paying the fine. The trial court not only accepted the jury’s verdict of guilty but also imposed a sentence of 90 days and a fine of $250 as specified in the statute. This leads us to the conclusion that the court’s concern was with the indigent status of the defendant rather than the mandatory increases in the minimum fine for repeat offenders.
Is an ordinance which requires the imposition of a mandatory minimum fine or community service in lieu thereof, against an indigent defendant, in violation of the Kansas Constitution? We hold that it is not.
While this issue has never been reviewed directly by the Kansas appellate courts, there are at least three United States Supreme Court decisions which provide guidance on the question.
In Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), the Court considered the question of whether the 14th Amendment prohibited a state from revoking an indigent defendant’s probation for failure to pay a fine. The trial court sentenced the defendant to three years’ probation after a plea of guilty to a burglary charge. As a condition to the defendant’s probation, the trial court ordered the defendant to pay both a $500 fine and $250 in restitution. When the defendant was unable to pay the restitution and fine, the trial court revoked the defendant’s probation and sentenced him to serve the remaining period of the probationary period in prison.
In concluding that the trial court erred in automatically revoking the defendant’s probation, the Court held:
‘We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by tlie Fourteenth Amendment.” (Emphasis added.) 461 U.S. at 672-73.
In Tate v. Short, 401 U.S. 395, 28 L. Ed. 2d 130, 91 S. Ct. 668 (1971), the defendant was fined $425 and, because he was unable to pay the fine due to his indigency, was committed to prison on the basis of a state statute. In essence, the statute converted a fine into a prison sentence based solely on defendant’s indigency status. In holding that the statute was a violation of the Equal Protection Clause, the court stated: “ ‘[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’ ” 40Í U.S. at 398. The Court went on to state, however, “that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refused or neglects to do so.” 401 U.S. at 400.
One year preceding the Tate decision, the Supreme Court examined the issue of whether an indigent defendant could be held in confinement longer than the maximum term allowed by statute for failure to pay the fine imposed during sentencing. In Williams v. Illinois, 399 U.S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970), the defendant was sentenced to the maximum term of one year in jail and fined $500 and $5 court costs for petty theft. The issue under review involved examination of a state statute which permitted the continued confinement of the defendant beyond .the maximum term allowed by statute, for failure to pay the fine. .The statute allowed the defendant to “work off” the fine at a rate of $5 per day, thereby having the potential of increasing the de fendant’s imprisonment by 101 days beyond the maximum period allowed by statute.
In ruling that the state statute violated the Equal Protection Clause, the Court held:
‘We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests in ability to pay. . . .
“A State has wide latitude in fixing the punishment for state crimes. . . . However, once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment be-’ yond the statutory maximum solely by reason of their indigency.” 399 U.S. at 240-42.
Finally, and pertinent to our question under review, the Court stated:
“The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.” 399 U.S. at 244.
Although the foregoing cases do not directly answer the issue before this court, they do address substantive questions which directly affect our decision here. First, the United States Supreme Court has held that imposition of a fine against an indigent defendant is allowable and that to deny the State authority to enforce such judgments would be violative of the Equal Protection Clause. “[Njothing we now hold precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.” Williams, 399 U.S. at 243. And, secondly, the Court has held that before a court may revoke a defendant’s probation for failure to pay a fine, the court must inquire into and determine whether the defendant made a “sufficient bona fide” effort- to pay the fine. However, even in the instance where an indigent defendant has made sufficient bona fide efforts to pay a fine, “if alternative measures are hot adequate to meet the State’s interest in punishment and deterrence,” the court may imprison an indigent probationer who has failed (due to no fault of his or her own) to pay a fine. Bearden, 461 U.S. at 672.
Although this court has not examined a case which deals directly with the rule of law stated in Bearden, we have recognized the impact of Beardens ruling. In State v. Higgins, 240 Kan. 756, 732 P.2d 760 (1987), the court was faced with a dispute over the right of the trial court to parole a defendant from the payment of extradition costs assessed as court costs. The court relied upon Bearden in observing:
“In recent years, the courts in this country have taken a rather firm position holding that it is constitutionally impermissible to incarcerate an indigent criminal defendant merely because he does not have the money to pay the fine or make restitution as a condition of his probation.” 240 Kan. at 759.
In State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985), the defendant appealed from an order of the trial court which revoked his probation for failure to pay fines and make restitution, which were conditions of his probation. After discussing Bearden, the court stated:
“The clear message in Bearden is that when determining whether to revoke probation, the trial court must consider why a probationer failed to pay a fine or court costs or make restitution as required by the conditions of probation. Automatic revocation and imprisonment of the probationer is prohibited by the Fourteenth Amendment. As set forth in Bearden, then, a sentencing court must make two determinations to constitutionally revoke a defendant’s probation. First, the probationer’s conduct in failing to comply with the financial conditions of his probation must be considered. It must be determined whether tire probationer willfully refused or was responsible for the failure to pay or whether the probationer made a bona fide effort to acquire the resources to pay. Imprisonment may be used as a means to enforce collection of fines or court costs or restitution when the probationer willfully refuses to pay, although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay. Tate v. Short, 401 U.S. 395, 28 L. Ed. 2d 139, 91 S. Ct. 668 (1971); Williams v. Illinois, 399 U.S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970). If, however, the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay. Alternatives to imprisonment that have been suggested include reduction of the fine imposed, extension of time to pay, and performance of public service tasks in lieu thereof.’’ (Emphasis added.) 10 Kan. App. 2d at 395'.
K.S.A. 1993 Supp. 21-4610(c), which sets forth the conditions of probation or suspended sentence, is instructive and provides in pertinent part:
“The court may impose any conditions of probation, suspension of sentence or assignment to a community correctional services program that the court deems proper, including but not limited to requiring that the defendant:
“(10) perform community or public service work for local governmental agencies, private corporations organized not for profit, or charitable or social service organizations performing services for the community;
“(11) peform services under a system of day fines whereby the defendant is required to satisfy fines, costs or reparation or restitution obligations by performing services for a period of days determined by the court on the basis of ability to pay, standard of living, support obligations and other factors.” (Emphasis added.)
Finally, our research has located only one case which has examined the question of whether community service was a viable alternative to a mandatory minimum fine. In Johnson v. State, 495 So. 2d 188 (Fla. Dist. App. 1986), the full opinion of the court reads:
“Indigent Henry Lee Johnson appeals an order requiring him to perform sixty hours of community service in lieu of paying a fine of $200.00 in costs after he received a guidelines sentence of five years in the state prison for attempted burglary of a dwelling.
“Johnson claims that section 27.3455, Florida Statutes (1985), which authorizes a court to impose such service in lieu of a fine, is unconstitutional in that it violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Johnson draws our attention to Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970) and tells us Williams prohibits incarceration solely because one is indigent. The concept and the program of community service is, however, not one requiring incarceration. It is a means through which the state meets its goals of punishment and deterrence as is permitted under Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 221 (1983).
“We hold section 27.3455, Florida Statues (1985), and section 948.031, Florida Statutes (1983), constitutional and, thus, affirm.”
The imposition of a fine, costs, and order of restitution against an indigent criminal defendant is not inherently unconstitutional. However, before an indigent defendant may be incarcerated for failure to pay a fine, costs, or restitution it must be shown not only that the defendant is indigent but that the defendant has willfully refused to make such payment or has failed to make sufficient bona fide efforts to legally acquire the resources to pay. If an indigent defendant cannot make such payments despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment adequate to meet the State’s interests in punishment and deterrence, such as community service.
The ordinance now before us provides, as an alternative to the mandatory fine, that the court may order an indigent defendant to perform community service. We conclude that the ordinance provides a sufficient alternative method of punishment as contemplated by Bearden and is not unconstitutional when applied to indigents such as the defendant here. The trial court erred in finding that § 5.66.055 of the Code of the City of Wichita was unconstitutional as to this defendant. The ordinance does not violate Sections 1 and 2 of the Kansas Constitution Bill of Rights, nor does it violate the Due Process and Equal Protection Clauses of the United States Constitution.
We now turn to the defendant’s contention that the city ordinance violates his rights to due process and is unconstitutional because of vagueness. In support of his argument, the defendant contends that the language in section (a)(1) of the City’s ordinance, which makes intentional conduct “that causes an obstruction to or interference with” the use of property as a lawful business a criminal violation, is so vague and indefinite that a person cannot determine what conduct is prohibited.
At the outset, we repeat certain familiar principles and rules relating to constitutional attacks on statutes or ordinances based upon assertions that the ordinance is vague and indefinite. Those rules were recently outlined in City of Wichita v. Wallace, 246 Kan. 253, 788 P.2d 270 (1990), as follows:
“The void-for-vagueness analysis is based upon a due'process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). The United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), stated:
‘It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply tliem. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer clear far wider of the unlawful zone’" . than if the boundaries of the forbidden areas were clearly marked.’
“This court has also discussed the rules regarding vagueness, stating:
‘The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a common sense determination of fundamental fairness.’ State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
This court has recognized that tire standards of certainty in a statute punishing criminal offenses are higher than those depending primarily upon civil sanction for enforcement. State ex rel. Murray v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982). . . . Finally, this court has recognized that, in determining whether an ordinance is void for vagueness, the following two inquiries are appropriate: ‘(1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]).” 246 Kan. at 258-59.
Additional rules are set forth in State v. Rose, 234 Kan. 1044, 677 P.2d 1011 (1984), where we stated:
“In addition Kansas ha$ long held a statute will not be declared void for vagueness and uncertainty, where it employs words commonly used, previously judicially defined or haying a settled meaning in law. In re Brooks, 228 Kan. at 544. ... A statute: js-also more readily upheld against a charge of vagueness if the offense is one,which requires a specific intent. See State v. Dunn, 233 Kan. at 421, 422; 21 Am. Jur. 2d, Criminal Law $ 17.” 234 Kan. at 1046.
With the foregoing rules in mind, we now turn to the issue of whether Wichita City Code § 5.66.055(a)(1) is unconstitutionally vague on its face.
The defendant contends that the ordinance fails to adequately define or list what types of conduct constitute either an “interference” or “obstruction” with the free and uninterrupted operation of a lawful business. The defendant argues that the vaguely written ordinance will necessarily require individuals to guess as to what types of conduct are prohibited by the ordinance. The defendant also maintains that the ordinance infringes upon First Amendment interests, causing a “chilling effect.”
At the outset, we note that the trial judge apparently found no problem with the language the defendant now asserts is vague and indefinite. The trial court not only accepted the jury’s verdict but found the defendant guilty of violating § 5.66.055(a) and further imposed the mandatory $250 fine under subsection (b)(2). If the trial court had concluded the ordinance itself was unconstitutionally vague, it would not have found the defendant guilty and imposed sentence. It appears the court’s only concern as to constitutionality was based upon the mandatory nature of the fine as it related to the defendant’s status as an indigent.
For convenience, we repeat the relevant language of the ordinance that the defendant claims is unconstitutionally vague. It reads:
“(a) Interference with the conduct of a lawful business is:
(1) Intentional conduct at or in any building owned, operated or controlled by a private individual or corporation that causes an obstruction to or interference with the free and uninterrupted use of such property as a lauful business by any employee, patron, patient or other invitee on such premises, or which prevents the free and uninterrupted ingress, egress, or regress therein, thereon or thereto.” (Emphasis added.)
A quick review of the facts of this case indicate that the defendant was arrested for “sitting in front of the door,, blocking entry and exit and shouting threats at or in” the clinic in violation of § 5.66.055(a)(1). This type of conduct is clearly prohibited by the plain language of the ordinance, which proscribes any interference or obstruction “which prevents the free and. uninterrupted in gress, egress, or regress therein, thereon and thereto.” As noted earlier, a statute or ordinance will not be declared void for vagueness “where it uses words of commonly understood meaning.” Reed v. Kansas Racing Comm’n, 253 Kan. 602, 617, 860 P.2d 864 (1993).
The defendant contends that the ordinance fails to define what types of conduct constitute a prohibited “interference” or “obstruction” to a lawful business. However, this court has stated that such sufficiency in a criminal statute is not necessary if the general statement of the offense is written in “plain legal parlance, well defined by judicial interpretation, and in language commonly understood by persons of average intelligence.” State v. Ashton, 175 Kan. 164, 169, 262 P.2d 123 (1953). The term “interfere” has been defined as: “To check; hamper; hinder; infringe; encroach; trespass; disturb; intervene; intermeddle; interpose.” Black’s Law Dictionary 814 (6th ed. 1990). The term “obstruct” is defined as:
“To hinder or prevent from progress, check, stop, also to retard the progress of, make accomplishment of difficult and slow. [Citation omitted.] To be or come in the way of or to cut off the sight of an object. To block up; to interpose obstacles; to render impassable; to fill with barriers or impediments, as to obstruct a road or way.” Black’s Law Dictionary 1077 (6th ed. 1990).
Suffice it to say we find the terms “interference” and “obstruction” as used in this ordinance are not vague and uncertain in meaning, but on the contrary are well-defined, with a generally understood meaning. While the ordinance may be imprecise, we conclude that it gives a clear arid sufficient warning as to the conduct proscribed. The defendant’s arguments that the ordinance in question is so vague that it deprives him of constitutional due process is wholly without merit.
The defendant also asserts that the ordinance creates a chilling effect on his First Amendment rights to free speech. Although this was not a basis for the trial court’s ruling, we will briefly consider the argument.
Under the First Amendment of the United States Constitution, a private property owner cannot be subjected to another’s free speech rights unless the privately owned property has assumed “to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB, 407 U.S. 539, 547, 33 L. Ed. 2d 122, 92 S. Ct. 2238 (1972). As such, private citizens do not have an unqualified right to participate in free speech and assembly on privately owned property. Hudgens v. NLRB, 424 U.S. 507, 518-19, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976). Private citizens do, however, have protected First Amendment rights on public streets and sidewalks. Flower v. United States, 407 U.S. 197, 198-99, 32 L. Ed. 2d 653, 92 S. Ct. 1842 (1972).
The ordinance now under review does not purport to regulate speech, but instead regulates unlawful conduct on property owned, operated, or controlled by a private individual or corporation. Furthermore, the defendant has failed to present any evidence which would demonstrate that the privately operated clinic in this case has assumed the “functional attributes of public property devoted to public use.” Central Hardware, 407 U.S. at 547. As there is no evidence that the clinic has taken on the status of a public forum, the defendant is not afforded First Amendment protections for his illegal conduct on privately owned property. His arguments in this respect are also without merit.
We have carefully reviewed all of the arguments of both parties and hold that § 5.66.055 of the Code of the City of Wichita is not unconstitutional under the Due Process and Equal Protection Clauses of the Bill of Rights of the Kansas Constitution and of the United States Constitution. The trial court erred in finding the ordinance violated this defendant’s constitutional rights.
The appeal is sustained, and the case is remanded with directions to resentence the defendant. If the court finds that the defendant is still indigent, then he should be sentenced in accordance with subsection (c) of the ordinance to perform an appropriate amount of community service.
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The opinion of the court was delivered by
Six, J.:
This is an eyewitness identification case. The issues, in addition to defendant’s identification by the victim’s mother, are whether the trial court erred in: (a) admitting into evidence an incident similar to the crime charged, (b) instructing the jury on aiding and abetting, (c) failing to suppress certain statements made by the defendant to the police, and (d) excluding a state ment made by the victim’s brother, who was out of the country at the time of trial.
Phillip Mack, the defendant, was convicted of first-degree felony murder, K.S.A. 21-3401(b); aggravated robbery, K.S.A. 21-3427; and aggravated battery, K.S.A. 21-3414. The facts of the murder were recently before us in Hamidan v. State Farm Fire & Cos. Co., 251 Kan. 254, 833 P.2d 1007 (1992). Our jurisdiction is under K.S.A. 1993 Supp. 22-3601(b)(l) (a direct appeal from a conviction of a class A felony or if a maximum sentence of life imprisonment is imposed). Our standard of review on the evidentiary issues is abuse of discretion. State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). We find no prejudicial error and affirm the trial court.
Facts
During the late evening of January 25, 1989, Saed Razizadeh, the victim, was driving his car with his mother, Mrs. Hamidan; his brother, Seid; and Seid’s girlfriend as passengers. The car was bumped suddenly from behind on Shawnee Mission Parkway in Johnson County. Saed’s mother, who was sitting in the passenger seat, stated that an individual wearing a beige raincoat that fell below the knee and with “one sleeve in and the other sleeve . . . hanging over his shoulder” got out of the other car, came past the passenger window, and went around Saed’s car. She said that they “exchanged glances just casually.” She saw the man face-to-face and later said that he had been the driver of the other car. At trial, she identified Mack as the man she had observed that night.
According to Mrs. Hamidan, she saw Mack holding a gun. Saed was holding Mack’s wrist with the gun up in the air. She screamed and exclaimed, “Oh, my God. They are fighting,” opened the car door, and jumped out. Saed was on the ground, and Mack was kneeling down, going through Saed’s pockets. Saed was dead.
Mrs. Hamidan was shot in the left arm. She had a face-to-face view of the man who shot her. She was shaking and “looking at him begging him not to do anything to [her] child.” At that point, her other son, Seid, stood behind her. She explained that she “knew that [Mack] wanted to shoot” Seid, so she moved to protect her son. A bullet hit her in the right arm. At the time she was shot, she was looking at the assailant and “concentrating very hard on him so I could control what was happening in case he wants to make a move or something.” Later, she discovered a third bullet lodged in her purse. Mrs. Hamidan did not see anyone else in the car Mack was driving. She was taken to the Kansas University Medical Center. The doctor testified that her injuries were quite severe. She was hospitalized from the early morning hours of January 26 until February 3, 1989.
Scott Niswonger was driving on 63rd Street to the east in Kansas City, Missouri, on January 25, 1989, when his car was bumped from behind by another car. Niswonger stopped, got out of the car, locked his door, and walked around his car to see where it had been hit. The driver of the other car walked over to Niswonger, spoke to him briefly, pulled a gun out of his pocket and stuck it up against Niswonger’s arm, saying, “Give me your money.” Niswonger replied, “I don’t have any money.” Niswonger was shot in the elbow. Stunned, he started to run and was shot in the right hip. He kept running, turned around, and observed the assailant hitting the passenger side window of Niswonger’s car. He assumed the man was after his checkbook and credit cards. He saw the assailant’s car drive away with another person in the car. He described the shooter as a black male who was wearing a knee-length overcoat and a hat pulled down over his face. The car that had hit his car was a light colored, two-tone, rusty vehicle “like a Buick Regal.” Niswonger never positively identified his assailant. Laboratory examinations confirmed that the .22 caliber cartridge casings discovered at the scene of both of the shootings were fired from the same gun. The Niswonger incident occurred approximately one-half hour after the murder of Saed.
Detective Richard McBrien honored the family’s request to delay the interview of Mrs. Hamidan. Mrs. Hamidan did not speak English. Seid, her son, was used as an interpreter. Detective McBrien testified that Seid “was very emotional” and spoke “fractured English.” Several questions had to be repeated during the interview. Mrs. Hamidan described the events and the shooter, including the fact that he had a patch of “ ‘white, curly hair’ ” on his head. She told McBrien that she could identify the person who shot her son. At the conclusion of the interview, McBrien showed her a videotape lineup. The detective explained at trial that the videotape included the primary suspect, Rodney Mann, but did not contain Mack. Mrs. Hamidan was unable to identify anyone in the videotape lineup. On cross-examination, McBrien said that Mrs. Hamidan expressed concern about poor lighting conditions and the absence of her eyeglasses at the murder scene.
Metro Squad police officers responded to a call regarding a stolen car that matched the description of the vehicle which had been involved in Saed’s murder. They located a “white over blue” 1979 Buick Regal with Missouri license plates. A forensic chemist concluded that the paint chips taken off the Buick were from Saed’s car.
The investigating detectives looked for a man who had a street name of “Bay Bay.” Mack, answering to “Bay Bay”, was interviewed by the police. He was free to leave any time. The interview was voluntary. According to Detective McBrien, when Mack provided information that was directly related to the homicide, he was advised of his Miranda rights. Mack said that he understood his rights. He explained the events related to Saed’s death arid implicated Arthonio Watkins as having been present and Rodney Mann as the shooter. The officers conducted a videotape interview. (The videotaped interview of January 30, 1989, shows Mack with a white patch of hair.) Mack again was read his Miranda rights. He signed a written rights waiver form. During the videotaped interview, Mack related details of Saed’s murder and of the Niswonger shooting. He denied that he was the shooter but admitted to being present at both crimes with Watkins and Mann.
One detective noted that Mrs. Hamidan was upset and started to cry when he explained, on January 31, 1989, that they were at the hospital to show her lineups. He gave her the three photo lineups. Mrs. Hamidan did not identify anyone in the photos. All three suspects, Mack, Mann, and Watkins, appeared once in both the photo and videotape lineups. The detectives showed Mrs. Hamidan the videotape lineup. After she observed the entire vid eotape lineup, she stated that she was interested in again seeing person number 4, who was Mack. The detectives replayed the videotape lineup and again she said that she wanted a better look at number 4. A detective explained that he tried to pause the tape on that position, but static lines appeared every time, distorting the image. Mrs. Hamidan said the picture looked familiar but that she was not comfortable with saying that number 4 was the shooter.
Mrs. Hamidan viewed different photographs in April 1989, just before her departure from the United States. She appeared to have recovered from her injuries and was not on any medication. The detective showed her three Polaroid photographs, one each of Mack, Watkins, and Mann. Seid was present to act as an interpreter. The detective
“explained, to [Seid] that I was going to show them — show her some photographs, and that it didn’t necessarily mean that she had to pick out anybody. I needed to show them to her to see if she recognized any one of these individuals as being the person who shot her and shot her son, and I gave him a very strong statement as far as saying that we had to be positive; that we could not guess on profile or we think or we thought. It had to be positive, and if this person wasn’t there, he just simply wasn’t there.”
Mrs. Hamidan began to cry uncontrollably when shown the photographs. Seid said that Mrs. Hamidan recognized the shooter. She pointed to Mack’s photo.
The detective then showed Mrs. Hamidan two videotapes, each containing a lineup. One tape included Watkins and Mack; Mann appeared in the other. She was advised to tell the detective whether she recognized anyone and was infonned that she did not have to select anyone. Mrs. Hamidan again began to ciy and identified Mack. She was sobbing and said she was positive that Mack was the person who had shot her. She did not become emotional when she saw anyone else.
Mrs. Hamidan returned to the United States. She was shown a photographic array on April 14, 1990, with 10 photos, including those of Mack, Mann, and Watkins. An independent translator was present. A detective handed Mrs. Hamidan the stack of photos and asked if she could identify the shooter. Mrs. Hamidan took her time looking at each photo. When she came to the ninth photo, which was Mack’s, she became emotional and informed the translator that Mack was the shooter. She suggested that Mack’s appearance had “changed a little bit. His hair was a litde longer and it appeared to her that he had put on a little weight.” The detective testified that the differences highlighted by Mrs. Hamidan accurately described the changes in Mack’s appearance.
Mack had a history of mental illness. Hearings were held to determine his competency to stand trial. The trial court twice ordered Mack to undergo a mental evaluation. Mack was found incompetent to stand trial on June 4, 1991, and was referred to Lamed State Security Hospital for evaluation and treatment. On September 18, 1991, he was found cdmpetent to stand trial. He did not claim to be incompetent at the time of his trial.
Mack’s motion to suppress Mrs. Hamidan’s in- and out-of-court identification was denied. At trial, defense counsel objected to the in-court identification of Mack by Mrs. Hamidan. The objection was overruled. Defense counsel did not object when Mrs. Hamidan was questioned regarding her out-of-court identification.
Mack’s Identification Contentions
Mack emphasizes that in State v. Warren, 230 Kan. 385, 392, 635 P.2d 1236 (1981), we acknowledged the possibility of an innocent man being punished through a mistaken identification by an eyewitness. The police, in the case at bar, initially followed proper procedures, and Mrs. Hamidan was unable to make an identification. Mack contends that when she was unable to identify him, “the police decided to throw out the book and play by their own rales.”
An eyewitness identification due process determination is a mixed question of law and fact that should be reviewed de novo. Mack claims the identification procedures employed were unnecessarily suggestive. Mrs. Hamidan could not identify anyone during the week after the crime. She had expressed concerns about her ability to pinpoint the attacker due to the poor lighting and absence of her eyeglasses.
Mack applies the facts to the five identification reliability factors set out in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), and asserts that the factors do not support a finding of reliability. The Biggers Court listed as factors:
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Biggers, 409 U.S. at 199.
See State v. Alires, 246 Kan. 635, 639, 792 P.2d 1019 (1990). Mack maintains that the last-minute identification created a substantial likelihood of a mistaken identification; consequently, all later identifications were tainted and Mrs. Hamidan should not have been allowed to identify Mack in court.
Discussion
The fact that Mack’s photograph was shown to Mrs. Hamidan more than once does not require a finding that her identification should be excluded. See State v. Bey, 217 Kan. 251, 259, 535 P.2d 881 (1975). When Mrs. Hamidan first was shown Mack’s photograph, she had just suffered severe injuries, the loss of her son, and was receiving high doses of medication. While she watched the videotape lineup, she continuously requested that the tape be stopped on Mack’s image, but each time the tape paused the image was distorted.
Mack moved to have the identification suppressed. The only basis he provided for the suppression was Mrs. Hamidan’s initial inability to identify her attacker, the repeated showing of his photograph, and the fact that he was the only “black male sitting at counsel table” during the preliminary hearing. At the hearing on Mack’s motion to suppress, the State claimed Mack failed to state sufficient grounds to satisfy his burden to support suppression. The State noted Mack’s failure to set forth a procedural deficiency such as an assertion that the photographs were suggestive or that a particular officer told Mrs. Hamidan who to select. Mack is precluded from raising for the first time on appeal points not raised before the trial court. Mack cannot prevail by presenting, on appeal, reasons for suppressing the identification that were not presented to the trial court. State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986).
The first step of the eyewitness identification test established in Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), has not been satisfied (initially, a court must decide whether the procedure used in making an identification was unnecessarily suggestive). See State v. Skelton, 247 Kan. 34, 39-40, 795 P.2d 349 (1990). The procedure employed by the police was not unnecessarily suggestive. The detectives neither suggested that Mrs. Hamidan had to select a person nor that the individual they believed to be the murderer was pictured in any of the photographic arrays. Detective Denning testified there is nothing improper about showing three Polaroids. Mack failed to support his claim that a three-photo array is objectionable. The events surrounding the identification did not create a substantial likelihood of an “irreparable misidentification which would deny due process.” Skelton, 247 Kan. at 40. An application of the five Biggers factors shows that the identification procedure was not unduly suggestive. Furthermore, Mrs. Hamidan’s in-court identification is independent and is admissible, even if the photographic procedure had been tainted. State v. Slansky, 239 Kan. 450, Syl. ¶ 2, 720 P.2d 1054 (1986).
At trial, Mack had an opportunity to cross-examine Mrs. Hamidan concerning various reliability considerations. She also was questioned about her interaction with the police. The trial court did not err in refusing to suppress the identification.
The Niswonger Shooting
The trial court denied Mack’s motion in limine seeking an order prohibiting the State from introducing evidence of the Niswonger shooting. During argument, the trial court stated:
“THE COURT: If the Court allowed it as res gestae, would the State have any objection to a—
“[THE PROSECUTOR]: Limiting type instruction?
“THE COURT: —limiting type of instruction such as 60-455.
“[THE PROSECUTOR]: No.
“THE COURT: I am not sure — see, we haven’t offered [defense counsel] even the opportunity at this time under 60-455.”
Nothing further was said. Defense counsel renewed his objection to the testimony at trial. The trial court again overruled die objection and then cautioned the jury:
“Ladies and gentlemen of the jury, evidence is now going to be admitted tending to show that the defendant was involved in a crime other than the present crime charged. This evidence may be considered by you solely for the purpose of proving the defendant’s knowledge and for no other purpose.”
Mack contends that the only issue in the case concerned whether Mrs. Hamidan’s identification was sufficient to prove his guilt. According to Mack, evidence of the second crime was irrelevant because Niswonger was unable to identify his assailant. Mack believes the evidence of the second bump and run was prejudicial and deprived him of a fair trial. He highlights the fact that there was substantial evidence that the same person committed both the Missouri and Kansas bump-and-run crimes. The evidence suggested that the Missouri crime would go unresolved. He claims that these facts placed improper pressure on the jury to convict, despite the weak identification evidence.
The State observes that the Niswonger shooting was admitted as part of the res gestae of the Kansas crime. The State accents Mack’s failure to argue that the evidence was inadmissible as part of the res gestae. Evidence of the Niswonger incident, according to the State, was relevant and necessary to show the accuracy of Mack’s January 30, 1989, statement. The State also argues that the evidence was critical because Mack filed a notice of alibi. Although alibi evidence was not presented at trial, Mack did not retract his alibi defense.
The Niswonger shooting had a direct bearing on and relation to the offense in the case at bar. The record does not reflect and we need not speculate on the trial court’s reasoning for admission of such evidence. The evidence was relevant and admitted to show Mack’s knowledge as reflected in his January 30, 1989, statement. Evidence that is otherwise relevant in a criminal action is not rendered inadmissible because it may reveal another offense. State v. Holt, 228 Kan. 16, 21, 612 P.2d 570 (1980). The evidence was admissible independent of K.S.A. 60-455 or res gestae. We affirm the trial court’s decision as correct. See State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991). The two incidents were logically connected.
Aiding and Abetting Instruction
Jury instruction No. 15 stated: “A person who, either before or during its commission, intentionally aids another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.” Mack’s counsel objected to the giving of this instruction, reasoning that it had no factual basis. The trial court overruled the objection.
Mack contends that he was unfairly surprised by the instruction and it created the possibility that the jüry would choose a factually insufficient theory of guilt. Mack recognizes that in Kansas a charging document is not required to allege an aiding and abetting theory.
During deliberations, the jury asked two questions related to the instruction. First, the jury questioned, “Were there any statements given by [Watkins] and [Mann], and if so, why were they not made available to us?” The trial court replied, “You have received all the evidence you may consider.” Second, the jury asked,
“The jury requests further clarification of how we are to interpret instruction number fifteen, if possible. . . e.g. if defendant accompanied the other two men knowing in advance their intent to commit a crime but defendant did not take any overt action in the crime, does this constitute promoting and assisting in the commission of the crime?”
The trial court responded, “No further clarification is possible.”
According to Mack, the jury was speculating regarding hypothetical aiding and abetting theories. He asserts that there is a reasonable basis for concluding that the jury chose the aiding and abetting theory, which he claims was not supported by the facts. He contends that the district court compounded the situation by (1) overruling his objection to the instruction, and (2) failing to give the jury a specific verdict form that he believed would eliminate any possibility of error in the event that the jury convicted on the eyewitness identification evidence.
Mack told the police that he was with Mann and Watkins when the crimes were committed. Mack said that Mann was the principal actor and that Mann and Watkins were present when Niswonger was shot. Mack was not unfairly surprised. He not only admitted to staying in the car while the Razizadeh and Niswonger crimes occurred, but also confessed to being present when Mann talked about going to Kansas to find someone to rob. Mack has faded to adequately support his contention that the jury’s behavior shows that the aiding and abetting evidence was insufficient.
We find no error in either the instruction or the general verdict form. See Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 376, 112 S. Ct. 466 (1991); State v. Skelton, 247 Kan. at 50; State v. Lashley, 233 Kan. 620, 628, 664 P.2d 1358 (1983).
Mack’s Statements
Mack filed a motion to suppress his statements to the police. The motion alleged, among other things, that he did not voluntarily and knowingly waive his right to counsel and that the police continued to question him after he invoked the right. He filed another motion, seeking to have all statements obtained by a psychiatric nurse suppressed. He alleged, among other things, that the statements to the nurse were involuntary due to his mental illness. The State agreed to stipulate that anything Mack said after he invoked his right to counsel was not admissible. Consequently, the trial court granted the motion as to certain statements, including those made to the nurse. The trial court denied the motion as to Mack’s original statements given to the police.
Mack suggests that defense counsel made it clear at the pretrial suppression hearing that, due to his mental illness, his statements were not voluntary. He explains that although the mental health report was not available at the pretrial hearing, it was available to the judge well before trial. Mack maintains that his pretrial evaluation provides evidence that he was acutely psychotic at the time he made uncounselled incriminating statements to the police. The mental health report does not support Mack’s analysis.
Mack claims his January 30, 1989, statement bolstered Mrs. Hamidan’s identification and that without this statement he probably would not have been convicted. He asserts that based on all the evidence, there is no proof that his statement was a product of his free will. Consequently, he believes the statement was unreliable evidence. Mack concludes that the statement should not have been admitted.
The State accents the fact that Mack’s amended motion to suppress did not include an allegation concerning mental illness. The State again asserts that Mack cannot appeal issues that were not initially presented before the trial court, citing State v. Burgess, 245 Kan. 481, Syl. ¶ 6, 781 P.2d 694 (1989).
We addressed a similar contention regarding a defendant’s mental illness in relation to the admissibility of a statement to the police in State v. Snodgrass, 252 Kan. 253, Syl. ¶ 3, 843 P.2d 720 (1992). A defendant’s statement must be voluntary to be admissible. In determining whether a statement is voluntary, the court must consider the totality of the circumstances surrounding the taking of the statement. Mental capacity is one relevant factor bearing upon the determination whether a statement is voluntary.
The allegation of Mack’s mental illness is insufficient to support a finding that the statement should have been suppressed. Mack’s statement was not the result of police coercion or overreaching. Mack was not under arrest when he voluntarily accompanied the police officers to the station. He was informed that he did not have to go with the officers and that he was free to leave. The officers read Mack his Miranda warnings when he made incriminating statements. The Miranda warnings were given before Mack’s discussion of the Razizadeh incident. Mack voluntarily waived his rights and spoke freely with the officers, never suggesting that he wished to stop talking or speak to an attorney. Mack again received Miranda warnings through a written waiver form before the videotaped interview. He said that he understood his rights and wished to speak with the officers. Review of the videotaped statement demonstrates that officers did not have difficulty conversing with him. We believe that Mack was capable of rationally talking with the police officers. K.S.A. 22-3215(4) provides that the prosecution has the burden of proving that an admission or confession is admissible. The State satisfied its burden. The statement was properly admitted.
The Statements Made by the Victim’s Brother
Mack’s counsel planned to admit statements made following the shooting by Seid, the victim’s brother. Counsel said that Seid, who was living in Germany, had not yet arrived. Consequently, the statements, according to counsel, should be admitted under K.S.A. 1993 Supp. 60-460 (d) (2) (excited utterance) and (3) (unavailable witness). Mack’s counsel argued that Seid was an unavailable witness under K.S.A. 60-459(g)(4) (“ ‘unavailable as a witness’ includes situations where the witness is . . . absent beyond the jurisdiction of the court to compel appearance by its process”). The proffer on Seid’s unavailability was that the public defender’s investigator sent Seid, who was living in Germany at the time, a letter in late December 1991 and a certified letter in January 1992. The trial began on February 24. Each letter requested that Seid contact the public defender’s office. The State objected to the admission of Seid’s statements and argued that the letters did not ask Seid to come back to testify. The State also asserted lack of diligence. The trial court acknowledged that it could not compel Seid to return from Germany but did not believe that Seid’s unavailability had been proven.
Mack’s counsel wanted to admit Seid’s statements made to Detective Hinkle at the time the photographic lineup was shown to Mrs. Hamidan in January. Seid selected a photograph of another individual, Michael Baldwin, although the identification was not positive. Baldwin was chosen for the array because he had characteristics similar to Mann’s. Defense counsel wanted to introduce forms that indicated Seid’s selections. (The forms are not in the record.) The State objected on the basis that the evidence was hearsay. The trial court denied Mack’s motion.
Mack maintains that the trial court erred in excluding the evidence as hearsay because (1) the statements were not offered to prove the truth of the matter asserted; (2) they were admissible under a statutory hearsay exception; and (3) his right to present a defense overrides any State interest in enforcing the hearsay statute. Mack asserts that Seid’s statements were offered to show the unreliability of Mrs. Hamidan’s identification. He argues that the statements were not hearsay under K.S.A. 1993 Supp. 60-460.
Mack also contends that the trial court should have admitted Seid’s statements on the ground of general necessity under K.S.A. 1993 Supp. 60-460(d)(3). Seid was in Germany, beyond the trial court’s authority to compel his appearance in court. Mack reasons that Seid made the statements in good faith without any motive to falsify. He believes that evidence of Seid’s good faith is supplied by the fact that Seid ultimately admitted that the identification was not positive.
Finally, Mack argues that even if the evidence was hearsay, it should have been admitted. He reasons that evidentiary rules must sometimes give way to a due process guarantee of fundamental fairness, citing Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987) (Arkansas evidentiary rule which excluded an accused’s hypnotically refreshed testimony violates the accused’s constitutional right to testify on his or her own behalf.). Mack emphasizes that the fact that a second eyewitness contradicted the State’s key witness was crucial. He concludes that exclusion of Seid’s testimony was an error that justifies a new trial. We do not agree.
Seid was an unavailable witness. He was living in Germany and was beyond the jurisdiction of the court to compel appearance. See K.S.A. 60-459(g)(4). His statements were made the day after the shooting. They were recently perceived and made while his memory was fresh. The statements were given to a police officer who was in the early stages of the investigation. There is no reason to believe that Seid would have had a motive to falsify or distort the evidence. The trial court exercises discretion, subject to ex-clusionaiy rules, whether to admit or to exclude evidence. State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). Under the facts in the case at bar, we find an abuse of discretion.
Mack confessed to having been present at the scene of the crime with Watkins and Mann. We have reviewed the evidence surrounding Mrs. Hamidan’s identification. Seid’s selection of Baldwin’s photo (the identification was not positive), if admitted, would not have altered the result. Therefore, the error was harmless.
Affirmed.
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Philip D. Lunt, of Pratt, an attorney duly admitted to the practice of law in Kansas. The hearing panel of the Kansas Board for Discipline of Attorneys found that respondent violated Canons 1 and 9, DR 1-101 et seq. (1993 Kan. Ct. R. Annot. 202), and DR 9-101 et seq. (1993 Kan. Ct. R. Annot. 245), respectively, of the Code of Professional Responsibility, and Model Rules of Professional Conduct (MRPC) 1.15 (1993 Kan. Ct. R. Annot. 299) and 8.4 (1993 Kan. Ct. R. Annot. 347). The hearing panel recommended that respondent be indefinitely suspended from the practice of law. Respondent filed exceptions to the panel’s report.
The misconduct by respondent occurred in his handling of funds in his possession which belonged to a client, Willis Bryan. The panel concluded that respondent had misappropriated' the funds based on the following facts:
Paul Bryan, the son of Willis Bryan, filed a petition in bankruptcy. Willis Bryan originally was represented in that bankruptcy proceeding by Philip Lunt. In the bankruptcy action, Lunt filed an adversary complaint on July 3, 1986, on behalf of Willis Bryan. Approximately a year before the bankruptcy petition was filed, Paul had turned over his farm operation to Willis Bryan, transferring to him his interest in the crops and government payments. Paul also had given a security interest in the crops and government payments to People’s State Bank (Bank). When the crops were harvested and the government payments were made, de mand was made for them by the bankruptcy trustee and by the Bank.
The government payments at issue were made in seven checks made payable to Willis Bryan but sent to the bankruptcy trustee. The checks are from the United States Department of Agriculture and are dated in September and December 1986. The trustee sent them to respondent in order to get Willis Bryan to endorse them. “Payable to Philip D. Lunt Trust Account” was typed on the back of each check, and Willis Bryan signed them. The checks totaled $16,150.16. Respondent deposited the money into his trust account in January 1987. Respondent told the disciplinary panel that he had a written agreement with Willis Bryan to apply the money from the trust account to his fees, but he was unable to produce the document.
Evidence was presented that between November 1986 and May 1987, respondent billed Willis Bryan for professional services rendered. The checks which correspond to the statements are in the amounts of $140, $875, $14, $25, and $875; the cash payment was $25.
Respondent filed a petition in bankruptcy. In that bankruptcy proceeding, Willis Bryan filed a complaint to determine the dischargeability of the $16,150.16 debt respondent owed to him. The complaint alleged that the debt was “due to Lunt’s fraud and defalcation while acting in a fiduciary capacity to Willis Bryan.” Willis Bryan was neither listed nor scheduled as a creditor by respondent. Respondent signed a Journal Entry of Judgment by Agreement, which contained the following paragraph: “Philip Duane Lunt is indebted to Willis Bryan for $16,150.16. This amount represents Bryan’s unearned and unaccounted for trust account monies deposited into Lunt’s trust account.” The journal entry also states that the indebtedness is not discharged, and judgment was granted against respondent and in favor of Willis. Bryan for $16,150.16 plus prejudgment interest in the amount of $4,221.17, post-judgment interest, and costs.
At the time he agreed to sign the journal entry, respondent told Mark Lazzo, who was representing Willis Bryan, that he “was not agreeing to any type of a fraudulent transaction.” The un derstanding between respondent and Lazzo was that it was a matter of defalcation rather than fraud.
Lazzo testified that at the time of the disciplinary hearing, none oh the $16,150.16 had been recovered. He also testified that he was never able to find any record of what happened to the money.
Respondent told the disciplinary panel that he was a patient at the Menninger Clinic from May 7 to July 5-6, 1987, and that during that period, because he was closing his law practice, clients who went to his office were given their files. Respondent stated that it was his belief that Willis Bryaris file had been turned over to him at that time.
Respondent asserted that he had performed legal work in the amount of $6,950 for Willis Bryan from July through December 1986. The legal work was in connection with his representation of Willis Bryan in Paul Bryan’s bankruptcy, and it began when he drafted the adversary complaint. The checks to Philip Lunt from Willis Bryan dated in 1986, which were introduced by the disciplinary administrator, total $1,089.
In written “testimony,” respondent stated that he had kept computer records which included work performed but not billed. These were never produced. Respondent offered as the reason why work performed was not billed on a regular basis: “I had advised Mr. Bryan at the start of my representation of him in the matter that the legal work would involve a considerable sum.” In his written “testimony,” respondent asserts that the work he performed for Willis Bryan amounted to $2,350 in January 1987, $5,600 in February 1987, and $1,550 in March 1987. The total amount he is asserting for work performed from July 1986 through March 1987 is $16,450. Respondent did not offer an explanation why some work was billed and other work was not.
Respondent takes exceptions to the panel’s findings. In so doing, he takes issue with die basis or reason for the findings and not die findings themselves. He does not deny that the records of his representation of Willis Bryan and, the written fee agreement were not presented to the panel. He contends they exist but were absent because he does not have access to his files. He agrees with the finding of defalcation on his part but asserts that defalcation is not fraud or conversion.
Respondent maintains that he did not commit the violations found by the disciplinary panel. The disciplinary panel concluded that he had failed to account to his client, Willis Bryan, for the $16,510.16 held in trust or to account for attorney fees and expenses claimed to be due and owing from Bryan to respondent.
Respondent first argues that he could not have violated the Model Rules of Professional Conduct because all alleged conduct occurred before March 1, 1988, when the Model Rules were adopted. The Disciplinary Administrator correctly points out that there is a continuing duty to account for funds in trust accounts which was breached by respondent’s ongoing failure. That failure spanned the periods before and after the adoption of the Model Rules, resulting in violation of both the Canons and the Model Rules.
He also argues that the journal entry of judgment by agreement that he signed was based on defalcation rather than fraud. We fail to see the significance of this distinction. Defalcation is the failure of a fiduciary to account for money received in his fiduciary capacity. As pointed out in the ABA/BNA Lawyers’ Manual on Professional Conduct § 45:501 (1990):
“Misappropriation is the umbrella term under which the different ways of misusing client funds are grouped. Black’s defines it as ‘[t]he unauthorized, improper, or unlawful use of funds or other property for purposes other than that for which intended . . . including not only stealing but also unauthorized temporary use for [the] lawyer’s own purpose, whether or not he derives any gain or benefit therefrom.’ Black’s Law Dictionary (6th Edition, 1990). It thus includes defalcation, defined in Black’s as ‘misappropriation of trust funds or money held in any fiduciary capacity, and failure to properly account for such funds,’ and conversion, which is ‘any unauthorized act which deprives an owner of his property permanently or for an indefinite time.’ ”
The panel determined that respondent misappropriated funds from his trust accounts and, in so doing, violated Canons 1 and 9 of the Code of Professional Responsibility and MRPC 1.15 and 8.4. We find that the panel’s determination is supported by clear and convincing evidence, and we adopt the panel’s findings.
In In re Daily, 248 Kan. 158, 167, 804 P.2d 993 (1991), we stated the mitigating factors to be considered in determining the appropriate sanction:
“(1) whether restitution has been made; (2) previous violations or absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude as shown by his/her cooperation during the hearing and acknowledgment of the violation; (5) support from friends and members of the bar; (6) any statement by complainant expressing satisfaction with restitution made and requesting no discipline; and (7) personal misfortune of the attorney if such misfortunes have contributed to violation of the code. [Citation omitted.]”
The panel found no mitigating factors. Misappropriation of a client’s funds, whether called defalcation or fraud, is a very serious violation. The panel’s recommendation is that the respondent be indefinitely suspended from the practice of law. The Disciplinary Administrator concurs in the panel’s recommendations and cites ABA Standards for Imposing Lawyer Sanctions § 4.12 (1991) for the proposition that suspension is appropriate “when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” The respondent also has three prior informal admonitions. We accept and concur in the panel’s recommendation of indefinite suspension.
It Is Therefore Ordered that Philip D. Lunt be and he is hereby indefinitely suspended from the practice of law in the State of Kansas effective as of the date of this order.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187).
It Is Further Ordered that respondent shall make full restitution prior to making an application for reinstatement under Supreme Court Rule 219 (1993 Kan. Ct. R. Annot. 192).
It Is Further Ordered that the costs of this proceeding be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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Per Curiam:
This is an original attorney discipline proceeding filed by the office of the Disciplinary Administrator against Kenneth P. Seck of Overland Park, Kansas, an attorney admitted and licensed to practice law in the State of Kansas.
Following the formal hearing, the panel found the respondent had violated:
1. MRPC 1.3 (1993 Kan. Ct. R. Annot. 263): “A lawyer shall act with reasonable diligence and promptness in representing a client”;
2. MRPC 1.4 (1993 Kan. Ct. R. Annot. 267): “(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
3. MRPC 7.5(d) (1993 Kan. Ct. R. Annot. 343): “(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”
No exceptions were filed to the panel’s final hearing report.
The facts underlying the violation may be summarized as follows. In March 1992, complainant Sheryl (Wade) Kelley retained respondent to complete her pending divorce action for a flat fee of $1,000. Respondent was die third attorney to undertake representation of the complainant in the action, the other two having been successively retained and discharged. The $1,000 fee was paid in full at the beginning of respondent’s representation of complainant.
The major dispute in the divorce action was which party should receive a $5,400 tax refund due from the Internal Revenue Service (or how said refund should be divided). Initially, complainant and respondent had various contacts in preparation for trial. Trial was had on October 26, 1992. From about the middle of July until the eve of trial, respondent did not return any of complainant’s numerous telephone calls and had no contact with the complainant. Respondent was not well prepared at the trial. Respondent did not prepare any proposed property division for the trial court’s consideration, did not request restoration of complainant’s maiden name (as complainant wanted), and on May 1993, obtained the name restoration through a nunc pro tunc order.
The violation of MRPC 7.5(d) arose through respondent’s usage of a letterhead entitled “Law Offices, Seek & Seek,” indicating respondent was in partnership with his father, Leon B. Seek. This was not true.
The panel noted that respondent had previously received two informal admonitions and one public censure (251 Kan. 829, 840 P.2d 516 [1992]) for professional misconduct and that, accordingly, suspension would be the usually recommended discipline. The panel then stated:
“[Hjowever, the panel believes that there are other unusual circumstances that need to be taken into consideration.
“The evidence indicated that when Respondent agreed to take on Complainant’s divorce action for $1,000, the posture of the case indicated that settlement was imminent. When it finally appeared the case would not settle but rather would go to court, Respondent’s anticipated work load increased dramatically, as did the demands made upon him by his client, the Complainant. Without question, Respondent failed to communicate properly with his client, and he was dilatory in performing some of the work; however, had respondent simply been more candid and more forceful in dealing with his client and advising her that he would get in touch with her when it came time to prepare for the trial, many of the difficulties in evidence in this matter would have been resolved.
“Finally, the panel notes that there was no evidence that Complainant was in any manner harmed or injured by Respondent’s lack of diligence and lack of communication. The panel is also mindful that Complainant was apparently not as upset or discouraged by Respondent’s activities as she was those of her predecessor lawyers, both of whom she dismissed.”
The court is concerned with the implication of the panel’s comments concerning the work to be done becoming more time consuming than anticipated. The fact that the agreement respondent entered into with the complainant turned out to be a bad deal financially for respondent is no excuse or mitigation for failure to communicate with the client. The complainant testified at the hearings. It is obvious that the panel was not impressed with the complainant’s conduct and testimony relative thereto and placed part of the blame on the breakdown of communication on her. As no exceptions were filed, we do not have a transcript of the testimony before the panel (see Rule 212 [1993 Kan. Ct. R. Annot. 180]) and must, accordingly, give deference to the panel’s determination in this regard. We accept the panel’s recommendation that censure be imposed and that the court should direct publication of such censure.
It Is Therefore Ordered that Kenneth P. Seek be censured for violations of MRPC 1.3, 1.4, and 7.5(d).
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by Gregory Castoreño from his jury convictions of aggravated criminal sodomy and rape. The district court initially sentenced Castoreño to concurrent terms of 15 years to life. Upon his motion for modification, the district court reduced his sentence to a controlling term of six years to life.
On October 23, 1989, the. victim, T.H., shared an apartment with Carrie Winters. Both T.H. and Carrie had daughters who lived with them. That evening, three people T.H. knew dropped by, and they were drinking. In addition, Allen Teetzel and Greg Castoreño, whom T.H. previously had not known, showed up.
T.H. had made arrangements to go visit a friend who lived about a mile away. She asked one of the people she knew to give her a ride, but he did not have enough gasoline. She accepted a ride with Teetzel and Castoreño, who said they were going in the right direction.
As they were walking to the truck, Teetzel and Castoreño pointed out the silhouette of a naked woman on the tailgate, and T.H. “said it looked pretty nice.” Once in the truck, the two men started fondling T.H. She was sitting between them with Teetzel driving. T.H. testified that Teetzel touched her legs and that Castoreño felt her legs and her chest. When she realized that they were not going to her friend’s place, T.H. kicked the passenger side door several times, but could not get past Castoreño.
Teetzel drove to a field. He and Castoreño told T.H. that she was being a tease and that they were going to teach her not to be a tease again. Castoreño held her by her waist and dragged her from the truck as T.H. kicked. Teetzel grabbed her ankles, Castoreño took her arms, and they put her on the ground.
Teetzel took off T.H.’s shorts and had vaginal intercourse with her while Castoreño held her arms and put his penis into her mouth. Then Castoreño had vaginal intercourse with T.H. while Teetzel held her arms and put his penis into her mouth.
T.H. testified that she was forced to have sex with Castoreño. She testified that she lay on top of Castoreño because she was scared and that was what he wanted. Castoreño expressed anger that Teetzel had ejaculated during intercourse because Castoreño “was afraid that [T.H.] was going to go to the cops.” Castoreño told T.H. that “he didn’t want [her] to be with anybody else because [she] was his from now on,” and he said that if he found out she was “with someone else” that “he was going to cut [her] tits off.”
Teetzel had intercourse with T.H. a second time. Castoreño was not involved. He went over near the truck to “relieve” himself. T.H. testified that Castoreño wanted to have intercourse again, but that she dissuaded him by suggesting that she would “do this again Friday” if she could go home. Teetzel and Castoreño took T.H. back to her apartment.
Castoreño testified that while the group was still at the apartment, T.H. had reached up to put “handcuffs on the chandelier, and [he] noticed the bottom part of her breast.” He asked her if she was wearing “anything under there,” and she said she was not. He also testified that he “ducked under the table” and that she pulled the leg of her shorts to the side to show her pubic hair to him. He testified that she put her arms around him and Teetzel as they walked from the apartment to the truck and that “[s]he would jitter away” when he grabbed her buttocks. He testified that in the truck, he was caressing her breast and running his hand up her leg and that “[s]he seemed to enjoy it.” He testified that she spread her legs further apart in response, put her arm around him, and kissed him. He testified that they drove about 15 minutes to get to the field because T.H. said, “Not in the truck,” but consented to parking. Castoreño said that T.H. “was tipsy” and that “[s]he slid out of the truck.” His account of what happened in the field differed significantly from T.H.’s only in that he testified that her participation was not forced.
Castoreño first contends that the district court erroneously instructed the jury about witness credibility. The district court gave the following instruction on witness credibility:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matters about which a witness has testified. You may take into account the witness’ ability and opportunity to observe and know the things about which he has testified, the witness’ memory, manner and conduct while testi fying, any interest the witness may have in the result of this trial, and the reasonableness of the witness’ testimony considered in the light of all the evidence in this case. In other words, you are to reach conclusions which reason and common sense lead you to make from all the credible testimony and evidence in the case.
“A witness may be discredited by contradictory evidence, by a showing that he testified falsely concerning a material matter, or by evidence that at some other time the witness has said or done something, or failed to say or do something, which is inconsistent with the witness’ present testimony, if you find that any witness has testified falsely on an important matter, you have a right to distrust the testimony of that witness on other matters, and you may reject all or part of the testimony of that witness, or you may give it such weight as you think it deserves.”
The pattern instruction consists in its entirety of the first two sentences of the instruction given in this case. See PIK Crim. 3d 52.09.
No objection was made to this instruction.
“The standard of review applied to jury instruction error requires an objection before the jury retires, stating distinctly the matter objected to and the grounds for the objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414(3). State v. Crabtree, 248 Kan. 33, 39, 805 P.2d 1 (1991).” State v. Thomas, 252 Kan. 564, 576, 847 P.2d 1219 (1993).
This court has stated that “[a]n instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there is a real possibility that the juiy would have returned a different verdict.” State v. Novotny, 252 Kan. 753, 755, 851 P.2d 365 (1993).
Castoreño contends there is a real possibility that the jury would have returned a verdict of not guilty had the significantly expanded witness credibility instruction not been given. He reasons that the instruction tipped the balance against him in this case, which was a credibility contest between T.H. and him. He suggests that the balance was tipped by the instruction’s unduly focusing the jurors’ attention on his motivation for testifying falsely. He argues that the effect of the instruction was to make the jurors skeptical of the veracity of his testimony because his freedom depended on the outcome of the case. The instruction did not similarly affect the jurors’ perception of the testimony of the State’s witnesses because they did not have a similar stake in the result. He argues that the instruction invited the jurors to disbelieve his testimony by using the masculine pronoun as well as by directing them to consider his interest in the outcome of the trial.
In State v. DeVries, 13 Kan. App. 2d 609, 617-19, 780 P.2d 1118 (1989), the Court of Appeals concluded that words added to the approved instruction on witness credibility were inappropriate and required reversal of DeVries’ conviction of felony theft. The instruction which was given in DeVries’ case stated:
“ ‘It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified. You may take into account the ability and opportunity of the witness to observe and know the things about which that witness has testified; i.e., memory, manner and conduct while testifying; any interest the witness may have in the outcome of this trial, and the reasonableness of testimony considered in the light of all evidence in this case.’ ” 13 Kan. App. 2d at 617.
However, in contrast to the present cáse, there was a specific objection made to the instruction. DeVries argued that the expanded witness credibility instruction unfairly impeached him by directing the jurors to be skeptical of his testimony due to his interest in avoiding criminal penalties. He also objected to the instruction’s zeroing in on his inability to recall what happened. 13 Kan. App. 2d at 618. The Court of Appeals stated:
“Because of the limited testimony and the direct involvement of DeVries’ ‘memory,’ we believe the additional wording in the instruction as given was inappropriate.
“The opportunity to mislead the jury or cause it to become unduly influenced by specific wording in an instruction which it has been told is ‘the law that applies to this case’ compels us to reach the conclusion that using tire additional language objected to by DeVries was erroneous and requires reversal.” 13 Kan. App. 2d at 618-19.
DeVries is the only case which has been brought to the court’s attention in which the district court’s embellishment of the pattern witness credibility instruction caused reversal of a criminal conviction. According to the Court of Appeals, “[t]he previous Supreme Court opinions where the additional wording of this instruction was considered arose out of cases where no objection to the instruction was made at trial.” 13 Kan. App. 2d at 617. Thus, the standard of review applied by the Court of Appeals materially differed from that applied by this court.
In State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987), the witness credibility instruction given was similar to that given in the present case. Willis did not object to the instruction. This court expressed its preference for the pattern instruction over the expanded version which had been given by the district court but concluded that the expanded instruction was not clearly erroneous. The court stated:
“With the exception of PIK Crim. 2d 52.20 relative to eyewitness identification, tire trend has been to eliminate instructions which focus on the credibility of certain testimony. See comments following PIK Crim. 2d 52.10 (defendant as a witness); PIK Crim. 2d 52.11 (number of witnesses); PIK Crim. 2d 52.14 (expert witness); PIK Crim. 2d 52.15 (impeachment); PIK Crim. 2d 52.17 (confession); and PIK Crim. 2d 52.19 (alibi). Whereas it would certainly have been the better practice to give an instruction along the lines of PIK Crim. 2d 52.09, we cannot conclude the giving of Instruction No. 5 was clearly erroneous.” 240 Kan.' at 587.
In State v. Clements, 241 Kan. 77, 80-81, 734 P.2d 1096 (1987), the following instruction was given:
“ ‘It is for you to determine the weight and credit to be given to the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general, in regard to the matter about which a witness has testified. You may take into account the witnesses!’] ability and opportunity to observe and know the things about which he or she has testified, their memory, manner and conduct while testifying, and any interest they may have in the result of this trial, and the reasonableness of their testimony considered in the light of all the evidence in this case.’ ”
The court stated:
“A similar challenge was made to a similar instruction in State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987). In Willis, as in the case before us, there was no contemporaneous objection to the instruction. We concluded in Willis that the instruction was not clearly erroneous although the better practice would have been to have given PIK Crim. 2d 52.09. The instruction before us is virtually identical to the first paragraph of the Willis instruction and we conclude that its giving is, likewise, not clearly erroneous.” 241 Kan. at 81-82.
Castoreño also cites State v. Blocker, 211 Kan. 185, 505 P.2d 1099 (1973). He urges this court to consider it for the proposition that an instruction which singles out a particular fact or aspect of the evidence may be misleading to the jurors and prejudicial to the defendant. Blocker complained of the district court’s “refusing to instruct the jury as to the turbulent character of the deceased and his predisposition to violence.” 211 Kan. at 195. The court found no error. It stated:
“In general, we believe it improper to single out or give undue emphasis to particular facts or pieces of evidence. (State v. Tawney, 81 Kan. 162, 105 Pac. 218; State v. Adams, 89 Kan. 674, 132 Pac. 171.) We adhere to what was said in State v. Murray, 200 Kan. 526, 437 P.2d 816:
“. . . This court disapproves any instruction by which the trial court attempts to stress the comparative weight or potency of any particular type of competent evidence.’ (p. 529.)” 211 Kan. at 195-96.
In State v. Murray, 200 Kan. 526, 528, 437 P.2d 816 (1968), the issue was the district court’s supplementation of the instruction on circumstantial evidence. Because the instruction directed the jurors to apply circumstantial evidence equally in considering innocence or guilt, the court determined that Murray had not been prejudiced by it. The court, however, did not want to be “understood as placing [its] approval on the instruction.” 200 Kan. at 529.
Large portions of the challenged instruction given in this case apparently were taken from the instructions given in Willis and Clements. Willis and Clements are controlling. Although it was error to give the expanded instruction, it was not clearly erroneous to do so. The trial judge should not give an instruction that this court has found it is the better practice not to give, particularly where reversal is dependent upon the potential for unfair impeachment of the defendant in the peculiar circumstances of the case and whether the defendant objects to the instruction. We disapprove of the language of the instruction used in the present case concerning the credibility of certain witnesses beyond the specific language of PIK Crim. 3d 52.09.
Castoreño also contends that the district court erroneously instructed the jury on the elements of aggravated criminal sodomy. The district court orally instructed the jury, and then the written instructions were given to the jurors to take into deliberations with them. There is no complaint about the written instruction on the elements which must be proved to establish the charge of aggravated criminal sodomy. The written instruction stated:
“Defendant is charged with the crime of aggravated criminal sodomy. Defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That defendant had oral copulation with [T.H.] without her consent;
2. That defendant used force or fear;
3. That this act occurred on or about the 24th day of October, 1989, in Sedgwick County, Kansas.”
In its oral instruction, however, the district court failed to state that the oral copulation had to be without the consent of T.H. The district court stated:
“Defendant is charged with the crime of aggravated criminal sodomy. Defendant pleads not guilty. To establish this charge, each of the following claims must be proved: One, that defendant had oral copulation with [T.H.]; two, that the defendant used force or fear; three, that this act occurred on or about the 24th day of October, 1989, in Sedgwick County, Kansas.”
K.S.A. 21-3506(a)(c)(i) states: “Aggravated criminal sodomy is: . . . sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent to engage in sodomy, . . . [w]hen the victim is overcome by force or fear.”
Castoreño argues that the lack of consent is an essential element of the offense and that the omission of an essential element from a jury instruction is clear and reversible error. He relies on United States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946). He further argues that delivery of a corrected written instruction does not cure the defect in the oral instruction, citing State v. Norris, 10 Kan. App. 2d 397, 699 P.2d 585 (1985).
The State contends that it should suffice that the jury was instructed that it had to find that Castoreño used force or fear. The State quotes from 3 Wharton’s Criminal Law § 288 (14th ed. 1980) in support of its argument that it was unnecessary for the district court to instruct the jury of the need to find lack of consent. The State relies on State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988), for the principle that omission of an essential element in an instruction is not necessarily a reversible error.
In Redford, the district court instructed the jury that rape is “nonconsensual sexual intercourse,” but failed to add that the victim must be overcome by force or fear. 242 Kan. at 671. The district court had omitted one of the essential elements of the offense, but, as in the present case, defense counsel did not object. Here is the court’s entire discussion of this issue:
“Redford’s defense consisted of presenting a completely different version of events than that given by Donna. His only response to the charges of multiple rape and sodomy was to answer ‘[n]o,’ when his counsel asked him, ‘[A]t any time did you engage in any oral or anal sex with Donna without her consent?” Donna consistently testified that she submitted to each act of sexual intercourse without consent and because she was overcome by fear. There was no evidence of nonconsensual sexual intercourse under any circumstance other than fear.
“The question therefore is whether the verdict would have been different had the jury been instructed Donna must have been overcome by force or fear. Under the facts of this case, we think not. The error was therefore harmless.’’ 242 Kan. at 671-72.
Redford is distinguishable from the present case in several respects. First, our reason for holding the error to be harmless in Redford is not applicable in the present case. Castoreño is charged in Count 2 with oral copulation with T.H. without her consent when she was overcome by force or fear (K.S.A. 21-3506[a][c][i]). There is no allegation by the State or T.H. that the oral sex was nonconsensual under any circumstances other than force or fear. Consequently, if T.H. did not consent, the jury could find Castoreño guilty only if it believed T.H. was overcome by force or fear. Even if there were evidence of nonconsensual oral sex under any circumstances other than force or fear, it would not be admissible unless the defendant was charged under K.S.A. 21-3506(a)(c)(ii) and (iii). Thus, the absence of such evidence does not render the erroneous instruction harmless.
Second, in Redford, only one essential element was omitted; here, of the two essential elements at issue, one was omitted from the instruction and the other one was incorrect. The instruction did not use the words of the statute or of the pattern instruction on the element involving force or fear. Both the statute and the pattern instruction concern a victim “overcome by force or fear.” K.S.A. 2I-3506(a)(c)(i); PIK Grim. 3d 57.08-B. The district court’s instruction required the jurors to find that the State proved “[t]hat defendant used force or fear.” The jurors were not instructed that the State had to prove that T.H. was overcome by fear. With the State arguing that instructing as to force and fear eliminates the need to instruct about lack of consent, this deviation from the statutory language is significant. It seems conceivable, although pushing the limit, that jurors could have believed that Castoreño used fear, and even that T.H. was afraid, without believing that she had not consented to oral copulation. The State argues that what makes it seem unlikely that any of the jurors in this case did not believe that the oral copulation was without T.H.’s consent is that the jury was properly instructed that the State had to prove that the sexual intercourse was comnjitted without her consent when she was overcome by force or fear. The evidence did not tend to show that the sexual intercourse was less welcomed by T.H. than the oral copulation. Thus, if the jury found that the sexual intercourse occurred without her consent when she was overcome by force or fear, then it follows that the jury also considered the oral copulation to have occurred in the same circumstances. If we accept the State’s argument, there would be no need to instruct the jury on the State’s burden to prove the essential elements of aggravated criminal sodomy. Instead, the court could simply instruct the jury that if it finds the defendant guilty of rape, it must also find him guilty of aggravated criminal sodomy. That is obviously unacceptable and violates fundamental justice. The jury has the duty to determine whether the defendant is guilty or not guilty and, in making that determination, must apply the law to the facts as it finds them. Consequently, the failure to properly instruct the jury as to the essential elements of the crime charged prevents the jury from rendering a proper verdict.
The most compelling distinction is the trial court giving the expanded credibility instruction in the present case. It compounded the error by inappropriately focusing on the defendant’s testimony. Although not in itself reversible error, we must consider what cumulative effect the two erroneous instructions had on the defendant’s substantial rights. In State v. Lumbrera, 252 Kan. 54, 56-57, 845 P.2d 609 (1992), this court stated:
“Even if no single error or abuse of discretion is sufficient to constitute reversible error, however, when viewed cumulatively in the- totality of the circumstances herein, we are convinced that defendant did not receive a fair trial. As we stated in Taylor v. State, 251 Kan. 272, Syl. ¶ 6, 834 P.2d 1325 (1992):
‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ”
We cannot say with firm conviction that absent the two erroneous instructions, the jury would have returned the same verdict on the charge of aggravated criminal sodomy. Nor can we say the evidence against the defendant is overwhelming. Thus, the cumulative effect of the instructions was clearly erroneous and reversible error.
We agree with the defendant that the corrected written instruction did not cure the defective oral instruction. As pointed out in Norris, “the court did not read the instructions to die jury and it did not even instruct the foreman of the jury to do so. We cannot assume that despite this deficiency, the instructions were read by all members of the jury.” 10 Kan. App. 2d at 402. The Court of Appeals considered that K.S.A. 22-3414(3) required the judge to instruct die jury at the close of the evidence and before argument to lessen the possibility that the jurors will be misled by argument. The Court of Appeals also considered that reading die instructions in open court protects the defendant’s right to participate as well as ensuring that each member of the jury actually receives all of the instructions. The Court of Appeals relied on Noble, stating:
“In United States v. Noble, 155 F.2d 315, 318 (3d Cir. 1946), the court stated that an adequate written statement of the law is insufficient if it is not orally delivered as well. The court reasoned, in part, as follows:
‘Moreover, we think that even if the information had contained a full recital of all the applicable legal principles the trial judge would not have fulfilled his duty in this regard merely by sending the information out with the jury to read if they chose to do so, during their deliberations. For not only are counsel and the defendant entitled to hear the instructions in order that they may, if they are incorrect, object to them and secure their prompt correction by the trial judge, but it is equally important to make as certain as may be that each member of the jury has actually received the instructions. It is therefore essential that all instructions to the jury be given by the trial judge orally in the presence of counsel and the defendant. We conclude that the failure in die present case to instruct the jury upon the elements of the crime was error.’ See also Morris v. United States, 156 F.2d 525, 531 n.4 (9th Cir. 1946).” 10 Kan. App. 2d at 400.
We agree with the reasoning of the Third Circuit Court of Appeals in Noble. Instructing the jury as to the applicable law is a fundamental duty and is required by K.S.A. 22-3414(3). The trial court did not fulfill that duty by incorrectly instructing the jury orally as to the essential elements of the crime charged and then sending a corrected written instruction for the jury to take into deliberations.-
Finally, we consider if the district.court erred in sentencing Castoreño to a term longer than the one imposed on his codefendant without stating reasons for the difference. Allen Teetzel entered a plea of nolo contendere to one count of aggravated sexual battery and one count of attempted aggravated criminal sodomy. Aggravated sexual battery is a class D felony, K.S.A. 21-3518(2). Attempted aggravated criminal sodomy is a class C felony, K.S.A. 21-3506(2) and K.S.A. 21-3301(c)(2). He was sentenced to a term of not less than 2 years nor more than 5 years for aggravated sexual battery; he was sentenced to a term of not less than 3 nor more than 10 years for attempted aggravated criminal sodomy. The terms were ordered to run consecutively for a controlling term of 5 to 15 years.
Castoreño was convicted of rape, a class B felony, and aggravated criminal sodomy, a class B felony. He originally was sentenced to terms of 15 years to life on each count with the terms to run concurrently. Castoreño’s motion to modify his sentence was granted, and the district court ordered “that the defendant’s sentence is reduced to six years to life.” Castoreño contends that State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992), requires the sentencing court to state reasons for such a disparity and that there was no rational, legitimate reason given in this case.
In Bailey, the court vacated the defendant’s sentence due to disparity between it and the sentence of his codefendant, Jeffries. Bailey was convicted of four counts of aggravated robbery and one count of felony murder. Jeffries pled guilty to three counts of aggravated robbeiy and nolo contendere to one count of aggravated robbery and one count of felony murder. Thus, both Jeffries and Bailey were sentenced on four counts of aggravated robbery and one count of felony murder.
A factor which the court considered to be of some importance in Bailey is that “the legislature recently has expressed its intent that similarly situated defendants should receive similar sentences by adopting sentencing guidelines.” 251 Kan. at 531. The court’s conclusion was expressed as follows:
“We hold the trial court erred in not considering the disparity. The sentence is vacated and the case remanded to the trial judge for resentencing. We iterate that the trial judge is not bound to sentence the defendant in this case to the same or a lesser sentence than that given his codefendant. The trial court, however, must consider the sentence given the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record.” 251 Kan. at 531.
Bailey is not controlling in the present case because Teetzel and Castoreño were not sentenced for the same offenses. Their differing convictions were a result of Teetzel’s entering into a plea agreement. Neither party cites any authority which offers guidance where, due to one defendant’s entering pleas and one defendant’s going to trial, codefendants were convicted of very different offenses for very similar conduct and culpability.
In Bailey, this court cited Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980), as a case in which codefendants who entered pleas received disparate sentences. In that case, the Court of Appeals majority vacated Cochrane’s sentence. The Court of Appeals was disturbed by the record’s being devoid of reasons for the sentence and by Cochrane’s minimum sentence being 15 times greater than that imposed on a codefendant. In addition, the Court of Appeals stated: “It is also to be noted that plaintiff apparently was not offered similar plea bargaining possibilities as his codefendants, in violation of ABA Standards . ...” 4 Kan. App. 2d at 727.
In Bailey, the plaintiff attempted a similar argument. The court dismissed the argument in the following words:
“ ‘An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court.’ State v. Edwards, 250 Kan. 320, Syl. ¶ 7, 826 P.2d 1355 (1992). There is nothing in the record to indicate Bailey was interested in or was denied a plea bargain. Speculation does not prove abuse of discretion.” 251 Kan. at 530.
In the present case, nothing has been brought to the court’s attention from which a determination could be made as to plea agreement opportunities for Teetzel and Castoreño. As in Bailey, Castoreño has not met his burden of furnishing a record affirmatively showing prejudicial error in this regard.
Castoreño also contends that his sentence should be vacated due to the sentencing judge’s complete silence on facts and factors which were considered in arriving at .the disposition. See K.S.A. 21-4606. He cites State v. Richard, 252 Kan. 872, 882, 850 P.2d 844 (1993), in which this court concluded “that the trial court’s total failure to consider the mandates of K.S.A. 21-4606 constituted an abuse of discretion, which require [d] that the sentence be set aside and that the defendant be resentenced in accordance with the proper statutory procedure.” Castoreño notes that he was sentenced by the same judge who sentenced Richard. The judge’s remarks at the time of imposing Castoreno’s sentence consisted in their entirety of the following:
“Be the order, judgment, and sentence of the Court that you be taken into the custody by the Sheriff of Sedgwick County, and by him delivered to the custody of Secretary of Corrections to serve on Count 1 a term of not less than 15 years nor more than life, and on Count 2 not less than 15 nor more than life, said sentence is concurrent. Court will find the restitution as in the presentence investigation and Court will consider the SRDC Report when it is received.”
Castoreno’s motion to modify was granted, and his sentence was significantly reduced. The effect of subsequent modification of a sentence which was imposed without proper consideration of the statutory factors is not addressed.
In State v. Webb, 242 Kan. 519, 529, 748 P.2d 875 (1988), this court held that Webb’s failure to raise the issue of denial of his right to allocution in the motion to modify his sentence constituted waiver of his statutory right to allocution. In State v. Spencer, 252 Kan. 186, Syl. ¶ 3, 843 P.2d 236 (1992), the waiver rule announced in Webb was “limited to the facts of that case, in which an actual hearing was held on the motion to modify sentence.” In the present case, there was a hearing on Castoreno’s motion to modify. The record on appeal does not indicate that the issue of the sentencing judge’s failure to consider the factors of K.S.A. 21-4606(2) at the time of sentencing was raised in Castoreno’s written motion to modify, nor was it raised during the hearing; therefore it was waived.
The defendant’s conviction of rape (Count 1) and resulting sentence is affirmed. The conviction of aggravated criminal sodomy (Count 2) is reversed and remanded for further proceedings.
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The opinion of the court was delivered by
Davis, J.:
This case comes before this court on grant of the State’s petition for review and the defendant’s cross-petition for review. We granted the State’s petition for review on the single issue of whether the Court of Appeals correctly decided that die sentence imposed by the trial court was illegal because the trial court ordered restitution on charges that the State dismissed pursuant to a negotiated plea agreement. For reasons set forth in our opinion, we conclude that the order of restitution was not an illegal sentence. We granted the defendant’s petition for review on an issue left unresolved because of the Court of Appeals’ decision: Whether the trial court erred in awarding restitution without conducting a hearing to determine the amount. On the facts of this case, we conclude the trial court did not err. Accordingly, we reverse the Court of Appeals and affirm that portion of the trial court’s sentence ordering restitution.
In June 1991, the State charged the defendant, Robert Ball, with three counts of residential burglary and three counts of felony theft. The information alleged that after unlawful entry into each residence the defendant stole property valued at more than $500, giving rise to the three felony theft charges.
Pursuant to a plea agreement, the defendant pled guilty to two counts of burglary, and the State dismissed the remaining counts. The prosecutor described the agreement as follows:
“[T]he defendant enters pleas of guilty to Counts I and III, State would dismiss the remainder of these counts. Both parties would request at the time of sentencing that the defendant be sentenced to a two to six year term on each of the counts, that the two counts by agreement of both parties to run consecutive for a controlling four to twelve year term. Further there will he full restitution on all counts involved, in the original Complaint. The State will not pursue the habitual criminal act against the defendant.” (Emphasis added.)
The court sentenced the defendant according to the plea agreement, which included restitution in the amount of $18,490.40. On appeal, the defendant contended that the order of restitution on those charges dismissed pursuant to his agreement was illegal under the provisions of K.S.A. 1992 Supp. 21-4610(4)(a). The Court of Appeals agreed and concluded: “Further, we must ob serve the trial court erred in ordering restitution on counts 2, 4, 5, and 6 of the original complaint. K.S.A. 1992 Supp. 21-4603(2) allows restitution as a condition of parole only if defendant has been found guilty of a crime.”
The defendant argues on appeal that K.S.A. 1992 Supp. 21-4603 and 21-4610 allow for orders of restitution only for a crime of which a defendant has been convicted. The Court of Appeals concluded that “K.S.A. 1992 Supp. 21-4603(2) allows restitution as a condition of parole only if defendant has been found guilty of a crime.” We agree that a court may not order restitution unless a defendant has been convicted of a crime. It does not follow, however, that a sentencing court is powerless to award restitution on charges in the original complaint that the State agrees to dismiss pursuant to a negotiated agreement. Nor does it follow that the sentence is illegal when the court orders restitution under such circumstances.
The defendant relies on recent federal authority to support his position. In Hughey v. United States, 495 U.S. 411, 109 L. Ed. 2d 408, 110 S. Ct. 1979 (1990), the petitioner pled guilty to using one unauthorized MBank credit card. The Victim and Witness Protection Act of 1982 (VWPA) authorizes federal courts to order “a defendant convicted of an offense” to “make restitution to any victim of such offense.” 18 U.S.C. § 3579(a)(1) (1988). Pursuant to the VWPA, the district court ordered Hughey to pay $90,431 in restitution, the total of MBank’s losses relating to Hughey’s alleged theft and use of 21 cards from various MBank cardholders. Denying Hughey’s motion to reduce and correct his sentence, the court rejected his argument that it had exceeded its authority in ordering restitution for offenses other than the offense of conviction. The United States Court of Appeals affirmed.
The Supreme Court held that VWPA restitution awards are authorized only for the loss caused by the specific conduct that is the basis of the offense of conviction. The court stated that VWPA’s plain language clearly links restitution to the offense of conviction. The Supreme Court noted that the ordinary meaning of “restitution” (restoring someone to a position he or she occupied before a particular event) together with § 3579’s repeated focus on the offense of conviction suggests strongly that the restitution allowed by the VWPA is intended to compensate victims only for losses caused by the conduct underlying the offense of conviction.
In reaching its decision, the Court noted that the VWPA authorized the sentencing court to order, “in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3579(a)(1); 495 U.S. at 412. The Court also noted:
“Other subsections of § 3579 likewise link restitution to the offense of conviction. See § 3579(b)(1) (listing damages recoverable ‘in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense’); § 3579(b)(2) (listing damages recoverable ‘in the case of an offense resulting in bodily injury to a victim’); § 3579 (b)(3) (listing damages recoverable ‘in the case of an offense resulting in bodily injury [that] also results in the death of a victim’). As the Government concedes, ... a straightforward reading of the provisions indicates that the referent of ‘such offense’ and ‘an offense’ is the offense of conviction.” 495 U.S. at 416.
As the State notes, Hughey never agreed to make restitution on additional offenses with which he was not originally charged. Hughey originally was “indicted for three counts of theft by a United States Postal Service employee and three counts of use of unauthorized credit cards.” 495 U.S. at 413. He pled guilty to one count of unauthorized use of one MBank credit card in exchange for the Government’s agreement to dismiss the remaining counts. At the plea hearing, the Government proffered evidence that Hughey took and used at least 15 other credit cards issued by various financial institutions. Through counsel, Hughey specifically declined to admit to anything other than the facts supporting the one count to which he pled guilty. The Government initially sought to secure restitution for Hughey’s alleged theft and unauthorized use of 30 cards from various cardholders issued by various financial institutions. Hughey objected. The Government then proposed restitution for Hughey’s alleged theft and unauthorized use of 21 cards from various MBank cardholders. Hughey objected, proposing that he make restitution for losses only from the card that he pled guilty to taking and using. The court followed the Government’s recommendation and ordered Hughey to make restitution for MBank’s total losses from Hughey’s alleged tiheft and use of 21 cards from various cardholders. 495 U.S. at 413-14.
The case we now consider stands in stark contrast to Hughey. Unlike Hughey, Ball was charged with the offenses for which he ultimately agreed to make restitution. Unlike Hughey, Ball specifically agreed to make restitution for losses caused by those crimes in exchange for their dismissal and the State’s agreement not to invoke the Habitual Criminal Act.
In response to this distinction, the defendant cites a recent United States Court of Appeals case involving a question almost identical to the one we are now considering. In United States v. Young, 953 F.2d 1288 (11th Cir. 1992), the defendant was charged with and pled guilty to two counts of accepting and receiving a commission or gift in connection with approval of a loan by a hank officer and agreed that his restitution would not be limited by the counts contained in the information. The restitution order encompassed losses unrelated to the offenses of which he was convicted. He appealed. The Court of Appeals held that: (1) the court could not order restitution for losses caused by crimes other than crimes to which he pled guilty, even though the plea agreement so provided, and (2) resentencing, rather than vacation of the illegal portion of the sentence, was appropriate. The basis of the court’s opinion involved an interpretation of the VWPA. Citing Hughey, the United States Court of Appeals for the Eleventh Circuit held that the VWPA authorizes courts to order restitution only for offenses of which the defendant has been convicted. The court concluded that a court may not “authorize restitution even for like acts significantly related to the crime of conviction.” 953 F.2d at 1289. When discussing the plea agreement, the Eleventh Circuit stated: “Although a bargained plea will reduce the potential recovery of victims by limiting the number and sometimes severity of the crimes admitted, ‘[n]othing in the statute suggests that Congress intended to exempt victims of crime from the effects of [the] bargaining process.’ ” 953 F.2d at 1290. The Court further noted that Congress only recently “specifically empowered courts to order restitution ‘to the extent agreed to by the parties in a plea agreement.’ ” 953 F.2d at 1290 (quoting 18 U.S.C. § 3663[a][3] [Supp. IV 1992]).
We have no quarrel with the federal authorities on which the defendant relies. Under federal law, before Congress amended the VWPA to permit a federal district court judge to award restitution per the agreement of the parties, the VWPA did not authorize a court to order such restitution. We, however, have statutes that are markedly different from the VWPA.
The VWPA, by its name, is designed to protect crime victims and witnesses. The clear and explicit language of the VWPA limits restitution to the offense of conviction. The VWPA is not specifically a sentencing statute but provides that when sentencing a defendant who has been convicted of particular offenses, a court may, “in addition to or in lieu of any other penalty authorized by law, [order] that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3579(a)(1) (emphasis added). The federal cases interpreting the VWPA are not helpful because the statutes before this court use different language and do not deal with victims and witnesses. The Kansas statutes we deal with involve authorized dispositions and conditions of probation or suspended sentences once a defendant has been found guilty of a crime. We need to look carefully at the language of the Kansas statute, not the federal act containing different language and federal cases interpreting the federal statutes.
The statutory language used in K.S.A. 1992 Supp. 21-4603 does not prohibit a court, under the circumstances of this case, from imposing restitution for offenses that have been dismissed pursuant to a plea agreement. K.S.A. 1992 Supp. 21-4603(2) provides:
“(2) Except as provided in subsection (3), whenever any person has been found guilty of a crime, the court may adjudge any of the following:
“(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
“(b) impose the fine applicable to the offense;
“(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution . . .;
“(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution . .
“(e) assign the defendant to a community correctional service program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.” (Emphasis added.)
By its statement that “the court may adjudge any of the following,” the legislature gave the court discretion with respect to selecting from the sentencing options listed in 21-4603(2). K.S.A. 1992 Supp. 21-4603(2)(b) limits the court in its imposition of a fine. The legislature’s use of the term' “the offense” in 21-4603(2)(b) makes clear that the fine must be applicable to the offense of conviction. Subsections 21-4603(2)(c), (d), and (e), however, do not limit the court to restitution for the offense of conviction, but grant the court discretion to issue orders requiring full or partial restitution. The legislature’s limitation of a court’s authority to impose a fine “applicable to the offense” indicates that the legislature understood how to limit restitution to the offense of conviction. Rather than limiting the court’s authority to order restitution, the legislature chose to grant the court discretion to order full or partial restitution as the court deemed appropriate. K.S.A. 1992 Supp. 21-4603(2) does not limit the court’s authority to impose restitution only for the crime for which the defendant was convicted.
K.S.A. 1992 Supp. 21-4610 bolsters our interpretation of 21-4603(2). K.S.A. 1992 Supp. 21-4610 concerns conditions of probation or suspended sentence. The very first subsection of 21-4610 makes clear that the legislature did not intend to limit the court’s authority to impose conditions on probation, sentence suspension, or assignment to community corrections:
“(1) Except as required by subsection (4), nothing in this section shall be construed to limit the authority of the court to impose or modify any general or specific conditions of probation, suspension of sentence or assignment to a community correctional services program, except that the court shall condition any order granting probation, suspension of sentence or assignment to a community correctional services program on the defendant’s obedience of the laws of the United States, the state of Kansas and any other jurisdiction to the laws of which the defendant may be subject.”
K.S.A. 1992 Supp. 21-4610(4) does not limit the court’s authority to order restitution on crimes to which a defendant did not plead, it simply requires the court to order restitution for the offense of conviction. Read together with 21-4610(1), 21-4610(4) does not limit the court to ordering restitution only for the offense of conviction. Rather, 21-4610(4) requires a court to order restitution for the offense of conviction in addition to any other conditions of probation:
“(4) In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
(a) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” (Emphasis added.)
K.S.A. 1992 Supp. 21-4610(4) clearly requires courts to order restitution for the offense of conviction where such restitution is not unworkable. Neither 21-461Ó nor 21-4603, however, limits a court’s authority to ordering restitution only for the offense of conviction. Both sections vest considerable discretion in the trial court to order restitution as it deems appropriate, except that it must, pursuant to 21-4610(4), order restitution for the offense of conviction.
When, as here, a defendant has been charged with numerous offenses and has agreed to plead guilty to one or more counts and pay restitution for each of the charged offenses in exchange for the State’s agreement to dismiss several charges, we hold that the sentencing court has authority to order the restitution provided in the plea agreement. We need not and do not address the legality of orders that a defendant pay restitution for crimes with which he has not been charged or crimes for which he has. not agreed to pay restitution.
Because the Court of Appeals reversed the restitution order, it did not address Ball’s additional claim on appeal that the trial court erred in determining the amount of restitution without conducting an evidentiary hearing. On review, Ball asked this court to either determine the propriety of the amount or remand to the Court of Appeals for determination of that issue if this court affirmed the trial court on the State’s petition for review.
A trial court has considerable discretion in determining the amount of restitution to be ordered. This court will find that a trial court has abused its discretion “when no reasonable person would take the view adopted by the trial court.” State v. Hinckley, 13 Kan. App. 2d 417, 418, 777 P.2d 857 (1989). The defendant claims the trial court abused its discretion here because the State did not produce any evidence of a restitution amount at sentencing.
The trial court ordered restitution in the precise amount set forth in the presentence investigation (PSI) report. Although there was no hearing in this case on the amount of restitution, the issue of restitution was not contested in this case. Compare Hinckley, 13 Kan. App. 2d at 418. At the sentencing hearing, the court sentenced the defendant to specific terms of imprisonment and ordered restitution in the amount of $18,490.40. The only comment by defense counsel regarding the amount of restitution was the following:
“Your Honor, in regards to the restitution, I haven’t had much of an opportunity to look over some of that, and I would ask 30 days for me to confer with the State and make sure.”
The court replied:
“If there is a need for modification, a sentence modification motion will be appropriate. I am sure the Court will be glad to entertain that.”
The record contains no written motion for modification. Nearly eight months later, at the modification hearing, defense counsel’s only comment concerning the sentence was the following:
“I suppose, I mean, I think we have agreed to a certain sentence so we can’t really ask for a lesser sentence and the only thing would be probation and I don’t think that’s a viable option at this point in time since Mr. Ball is in federal custody, also.”
The defendant did not contest the amount of restitution in the trial court. Under these circumstances, it is doubtful whether the issue has been preserved for appeal. State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992).
In any event, we conclude that under these circumstances the court did not abuse its discretion and that the amount of restitution is supported in the record on appeal. The PSI report identified the precise dollar amount, and the parties did not contest that amount. The defendant did not object to the amount in the PSI report at the sentencing hearing or at the hearing on the motion to modify sentence. Under these circumstances it was not incumbent on the prosecution to introduce evidence concerning the amount of restitution.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
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The counsel for plaintiff in error contended that the law then in force did not .authorize the county treasurer to issue a warrant to levy upon and sell land for the nonpayment of taxes on personal property, and cited section 95 of the laws .of 1866, page 286, as being the only statute in force authorizing the treasurer to issue his warrant and that such tax warrant allowed a collection to be made only of the goods and chattels of the tax-payer.
The court held this view of thé law to be correct, and reversed the decision of the district court.
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The opinion of the court was delivered by
Sarrord, J.:
This was an action upon an ordinary promissory note, and the questions here presented, involve to some extent a consideration of the answer of the defendant, and the facts relating thereto, which appear to have been found by the court. Several defenses were interposed, but of these, it will be necessary to call attention to the first only, and that is the plea of a want of consideration. The other defenses are to be laid out of the case, for the reason, that there are no findings in respect thereof, and there is no showing that any testimony relative thereto was introduced on the trial below. This last not appearing, this court is unable to say that the court trying the cause failed of any duty by reason of not finding upon the whole case, as made upon the issues joined and the testimony taken together. If no evidence applicable to any particular defense was offered, it is hardly necessary to say, that all that could have been done by the court was to declare that such defense had not been sustained, and this could as well be drawn from the conclusions which were stated.
II. The judgment below was for the plaintiff — thus denying the defense first above referred to. It appears from the findings of the facts of the case, that the transaction m respect oi which the note SUed upon was given, was concerning the transfer of the possession and occupancy of a certain portion of the public lands, upon which the plaintiff below and another party had claims under the law commonly known as the “Homestead Act.” It is not shown just what acts were done by them as furnishing a foundation for their said claims, though “ it does not appear but what they (or one of them) had complied with the said act, so as to be entitled to the land under it.” There had been placed upon the said land a log dwelling-house, and the only inference that can be reasonably drawn from the ease stated is, that it was put there by these parties, and was in their possession at the date of the negotiations between them and the defendant; and to this effect must have been the conclusions of the court. It further appears that they relinquished their claims, whatever they were, to the said defendant, (now plaintiff in error,) who went into possession; and in doing so, they guarantied the right of a homestead upou said land to said party. This right, the case shows, was secured as contemplated by the contracting parties, and without any interference or trouble from or by any person. It seems to be unnecessary to inquire as to the point made for the plaintiff here, that there was in the transaction stated an attempted “ sale of a homestead right,” which would be void under the laws applicable to such right; because, if there were, there was yet enough (outside of such right) which was evidently the subject of contract between the parties, and as it is believed lawfully so, to furnish a good consideration for the promise to pay. The possession of the land and the house situate thereon, (¡which for aught that appears may have been worth all that was agreed to be paid by the purchaser,) was acquired by Moore pursuant to the agreements of the parties, and was vested in said purchaser, as has been already remarked. And that such possession, and the right thereof, was and would be a lawful subject of contract and sale — chap. 39, Comp. L. 1862; and chap. 21, section 9, GenT St. 1868. This of course is upon the supposition that no fraud intervened in the premises; and fraud, as has been seen, does not figure as a question in the case here. Fraud is not to be presumed, but must always be shown.
III. But the right to’ occupy the house and premises, which passed from the plaintiff below and his co-com tractor to the defendant, was not all the consideration moving' from the said parties to the said defendant. They guarantied to him over and beyond such right, the right to a homestead on the same premises. This guaranty was certainly of some value to the guarantee, and he evidently was of a like opinion when he secured it; and the presumption would be deducible from the facts found that, if such guaranty had not been given, and if they who gave it, had not acted in accordance therewith, at least to the extent of their own claims upon the possession named, the said guarantee might not have been able to secure any right whatever to the la'nd. In this view of the transaction there seems to be ample foundation for the application.of the principles that an inconvenience or loss on the one side and a corresponding benefit on the other, appearing to have resulted to the parties respectively, it is a sufficient showing that there was at least not an entire failure of consideration'. It seems to us that in view of all the facts of the case, there was a good consideration for the note in question, and' hence that the decision of the court below should be sustained.
It may also be remarked before leaving the case that the courts of Missouri have, in instances like the present, held a similar doctrine to that above expressed, and have gone even further. 20 Mo., 302; 24 Mo., 216; 28 Mo., 30.
The judgment is affirmed.
All the justices concurring.
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The opinion of the court was delivered by
Eingman, O. J.:
The testimony showed that McWhirt received Bray’s note for collection; that he paid nothing for it, but did promise to account for and pay over the proceeds when collected; that the amount thereof was allowed him on the trial of his suit with Bray, whereby he obtained the full benefit of the value of the note, and that he had paid over nothing, and that Carney & Stevens knew nothing of McWhirt’s suit against Bray during its pendency, nor till long after it was decided; and that the note was regularly assigned to McWhirt for collection only.
I. It is insisted by plaintiff in error that it is inconsistent with the assignment of the note to permit oral evidence to be given that the assignment was only made for the purpose of collection; and in the argument and brief much learning and diligence is shown in the collection of authorities establishing the law that oral testimony will not be received to contradict a written contract. We do not propose a review of these authorities, for in the view we take of this case they are not instructive. The oral testimony does not contradict the assignment; does not vary it; does not even explain it. The contract was outside of the assignment, and was parol in its character, and therefore could be proven by oral testimony. The contract was, that MeWhirt was to take the note, collect it, and when collected, pay it over; and all this was in parol. The “ assignment” formed no part of the contract, and was only made to assist MeWhirt in the performance of the obligation he took upon himself by reason of the contract.
II. Another question raised by the plaintiff in error is, that if the note was assigned only for the purpose of collection, then Carney & Stevens have a risrht to a make the amount of the note off of Bray. When such a question arises we shall have no difficulty in deciding it; but in this case it is not presented. MeWhirt chose to consider the note as his own, and so treated it. It was used to pay his own debt. lie therefore is not in a position to raise the question. By his use of the note he made himself liable to Carney & Stevens for the money, and it is no matter to him whether Bray is also liable or not. It was his liability that the court was trying, not Bray’s. The proceeds of the note paid his debt to Bray. Why should not he account to Carney & Stevens for the money, as well under such circumstances, as if he had collected the note from Bray and used it to pay some other debt ? We cannot see wherein his liability is different in the one case from the other.
III. One of the grounds of defense is the statute of limitations. "We think the law on this point was as favorably presented to the jury for the plaintiir in error, as a fair construction of our statutes would authorize. The facts of the case show the commencement and dismissal of two actions for the same cause, before the commencement of the present action. It will be seen that the action accrued in favor of Carney & Stevens against MeWhirt, April 10, 1866, and that such action was barred unless it comes within the saving clauses of section 23 of the civil code. On this point it is claimed that a voluntary dismissal without prejudice, is not such a “ failure in the action’-’ as is contemplated by the section referred to; but we cannot see upon what grounds-we can give such a construction to the section without doing violence- to its language and its obvious intent. Where a plaintiff dismisses his action he “ fails in such action,” and the failure .is “ otherwise than upon the merits.” It is not necessary to inquire what caused the failure in the action — why it was dismissed. It is sufficient that he failed to obtain the object of his suit, and that his failure was not upon the merits. It is such cases as are intended to be saved by the section. Nor do any of the authorities referred to by the plaintiff in error authorize any other construction than we have given to it. The instructions of the court below having been in accordance with the views herein indicated were correct, and the judgment is affirmed.
All the Justices concurring.
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By the Court,
Saeeord, J.:
Tbe record in tbis case presents no question for tbe consideration of tbis court. It refers to a bill of exceptions which is shown to have been presented to tbe court below, and thereupon allowed and signed, and ordered to be filed and made a part of tbe .record of tbe case. But tbis is all tbat appears in respect of sueb exceptions. "What they were, we are not advised. If tbe plaintiff in error desired to have tbe matters excepted to in the court helow reviewed, he should have caused his bill showing the rulings of the court to be included in the record which is attached to and made a part of his petition in error. Failing in this, ás before stated, there is no question before us. The j udgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On the 29th of May, 1867, a contract was made between the city of Leavenworth and George B. Case for the grading of a certain street in said city. Case assigned his contract to Bullen and Dustin. The ■grading was done according to contract, and the city assessed a special tax on' the lots adjacent to said street, and was about to sell said lots to pay said special tax, when the plaintiff Sleeper, with several others, petitioned the court below for an injunction to restrain said sale. On the final hearing of the case the court below refused the injunction in favor of Sleeper, and also rendered a judgment against him and in favor of the defendants Bullen and Dustin, for the amount of said special tax. This judgment, Sleeper desires to have reversed.
All the transactions which were the subject of this action, were had under chapter 70, Laws of 1867, (§ 2, p. 139;) and everything seems to have been sufficiently regular so as to give the city authority to sell said lots, for said special tax, except that the petition upon which the contract for grading was made, was changed by one of the signers while in the custody of the city, and without the consent of a majority of the property-owners residing upon and owning the property to be taxed. On the trial it was shown also, that while the work was being done, the plaintiff Sleeper requested the contractors to do the work, and said to them that they should be paid.
I. The first question in this case is, whether the contract with Bullen and Dustin, and the special tax levied to pay them for said grading, were legal? We think that they were not legal, for the reason that no sufficient petition was ever presented to the city council. (Ch. 70, Laws 1867, p. 139, § 2, sub-div. 2.) It therefore follows that said city had no legal right to sell said lots for said special taxes.
II. The second question is, whether said Sleeper had a right to an injunction to restrain said city from selling said lots. We think he had not. (Kellogg v. Ely, 15 O. St., 64; Wiggin v. Mayor, etc., Paige 24.) A party who seeks equity, must do equity. His counsel say for him, “ it might be contended that it was a breach of faith and good morals on the part of said plaintiff Sleeper to insist upon the illegality of the tax, after an agreement to pay the same; but that is no reason why any court should refuse to grant an injunction as to a party where there is a clear violation of the law governing the contract and proceedings.” We think that a breach of faith and good morals is the strongest kind of a reason for refusing an injunction to protect the party in the exercise of such bad faith and bad morals. A party cannot encourage a wrong, and then ask a court of equity to protect him by an injunction from the consequences of that wrong. We do not think the plaintiff Sleeper is entitled to the remedy he seeks in this case.
III. The third question is whether the city or Sleeper, or both’, or neither, are liable to the contractors for the grading, or whether the contractors can recover from any one for their services.
1. Is the city liable? "We think it is. The petition appeared to be good upon its face. The city council, the agents of the city, and in whom is confided the province of deciding the question, decided and declared that the petition was good, and valid; and now, after the contract has been executed on the part of the contractors, after the grading has all been done, the city is estopped from denying the validity of the contract, or its liability to the contractors for the grading. (Louisville v. Hyatt, 5 B. Munroe, 199, 201; Bissell v. Jeffersonville, 24 Howard, 287, 300; Kearney v. Covington, 1 Metc. (Ky.) 339; Swift v. Williamsburg, 24 Barb. 427, 433.)
2. Is Sleeper liable ? Bid he by contract, either express or implied, make himself liable ? Or, has he either by words or acts estopped himself from denying his liability? We do not think that he is liable at all, either to the city or to the contractors. It does not follow that because he has no right, as the complaining party, to invoke the strong arm of a court of equity to interfere, and by an order of injunction, in advance, and before any wrong has been done, restrain an anticipated wrong, which possibly may never be committed, that he is entirely without remedy when attacked in a court of law. He cannot invoke equity against equity; but in law he may stand upon his legal rights. It is not, and cannot be claimed that there was any express contract between Sleeper, and Bullen & Dustin; and neither can it be claimed that there was any implied contract between them. The agreement of- Sleeper, such as it was, was. on his side only. The contract (if it can be called a contract,) was not mutual. Bullen & Dustin never agreed to it, and it was never binding upon them. What Sleeper said to the contractors can, át most, only he said to be a proposition, and Bullen & Dustin never accepted his proposition. It is trite, they did the grading in front of said lots, as he requested them to do; but they did it, not because Sleeper requested them to do it, nor because he said that they should be paid for doing it, hut because they had made a contract with the city to do it,' and because they knew that the city was bound by its contract to pay them for so doing it.
Usually when one person does work for- the benefit of another, with his knowledge, and without any objection from him, and without any express contract between them, the law implies a contract between them, and requires the person tor whom, the work is done, to pay for the value of the work. But when the person who does the work does it without any expectation of receiving compensation from the person benefitted, the law presumes no such implied contract. In the case at bar, the work was not done on the property of Sleeper, as such, but on a public street. It was not done for the benefit of Sleeper, (except incidentally,) but for the benefit of the public; and the contractor did not look to Sleeper for compensation, but to the citju And even if the contract between the contractors and the city had been valid, as against Sleeper, he would not have been primarily liable to the contractors. He would have been liable to the city only, and the city would have been liable to the contractors. (Leavenworth v. Mills, ante p. 288.) Hence we cannot see how any-implied contract can be presumed in this case.
But. with reference to estoppel: A party is never estopped from proving the truth of a transaction, and from relying upon such truth, unless he has by his words or acts, caused another, to act 'differently from what ho otherwise would have acted, except for said words or acts. It is not contended that the city, (which is primarily liable to the contractors,) acted in any way different from what it would have acted, had Sleeper said nothing to the contractors; and it is not even contended that the contractors themselves acted in any way different from what they would have acted, had Sleeper said nothing to them. The city was liable to them. The city was bound to see them paid; and they had no inducement to act differently on account of what Sleeper had said to them, than they would have acted, had Sleeper never said anything to them upon the subject.
TV". The counsel for the city have attempted in this court, and for the first time, to raise another question, That question is, does chap. 51 of tbe laws of i 1870, (it being “ an act to amend an act to incorporate cities of the first class,”) cure the irregularity, with respect to the petition presented to, and acted upon by the city council, so as to make Sleeper liable for the grading ? The judgment in this case, in the court below, was rendered April 17th, 1869. Said chapter 51 took effect February 24th, 1870; and this case was brought to this court March 15th, 1870.
This court is an appellate court only, having no original jurisdiction except in habeas corpus, quo icarranio and mandamus. It is established only for the correction of errors of inferior courts, and not for the purposh of hearing and determining questions originally.
When a case is brought to this court from an inferior court, and especially if brought here upon a petition in error, this court will not ás a rule try thé case de novo, so as to hear and determine any new questions; but will only look into the record of the case, and will pass upon such questions only as have already been passed upon by the court below. The question now presented to this court was never presented to the court below,,and was never passed upon by that court; and in the very nature of things, that court could not have committed any error concerning it.
This question involves several other questions : First, Does the said act of 1870 operate in this case ? Second, Is the said act constitutional and valid ? Third, Must the city proceed in accordance with the exact terms prescribed by section three of said chapter? or, Fourth, May the city if it chooses, take a judgment at law against the lot owners ? or, Fifth, Can the contractors take a judgment at law, as has been done iii this case, against the lot owners ? But these questions are not now properly before us. After the city has determined what course it will pursue, whether it will proceed to collect said special taxes in the manner prescribed by said statute, or will take a judgment in its favor and against Sleeper, or will allow the contractors to take a judgment in their favor against Sleeper; and after the city has presented these questions to the district court, and that court has passed upon them, it will then be time enough for this court to determine them.
This case is remanded for further proceedings in accordance with this opinion.
All the Justices concurring.
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The opinion of the court was delivered by
Kinsman, C. J.:
This was an action of replevin brought by the-plaintiff in error against defendants in error for certain bonds of the city of Leavenworth. The bonds were issued to pay one Bullen for work done for the city. The plaintiff’s testimony. tended to show a general and also a special ownership of the bonds in himself, and a right to the possession thereof. Tbe defendants’ testimony tended to prove that the bonds had been taken on execution against Bullen, and sold at sheriff’s sale, and bought by Madam Wolf, in whose favor the execution was. The testimony of defendants was also intended to show that the purchase of the bonds of Bullen by plaintiff was collusive, and made for the purpose of screening Bullen’s property from the execution.
I. In the course of the trial it-became necessary for the defendants to show that the judgment, on which the execution issued against-Bullen, on which the ° bonds were seized, had not become dormant lapse of time; and to do this, they at tempted to prove that executions had been issued and returned from time to time, so as to keep the judgment alive. They did not offer the executions in evidence, but introduced the clerk, the proper custodian of these papers, who testified that he had made search for them in his office, and could not find them; that he looked for an hour and a half, assisted by two of defendants’ counsel. Thereupon the court permitted the docket entry of the issue of the executions to be read, and the return made thereon. We think this was correct. The search was such as satisfied the court that the papers could not be found and produced. It was subsequently proven that the papers had been missing for two or three years.
II. It is claimed there was error in giving and refusing instructions, and our attention has been mainly directed to this part of the case. Of the instructions asked by the plaintiff, and refused, it may be observed, that instructions to the same purport as some of them had already been given by the court in his general charge, and it was neither necessary nor proper to repeat them. Some of the others needed limitations or qualifications to make them applicable to the issues and testimony in the cause; and therefore there was no error in refusing to give them. They must be good as asked* or it is not error to refuse them.
III. One instruction given at the request of defendants, was to the effect, that if the transaction between Douglas and Bullen was a mortgage, or intended as such, it was void. This instruction ought not to have been given. There was no testimony tending in the slightest to show a mortgage, or that either of the parties claimed it as a mortgage. The instruction was likely to confuse the jury by assuming that there was some evidence on that point; but we cannot say it would so mislead the jury as to make a new trial necessary.
IV. The plaintiff’s evidence tended to show that he had been furnished money by one Harwood to buy such ■bonds as these in controversy for him: Har- * wood was to allow plaintiff fifty-five cents on d0nar for the bonds, and plaintiff might buy for as much less as he could! On this point the court instructed the jury as follows: “If the plaintiff purchased the bonds for one Harwood, as his agent, and with Harwood’s money, then he cannot recover; but if he purchased them on his own account, though for the purpose of filling a contract which he had with Harwood, he is notthereby prevented from maintaining this action.” And the court refused to give this instruction: “If the j ury find that Douglas purchased the bonds for Harwood, and bought the same in his own name, he has a right to sustain an action in his own name to recover possession of them.” This instruction ought to have been given. It was applicable to the evidence. If Douglas bought the bonds for Harwood, with Harwood’s money, and bought them in his own name, then he was entitled to the possession, and had an interest in the bonds, because, by reason of the purchase in his own name, he had incurred a responsibility to Harwood greater than if bought in Harwood’s name. He stood charged with Harwood’s money. If he bought the bonds for him and in his name, then he might say to Harwood, “ I have bought your bonds, but they have been seized by the sheriff without fault of mine; you must look to him for them.” If bought in the name of plaintiff, he was responsible to Harwood, for their delivery, and had to repossess himself of them by action, to enable him to make such a delivery. For refusing this instruction, the judgment is reversed. and a new trial awarded.
All the Justices concurring.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State pursuant to K.S.A. 1993 Supp. 22-3602(b)(l) from the dismissal of a complaint by the magistrate at the preliminary hearing.
On June 1, 1988, Thomas M. Bowe entered into a written contract entitled “Sales Agreement” with his cousin, Robert Eugene Hood, wherein, for the consideration of $15,000, Bowe purchased 5V2 percent of Hood’s interest in a restaurant and drinking establishment known as “Bobby Gene’s,” located in Shawnee Mission. The agreement contained option provisions whereby, for additional payments, Bowe could purchase additional percentages of Hood’s interest in the business. Bowe was' to receive a percentage of the profits commensurate with his percentage of ownership. Inasmuch as the nature of this transaction is at the heart of the issues herein, a legal characterization of this transaction and additional facts relative thereto will be discussed later in the opinion. Bowe became dissatisfied with his purchase and brought a civil action against Hood. Bowe obtained a judgment against Hood but was unable to collect the judgment. There are no details before us as to the claims made in the civil action or the amount of -the judgment.
Thereafter, on the advice of his attorney, Bowe contacted the Office of the Securities Commissioner of Kansas. That office investigated the transaction and concluded that the Bowe/Hood agreement was an investment contract within the purview of the Kansas Securities Act (K.S.A. 17-1252 et seq.) and that Hood’s personal usage of the $15,000 received from Bowe (as opposed to the investment of same in the business) constituted a violation of K.S.A. 17-1253(a)(3). Said statute provides:
“(a) It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
(3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”
Caroline M. Ong, Associate General Counsel for the Office of the Securities Commissioner of Kansas in her capacity as Special Assistant Attorney General, filed a complaint/information in the Johnson County District Court charging Hood with violation of K.S.A. 17-1253(a)(3). The penalty for the willful violation of the statute is a fine of not more than $5,000 and/or imprisonment of up to three years. K.S.A. 17-1267.
The case was called for preliminary hearing on June 1, 1993. The magistrate concluded that the State had not presented sufficient evidence to establish probable cause to believe that defendant had violated K.S.A. 17-1253(a)(3) and dismissed the complaint without prejudice.
The rules concerning a preliminary hearing are well settled. In Kansas, the preliminary hearing affords the person arrested, as a result of a complaint, an opportunity to challenge the existence of probable cause for further detention or for requiring bail. The preliminary hearing apprises the accused about the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution. State v. Sherry, 233 Kan. 920, Syl. ¶ 3, 667 P.2d 367 (1983). A preliminaiy hearing is not a trial of the defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. State v. Jones, 233 Kan. 170, Syl. ¶ 1, 660 P.2d 965 (1983). In order to bind a defendant over for trial at a preliminary hearing, it must appear to the magistrate that a crime has been committed and that there is probable cause to believe the defendant committed a felony. State v. Burrell, 237 Kan. 303, 305, 699 P.2d 499 (1985). “Probable cause” means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonable belief that the person accused committed the offense with which he is charged. State v. Huff, 235 Kan. 637, Syl. ¶ 3, 681 P.2d 656 (1984); State v. Howland, 153 Kan. 352, Syl. ¶ 4, 110 P.2d 801 (1941). See State v. Chapman, 252 Kan. 606, Syl. ¶ 4, 847 P.2d 1247 (1993).
This court has the advantage of being able to look at the preliminary hearing transcript objectively and from a distance. From this vantage point it is easy to see what went wrong as far as the State’s case was concerned.
The securities commissioner’s office investigated the facts and concluded the Bowe/Hood transaction was an investment contract, which is included in the definition of “security” contained in K.S.A. 17-1252(j) and, therefore, within the purview of the Kansas Securities Act. Inasmuch as Hood used die $15,000 received from Bowe for personal purposes as opposed to investing the same in the business, it was concluded this was a violation of K.S.A. 17-1253(a)(3) as it was an “act, practice or course of business which operates or would operate as a fraud or deceit” upon Bowe. Hood was so charged. Ong obviously believed she had established a clear violation by Hood of the statute by her evidence of the contract and Hood’s usage of-.the funds received therefrom in the preliminary hearing. Accordingly, the magistrate’s dismissal of the complaint came as a Complete surprise to the prosecution.
The State did not refile or alter its approach. Rather, in this appeal, the State is seeking to establish the dismissal was erro neous. The State contends the magistrate did not understand the transaction was an investment contract, improperly excluded parol evidence, and misconstrued what conduct is prohibited by K.S.A. 17-1253(a)(3). The record, however, does not establish the dismissal was erroneous.
The problem Mes in the State’s failure to establish that the Bowe/Hood transaction constituted an investment contract. A wide variety of schemes, plans, and arrangements have been held to constitute investment contracts. See 22A Words and Phrases, Investment Contract. The common thread is the investing of money into a common enterprise with the expectation of future profits from the utilization of the money by others. In Activator Supply Co. v. Wurth, 239 Kan. 610, Syl. ¶ 4, 722 P.2d 1081 (1986), we held:
“The test to be applied in determining whether or not a particular financial relationship constitutes an investment contract is whether die contractual arrangement involves an investment of money in a common enterprise with the profits to come from the efforts of others.”
The State contends the transaction was an investment in the business with said funds to be utilized in the business to produce profits and, hence, an investment contract. Therefore, under the State’s theory, Hood’s usage of the $15,000 for personal purposes violated the statute under which he was charged.
The written agreement between the parties is as follows:
“SALES AGREEMENT
“THIS AGREEMENT, made this 1 day of June, 1988, between Bobby Hood, hereinafter called the seller, and Thomas M. Bowe, hereinafter called the buyer.
"WITNESSETH:
“In consideration of the mutual covenants and agreements herein contained, the seller and buyer agree as follows:
1. The seller agrees to sell to buyer, upon payment of the purchase price set out in paragraph 2 herein, five and one-half percent (5V2%) of his interest in the restaurant and drinking establishment commonly known as Bobby Gene’s as of the date of this agreement. Such sale of the seller’s interest shall include all of his interest in Bobby Gene’s, including his goodwill and his rights to use the premises, to conduct business as a restaurant and drinking establishment, and his interest in the assets to the extent of the percentage stated above. As further consideration for this agreement, the seller and buyer covenant and agree more specifically as follows:
2. The buyer agrees to pay the sum of Fifteen Thousand Dollars ($15,000) cash in hand for five and one-half percent (5V2%) of seller’s interest as stated in paragraph 1. Buyer shall have die option of purchasing an additional four and one-half percent (4V2%) of seller’s interest in increments of one percent (1%) based upon a purchase price of Two Thousand Seven Hundred Fifty Dollars ($2,750) per one percent (1%). Such purchases may be made from buyer’s share of the profits, based upon his prevailing percentage of ownership in the assets of Bobby Gene’s, figured on a quarterly basis. The first quarterly calculation of profit, if any, shall be made three (3) months from the date of this agreement and shall reoccur on a three (3) month basis thereafter. As the buyer’s percentage ownership increases, he shall receive a prorated and similar percentage of the profits based on the foregoing quarterly calculation. The parties agree that the buyer may purchase more than ten percent (10%) in one percent (1%) increments based upon the parties’ agreement to agree from time to time as circumstances dictate.
“3. It is further agreed by the parties that in the event that the buyer should become deceased, then his present prevailing interest in Bobby Gene’s shall be transferred by the seller to the buyer’s spouse and she shall succeed to all of buyer’s interest herein, and shall be entitled to the options to purchase up to ten percent (10%) of the business interest, or to a distribution of the percentage profit as specified, with full rights and powers as though she were the buyer herein.
“4. The closing of this sale shall take place on June 1, 1988, and shall be determined completed upon buyer’s payment of the sum of the purchase price, in cash, to seller.
“5. All the terms and provisions of this agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the seller and of the buyer.
“IN WITNESS WHEREOF, the parties have duly executed this agreement on the date and year first above written.
“/s/ Bobby Hood_
Bobby Hood Seller
"/s/ Thomas M. Bowe_
Thomas M. Bowe Buyer’’
The contract in question is entitled “Sales Agreement.” Such terminology is not controlling, however. See Activator Supply Co. v. Wurth, 239 Kan. 610.
The agreement stated the buyer is purchasing a percentage of the seller’s interest in the business and will receive that same percentage of the seller’s profits from the business. Nowhere is there any language indicating that the $15,000 is to be invested in the business and become a part of the capital of the company. Expansion or improvement of the business by virtue of the $15,000 is not mentioned. Nothing in the contract indicates the business will, in any way, be affected by the transaction. Rather, it is a side agreement between the owner of an interest in the business to sell a part of his interest in the business. Based upon the agreement itself, Bowe could have no claim against the business itself, as a separate entity, as his money is not going to the business. We know that Hood purchased the business by buying the corporation that owned and operated it. The record contains little information about the sale except the installment payments thereon were not completed until several months after the transaction herein. Presumably, the sale of the corporation consisted of the purchase of its stock. Whether Hood operated the business as a corporation, we do not know. The business ultimately failed, presumably, at least in part, due to the foreclosure of a large tax lien. The Bowe/Hood contract does not state what interest Hood owned in the business. Bowe was only purchasing a percentage of whatever interest Hood had in the business.
One of the claims of error herein is that the magistrate improperly excluded certain parol evidence. This was testimony from Bowe as to his understanding of what he was buying and the alleged misrepresentation and omission by Hood as to Hood’s interest and the extent of the business’ assets.
Before proceeding further, it is significant to note that Hood was not charged with making false statements about the business to induce Bowe to part with his money. Such conduct is prohibited in connection with the sale of securities under a different section (K.S.A. 17-1253[a][2]) of the statute under which Hood is charged. Also, no charge under K.S.A. 17-1253(a)(l) is made. For comparison purposes, K.S.A. 17-1253(a)(l), (2), and (3) are set forth herein as follows:
“(a) It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
(1) Employ any device, scheme or artifice to defraud;
(2) make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”
Rather, the State proceeded on the theory that Hood’s usage of the $15,000 for personal purposes, as opposed to its utilization in the business, was an act, practice, or course of conduct violative of K.S.A. 17-1253(a)(3). The personal usage of the $15,000 would be violative of the. statute only if the transaction were an investment contract.
It was, therefore, incumbent upon the State to establish that the Bowe/Hood transaction was an investment contract. The only evidence relative to the transaction before the court was the written agreement and Bowe’s testimony. Bowe’s testimony and the State’s comments therein, relative to the purpose of certain portions thereof, are significant. Illustrative of Bowe’s testimony are the following excerpts from his direct testimony:
“Q. What was your $15,000 to be used for?
“A. The money was to be used for — to go into the business itself, to be put back into the business, and for furnishings, maybe a juke box or whatever, to enhance the environment or whatever, just for the operational purposes of the club.
“Q. Was any of the money to be used for nonbusiness purposes?
“A. No, it was not.
“Q. Mr. Bowe, what was your arrangement with Mr. Hood regarding profits from the business of Bobby Gene’s?
“A. It was an understanding between he and I that the profits would be put back into the business itself, you know, to add — you know, to accumulate.”
At this point the following exchange occurred between court and counsel:
“MR. WOOD [defense counsel]: Your Honor, I’m going to object to that at this time and invoke — there is a sales agreement, and we would think that the parol evidence rule ivould apply on this, Your Honor. There is an agreement, and we would object to that line of questioning.
“JUDGE CLEAVER: Sustained.
“Parties did have a written agreement, didn’t they?
“MS. ONG: Yes, Your Honor, I’m not attempting to alter those terms at all, just to go into subsequent discussions. The agreement provides for profits and for an option as to how they’re handled, and what I’m asking Mr. Bowe to do is to explain which way they were handled. There is an option of receiving the payment.
“JUDGE CLEAVER: Wait a minute. There’s a written agreement settingforth what the parties intended—
“MS. ONG: Yes.
“JUDGE CLEAVER: —is that correct?
“MS. ONG: Yes, sir. Exhibit 2.
“JUDGE CLEAVER: And you’re prepared to alter the terms of that by testimony; is that correct?
“MS. ONG: No, sir. It proposes an option for reinvestment, and I’m merely asking Mr. Bowe to explain whether that option was chosen or not.” (Emphasis supplied.)
After the explanation was made as to the limited purpose the evidence was being offered for, the court permitted the testimony, subject to a later motion to strike (which was not made).
Clearly, the State advised the court that Bowe’s testimony was not being offered to alter the terms of the written contract. The court then had to decide the matter of whether or not it was an investment contract on the basis of the written contract alone. On appeal, the State contends the court improperly excluded parol evidence. The record reflects: (1) the testimony was not excluded; (2) it was not parol evidence offered to vary the terms of the written contract; and (3) there is no indication in the record the court did not consider Bowe’s testimony for the limited purpose for which it was offered. Nowhere in the record does Bowe even testify that Hood told him the money he paid would be used in the business.
On appeal, the State argues that the oral evidence as to how the money was to be used constituted a separate contract and not an attempt to contradict or vary the terms of the written contract. This was not argued to the trial court and is contrary to the limited purpose for which the State advised the court it was offering the evidence.
Alternatively, the State argues:
“Additionally, the parol evidence rule has no application in situations where an agreement is induced or procured by fraud. When fraud is the issue, parol evidence is admissible-to amend or vary the terms of a written agreement. State v. Handke, 185 Kan. 38, 46, 340 P.2d 877 (1959); Stegman v. Professional & Business Men’s Life Insurance Co., 173 Kan. 744, 750-51, 252 P.2d 1074 (1953). The fraud exception to the parol evidence rule is long-standing and well recognized. Boxer v. Watchorn Oil & Gas Company, 120 Kan. 278, 280, 243 Pac. 316 (1926); Edwards v. Phillips Petroleum Company, 187 Kan. 656, 360 P.2d 23, 26 (1961). In 1915, the Kansas Supreme Court stated:
‘The rule that parol testimony cannot be used to vary the terms of a written instrument has no application to an issue of fraud in the making or procuring of the contract. The courts will not permit their hands to be tied in the administration of justice by restricting the realm of inquiry on an issue of fraud, and such an issue may be maintained by any testimony competent under the ordinary rules of evidence. Were this not so, fraudulent contracts could seldom be overturned if the perpetrators of the fraud had the foresight to have their contracts reduced to writing and executed.’ Hart v. Haynes, 96 Kan. 262, 265, 150 Pac. 530 (1915).”
The State cannot be permitted to advise the lower court that evidence is not being offered to vary or alter the terms of the written contract and then claim error on appeal on the basis that the evidence should have been considered for such purpose.
In its brief, the State also attempts to use Bowe’s testimony to establish fraudulent conduct on Hood’s part in violation of K.S.A. 17-1253(a)(3). Bowe’s testimony contains very few statements attributable to Hood. The State’s brief makes the following statement:
“The State presented evidence of several specific ways in which the defendant’s conduct would operate as a fraud or deceit upon any person.
“Bowe testified that the defendant told him that he owned the bar and restaurant business known as Bobby Gene’s. Bowe understood that the defendant owned 100% of the business and the building it was in, and that he was buying a percentage of the defendant’s business. Bowe was not told of any hens or loans on the business. The evidence at the preliminary hearing showed that the defendant’s business was in debt at the time of the defendant’s transaction with Bowe, and that the defendant did not own the building, but rented it.”
Even if Bowe’s testimony is elevated to the status as being evidence of fraudulent statements or omissions, such cannot be used as “conduct” under K.S.A. 17-1253(a)(3) when 17-1253(a)(2) is a specific statute covering fraudulent verbal statements and omissions.
We conclude that, as presented to the magistrate at the preliminary hearing, the State had to show the transaction was an investment contract. The State, by its own statements to the court, limited the court to consider only the written contract in making the determination of whether the transaction was an investment contract. The magistrate’s rationale for the dismissal, as stated at the end of the preliminary hearing, is not specifically stated. However, it is clear that his problem lay with the contract itself. The court stated that Hood’s personal usage of the $15,000 was not inconsistent with the contract. Had the transaction been an investment contract, Hood’s personal utilization of the $15,000 would be a violation of K.S.A. 17-1253(a)(3). The dismissal was based on the State’s failure to establish that the transaction was an investment contract. We conclude the record supports the magistrate’s determination that the charged violation of the Kansas Securities Act had not been sufficiently established to bind the defendant over for trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Holmes, C.J.:
This is an interlocutory appeal by the State from a district court order suppressing evidence. The district court granted defendant’s motion to suppress the evidence, finding that the police acted outside their jurisdiction. The Kansas Court of Appeals, in a published opinion, 18 Kan. App. 2d 657, 856 P.2d 1360 (1993), affirmed the district court. This court granted the State’s petition for review.
The facts are not in dispute. On March 14, 1990, Overland Park Police Detectives Russ Gardner and Mark Meyer obtained a search warrant from Johnson County District Judge Earle D. Jones. The search warrant was for the apartment of the defendant, Robert L. Sodders, in Lenexa, Johnson County, Kansas.
Prior to execution of the warrant, the Overland Park police detectives contacted Lenexa Police Sergeant Dave Burger, told him they were going to execute a search warrant in Lenexa, and requested assistance. The Lenexa Police Department dispatched three uniformed officers to provide security at the apartment. Detective Meyer obtained a key from the apartment manager and used it to enter the residence. All five officers entered the apartment. Detectives Meyer and Gardner executed the search warrant. The three Lenexa officers were there for security only and did not participate in the search.
In the residence, the detectives found two plastic bags containing green leafy vegetation, one wallet, one letter, O’Haus scales, plastic Baggies, a brown marble box, one plate, Zig-zag papers, one address book, and one telephone bill. Detective Gardner testified that there was marijuana on the plate and in the marble box. Detective Gardner filled out and signed the “Inventory, Receipt and Return to Search Warrant” form.
The defendant filed several pretrial motions, including a motion to suppress the evidence seized from his apartment. The court granted defendant’s motion to suppress, finding the Overland Park police officers executed the warrant outside their jurisdiction in violation of K.S.A. 22-2401a.
This case involves the interpretation and interaction of two statutes. First, K.S.A. 22-2505 states: “A search warrant shall be issued in duplicate and shall be directed for execution to all law enforcement officers of the state, or to any law enforcement officer specifically named therein.”
The second statute, K.S.A. 22-2401a, states in relevant part:
“(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.” (Emphasis added.)
it is undisputed that the Lenexa officers never requested or sought assistance from the Overland Park police. The State contends that K.S.A. 22-2505 authorizes police officers statewide authority to execute search warrants. The State maintains that both a proper application of the rules of statutory construction and the legislative history surrounding the passage of K.S.A. 22-2505 demonstrate that the Overland Park police detectives were acting within their authority in executing a search warrant in Lenexa.
In affirming the district court’s ruling, the Court of Appeals held that the language of K.S.A. 22-2401a places a geographic limitation on the exercise of all law enforcement powers, including the execution of search warrants. In pertinent part, the Court of Appeals stated:
“The geographic limitation is contained in K.S.A. 22-2401a. That statute, instead of K.S.A. 22-2505, is operative here for three reasons. First, K.S.A. 22-2505 makes clear that search warrants must be executed by law enforcement officers; the statute does not purport to establish where an officer may execute a warrant. Second, even if K.S.A. 22-2505 and 22-2401a are understood to be in conflict, then the latest legislative expression controls. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). The 1977 statute, 22-2401a, thus controls the 1970 enactment, 22-2505. Finally, 22-240la reveals a clear intent by the legislature to limit the jurisdiction of certain law enforcement officers. When a statute is plain and unambiguous, the court must give effect to the expressed legislative intent. State v. Sleeth, 8 Kan. App. 2d 652, 655, 664 P.2d 883 (1983). The language of 22-2505 cannot be read as an exception to the clear geographic limitation set forth in 22-2401a.” 18 Kan. App. 2d at 658-69.
The State’s first and primary argument in opposition to the lower court’s ruling is that the court failed to apply the proper rules of statutory construction in interpreting the two statutes. Specifically, the State contends that the Court of Appeals failed to consider and apply the “general versus special statutes rule.” That rule states: “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
It is the State’s contention that K.S.A. 22-2505, a statute dealing solely with the execution of search warrants, is the more specific statute, and not K.S.A. 22-2401a, a statute setting forth a limitation upon the territory in which law enforcement officers may operate. However, while K.S.A. 22-2505 admittedly applies only to the execution of search warrants, the language of that statute simply cannot be read as an exception to the clear geographic limitation set forth in K.S.A. 22-2401a. This conclusion is supported by this court’s decision in State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983).
In Hennessee, an arrest warrant was issued for the defendant in Pratt County on a charge of theft. The Pratt County sheriff traveled to the defendant’s residence in Stafford County and arrested the defendant pursuant to the arrest warrant. Although both an agent of the KBI and the local Stafford County sheriff were present at the arrest, the Supreme Court ruled that the Pratt County sheriff had no authority to make the arrest in Stafford County. 232 Kan. at 807-09. In its ruling, the Supreme Court determined that the specific language of K.S.A. 22-240la controlled over the general provision of K.S.A. 19-812 (Ensley 1981), which stated:
“The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.”
In pertinent part, the court stated:
“The State relies on K.S.A. 19-812 for the proposition the Pratt County sheriff was acting within his authority when he arrested Ms. Hennessee. Admittedly the statute places no limitation upon the territory in which a sheriff may operate. Further, the statute applies to the execution of an arrest warrant since ‘process’ refers to a ‘warrant, writ, order, mandate or other formal writing, issued by some court, body or official having authority to issue process.....’
"The enactment of K.S.A. 22-2401a in 1977, however,- changes things. There a specific limitation was placed on the extraterritorial exercise of power by law enforcement officers. This statute, instead of K.S.A. 19-812, is operative here for two reasons. First, where there is a conflict between two statutes the latest legislative expression controls. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981). Second, in State, ex rel. v. Dreiling, 136 Kan. 201, 14 P.2d 644 (1932), the court recognized that a specific limitation on a general statute like K.S.A. 19-812 would control.” (Emphasis added.) 232 Kan. at 808-09.
In Hennessee, we held:
“A sheriff may exercise his powers outside the county where he holds office in only two instances: (1) where he is in ‘fresh pursuit’ of a person, or (2) where a request for assistance has been made by law enforcement officers from the area for which such assistance is requested. K.S.A. 22-2401a.” 232 Kan. 807, Syl. ¶ 2.
As stated previously, it is undisputed that the Lenexa officers did not request assistance from the Overland Park officers and were present solely as a courtesy to the Overland Park officers who requested their assistance.
State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972), is also instructive. In Lamb, Johnson County sheriff’s officers executed a search warrant in Bourbon County. The appellant attempted to suppress the fruits of the search, arguing that Johnson County sheriff’s officers lacked authority to execute search warrants outside of Johnson County. As in Hennessee, the relevant statute was K.S.A. 19-812. However, at the time of Lamb, the legislature had not yet enacted K.S.A. 22-2401a. (K.S.A. 22-2401a was passed in 1977, five years after Lamb.) The Supreme Court held drat sheriffs were authorized to execute search warrants outside of their respective counties. In pertinent part, the court stated:
“This court held long ago that a sheriff of a county within this state was authorized to serve process outside his county. In State, ex rel., v. Dreiling, 136 Kan. 201, 14 P.2d 644, the court said:
'. . . It is contended in a petition for rehearing that a sheriff has no more authority to go outside the county to serve criminal process issued by a justice of tire peace than a constable [has],
‘The statute defining the authority of sheriffs contains no limitation similar to that contained in the statute relating to constables, and grants general authority to execute process issued and delivered to him. (R.S. 19-812.) Because there is no territorial limitation on the authority of a sheriff to execute a warrant of arrest, the contention is not well founded.’ (p. 202.)” (Emphasis added.) 209 Kan. at 468.
The language of Lamb would clearly indicate that when there is a territorial limitation placed upon a law enforcement officer, that limitation is controlling.
K.S.A. 22-2401a is clear and provides that the jurisdiction of city police officers is limited to the city limits of the city employing them with certain exceptions, none of which is applicable here. It controls over the more general statute, K.S.A. 22-2505.
Next, the State argues the Court of Appeals failed to consider the legislative history of K.S.A. 22-2505. The State maintains that because the statute was adopted from an Illinois statute we should look to that State’s interpretation of its statute. This argument has no merit whatsoever. K.S.A. 22-2505 and the Illinois statute are not identical and, in addition, 22-2505 is clear and unambiguous. When the intent of a statute is clear and unambiguous, the court must give effect to the statute as written, and there is no need to resort to statutory construction. State v. Schlein, 253 Kan. 205, 219, 854 P.2d 296 (1993). K.S.A. 22-2505 is a general statute which provides that search warrants shall be executed by law enforcement officers and has nothing to do with the territorial jurisdiction of officers.
Other arguments raised in the Court of Appeals were not addressed in the State’s petition for review and need not be considered here. They were adequately considered by the Court of Appeals.
K.S.A. 22-2401a(2)(b) provides that city police officers may exercise their powers outside the city in two instances: “when a request for assistance has been made by law enforcement officers from that place [the extraterritorial jurisdiction] or when in fresh pursuit of a person.” Neither exception applies here, and the Overland Park officers had no authority to execute the search warrant in Lenexa. The mere presence of Lenexa officers, even though at the request of the Overland Park officers, does not meet the requirements of the statute. As stated by the Court of Appeals:
“[H]ad it chosen to do so, the Kansas Legislature could have adopted a rule of unlimited jurisdiction for police officers, or a rule dependent upon notification or presence or participation by local officers. But, instead, the legislature set out a ‘request for assistance’ rule in 22-2401a. This court must give effect to the statute and apply the rule adopted by the legislature.” 18 Kan. App. 2d at 660.
The judgments of the Court of Appeals and the district court are affirmed. The appeal is denied.
McFarland, J., dissenting.
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against David M- Jancich, of Overland Park, an attorney admitted to the practice of law in the State of Kansas. The formal complaint filed against respondent alleges violations of MRPC 1.15 (1993 Kan. Ct. R. Annot. 299); 3.4 (1993 Kan. Ct. R. Annot. 318); 8.1 (1993 Kan. Ct. R. Annot. 344); and 8.4 (1993 Kan. Ct. R. Annot. 347); and Supreme Court Rule 207 (1993 Kan. Ct. R. Annot. 170). Respondent filed an answer denying violations of the Model Rules of Professional Conduct.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on October 13, 1993. Respondent appeared pro se.
The complaint against respondent involved the sum of $7,500, which Edward Macan, the complainant, paid to respondent as either a loan or for respondent to hold until Macan’s post-divorce proceedings were completed. Respondent and Macan were friends, and respondent occasionally had done legal work for Ma-can. In late January or early February 1990, respondent entered his appearance on behalf of Macan in his divorce action. Macan testified that, on the advice of respondent, he cashed in the contingent value rights of Marion Laboratories stock for approximately $21,000. According to Macan, respondent then advised him to place $7,500 in respondent’s trust account for the purpose of concealing that amount of assets from the court when it computed his child support obligation. Macan gave respondent a check in the amount of $7,500. Respondent deposited it in his business account.
Respondent testified that he asked to borrow money and Macan agreed to lend it to him. Respondent told Macan he would pay back $500 a month. The loan was interest free.
Respondent testified that he prepared a promissory note, but he did not produce it for the panel. Macan denied that there was any written documentation of the transfer other than the $7,500 check.
Macan testified that he had made many requests for repayment but that respondent still owed him $4,500. Respondent testified that health problems prevented him from making timely payments but that he had repaid some of the money. He did not produce for the panel any record of what he had repaid. On approximately June 1, 1992, in response to Macan s certified letter demanding repayment, respondent wrote to Macan, stating, “I would suspect that all funds will be available within the next two weeks.” That was the last contact Macan had from respondent.
Macan’s complaint was investigated by Tom Mitchelson. The following account was given by Mitchelson at the hearing: Respondent told Mitchelson that Macan gave him $7,500 for an unsecured real estate investment in Manhattan with a man named Dwight Miller. Respondent did not produce any documentation of the transaction. Respondent told Mitchelson that he would have Miller get in touch with him, but Miller never did.
Respondent denied Mitchelson’s account. Respondent testified that he had told Mitchelson “that Dwight Miller had some land in Manhattan, Kansas, that he was hoping to sell, and that when that land sold, that another note was going to get paid for that I do have an interest in and that I was going to pay Mr. Macan.”
Jack Ford, investigator for the Disciplinary Administrator’s office, located Dwight Miller in Overland Park. In talking with Ford, Miller said that he had some real estate in Manhattan but that respondent was not involved. Miller also denied that he had ever made any investments with respondent or been involved in any loan transactions with him.
Miller, who is an accountant, testified that both respondent and Macan are his clients. Miller denied ever being involved with respondent in a business transaction or venture.
Mitchelson testified about a number of verbal and written requests to respondent for records, information, and assistance in the investigation which went unanswered.
The panel found that the following facts were established by clear and convincing evidence:
“2. The Respondent had represented one Edward Macan for a number of years.
“3. In either late December, 1989, or early Januaiy, 1990, Edward Macan and the Respondent had a conference in regard to $7,500.00 which was from a sale of stock or stock rights in Marion Laboratories. At that time Edward Macan gave the Respondent $7,500.00 to be placed in the Respondent’s Trust Account. The said sum of $7,500.00 was not placed in the Respondent’s Trust Account.
“4. The Respondent used the said sum of $7,500.00 for payment of various office bills and perhaps other bills.
“5. As of the date of the hearing, the Respondent had paid a portion of the said sum of $7,500.00 back to Edward Macan. At the time of the hearing there was still a balance due from said $7,500.00 of approximately $4,500.00. There was no Promissory Note in connection with said sum of $7,500.00
“6. The Respondent had never loaned one, Dwight Miller, any funds in connection with real estate in Riley County, Kansas.
“7. The Respondent failed to fully assist the Disciplinary Administrator and the Disciplinary Administrator’s Investigator, Jack Ford, in the investigation in this matter.
“8. The Respondent was not candid in his statements to Jack Ford, the Disciplinary Administrator’s Investigator, and Thomas P. Mitchelson of the Johnson County Ethics Committee.”
The panel made the following conclusions of law:
“1. Model Rules of Professional Conduct 1.15 provides in part as follows: ‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the State of Kansas.’
“2. MRPC 8.1 provide[s] as follows: ‘Rule 8.1 Bar Admission and Disciplinary Matters: An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
“3. Rule 207 of the Kansas Supreme Court requires that all members of the bar assist the Disciplinary Administrator in investigations and such other matters as may be requested of them.
“The panel finds that the Respondent violated all of the above rules.”
The panel recommended indefinite suspension, stating:
“At 4.12 of Page 27 of the 1991 Edition of Standards For Imposing Lawyer Sanctions of the American Bar Association, there is the following: ‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.’
“It is the recommendation of the Panel that the Respondent be indefinitely suspended from the practice of law by the Kansas Supreme Court.”
The respondent filed exceptions to the report of the hearing panel. He contends that the transaction was a loan and all the evidence before the panel was consistent with his contention. He denies that he failed to cooperate with the investigators in their investigation of this complaint.
In In re Keithley, 252 Kan. 1053, 1055, 850 P.2d 227 (1993), we restated the standard of review when this court considers a disciplinary matter:
“ ‘[A]lthough the report of the disciplinary board “is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.” [Citation omitted.]’ In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).”
This court must examine the record and determine for itself the proper discipline to be assessed against a respondent.
Here, the panel’s finding that the transaction between respondent and Macan was not a loan is “amply sustained by the evidence.” We do not agree with respondent that the evidence “is consistent with the nature of the transaction being a loan.” Respondent did not produce a promissory note or any documentation that the transaction was a loan. Respondent did not claim the transaction was a loan until the disciplinary proceedings were formally initiated. He told Thomas Mitchelson, the investigator, that the $7,500 was invested with a man named Dwight Miller in a Manhattan real estate transaction. As pointed out by the Disciplinary Administrator, if the transaction was a loan, respondent was required by MRPC 1.8(a) (1993 Kan. Ct. R. Annot. 282) to have the transaction reduced to writing and advise Macan to seek independent advice. Respondent faded to do so.
At oral argument before this court, counsel for respondent stated that he had been contacted by respondent very recently and only two days before oral argument agreed to represent him in this proceeding. Counsel indicated respondent suffers from severe depression and alcohol dependence. Counsel requested an extension of time to formulate and submit a specific plan for respondent to receive treatment and continue to practice law under supervision of a local attorney or attorneys.
We note that respondent failed to present any evidence to the panel that he suffered from depression or alcohol dependency nor did he submit a specific plan for medical treatment and supervision of his practice. Although this court considers mitigating factors in assessing discipline, such matters should be presented at the hearing before the panel and not for the first time at oral argument before this court.
The court, having considered the record, concurs in the findings of fact, conclusions of law, and recommendation of the panel that respondent be indefinitely suspended.
It Is Therefore Ordered that David M. Jancich be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that respondent comply with the provisions of Supreme Court Rule 218 (1993 Kan. Ct. R. Annot. 187), that he pay the costs of this proceeding, and that this opinion be published in the Kansas Reports.
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The opinion of the court was delivered by
Dennison, P. J.:
This is an action in replevin brought in the district court of Cowley county by the plaintiff in error and was originally commenced against one H. H. Siverd, then constable of the city of Win-field, in said county. The petition alleges that one W. T. Shannon was indebted to one Caroline H. Yoeman and gave her his promissory note with M. T. Shannon as surety; and that the said note was indorsed and delivered to said plaintiff, who ever since had been, and then was, the owner and holder thereof. When the note became due Shannon executed a note' and delivered it to the plaintiff, and, to secure the same, executed and delivered, to him a chattel mortgage on all the wheat raised upon a certain tract of land. The mortgage described the land as being in township 31, when in fact it was in township 32, and was so intended to be described by both of the parties to the mortgage. The mortgage was duly filed for record. The wheat was harvested and thrashed under the direction of the plaintiff and was put into a bin on the premises and the straw was stacked thereon. Before, any levy had been made upon the wheat and straw, Shannon had delivered them into the possession of said plaintiff. After the plaintiff had said property in his possession, Siverd unlawfully, maliciously and forcibly took possession of said wheat and straw from the plaintiff and unlawfully took the same into his possession and has ever since kept the same, and it was alleged that Siverd knew of plaintiff's ownership and claim before he took possession of the property.
After the commencement of this action Siverd died, and the defendants in error, Myton and Davy, who were the attaching creditors for whose benefit Siverd levied upon the wheat and straw in controversy, were by agreement of all parties interested substituted as parties defendant.
The plaintiff offered in evidence the chattel mortgage, after having stated in his opening statement that there was a mistake in the description of the land named therein. He also offered
“to prove that the wheat intended to be included in this mortgage, and the straw, by the intention of the' mortgagee and the mortgagor, was the same wheat and straw levied upon in this -case, and was raised on the description here in the mortgage, excepting that it should be township 32 instead of township 31. . . . And further offers to prove that the particular wheat which was levied upon by the defendant in this case, or was taken by the defendant in this case, and which is in controversy herein, was all of the wheat, and the only wheat, owned or raised by the mortgagor, W. T. Shannon, at that time.
“The plaintiff further offers to prove that, before the defendant, Siverd, took this wheat and the straw into his possession, he was notified and had knowledge of the fact from the plaintiff that the plaintiff claimed that particular wheat and straw which he took into his possession as being the wheat and straw included in the mortgage in quéstion.
“The plaintiff further offers to prove that, before the wheat and straw was levied upon or taken into his possession by the defendant, Siverd, the wheat and straw had been delivered into the possession of the plaintiff by the mortgagor, W. T. Shannon, and was at the time of the levy upon and taking thereof in his possession.
“And the plaintiff further offers to prove and show that at the time this mortgage was given that the wheat was not growing wheat but was harvested and in the shock, and upon the description herein, except in township 32 instead of township 31 as shown by the mortgage, and in charge of the plaintiff’s agents.”
The court sustained an objection to this testimony upon the grounds that it was incompetent, irrelevant and immaterial under the pleadings and statement of counsel. Proper objections were made and exceptions saved. Judgment was rendered in favor of the defendants, and the plaintiff brings the case here for review.
The only error necessary to be considered is the refusal of the court to permit the introduction of the testimony offered. We think the court erred in sustaining the objection to its introduction. Although the description of the land upon which the wheat was grown and then situated was incorrectly given in the mortgage, yet if it was all the wheat which was owned or raised by Shannon, and it was his intention to mortgage it to Trice, and Trice’s intention to take a mortgage upon it, and prior to its being levied upon Shannon had voluntarily delivered it into the possession of Trice as mortgagee, and Siverd knew when he made the levy that Trice claimed the wheat under the mortgage, it is clear that Trice was entitled to recover.
In Schmidt v. Bender, 39 Kan. 437, 18 Pac. 491, our supreme court said:
‘ ‘ Where the description substantially corresponds with the property intended to be mortgaged, and the mortgagor has no other property to which it could apply, so that neither the defendants nor any one else could be misled by the indefinite or imperfect description, and where it is admitted that the property claimed is the same as was intended to be mortgaged, the description will not be held insufficient.”
And in Savings Bank v. Sargent, 20 Kan. 576:
“ When, however, the plaintiff offered to prove that, while the property was in the possession of Gifford, and before the defendants acquired any interest in it, the plaintiff, with a copy of the mortgage, went to where the mortgaged property was, and then took possession of the same with the consent of the mortgagor, and retained possession of it until it was wrongfully obtained by other parties, the court below erred in rejecting the testimony. If this was done as claimed, it would cure any defect in the mortgage on account of any imperfect description of the property; for it would be an appropriation and identification of the specific property to the mortgagee.”
See, also, Cameron, Hull & Co. v. Marvin, 26 Kan. 627.
The judgment of the district court is reversed and the case remanded for a new trial.
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The opinion of the court was delivered by
Wells, J.:
The applicant, Thomas A. Moxcey, is a practicing attorney at law residing at Atchison, Kan., and practicing in the several courts of Kansas. He was, on November 3, 1899, fined by the district court of Doniphan county twenty-five dollars for contempt of court in preparing, filing and presenting a certain insulting and scandalous motion, entitled “Supplementary motion for a new trial,” in the case of The State of Kansas against Frank W. Elliott for criminal libel, pending in said court, and was ordered confined in the county jail until said fine should be paid. To inquire into the legality of such commitment this proceeding was instituted.
To the writ of habeas corpus issued in this case the sheriff of said county made return that he held the applicant by virtue of an order of commitment made by said district court, of which the following is a copy :
“In the District Court of Doniphan County, Kansas.
“The State oe Kansas y. T. A. Moxcey.
“In the matter of the contempt of T. A. Moxcey, November 3, 1899, at the adjourned term of the regular September term, 1899, of said court. This matter came on for hearing on the 3d day of November, 1899, upon the order of the court for the said T. A.' Moxcey to show cause why he should not be punished for contempt of court in preparing, filing and presenting to the court a certain insulting and scandalous motion, entitled “Supplementary motion for a new trial,” in the case of The State of Kansas against Frank W. Elliott for criminal libel, pending in said district court of Doniphan county, Kansas. And on hearing of said order, the said T. A. Moxcey being duly heard and he showing no cause why he should not be punished for contempt of court in preparing, filing and presenting said motion to said court, and he making no apology for said act, the court doth adjudge the said T. A. Moxcey guilty of contempt, and doth adjudge as a punishment therefor that he pay to the clerk of said court the sum of twenty-five dollars, and that he stand committed to the jail of said Doniphan county, Kansas, until said fine is paid. And the sheriff of said county is ordered to take said T. A. Moxcey into his custody and keep him confined in said jail until said fine is paid.”
The punishment ordered was adjudged as for a direct contempt without written accusation. Section 12 of chapter 85, General Statutes of 1897 (Gen. Stat. 1899, § 1935), reads:
“A direct contempt may be punished summarily without written accusation against the person arraigned, but if the court shall adjudge him' guilty thereof, a judgment shall be entered of record in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or extenuation the accused offered thereto, and the sentence of the court thereon.”
The evident intention of the legislature in enacting this section was, among other things, to require the judge or court, in the summary punishment of direct contempt, to make a record specifying the conduct constituting such contempt and the defense or extenuation offered by the accused, so as to enable all persons interested to decide upon the legality of the judgment. While the punishment is summarily inflicted, without written accusation and probably with out the necessity of the issue of a formal commitment, although this we do not decide, yet the law does expressly provide that a record shall be made which shall state the essential facts upon which the judgment was founded; and to the contents of this record alone must we look for the authority to restrain the applicant from his liberty.
The record in the case before us charges the preparing, filing and presenting-a certain insulting and scandalous supplemental motion. What the words construed as insulting and scandalous were does not appear.
' Proceedings for contempt are in the nature of criminal prosecutions, and the law relating thereto must be construed accordingly.. The designation of the motion as insulting and scandalous is not such a specification of the conduct constituting such contempt as is required by the law. The language claimed to be insulting and scandalous should be set out, so that its nature and effect could be determined.
The petitioner will be discharged.
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The opinion of the court was delivered by
Dennison, P. J.:
This proceeding is commenced in this court to procure a reversal of the judgment of the district court of Marion county, refusing to direct the receiver of the First State Bank of Marion, Kan., to pay to the plaintiff in error its claim against said First State Bank as a trust fund.
The plaintiff in error was the owner of a check for $1400 drawn by H. M. Thorp upon the Bank of Commerce, payable to the order of J. H.Winkley,. and indorsed to plaintiff in error. The check was sent by the plaintiff in error through its Kansas City agent, the Citizens’ National Bank of Kansas City, Mo., to the First State Bank of Marion, Kan., for collection. The said First State Bank presented the check to the Bank of Commerce and accepted as payment therefor its cashier’s check given the day before for checks drawn upon it, and for the checks that day drawn upon it and paid by said Bank of Commerce. Said First State Bank failed to make a remittance of the amount of money called for by the $1400 check, and.shortly after was closed by the state bank commissioner and S. Burkholder was appointed receiver of said bank.
The main question for our consideration is whether the proceeds of the check became a trust fund and passed into the hands of the receiver impressed with the trust. The First State Bank received the check for collection, and it was clearly its duty to present the check to the Bank of Commerce and demand the payment thereof, and, if payment had been made, to remit the amount to the Kansas City bank; and if payment had been refused to protest the same for nonpayment. The relation between the parties was that of principal and agent, and not of debtor and creditor. Neither the Bank of Commerce nor the Kansas City bank Willingly became the creditor of the First State Bank. The First State Bank wrongfully paid its own debts with the check instead of demanding the money. Applying the doctrine laid down in Peak v. Ellicott, Assignee, 30 Kan. 156, 1 Pac. 499; Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; Hubbard v. Irrigating Co., 53 Kan. 637, 36 Pac. 1053, 37 Pac. 625, the estate is liable for the payment of this claim as a trust for the reason that the trust fund “had been mingled with the general funds of the bank and used in the ordinary course of its business, and the payment of its debts.” However, if we consider the judgment of the trial court as a finding of all the facts in favor of the defendants in error, then there is a finding that the check was used in the payment of debts and that the estate which went into the- hands of the receiver was not bettered or augmented thereby. Applying the doctrine laid down in Insurance Co. v. Caldwell, 59 Kan. 156, 52 Pac. 440, to the facts in this case as shown by the aboye finding, we must hold that the estate is not liable for the payment of the trust fund. It is there said : “The mere saving of the estate by the discharge of general in-, debtedness otherwise payable out of it, or by the payment of the current expenses of the business, is not an augmentation or betterment of the estate, within the meaning of the rule. If the estate has not been increased by specific additions to it, or if what previously existed has not been improved or rendered more valuable, it has not been impressed with the trust claimed.”
Tlio j uugment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J. :
In the district court of Harper county, the plaintiff in error, having obtained a personal judgment upon a promissory note against the defendants in error, and also a decree for the foreclosure of the real-estate mortgage securing the payment of the note, and having had the mortgaged premises sold by the sheriff in accordance with the decree of foreclosure, moved to confirm said sale. One James B. Moore had purchased the land at the sheriff’s sale, and a deficiency judgment remained. The court found the sale to be in all respects in conformity with law, and ordered its confirmation, upon condition, however, that the plaintiff should satisfy and release the deficiency judgment, the order of confirmation to become operative when such release should have been entered of record, and that thereafter the sheriff should issue to the purchaser a certificate of sale, to be followed by • a deed, in case of failure to redeem,.as provided by law.
The purchaser has not been made a party in this court, and for this reason the defendants in error have moved to dismiss the proceedings in error. The motion must be overruled. The record shows that, while the sale should have been, it was not, in fact, confirmed. The court’s arbitrary order concerning the deficiency judgment was in effect equivalent to a refusal to confirm the sale. The sale not having been confirmed, the purchaser is not a necessary party to these proceedings.
As to the merits of the case, we hold, on the authority of Whitmore v. Stewart, recently decided by our supreme court, 61 Kan. 254, 59 Pac. 261, that the order requiring the deficiency judgment to be released was entirely erroneous. In that case an order was made after confirmation of the sale, but as a part of the confirmation proceedings and embodied in the journal entry thereof, that the deficiency judgment should be canceled. The supreme court held such order to be absolutely void.
In the present case, as in the case cited, the validity of the personal judgment, of which the court attempted to wipe out a part by a decree of cancelation, was not anywise attacked or questioned by any party to the suit.
The order of the district court is reversed, and the case remanded for further proper proceedings.
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The opinion of the court was delivered by
Mahan, P. J.:
There are two questions presented by the record and by the assignments of error in the brief. Plaintiff’s claim was allowed by the probate court against the estate of the defendant’s intestate. It was erroneously classed as a fifth-class claim. Subsequently, on her motion, the probate court corrected the classification and assigned it to the second class. The administrator appealed from this classification of the probate court to the district court, where this order correcting the classification was reversed, upon the ground that the probate' court had no jurisdiction to make the order correcting the classification. Under the statute in relation to the administration of the estate of decedents, both the administrator and the probate court are required to classify claims presented and allowed. The classification is no part of the judgment of allowance, and no notice is required to be given thereof. The law provides to what class a •claim shall be assigned.
The record in this case disclosed to which class the plaintiff’s claim belonged under the statute. The classification was erroneous. The question presented is, Had the probate court jurisdiction to correct it? We think this should be answered in .the affirmative.
Upon the argument and in the brief, it is contended that the application was made too late, beyond the time limited by the statute for making such amendments or corrections. This question was not presented to the probate court, nor was it presented to the district court. The judgment of the district court reversing the order of the probate court classifying the claim proceeds entirely upon the proposition that the probate court had not jurisdiction to make the order correcting the classification ; hence the question of time is not in the case.
The abstract required to be kept by the probate court, disclosing the claims allowed and their classification, is not designed to fix the right of claimants against the estate, but to facilitate the performance of the duties of the administrator in the administration of the estate. The judgment of allowance disclosing clearly the class to which the claim belonged, and the probate judge being his own clerk, we assume that it was a clerical error which might be corrected at any time while the court retained jurisdiction of the proceeding, upon notice, which was duly given. The classification is not such a final judgment as to be conclusive. It may be appealed from as from an error in approving an annual account, yet it is within the province of the court to correct it, as was said by the supreme court in relation to annual settlements in Musick v. Beebe, Adm’r, 17 Kan. 53. This view is likewise supported by the judgment of the supreme court in Tobey v. Comm’rs of Brown Co., 20 Kan. 14; Clevenger v. Hansen, 44 id. 182, 24 Pac. 61.
We are of the opinion that the probate court had ample power to correct this classification at a term after the prior classification was made. It follows that the conclusion reached by the district court that the probate court was without authority so to do is erroneous and must be reversed.
Wells, J., not sitting.
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The opinion of the court was delivered by
Wells, J.:
This action was brought in the district court by the defendant in error to recover damages alleged to have been sustained by him by falling into an excavation on the premises owned by the plaintiff in error, but occupied at the time of the accident by a tenant as a hotel and restaurant. The action was tried to a jury, which made certain findings of fact and returned a general verdict for the plaintiff in the sum of $1000.
The main and, we think, the only vital question in this case is as to the liability of the owner of real property, leased to another for the purpose of being used as a hotel and restaurant, for injuries sustained by one who is lawfully thereon, by reason of a dangerous excavation left by the owner at the time of making the lease. There is no question involving the duties and liabilities of an innkeeper to his guest in this case. The plaintiff was lawfully upon the premises in obedience to a general invitation extended to the traveling public, as contemplated in the lease. The question of contributory negligence was decided by the jury adversely to the plaintiff in error, and, although in our judgment they could very properly have found the other way, we are bound by the findings.
Upon the question above stated, it seems to us that the law is' clearly epitomized in the extract copied in the plaintiff in error’s reply brief from the opinion in Edwards v. N. Y. & H. R. Co., 98 N. Y. 249, as follows : “The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum, which leads directly to the accident and wrong complained of, he is liable ; if not so guilty, no liability attaches to him.” The evidence in this case warranted the jury in finding that the plaintiff in error was negligent in leasing the property to be used for a public purpose without providing for the protection of patrons from the danger of injuries by reason of the excavation thereon.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
It is not contended by counsel for the company that its engineer might not have discovered the cattle by the exercise of reasonable dili gence in time to have avoided the injury to them, but it is contended that the attitude of Conlon with his cattle upon the track was that of a trespasser, and that the company owed him no duty to look out for him or his cattle, and, therefore, failing to discover them and failing to use ordinary diligence in that regard was not negligence on the part of the company. It is further contended that the plaintiff was guilty of contributory negligence in not taking the necessary precautions to discover the train, and is by reason thereof precluded from a recovery in this action.
We are unable to distinguish, under the facts in this case, as to the duties of both plaintiff and defendant, between a private crossing and an ordinary highway ; at least, the plaintiff was not a trespasser, and the defendant company owed to him some duty, and that duty, as we .view it, was to exercise ordinary care to avoid injury to the plaintiff or his property in the lawful and reasonable use of his private way. The company had actual knowledge of the existence of the way, and we must presume that it had knowledge of the use which plaintiff made of it and had made of it during a period of more than twenty years ; and, knowing these facts, it was bound to use ordinary diligence, such as a prudent man would exercise under the same circumstances, to avoid any collision with the plaintiff’s cattle upon a private way or doing them any injury in the operation of its road. It was the duty of the engineer to be on the lookout for obstructions upon the track, and especially so at this crossing at this particular time of day. It had been the custom of the plaintiff during all the years mentioned to drive his cattle across the track from his pasture to his farm buildings. The evidence is clear and uncontradicted that had the engineer been_on the lookout, had he been in the exercise of that care and diligence which the law required of him, he would have discovered the cattle upon the track in time to have avoided injuring them. (Thomas v. Delaware, Lackawana & Western R. Co., 8 Fed. 729; Gates v. The B. C. R. & M. R. Co., 39 Iowa, 45; Mo. Pac. Rly. Co. v. Gedney, 44 Kan. 330, 24 Pac. 464; and K. C. Ft. S. & G. Rld. Co. v. Lane, 33 id. 702, 7 Pac. 587.)
That the reciprocal duties of the plaintiff and defendant were the same with respect to this private way as in ordinary cases arising at the crossing of a highway would seem to follow from the character of the plaintiff’s right respecting the private way. He had the same right there to cross and recross with his cattle, his teams and his farming tools, from one part of his farm to the other, that the public have at public highways. Assuming, as we may in this case, that the company acquired its right, its easement, over the highway by condemnation proceedings, the fee remained in the plaintiff, with a right to the land for every purpose not incompatible with the rights of the railroad company. He had a right to reasonable and necessary crossings for the use of his farm operations. (Kansas Cent. Ry. Co. v. Allen, 22 Kan. 292; Atchison & N. R. Co. v. Gough, 29 id. 94; K. C. & E. Rld. Co. v. Kregelo, 32 id. 612, 5 Pac. 15; C. K. & W. Rld. Co. v. Cosper, 42 id. 565, 22 Pac. 634.)
The plaintiff was not a mere licensee. His right was a paramount one pertaining to his freehold. It was absolute and recognized fully by the defendant company. So that, we think, we are justified in saying that the respective obligations and duties of the parties respecting the use of this right of way were the same as between the railroad company and the public respecting an ordinary highway. The plaintiff was in no sense a trespasser, but in the exercise of Ms absolute right as the user of any highway. The defendant was required to exercise the same degree of diligence with respect to plaintiff’s cattle as though he had been crossing the track upon a highway; neither more nor less. The plaintiff was required to exercise the same degree of care and diligence to avoid injury that he would have been required to exercise in crossing an ordinary highway. Their duties in this regard were reciprocal, as illustrated by the supreme court of the United States in Continental Insurance Company v. Stead, 92 U. S. 161, and in Leavenworth, L. & G. R. Co. v. Rice, 10 Kan. 438. Hence, we conclude that the finding of the jury, that the failure of the company’s servants operating the train to discover the cattle in time to avoid danger to them was an act of negligence, for the consequences of which they were liable to plaintiff, unless they were relieved therefrom by his contributory negligence, is sufficiently supported by the evidence.
In support of the contention that the plaintiff was guilty of contributory negligence, our attention is called to the following cases : Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, and cases therein referred to by the court, and Adams v. A. T. & S. F. Rld. Co., 46 Kan. 164, 26 Pac. 439. These decisions, in the view of the writer of this opinion, came dangerously near accomplishing that which the lawmaking power of the state could not accomplish by reason of the constitutional inhibition, i. e., depriving the parties litigant of the right of a trial by jury of a question of fact, and should not be held to apply in any case, unless the facts are such as to bring it clearly within the line of those decisions. No such exigency arises in this case. The question of contributory negligence, as a question of fact, was fairly presented to the jury and determined by it, and its finding ought not to be disturbed by the. court unless the evidence of all the facts and circumstances is so clear and positive of the guilt of the plaintiff that no other deduction could be derived therefrom reasonably. (Delaware &c. Railroad v. Converse, 139 U. S. 469, 11 Sup. Ct. 569.)
In this case it is contended that this court should disregard the evidence of the witnesses in behalf of the plaintiff in respect to the management of the herd of cattle run into by the railroad company, and draw a deduction from the fact that, if the plaintiff or his servant in charge of the cattle had been upon or near the right of way of the company, by looking they could have seen the train approaching a distance of three-quarters of a mile away. We are asked to disregard all the facts and circumstances and base our conclusion upon that fact alone, and say, as the supreme court said in the cases cited, that the plaintiff was guilty of contributory negligence. If we did this we would go even beyond any case cited by counsel in support of the contentions of this railway company. It is doubtless true that if the plaintiff’s servants had been upon the track, or near the track, out of line of any obstructions shown by the evidence to exist, they could have seen the train three-quarters of a mile or possibly a mile away, had it at the time been approaching. The evidence was that it was running at the rate of forty or forty-five miles an hour. The jury so specially found. It was running without steam, upon a down grade, and noiselessly. The plaintiff’s son, who had charge of the herd, in going to bring the cattle, by his testimony, looked carefully, listened carefully, at all three of the railroad lines as he crossed them •respectively on the way to the pasture gate. He looked continuously, according to his evidence, so long as he could see any part of the company’s track. Pie listened continuously. From the defendant’s track to the pasture gate was about 100 feet. After passing seventy-five or eighty feet from the track his view of the track was obstructed, and the obstruction continued and increased until he got to the gate. The cattle were there waiting to come out. He had no reason to apprehend danger. The cattle came out immediately on the gate being opened, and began crossing the tracks on the private way through the gates of the several railroads to the farm barn. It was about two minutes from the time they came out of the gate before the train struck them. The train ' was behind time. The plaintiff’s son, in charge of the cattle, believed it had passed, yet on account of there being three different railroads, and numerous trains in both directions, it was necessary to, and he did, according to his evidence, observe a continuous watch for an approaching train. It is not contended that any kind of signal was given of the train’s approach, but it seems to be conceded, apparently, that it came the mile down grade from the next station west approximately noiselessly, except that it gave the usual statutory signal at a highway crossing west of plaintiff’s premises. Under the decisions cited, it was the duty of the servants in charge of the train to be on the lookout, and upon discovering the cattle, or any obstruction, to give a signal of warning, and, if necessary to prevent injury to property, to slacken the train’s speed. It seems impossible, had the engineer and fireman done their duty in this respect, that any injury would have been inflicted upon the plaintiff. The question of contributory negligence, as heretofore said, was fairly submitted to the jury. We cannot say, from the evidence or from the findings of fact, that as a matter of law there was any contributory negligence. We find no reason to disturb the judgment, and it is therefore affirmed.
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The opinion of the court was delivered by
McElroy, J. ;
This action was brought by J. W. Ellithorp to recover damages for property destroyed and injured by two separate fires which occurred on July 20 and August 10, 1894.
This case was before this court and remanded for a new trial. (Clark v. Ellithorp, 7 Kan. App. 337, 51 Pac. 940.) After the case was remanded, on April 9, 1898, the plaintiff filed an amended petition, which did not change the first count materially, except by asking for damages to certain lands not included in the original petition. The second count of the original petition set out a cause of action for damages caused by fire, which was set out by defendants’ section men, while burning fire-guards along the right of way, by the alleged carelessness and negligence of the defendants in failing to plow fire-guards, or otherwise preventing the fire from escaping. In the amended petition this cause of action reads :
“While a hard wind was blowing, said defendants negligently burned fire-guards on its said right of way on which said railway is built and operated in said Gove county, state of Kansas, and carelessly and negligently failed to plow fire-guards or otherwise prevent the said fire from escaping, or prevent such hard wind from blowing the fire to adjoining combustible material.”
The original petition averred that a reasonable attorney’s fee was $150 ; in the amended petition plaintiff claimed $250 for an attorney’s fee. The answer was a general denial, and pleas of contributory negligence and the statute of limitations. A trial was had before the court and a jury, which resulted in findings, verdict and judgment against the defendants on both counts. A motion for a new trial was overruled, and the defendants, as plaintiffs in error, present the case to this court for review.
There are numerous assignments of error set out in in the brief. They present, however, only four propositions for the consideration of the court, which we will take up in the following order :
First. That the court erred in refusing to suppress depositions. The defendants filed a motion to suppress the depositions of Joseph Corder and others. The notice under which these depositions were taken was entitled : “In the suit of J. W. Ellithorp, plaintiff, v. S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane, and F. R. Coudert, defendants.” It is insisted that this notice did not specify the action, or proceeding, in that the defendants were not designated as “ receivers of the Union Pacific Railway Company.” The evidence shows that there was but one case pending in the district court of Russell county in which these parties were named as plaintiff and defendants, and that case was the one at bar. The attorneys for the defendants appeared and cross-examined the witnesses under this notice ; the depositions were filed in the case and remained among the files. The objection to the depositions is extremely technical. We are of the opinion that the trial court committed no error in refusing to suppress them.
Second. That the court erred in admitting incompetent testimony. Complaint is made that certain tax deeds were admitted in evidence for the purpose of showing Ellithorp’s title to certain lands. It appears that the lands in question were situated in the unorganized county of Gove, which was attached for judicial and municipal purposes to Trego county, and that the lands were sold on the first Tuesday in September, 1882, for the taxes of 1881; the tax deeds, however, was not issued until the 26th of October, 1885, and the 12bh of November, 1885. It is recited in the deeds that they are issued in consideration of the payment of the taxes for the years 1881, 1882, 1883, and 1884. It is contended that there was no law authorizing Trego county to levy taxes on land in Gove county for the year 1883, and any sale of lands in pursuance' of such levy and any attempt to enforce such levy were and are void. There is no contention that the tax levy of 1881 was invalid or void. It was for the non-payment of the taxes levied in 1881 that the lands were sold. The tax deeds appear regular, based upon an apparently valid sale, in pursuance of a valid legal levy for the year 1881. If a portion of the consideration, the assessments for 1883 and 1884, were unauthorized, this alone would not render the tax deed absolutely void, but only voidable. The tax deeds were properly, admitted in evidence.
It is further contended that the court erred in ad mitting testimony concerning the damages sustained to the north half of section 5. In the original petition this land in section 5 was described as the west half and southeast quarter; this was an erroneous description as to the southeast quarter. After the case was remanded the petition was so amended as to read “ the north half and the southwest quarter.” In the trial, plaintiffs in error contended that there could be no recovery for damages to the “northeast quarter,” as it was not in the original petition and was barred by the statute of limitations. This contention was sustained by the trial court. The testimony with reference to damages sustained to the northeast quarter was rejected, and the recovery was limited to the damages sustained to the west half of the section; so this contention is without merit.
Complaint is also made that the testimony offered by plaintiff to show that, on the 10th of August, while burning the fire-guards, high winds were blowing, is incompetent. The original petition alleged “ that the defendants carelessly and negligently failed to plow a fire-guard or otherwise prevent such fire from escaping.” The amended petition states that, “while a hard wind was blowing, said defendants negligently burned fire-guards on its said right of way on which said railway is built and operated in said G-ove county, state of Kansas, and carelessly and negligently failed to plow a fire-guard, or otherwise prevent the said fire from escaping, or prevent such hard wind from blowing the fire to adjoining combustible material.” In order to recover upon the allegations of either the original or amended petition the plaintiff must show that defendants put out the fire while burning fireguards ; that the fire escaped; that it burned and injured his property, together with the amount of damage sustained. The fire was put out, escaped, and caused damage. The defendants admitted responsibility for the fire, and that it escaped. This placed the burden upon defendants to show that it escaped through no negligence of theirs. The amendment was not a new cause of action, but consisted in describing the original cause of action with more particularity, and calling the defendants’' attention more specifically to the acts of negligence relied upon. The jury are the judges of the testimony, its weight, and the credibility of witnesses. It was peculiarly within the province of the jury to determine from all the testimony, from the conditions of the fire-guard, the dryness of the grass, the particular circumstances under which the right of way was burnt, the character of the weather, volume of wind blowing, and from all of the circumstances to say whether or not such conditions existed as to constitute negligence on the part of the defendants in putting out the fire under the existing conditions and in permitting it to escape. This testimony was properly admitted.
Complaint is made that the court admitted incompetent testimony in regard to the measure of damages. The rule adopted by the trial court was that the measure of damages was the difference in the value of the land immediately before and just after the fire occurred. The testimony was directed to proving these conditions. The witnesses testified that they were farmers and stock-raisers in the vicinity of the land ; that they knew the effect of the fire burning over grazing lands — knew the value of the lands in question before and after the fire. As far as this testimony goes, it tends to show that the witnesses were competent to testify as to the measure of damages. The testimony upon the measure of damages tends to support the verdict. The criticism upon the testimony goes more to the weight of the evidence than to its competency. This testimony was properly admitted.
Third. That the court erred in giving and in refusing instructions. The defendants requested the court to instruct the jury to return a verdict for defendants upon both counts of the petition. It is here contended that there was no competent evidence to show that the railway company set out the first fire ; second, that there was no competent evidence to show that the damage resulting from the second fire was caused by any negligence on the part of the railway company. This contention is not supported by the record.
Lewis testified that he saw the fire when it was about a quarter of a mile north of the railway, burning north from the track; he noticed a train pass about ten minutes before he saw the fire; the fire started about fifty feet from the track on the north, and on the right"of way, in dry grass. Pratt testified that the fire started about fifty feet from the railway-track, on the north, burned north; that he saw a freight-train pass about twenty minutes before he saw the fire, and that he went to the fire and attempted to put it out. Thus the evidence shows the fire on the north, near the railway-track, upon the right of way, burning north in the dry grass shortly after a train operated by steam, coal and fire passed. In the absence of any evidence otherwise accounting for the fire, or contradicting such testimony, we think there was sufficient evidence to sustain the findings of the jury. We think from these circumstances the jury were justified in finding that the railway company set out the fire complained of in the first cause of action. (Clark v. Ellithorp, 7 Kan. App. 337, 51 Pac. 940; A. T. & S. F. Rld. Co. v. Gibson, 42 Kan. 34, 21 Pac. 788.)
In regard to the second cause of action, the evi deuce shows that a furrow had been plowed by Joseph Corder, a farmer, about 250 feet from the track a mile in length ; the defendants had after that attempted to burn out the grass between the furrow and the railway track; they burned a strip between the furrow and the track of a varied width, averaging about twenty feet. August 10, during a high wind, the defendants attempted to burn the remainder of the grass between the furrow and the railway-track. The care of the right of way is as much the operation of the road as the running of the engine, and, hence, this cause of action comes under paragraph 1321, General Statutes of 1889 (Gen. Stat. 1897, ch. 70, § 32; Gen. Stat. 1899, § 5731). It was only necessary for the plaintiff to prove that the railway company set out the fire ; when plaintiff established that fact by proving that the section men of the railway company set out the fire, the burden was upon the company to show that the fire escaped through no fault of the company. It was then for the jury to say from all the evidence and circumstances attending the burning of the right of way whether the defendants were negligent- in permitting the fire to escape. There is some competent evidence to support the findings of the jury that the fire escaped from the section men by reason of the negligence of the defendants. The instructions given by the court covered all the legal questions necessary for the consideration of the jury in arriving at a verdict. There was no error in the refusal of the court to give the instructions, nor in the instructions submitted to the jury.
Fourth. This case has twice been tried in the district court. At the last trial the plaintiff was permitted, over the objection of the defendant, to show the value of the services of an attorney in both trials in the district court. The plaintiffs in error contend that there can be no recovery of an attorney’s fee except for one successful trial of the case. We think this contention is correct. Section 2 of chapter 155, Laws of 1885 (Gen. Stati 1899, § 5732), under which an attorney’s fee can be recovered in such case, reads : “In all actions commenced under this act, if the plaintiff shall recover, there shall be allowed by the court a reasonable attorney’s fee, which shall become a part of the judgment.” It was evidently the intention of the legislature that plaintiff in such case should recover his attorney’s fees — that is, a reasonable attorney’s fee for the successful prosecution of the action. The error in this respect will not necessitate a reversal of the judgment, for the reason that the special findings returned by the jury show that they allowed an attorney’s fee of fifty dollars for the first trial and an additional fee of seventy-five dollars for the second trial.
The judgment of the court below will be modified, and the cause remanded with instructions that the court render judgment upon the verdict and findings for the plaintiff below and against the defendant below for $263. The costs in this court will be divided.
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The opinion of the court was delivered by
Wells, J.:
This action was brought in the district
court upon a policy of insurance issued by the Home Insurance Company to Daniel Focht, insuring him against loss by fire to the amount of $300 on his storage building in the city of Madison, Kan., and $1375 on baled hay therein. Said policy contained a three-fourths valuation clause. With the consent of the insurance company, the policy was assigned to E. A. Wagner, the plaintiff below, and afterward, within the time covered by the policy, the property was wholly destroyed by fire. In the petition the value of the building was alleged to be over $300, and it was alleged that there were 330 tons of hay, of the value of $1650, and the plaintiff’s interest therein was more than the insurance thereon. In answer to the peti tion, the defendant pleaded a violation of the terms of the policy by conveying an undivided one-half interest in the property insured to Mrs. Holderman, and by encumbering the property.by chattel mortgage.
To this answer the plaintiff replied that if he had conveyed the property it was simply intended as a chattel mortgage to secure the payment of money, and that defendant through its officers and agents had knowledge thereof and consented thereto. Afterward, by leave of' court, the plaintiff amended his petition by making Daniel Focht, the Madison Bank and Charlotte Holderman defendants therein, and asked that any interest they might have in said property might be held inferior to plaintiff’s; and by alleging that the building destroyed was real estate, and asking $150 attorney fee for collecting said loss.
Charlotte Holderman answered, admitting that she was the owner of one-half of the hay burned, and asked judgment for one-half of the insurance thereon.
The case was tried to the court and a jury, and a verdict was returned for the plaintiff against the defendant insurance company for $1825.75. After the verdict was returned into court the plaintiff was allowed, over the defendant’s objection, to amend his petition by changing his allegation of the value of the building from $300 to $450, and of the value of the hay burned from $1650 to $2727. The verdict was then approved by the court and judgment rendered accordingly. To reverse this, the matter is brought to this court upon a petition in error:
The defendant in error moves the court for an order dismissing these proceedings in error for the reason that there is a defect of parties apparent upon the record. This motion must be overruled. The verdict of the jury amounted to a finding that the other defend ants had no interest in the matter, and, as they took no exceptions to this, it is binding upon them and upon the plaintiff.
There are five allegations of error relied upon, but, as the fifth is founded upon the other four, it does not require separate consideration.
The first and second allegations of error are that the court suppressed the so-called deposition of Mel Marquis, and refused to grant a continuance to enable the defendant to retake the same. The instrument referred to was not a deposition in any statutory sense whatever. It was simply an affidavit. No motion to suppress was necessary. It could not be read in evidence over the objection of the other side, and no showing was made which entitled the defendant to a continuance.
The third assignment of error was in giving and refusing instructions, but the record is not in such condition as to warrant a consideration of this allegation, as it does not appear that all the instructions given or refused are embodied therein.
The fourth allegation of error is in allowing the plaintiff to amend his petition after the verdict, so as to authorize the verdict found. Under the allégations of the petition, the most that the plaintiff could recover was 11462.50 and interest, and the court should have so instructed the jury. A party is bound by the allegations of his pleadings and the opposite party has a right to rely thereon. It is true that a trial court has a broad discretion in allowing amendments even after a verdict, in furtherance of justice, but we cannot believe that it would be in furtherance of justice to allow a party to plead a value to a thing in controversy at such a sum as the other side was willing to admit as fair, and offer no evidence in re lation thereto, and then, after it is too late for the opposite party to contradict it by amendment, secure a judgment for more than was claimed'when the trial was closed. The judgment of the district court is reversed and a new trial directed, unless the defendant in error shall remit the sum of $229.94 of said judgment.
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The opinion of the court was delivered by
McElroy, J. :
This action was commenced by the Wyandotte Gas Company against the city of Kansas City to recover a balance due on the monthly bills of the gas company for gas furnished to the defendant city. The gas company alleged that it is a corporation organized under the laws of the state of New York, and that the city is indebted to it in the sum of $1337.32, for gas furnished from April 1, 1895, to July 1, 1897, as shown by statements of account attached to the petition. The company asked for judgment for the amount claimed, but made no demand for interest.
The defendant city in its answer denied generally the allegations of the petition, except that said defendant city is a city of the first class, and alleged that at the time of the incurring of the pretended indebtedness and accruing of the pretended cause of action sued on the defendant was such city and had a population of over 40,000 inhabitants. It was further alleged in the answer :
“That if there is any liability on the part of the defendant, which defendant denies, then defendant alleges that in 1895, 1896 and 1897 the assessed valuation of all the property, both real and personal, in said Kansas City, Kan., was $7,616,957, and that by chapter 259 of the Session Laws of 1895, approved March 7, 1895 [Gen. Stat. 1897, ch. 32, § 99 ; Gen. Stat. 1899, § 897], the levy of Kansas City, Kan., for the lighting of its streets and other places in said city by electricity and gas was limited to 2{: mills on the dollar, and that the levy for such purposes was at all times duly made to the full limit allowed by law, and the same was levied during each of the years •1895, 1896 and 1897 for such purposes based upon such valuation, and amounted in the aggregate to the sum of $51,414.45, and that during said years 1895, 1896 and 1897 the total cost of lighting the streets and other public places of said city amounted to the sum of $68,552.60, under existing contracts and contracts made prior to 1896; that said sum of $51,- 414.45, so levied as aforesaid, was paid under contracts during said years for lighting of the streets and other public places of said city pro rata to the plaintiff herein and the Kansas City Consolidated Electric Light and Power Company ; that there was paid to the plaintiff during said time, as its pro rata share, the sum of $4011.96, and that there has been paid during said time to said Consolidated Electric Light and Power Company as and for its pro rata share of said levy for lighting the streets and other public places of said city by gas and electricity the sum of $47,402.45, and that said sums so paid to plaintiff and the Kansas City Consolidated Electric Light and Power Company, are equal only to about seventy-five per cent, of the bills for the lighting of said streets and other public places of said city of Kansas City, Kan., by electricity and gas; that said city, by reason of the premises aforesaid, does not owe and has had no power since April, 1896, and prior thereto, to contract a debt to said plaintiff company for more than the sum of $4011.96, which sum this defendant avers has been or was before the commencement of this action fully paid to said plaintiff.”
The plaintiff replied:
“1. That it denies each and every allegation and averment contained in said defendant’s amended answer which is inconsistent with allegations of plaintiff’s petition.
“ 2. That prior to the passage of the act of the legislature of the state of Kansas, to wit, chapter 259 of the Session Laws of 1895, referred to in defendant’s amended answer, the plaintiff and defendant entered into a contract whereby and under the terms of which the indebtedness set out in plaintiff’s petition accrued, and became due, and which contract is still in force and effect; that said contract was and is in the form and nature of a certain franchise duly granted to said plaintiff by said defendant city by an ordinance duly and regularly passed, the same being ordinance No. 406, passed in council on the 19th day of June, 1883, and ón said day approved by the mayor of said city and duly published according to law.
“ 3. That afterwards, and prior to the enactment of said chapter 259 of the Session Laws of 1895, said franchise, together with the rights and privileges thereunder, was by ordinance No. 1212 of said defendant city duly passed in council January 14, 1890, and approved by the mayor thereof January 21, 1890, and duly published according to law, extended to and throughout the limits of said defendant, the city of Kansas City, Kan.
“4. That afterwards, and prior to the enactment of said chapter 259 of the Session Laws of 1895, said franchise above referred to, together with the extensions thereof, as above stated, was further extended by an ordinance of said defendant city, which, ordinance is No. 1907, and duly passed in council November 7,1890, and approved November 8,1890, and duly published according to law. All of which said ordinances are in full force and effect and are herein referred to and made a part of this reply as fully as though herein set out.
”5. That said chapter 259 of the Session Laws of 1895, each and every part thereof, is unconstitutional and void and of no effect in so far as the rights of the parties hereto are concerned.”
A trial was had upon the pleadings and evidence, the court found generally in favor of the gas company, and rendered judgment against the city for the sum of $1524.36, principal and interest. The defendant duly excepted, and filed its motion for a new trial upon all of the statutory grounds, which was overruled.
The defendant, as plaintiff in error, prepared its case-made and presents the record to this court for review, alleging error in the proceedings of the trial court as follows : (1) That the court erred in rendering judgment in favor of the defendant in error .and against the plaintiff in error; that the judgment is contrary to the law and the evidence ; (2) that the court erred in allowing interest upon the accounts and in rendering judgment for the sum of $1524.36; (3) that the court erred in overruling the motion of the plaintiff in error for a new trial.
At the trial the parties made the following admissions :
“1. That if anything is due to the plaintiff from the defendant under the law in this case, then, and in that case, the items of the account herein sued on are correct, and that there is a balance due and unpaid upon said account as stated in the petition.
“2. It is admitted by the plaintiff herein that on and prior to the incurring of the indebtedness herein sued upon the city of Kansas City, Kan., was a city having a population of over 40,000 inhabitants. That for the years 1895, 1896 and 1897 the assessed valuation of all the property in said city, both real and personal, was $7,616,957.
“3. That the tax levy of two and one-fourth mills on the dollar for street lighting of said city upon such assessed valuation during such years of 1895, 1896 and 1897 amounts in the aggregate to the sum of $51,414.45.
“ 4. That during said years of 1895,1896 and 1897 the total cost for lighting the streets and other public places of said city, under existing contracts with the plaintiff and the Kansas City Consolidated Light and Power Company, and under contracts made prior to said year 1895, amounted to the sum of $68,552.60.
“5. That said sum of $51,414.45, so levied and collected as taxes upon the total taxable property of said city as aforesaid, was paid under contracts for lighting the streets and other public places of said city of Kansas City during the years of 1895, 1896, and 1897, of which sum the plaintiff was paid an amount equal to about seventy-five per cent, of its bills for lighting the streets and public places of the city, that being its pro rata share of said sum of $51,414.45, the balance of said sum being paid to the Kansas City Con- solid ated Electric Light and Power Company under its contract with the city in the same ratio of seventy-five per cent, upon the bills rendered by said last-mentioned company.”
The admissions above set out, together with the ordinances described in the reply of plaintiff, constitute all the evidence in the case.
The plaintiff in error contends that the provisions of the ordinances which defendant in error claims constitute the contract between the gas company and the city are ultra vires and void.
It appears that the contract for lighting the city was made prior to 1895, and that at all times prior to the commencement of this action the city treated the contract as a valid existing contract. It permitted, without objection, the execution of the same on the part of the gas company and accepted the benefits accruing to it by reason of the contract.
At the time the contract was made the city had full power and authority to provide for lighting streets and public places. (Gen. Stat. 1897, ch. 32, § 88, subdiv. 13, 23, and § 99; Gen. Stat. 1899, §§ 710, 897; Stewart v. Town Co., 50 Kan. 553, 32 Pac. 121; The State, ex rel., v. City of Hiawatha, 53 id. 477, 36 Pac. 1119.)
The amount sought to be recovered is admitted to be that agreed upon by the parties, and in the absence of any showing to the contrary we must presume was a reasonable charge for the lights furnished. It was admitted that if anything was due from the city to the plaintiff the amount due and unpaid upon the account was correctly stated in the petition. The city in this case had accepted the benefits accruing to it, but seeks to avoid the liabilities under the contract. A legal liability springs from a moral duty to make restitution. The city in a legal aspect ought to be bound to pay a reasonable price for the benefits accruing to it under the contract, and the reasonableness of the charge is not questioned. (Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659.) The contention of the plaintiff in error is not supported by reason nor by authorities. The plea of ultra vires ought not to be permitted to prevail when interposed for or against a corporation, when it would not advance justice. (Water Works Co. v. City of Columbus, 48 Kan. 99, 28 Pac. 1097.)
The next contention is that the city had no power to contract an indebtedness for the cost of lighting in excess of the amount of revenue derived from the two- and-one-fourth-mill levy authorized by chapter 259 of the Laws of 1895.
The contract for lighting the city was made long prior to the passage of that act, and in no way conflicts with its provisions, unless we construe the conflict to exist by reason of the fact that the levy of two and one-fourth mills did not produce an amount of money sufficient to pay for lighting according to the terms of the contract. At the time the contract was made, the city had authority to provide for and regulate the lighting of its streets. Section 59, chapter 100, Laws of 1872, provides :
“The council may provide for and regulate the lighting of the streets, and the erection of lamp-posts, and the council shall have power to make contracts with, and authorize any person, company or association to erect gas-works in said city and give such person, company or association the exclusive privilege of furnishing gas to light the streets, lanes and alleys of said city for any length of time not exceeding twenty-one years.”
This statute authorized the council to contract for the lighting of the streets, public places and buildings in such manner as in their judgment was most advisable, for any term not exceeding twenty-one years. Under the contract in question, the gas company erected, has maintained and operated gas-works, furnished the light stipulated to be furnished,to the, city, and has performed all of the conditions of the contract on its part to be performed up to the commencement of this action. The city had power to contract an indebtedness for lighting at the time the contract was made. It may be that after the passage of the act of 1895 the. city could repudiate the contract so far as it exceeded the two-and-one-fourth-mill levy authorized, but it appears to us that so long as the city, without objection, accepted the benefits of the contract it should bear the burdens.
■ It is finally claimed that the judgment is excessive. The court erred in rendering judgment for interest upon the account. The plaintiff in the trial court, upon the petition and evidence, was not entitled to recover interest. The judgment will be modified by striking out the amount allowed for interest, so that the judgment as modified will be for $1337.32.
The judgment as modified is affirmed. The costs are equally divided.
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The opinion of the court was delivered by
Mahan, P. J. :
The question presented in this case by the record and by the briefs and arguments of counsel is whether a lien created upon personal property by chattel mortgage can be enforced where it appears that the note evidencing the debt which the mortgage was given to secure has been materially altered in its terms by the payee, innocently.
It is contended that this was decided by the court in this case in its opinion filed December 4, 1896, and reported in Sheley v. Simpson, 5 Kan. App. 465, 46 Pac. 994. We do not construe the opinion as determining this question at all. It would appear from the opinion itself that the plaintiff relied upon the note as evidence of the debt.
Without going into a discussion of the principles of law involved in the case, we content ourselves with saying that justice and the authorities unite in holding that in such a case the mortgagee may enforce his mortgage notwithstanding the alteration of the note, if the debt still exists and can be proved independently of the altered note. See Clough v. Seay, 49 Iowa, 111; Vogle v. Ripper, 34 Ill. 100; Sloan v. Rice, 41 Iowa, 465; 2 A. & E. Encycl. of L. (2d ed.) 202. It necessarily follows that the trial'court erred, and its judgment must be reversed, with directions to award the plaintiff a new trial.
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The opinion of the court was delivered by
Schoonover, J. :
Appellant was convicted in the district court of Reno county upon the first and fourth counts of an information charging him with violating section 39 of chapter 101, General Statutes of 1897 (Gen. Stat. 1899, § 2410). The first count charged appellant with maintaining a common nuisance by keeping and maintaining a place where intoxicating liquors were and had been sold, and where persons resorted and were permitted to resort for the purpose 'of drinking intoxicating liquors as a beverage. The fourth count charged unlawful sales of intoxicating liquor.
It is claimed by appellant that the court erred in giving the second subdivision of its third instruction, as follows:
“2. That while the keeper thereof the defendant permitted persons to resort to said place for the purpose of drinking intoxicating liquors as a beverage.”
And in refusing to give the seventh and eighth instructions asked for by defendant, as follows :
“7. You are instructed that any person in the lawful, bona fide possession of intoxicating liquor may use it in any way he sees fit; he may drink it, or give it away, or use it any other lawful manner or for any other purpose to which his inclination may lead him ; the limitation is, that the person giving it away shall not be permitted to do so to evade the provisions of the prohibitory act; and I further instruct you that if intoxicating liquor is lawfully kept by a person for no unlawful purpose, the permitting of any one to drink it upon his premises is not, in and of itself, such an act as will constitute a nuisance.
‘ ‘ 8. The mere act of permitting persons to drink intoxicating • liquors upon the premises by the keeper or owner, where the liquor is lawfully in the possession of the parties drinking it, and where the liquor is not kept or brought upon the premises for any unawful act or purpose, is not, in and of itself, a nuisance lnder the law.”
We are called upon under this assignment of error to construe the second clause of the nuisance section of the prohibitory liquor law, and the question presented for our consideration is, Does the maintenance of a place where persons are permitted to resort for the purpose of drinking intoxicating liquor as a beverage, though none of the provisions of the law in relation- to the manufacture or sale of intoxicating liquors is violated at such place, constitute a crime?
Counsel for appellant insist that, if this question -be answered in the affirmative, the clause must be held to be unconstitutional and void, as being a provision in the prohibitory act not included in the title of that act. The title of the act under which this prosecution was instituted is “.An act relating to intoxicating liquors,” etc. We shall hold, therefore, that the title is broad enough to cover the provisión in-question. (The State v. Campbell, 50 Kan. 433, 32 Pac. 35.)
Counsel for appellant cite many authorities in support of the propositions that intoxicating liquors are not contraband, and that a person lawfully in possession of intoxicating liquor may drink it, give it away, or dispose of it in any other lawful manner. We concede that all that counsel say in this connection is true ; but the offense .charged is not the possession of liquors, nor the giving away of liquors, but the keeping of a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage. The keeping of such a place constitutes the gravamen of the offense, and in this connection we may remark that the giving by a person of a drink of intoxicating liquor to a friend upon such person’s own premises would not, as is contended by appellant’s counsel, constitute a violation of the nuisance section of the prohibitory law, even though the clause under consideration be construed in its literal sense. The word “resort” means something of a common occurrence—the habitual frequenting of a place by more than one person.
It is argued by appellant’s counsel that if the object and intent of the statute are considered the clause should read : “All places where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage in violation of this act are hereby declared to be common nuisances,” etc.
4Ve do not think that such a construction is warranted if the entire section is considered. That part of the prohibitory liquor law which defines common nuisances is as follows :
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this act, are hereby declared to be common nuisances,” etc.
To construe the second clause as- appellant’s counsel would have us would be, in effect, to hold it a mere repetition of the first and third clauses. As the legislature omitted the qualifying words, “ in violation of the pi’ovisions of this act,” froxn the second clause, we are led to the conclusion that it was the intention of the legislature to make the keeping of a place to which persons habitually resort for the purpose of drinking liquors as a beverage a crime, whether any other provision of the prohibitory law was violated at such place or not.
The only remaining question for us to consider is, Did the legislature transcend its authority when it incorporated such a provision in the prohibitox’y law ? We cannot give assent to the broad proposition laid down in the brief of counsel for appellee, that mere legislative fiat is sufficient to create a crime. There is certainly some limitation upon legislative power; what that limitation is, however, we are not called upon to decide. It is sufficient to say that whatever such limitation may be we do not think that the provision in question comes within it. It is a matter of common knowledge that a place where persons habitually resort for the purpose of drinking intoxicating liquor as a beverage often proves to be a source of an noyance or even danger to the public, and especially to persons residing in the immediate vicinity, and we think that the legislature, under the police power of the state, had ample authority to declare the keeping of such a place a crime.
Other errors are assigned in appellant’s brief, but we are unable to find sufficient merit in any of them to warrant a reversal of the case.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J. :
On the 18th day of September, 1895, the defendant in error filed her petition in the court of common pleas of Wyandotte county, alleging, in substance, that she was the wife of Robert M. Hester until his death, and is now his widow; that Aldace F. Walker, John J. McCook and Joseph O. Wilson were receivers of the Atchison,- Topeka & Santa Fe Railroad Company, a corporation, and as such were managing and running lines of railroad, including a certain switch, spur or side-track known as “ P Vine ” switch, in Kansas City, Mo., and main line No. 2, about five feet therefrom ; that on and prior to the 28th day of April, 1895, said Robert M. Hester was in the employ of said receivers as switch engineer on engine No. 572 ; that about 5 : 30 o’clock of said day he was oiling his engine, which was standing on said “ P Vine ” switch, and had to pass from the tender to the boiler, and in doing so had to pass around a water-plug and tool-box negligently placed and kept there by said receivers, and in doing so was hit by a passing train then running on main line No.'2, and carelessly, negligently and violently struck and thrown down under the same, and from the injuries so received died within ten days thereafter; that said train was run at a rate of speed greater than allowed by the ordinances of said city, that the bell or whistle was - not sounded or any other warning given of the approach of said train; and that said receivers, their officers, agents, servants, or employees, negligently and carelessly failed to avoid injuring said deceased, and failed to notify him of his peril after they knew, or could, by the exercise of ordinary care, have known, of his danger; that at said time the statutes of Missouri provided as follows:
‘ ‘ Whenever any person shall die from any inj ury resulting from or occasioned by the negligence, unskilfulness' or criminal intent of any officer, agent, servant or employee whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, engineer, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage-coach or other public conveyance whilst in charge of the same as a driver, and when any passenger shall die from an injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat, or the machinery thereof, or in any stage-coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant or employee, master, pilot, engineer or driver shall be at the time such injury is committed, or.who owns any such railroad, locomotive, car, stage-coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskilfulness, negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered : First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased. ... In suits instituted under this section, it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency, and that the injury received was not the result of un'skilfulness, negligence or criminal intent.” (Gen. Stat. Mo., 1889, §4425.)
It is further alleged in said petition that this suit is brought within six months after the death of her husband, as aforesaid; that by reason of said defendants’ so negligently and carelessly placing, keeping and maintaining said water-plug and tool-box in said position, and by reason of the negligence and unskilfulness of said officers, agents, servants and employees of said receivers in running, conducting and managing said locomotive and train of cars on main line No. 2 contrary to the provisions of said ordinance, and by failing to .ring the bell or blow the whistle, whereby said engine and cars were run upon and against the body of said Robert M. Hester, by which he was injured and died, she has been damaged in the sum of $5000, for which, with costs, she prays judgment.
To this petition a demurrer was filed, and sustained upon the grounds that it did not state facts sufficient to constitute a cause of action, and that the court had no jurisdiction of the subject-matter-.
On December 80,1895, by leave of court, an amended .peoition was filed, the same being a copy of the original petition, with the additional allegations inserted therein as follows : “And plaintiff states that no personal representative has been appointed of said Robert M. Hester, deceased.” . . . “And at the time of receiving the injuries from which said Hester died he was thirty-two years old and earning about $2000 a year.” After the copy of section 4425 of the laws of Missouri, sections 4426 and 44-27 were inserted, as follows :
“ Sec. 4426. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act,- neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and'in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.
“Sec. 4427. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 4425, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who’may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.”
This amended petition was demurred to on the same grounds as the original petition.. The demurrer was overruled, and an answer filed containing' (1) a general denial; (2) an allegation that the action was barred by the statutes of Missouri under which it was brought; (3) an allegation that the deceased assumed the risk of the injury that caused his death by his contract of employment; and (4) a plea of contributory negligence. A general denial was filed in reply to the answer and the case proceeded to trial upon the issues thus formed. The jury returned a verdict for the plaintiff for $1000. The defendants filed a motion in arrest of judgment for the reason that the amended petition did not state facts sufficient to constitute a cause of action. This motion was overruled, judgment was rendered upon the verdict, and the case is brought here for review.
The plaintiffs in error argue (1) that the amended petition does not state a cause of action upon which a recovery can be had in the state of Kansas ; and (2) that the cause of action, if any, was stated in f»he amended petition, and was barred by the statute of limitations at the time the amended petition was filed.
We shall consider the second proposition first, for the reason that if the statute of limitations had run the other proposition will require no consideration at our hands.
The death occurred on or before May 8, 1895. The original petition was filed on September 18, 1895, and the amended petition on December 30, 1895. The statute under which the action was instituted gave the widow only six months in which to begin a suit, so the only question is, Did the filing of the original petition toll the statute? The law upon this subject is thus stated by the supreme court of the United States:
“The general rule is, that- an amendment relates back to the time of the filing of the original petition, so that the running of the statute of limitation against the amendment is arrested thereby. But this rule, from its very reason, applies only to an amendment which does not create a new cause of action. The principle is, that, as the running of the statute is interrupted by the suit and the summons, so far as the cause of action then propounded is concerned, it interrupts as.to all matters subsequently alleged, by way of amendment, which are part thereof. But where the cause of action relied upon in an amendment is different from that originally asserted, the reason of the rule ceases to exist, and hence the rule itself no longer applies.” (Union Pacific Railway v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.)
Was the cause-of action set up in the original petition the same as that upon which the -judgment was rendered? The original petition attempted to state a cause of action under section 4425 only; the verdict was evidently not under that section, but under sections 4426 and 4427.
. It seems to us that in harmony with the decisions in Union Pacific Railway v. Wyler, supra, and A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, we must hold that the cause of action, if any, stated in the amended petition, does not relate back to the time of filing the original petition so as to save it from the bar of the statute limiting the time within which the action must be commenced by the widow. It is true that in each of these cases the first was a common-law right of action, and the second a statutory one, but we are' unable to see any more radical difference between a common-law right of action and a statutory one than between two statutory actions.
The judgment of the court of common pleas is reversed, and a judgment directed in favor of the plaintiffs in error.
Mahan, P. J., dissenting.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from an order of the district court denying a claim filed by Donald M. Parks against the estate of Dorothy W. Murphy, deceased. The claim of Parks was based upon a property settlement agreement entered into by Donald M. Parks and Dorothy W. Parks (subsequently Murphy) at the time of their divorce in 1975.
Most of the factual background was not disputed. Donald M. Parks and his wife, Dorothy W. Parks, were the principal stockholders of Grand Rudders, Inc., a corporation engaged in the business of erecting pole barns and buildings in Missouri. Dorothy managed the office, with assistance from Lowell Murphy, while Donald took care of the construction phase of the business.
In 1974, the marriage of Donald and Dorothy began to deteriorate and eventually led to divorce. A property settlement agreement dated March 17, 1975, was entered into by the parties and was subsequently approved by the Circuit Court of Livingston County, Missouri, at the time the divorce was granted. Dorothy moved to Kansas, married Lowell Murphy and they went into the pole barn and building business in Kansas. Dorothy died testate, a resident of Franklin County, Kansas, on August 23, 1976, and Murphy was appointed executor under her will. The claim filed by Donald was based upon the divorce settlement agreement and the question before the court concerns the ambiguity, or lack thereof, of that agreement.
The agreement will be summarized and set out in some detail, omitting formal parts. Donald M. Parks was the First Party in the agreement and Dorothy W. Parks was the Second Party.
Paragraph 1 provided in subparagraph A that Dorothy would receive $300,000.00 in cash; subparagraphs C through M gave her other items of specific miscellaneous personal property. Sub-paragraph B provided she would receive one-half of all materials listed on Exhibit “A” to the agreement. These materials were used in the business of Grand Builders, Inc., and were to have a value of at least $60,000.00.
Paragraph 2 provided that Donald was to receive all the corporate stock of Grand Builders, Inc., real estate belonging to the corporation, certain vehicles and equipment used in the business, all proceeds of the business of Grand Builders, Inc., all corporate business records and books and other items of personal property, including furniture and household goods.
Paragraphs 3 through 9 read as follows:
“3. First Party assumes all bills, accounts, liabilities, taxes, including anticipated income taxes (including such anticipated income taxes for 1973).
“4. Second Party shall have the use, without charge of one truck tractor and semi-trailer and an additional tag axle truck, with the regular drivers, for moving her property and 30 days within which to move.
“5. Second Party shall pay one-half of all unanticipated income taxes which may be finally assessed, for the period of the marriage of these parties.
“6. This agreement shall be subject to and contingent upon the First Party being able to procure a loan upon the corporate assets, in a principal sum of at least $300,000.00, and, if, after diligent efforts and cooperation upon the part of the First Party, he should be unable to obtain such loan, then this Agreement shall be null and void, and of no further force or effect. First Party shall promptly notify Second Party or her Attorney of approval or disapproval of such loan.
“7. Second Party agrees to convey by Quit-claim Deed to First Party, all of her right, title and interest in all of the real estate presently owned, by First and Second Parties including the house where First Party presently resides and certain Lake Viking property located in Daviess County, Missouri.
“8. First Party shall be responsible for and shall pay the fee of the accountant, Carl Wright, and shall hold Second Party harmless therefrom.
“9. The materials referred to in paragraph IB, above, shall not exceed a total original cost price of $127,000.00, nor be less than an original cost price of $120,000.00.”
The claim of Donald against Dorothy’s estate is based upon paragraph 5 of the agreement. It appears that the materials received by Dorothy described in IB were corporate assets belonging to Grand Builders, Inc. The Internal Revenue Service, when it learned of this particular distribution, took a dim view of the proceedings and assessed Donald with a tax deficiency based upon a $60,000.00 constructive dividend from the corporation. It was the position of the service that Donald had used corporate assets to settle a personal obligation due Dorothy under the divorce agreement and therefore had received a constructive dividend from Grand Builders, Inc. equal to the value of the “materials” received by Dorothy under paragraph IB. There were other income tax deficiencies assessed against Donald and Grand Builders, Inc., which were included in his claim against the estate. A hearing was held on the claim and it was denied in its entirety by the district court. Appellant’s motion for a new trial was heard and overruled.
Appellant’s main issue on appeal is that the trial court erred when it found the property settlement agreement unambiguous and therefore excluded parol evidence tending to explain the intent of the parties to the agreement.
The clause of the agreement which the claimant argues is ambiguous is paragraph 5.
Through two offers of proof appellant asserted that during the negotiations leading to the property settlement agreement, it was agreed by Donald and Dorothy that all unanticipated corporate and personal income taxes were included in the agreement.
Appellant also asserted that subsequent to the divorce amended returns were prepared by the accountant for the corporation, reflecting additional tax liability not previously reported to the Internal Revenue Service and that this liability was known to both parties and contemplated by them when they entered into the agreement. Appellant also argued to the trial court and asserts on appeal that Grand Builders, Inc. was, and had been for several years, the alter ego of Donald and Dorothy and parol evidence should have been allowed to prove this point. Appellant appears to contend that neither party could have anticipated the deficiency based upon the $60,000.00 constructive dividend to Donald and therefore it was an unanticipated item under paragraph 5.
The law in Kansas pertaining to the use of parol evidence in contract disputes was recently summarized in Quenzer v. Quenzer, 225 Kan. 83, 587 P.2d 880 (1978), when the court stated:
“Whether ambiguity exists in an instrument is a matter of law to be decided by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). This court, however, may not rewrite a contract or make a new contract for the parties under the guise of construction. Wood v. Hatcher, 199 Kan. 238, 428 P.2d 799 (1967). Words cannot be written into a contract which import an intent wholly unexpressed when it was executed. Duffin v. Patrick, 212 Kan. 772, 778, 512 P.2d 442 (1973).
“Ambiguity is defined in Wood v. Hatcher, 199 Kan. at 242, where the court said:
‘The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possibie meanings. . . .’
See Mobile Acres, Inc. v. Kurata, 211 Kan. at 838; Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 718, 452 P.2d 279 (1969).
“If a contract is not ambiguous it must be enforced according to its terms, for the law presumes the parties understood their contract and that they had the intention which its terms import. Tri-State Hotel Co., Inc. v. Sphinx Investment Co., Inc., 212 Kan. 234, 246, 510 P.2d 1223 (1973); Schnug v. Schnug, 203 Kan. 380, 383, 454 P.2d 474 (1969). As a general rule, when a contract is complete and unambiguous and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms of the contract evidenced by the writing is inadmissible. Hird v. Williams, 224 Kan. 14, 15, 577 P.2d 1173 (1978).” p. 85.
In determining whether a contract is ambiguous, one must look to the contract as a whole to attempt to determine the intent of the parties. Wood v. Hatcher, 199 Kan. 238, 241, 428 P.2d 799 (1967). To help interpret contracts that are ambiguous, this court has adopted several general rules of construction. The cardinal rule in the construction of an ambiguous contract is to ascertain the intention of the parties and to give effect to that intention. Springer v. Litsey, 185 Kan. 531, 345 P.2d 669 (1959). If the court finds that the contract is unambiguous, the intent of the parties should be determined from a consideration of the instrument itself in its entirety. Brungardt v. Smith, 178 Kan. 629, 290 P.2d 1039 (1955). If, however, the court finds the language of a contract to be ambiguous, the facts and circumstances surrounding the execution of the contract should be considered in determining which one of two or more meanings was intended. 17 Am. Jur. 2d, Contracts § 242, p. 627; Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973); Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P.2d 350 (1954).
With the foregoing basic principles in mind, is the Parks divorce agreement, when viewed in its entirety, ambiguous? We think so. Unfortunately, the record made in this case and the briefs of the parties are of little help to this court.
It is apparent from the agreement that Donald and Dorothy-dealt with the property of Grand Builders, Inc. as if it was their own personal property. This was one of the factors that led to their corporate and personal tax problems. It appears to be agreed that the materials Dorothy was to receive under paragraph IB were corporate property and that other specific items which were to be Dorothy’s were also corporate assets. Similarly, under paragraph 2 Donald received certain corporate assets as his separate property. Paragraph 6 of the agreement provides that Donald will secure a $300,000.00 loan upon the corporate assets in order that he can make the cash payment to Dorothy. While these provisions are confusing enough, paragraphs 3 and 5 of the agreement, without some further explanation, defy interpretation. Paragraph 3 provides that Donald will pay, among other things, all anticipated income taxes while paragraph 5 provides the parties will share all unanticipated income taxes. The anticipated income taxes referred to in paragraph 3 specifically mention the year 1973. However, evidence at trial shows an overpayment by Donald and Dorothy for that year but a substantial deficiency for the corporation. Does paragraph 3 mean that the unpaid corporate tax was an anticipated tax? Appellant argues on one hand that the parties knew they had underreported the corporate income for years prior to 1975, which would seem to imply the additional corporate tax, if contemplated by the agreement at all, would fall under paragraph 3 as an anticipated tax, yet he attempts to include it under paragraph 5. Again, the constructive dividend to Donald was assessed for the year 1975, and the tax consequences of using corporate property to pay a personal obligation could readily have been anticipated, yet Donald claims that item should fall under paragraph 5 as “unanticipated income taxes which may be finally assessed for the period of the marriage of these parties.” Was the dividend incurred during the period of the marriage? Was it unanticipated? Was the corporation the alter ego of Donald and Dorothy? Should all corporate income taxes be considered as falling within the terms of the agreement, either as anticipated income taxes under paragraph 3 or as unanticipated income taxes under paragraph 5? We cannot determine the answers to these questions, and others that could be posed, by reference to the agreement and we do not attempt to make any such determinations. These are factual matters to be determined by the trial court. No attempt was made in the agreement to specify what was anticipated and without some further explanation, no one could ascertain the meaning of these provisions or the liability of one party to the other.
Parol evidence should have been allowed to explain the claim of Donald, which was based upon what he alleges were unanticipated personal income taxes contemplated by paragraph 5 and unanticipated corporate income taxes based upon the premise that the corporation was the alter ego of the parties and therefore was also intended to be covered by paragraph 5.
In view of the foregoing, it is not necessary to consider further the other points asserted on appeal. However, as the case must be remanded for a new trial, one point does merit some comment. An issue was raised in the trial court about the necessity of Donald proving his claim with particularity. The burden of proof of a claim against an estate rests upon the claimant. We held in In re Estate of Brown, 189 Kan. 193, 368 P.2d 27 (1962), in Syl. ¶ 4:
“The burden of proving a claim against a decedent’s estate is on the claimant and the claim must be established by evidence clear and convincing to the triers, or trier, of the facts.”
See also In re Estate of House, 164 Kan. 610, 192 P.2d 179 (1948).
The decision of the trial court is reversed and the case remanded for a new trial in accordance with the views set forth above.
Fromme, J., not participating.
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The opinion of the court was delivered by
Herd, J.:
Janice Marie Griffin was found guilty by a jury of solicitation for prostitution in violation of Junction City city ordinance 12-509(a) and sentenced under city ordinance 12-509(b) to a mandatory 30 days in jail with no probation. Appellant appeals upon an agreed statement from the sentencing ordinance. We reverse.
On April 29, 1978, appellant was arrested in Junction City and charged with solicitation for prostitution in violation of city ordinance 12-509(a) and was tried and convicted by the municipal court. She appealed and was tried and convicted by a jury in district court on September 25, 1978 and sentenced under ordinance 12-509(b), which requires a mandatory jail sentence without probation or parole. Appellant made application for probation which the district court denied on December 28, 1978. From that order this appeal is taken.
Appellant argues the mandatory sentencing ordinance without probation or parole is unconstitutional in violation of the doctrine of separation of powers. We need not meet that issue. Junction City city ordinance No. 12-509(b) is in violation of the Code of Procedure for Municipal Courts, K.S.A. 12-4101 through 12-4701, which contains a comprehensive code of criminal procedure. K.S.A. 12-4102 states:
“This code governs the practice and procedure in all cases in municipal courts.”
This code preempts the field of criminal procedure in Municipal Courts except as provided in K.S.A. 12-4103:
“This code is intended to provide for the just determination of every proceeding for violation of city ordinances. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. If no procedure is provided by this code, the court shall proceed in any lawful manner consistent with any applicable law and not inconsistent with this code.” [Emphasis supplied.]
Only where no procedure is provided can the procedure be varied and then only by the court.
The code provides for probation and parole at K.S.A. 12-4511, which states:
“The municipal judge may parole any person confined to jail as a result of a conviction of a violation of a city ordinance. The judge may set such conditions and restrictions as he or she sees fit to impose for a term not exceeding one year and may at anytime discharge such person for good cause shown.”
The Code of Procedure for Municipal Courts is exempt from the home rule provision of the Kansas Constitution (Kan. Const. Art. 12, § 5), because it is of statewide concern and is applicable to all cities. The express legislative intent is set out in K.S.A. 12-4102.
In Clafiin v. Walsh, 212 Kan. 1, 7-8, 509 P.2d 1130 (1973), we stated:
“The optional powers of the legislature are set forth in Section 5 (b) as limitations or exceptions to the exercise of home rule power by cities. The home rule power is subject to optional control by legislative action in four specific areas:
(1) Enactments of statewide concern which are applicable uniformly to all cities.
(2) Other enactments of the legislature applicable uniformly to all cities.
(3) Enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.
(4) Enactments of the legislature prescribing limits of indebtedness.
“Section 5 (d) of Article 12 requires a liberal construction of the powers and authority granted cities for the purpose of giving to cities the largest measure of self-government. This provision simply means that the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it. Where the legislature has acted in some area a city’s power to act in the same area should be upheld unless the legislature has clearly preempted the field so as to preclude city action. Unless there is actual conflict between a municipal ordinance and a statute, the city ordinance should be permitted to stand. [Citation omitted.]
“In some cases the legislative intention has been made clear and unequivocal. By specific language the legislative intent is shown to be that the statute is to be applied uniformly to all cities. Such a statute was involved in Ash v. Gibson, 146 Kan. 756, 74 P.2d 136, which concerned the application of the uniform act regulating traffic on highways. There it was pointed out that in K.S.A. 8-507 the legislature stated clearly that the provisions of that act should be applicable and uniform throughout the state and in all political subdivisions and municipalities therein. In K.S.A. 41-208, a part of the Kansas Liquor Control Act, the legislature stated clearly that no city shall enact any ordinance in conflict with or contrary to the provisions of the act. An interpretation of that statute was before the court in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524.”
See also City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975); Jennings v. Walsh, 214 Kan. 398, 521 P.2d 311 (1974); Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (1973).
Matters under the Code of Municipal Court Procedure are of statewide rather than local concern. The public, parties and attorneys deserve to know the appropriate court procedure; it is an essential part of due process and the rule of law. In addition the code applies uniformly to all cities, making it exempt from the home rule provision in two categories.
We hold Junction City city ordinance 12-509(h) is ultra vires and void to the extent it varies from K.S.A. 12-4511.
The judgment of the district court is reversed and remanded for further proceedings consistent with this opinion.
McFarland, J., dissenting.
Fromme, J., not participating.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by plaintiff, Citizens State Bank, Moundridge, Kansas, (Bank), from an order granting the defendants, William C. Gilmore, Sr. and Teddy M. Puls, summary judgment. Defendants’ motion was sustained prior to any pretrial conference and prior to the completion of discovery.
Plaintiff filed this action against the two defendants on multiple theories of indirect fraud, conspiracy to commit fraud and absolute liability for violation of statutes. Plaintiff sought to recover damages sustained from financing the purchase of certain dairy cattle which had been quarantined and were infected with, or exposed to, brucellosis. Brucellosis in cattle has the ultimate effect of damaging a cow’s reproductive organs and causing abortion in infected cattle. It is also the source of undulant fever in humans. It is a serious and highly contagious disease in cattle and is greatly feared by all cattle owners as it may result in the loss of an entire breeding or dairy herd.
In considering the motion for summary judgment, the plaintiff in this case is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, 575 P.2d 507 (1978). Also the pleadings are to be given a liberal construction in favor of the plaintiff in this case. Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 (1974). Ordinarily a motion for summary judgment should not be sustained so long as pretrial discovery remains incomplete. Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, 535 P.2d 873 (1975). Where genuine issues of material fact remain undetermined, the granting of summary judgment is improper. Kern v. Miller, 216 Kan. 724, 533 P.2d 1244 (1975).
With the foregoing principles in mind we will turn to the issues raised in this appeal. As the rulings of the trial court hinge mainly upon an interpretation of the plaintiff’s petition, we will summarize its principal allegations. The petition is long, rambling and contains many extraneous allegations, but basically we would summarize it as follows:
Defendant Gilmore, a buyer and seller of cattle, had a dairy and breeding herd in late 1973 and early 1974 which was tainted with brucellosis. During this period, and with full knowledge that his entire herd was quarantined by state officials, Gilmore sold cattle to Gaede and his partner, Kiser, and also sold 15 or 16 head of cattle to Gaede through defendant Puls, all such sales being in violation of certain specified Kansas statutes and regulations of the Kansas livestock sanitary commissioner prohibiting such sales. In March, 1974, Gaede wanted to purchase 15 or 16 head of dairy heifers (the petition is inconsistent in that it refers to 15 in some instances and 16 in others). He approached Gilmore. Gilmore’s herd was still under quarantine. Gilmore referred Gaede to Puls. Puls then sold 15 or 16 dairy cattle (Gilmore-Puls cattle) to Gaede, which actually were Gilmore’s cattle. Puls represented the cattle to be disease-free. Gaede, in order to purchase the cattle, innocently represented to the Bank that he was purchásing healthy dairy cattle. The Bank lent Gaede $9,000 and took a security interest in the Gilmore-Puls cattle purchased by Gaede and which later turned out to be either diseased or exposed to disease. Gilmore knew Gaede was obtaining financing from the Bank and he, through or in concert with Puls, withheld the information that the Gilmore-Puls cattle were under quarantine due to brucellosis in the Gilmore herd. In April, 1974, Gaede acquired all of the interest of his partner Kiser in the cattle which Gaede and Kiser had owned in partnership. All of these cattle had also come from the Gilmore herd at a time when the herd was under quarantine. The petition alleges a conspiracy in that if Puls was not an innocent party, then Gilmore and Puls conspired together to sell the quarantined cattle to Gaede with full knowledge the Bank was financing the purchase. After Gaede filed bankruptcy all his cattle, which had come from the quarantined Gilmore herd one way or another and were infected with or exposed to brucellosis, were sold for slaughter and plaintiff Bank realized only $2,553.90. The Bank sought actual and punitive damages based upon indirect fraud, conspiracy to commit fraud and violation of statutes and regulations governing the sale of cattle.
The answer of the defendants consisted of a general denial and in addition alleged defenses including failure to state a claim upon which relief could be granted, that plaintiff was not a real party in interest, and that the petition failed to state with particularity the circumstances of fraud and conspiracy to commit fraud. After limited discovery Gilmore filed an instrument entitled “Memorandum In Support of Motion” which the court evidently treated as a motion for summary judgment and in ruling thereon dismissed the plaintiff’s petition as to both Gilmore and Puls. William C. Gilmore, Jr., originally a defendant, was dismissed from the case by agreement of the parties. This is not the first time Gilmore’s cattle have been the subject of litigation in the appellate courts. For those interested in the complaints of Kiser (Gaede’s partner) against Gilmore, see Kiser v. Gilmore, 2 Kan. App. 2d 683, 587 P.2d 911, rev. denied 225 Kan. 844 (1978).
The trial court, in dismissing plaintiff’s petition, made the following conclusions of law:
“1. There are no disputed material issues of fact as it relates to the defendants’ Motion.
“2. The Plaintiff is not a real party in interest nor does it have standing to sue the defendants for the relief claimed in its petition.
“3. The Plaintiff’s petition does not state a claim upon which relief can be granted against these defendants.
“4. The Plaintiff’s petition fails to state with particularity the facts and circumstances constituting the alleged fraud as required by K.S.A. 60-209(b) nor does it allege facts sufficient to constitute a conspiracy and resulting damage.
“5. That the defendants are entitled to judgment based upon the foregoing conclusions when considered either jointly or individually.”
Appellant’s first point on appeal is that the trial court erred in concluding plaintiff was not the real party in interest and had no standing to sue for the relief claimed. Appellant asserts its cause of action is based upon indirect fraud, conspiracy to defraud and violation of statutory obligations by defendants.
Appellee Gilmore argues that as there was no direct contact between Gilmore and the Bank, it is not a proper party and cannot bring this action. Puls’ position is not clear. He appeared pro se in the trial court and has filed no brief with this court. With the exception of filing a pro se answer copied from that of Gilmore, Puls appears to have taken a free ride throughout these proceedings. His strategy has been successful to date as the trial court dismissed plaintiff’s petition as to both defendants.
It appears to be undisputed that Gilmore sold cattle to Gaede and/or Kiser during the period from December 1, 1973, to April 26, 1974, which were under quarantine by state officials due to the presence of brucellosis reactors in Gilmore’s herd. It also appears clear, based upon the petition and the limited discovery in the trial court, that Gilmore, through Puls, sold 15 or 16 head of cattle which were under quarantine to Gaede on or about March 12,1974. Plaintiff asserts such sale was made either innocently by Puls due to misrepresentations of Gilmore, or was made as a part of a conspiracy between Gilmore and Puls to sell quarantined cattle to Gaede. The record reflects that the sale price of the 15 or 16 head of dairy cattle was $9,000 and that Gilmore received $8,900 and Puls $100. The cattle, being under quarantine, were sold in direct violation of K.S.A. 47-624 and K.A.R. 9-2-17 and 9-2-31. Briefly stated, the statutes and regulations provide that cattle which have been quarantined for brucellosis, with some exceptions not applicable in this case, may not be sold or transported without prior testing and consent from the State livestock sanitary commissioner. Violation of 47-624 is a misdemeanor. The Bank, upon representations by Gaede that he and Kiser had a healthy dairy herd and that Gaede wanted to purchase 15 or 16 additional head of healthy dairy cattle, agreed to lend $9,000 for the purchase of the Gilmore-Puls cattle. The facts that the cattle were actually owned by Gilmore, that they were under quarantine for brucellosis, that some or all of such cattle had been exposed and might be infected with brucellosis, were not disclosed by Puls to Gaede and as a result were not disclosed by Gaede to plaintiff Bank. If such facts had been known by Gaede and disclosed to the Bank it is a fair assumption that the Bank would not have made the loan to Gaede in reliance upon a security interest in the cattle. When Gaede went bankrupt his obligation to the Bank was discharged and the Bank suffered a loss in the amount of its loan and accrued interest less the proceeds of the sale of the cattle for slaughter. If the cattle had been healthy dairy cattle, not infected with or exposed to brucellosis, they could have been sold as dairy cattle rather than for slaughter for a sufficient sum to cover all or most of the secured interest of the Bank. Under such circumstances, where actual, intentional fraud is alleged upon the part of the seller, does the financing creditor, who no longer has a right of recovery from its debtor, have a cause of action against the seller? We think so.
In an attempt to define the parameters of fraud, it has been said:
“While the broad outlines of fraud have been indicated by regarding it as including any cunning, deception, or artifice used, in violation of a legal or equitable duty, to circumvent, cheat, or deceive another, the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all inclusive definition thereof. It is synonymous with, or closely allied to, other terms indicating positive and intentional wrongdoing, but is distinguishable from mistake and negligence.” 37 C.J.S., Fraud § 1, p. 204.
At the outset, it should be pointed out that fraudulent misrepresentation not only includes affirmative acts and misstatements of fact but also the concealment of acts and/or facts which legally or equitably should be revealed. The fraudulent misrepresentations in the case at bar were principally of the latter category and consist of the concealment of facts rather than an affirmative misstatement of facts.
Ordinarily, as a broad principle of law, the right of the Bank in this case would be principally against its debtor, Gaede, and its security interest in the cattle. It appears that the trial court was of the impression that the creditor in this case could not recover against the parties who instigated the fraud unless there was some direct connection between the defrauding sellers and the creditor Bank. That is, there was no sufficient privity between the Bank and the defendants to give the Bank standing to sue.
“Where a person, by the practice of fraud, unjustly deprives another of his property, and the defrauded person does not attack the transaction, his creditors cannot maintain an action of deceit against the one guilty of the fraud on the ground that the latter has diminished their debtor’s means of making payment, the remedy of the defrauded debtor being personal to him and not inuring to his creditors. The creditor of a bankrupt may, however, sue for deceit against a third person whose false representations induced the giving of credit, the right of action not being confined to the trustee in bankruptcy.” 37 C.J.S., Fraud § 60c, p. 346.
This court has recognized that in some cases a third party may have an action for fraud without any direct contact with and without having received any direct misrepresentations from the defrauding party. Griffith v. Byers Construction Co., 212 Kan. 65, 510 P.2d 198 (1973).
In Byers the purchasers of new homes brought an action against the developer of a subdivision in Wichita for damages because of a saline condition in the soil which precluded or greatly retarded the ability to landscape the homesites and grow any vegetation thereon. It was alleged that the defendant Byers Construction Company was the owner and developer of an area in east Wichita which had at one time been an oil field. Production of oil and the resultant by-product of salt, water had so polluted the soil that the growth of grass, shrubs or other vegetation was all but impossible. It was alleged that Byers had graded and developed the whole subdivision in such a manner that the saline areas were concealed from prospective purchasers. The actual homesites were sold by Byers to various builders who constructed a house on each lot and eventually sold the house and lot to the homeowner. Plaintiffs were homeowners who had purchased their homes from various builders who were not made parties to the case. There was no direct contact between Byers and the ultimate purchaser. Title came to the purchaser from the builder and not from Byers. Plaintiffs sued on two theories: (1) breach of an implied warranty of fitness, and (2) fraud in the concealment of a material matter. Summary judgment was rendered for the defendant and plaintiffs appealed to this court. This court found no validity to the claim of breach of warranty but held the purchasers had stated a cause of action for fraud. One of Byers’ contentions was there was no privity between plaintiffs and defendant and therefore, plaintiffs failed to state a cause of action. This court held otherwise.
In Byers this court stated:
“The appellee Byers next contends, without agency, there can be no privity and without privity there can be no duty to disclose. Here, of course, appellants never dealt with the appellee, Byers. The duty to disclose the saline nature of the soil must extend to appellants if their fraud claims are to be upheld. However, the doctrine of privity provides no defense to appellee Byers if appellants were within a class of persons appellee intended to reach. Liability for misrepresentation is not necessarily limited to the person with whom the misrepresenter deals. The rule is embodied in Restatement, Second, Torts, § 531 (Ten. Draft No. 10, 1964):
‘One who makes a fraudulent misrepresentation is subject to liability for pecuniary loss
‘(a) To the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation; and
‘(b) For pecuniary loss suffered by them through their reliance in the type of transaction in which he intends or has reason to expect their conduct to be influenced.’
“Under the alleged facts of our present case, accepting the same in the light most favorable to the appellants, we must assume the appellee, Byers, had knowledge of the saline content of the soil of the lots it placed on the market. After the grading and development of the area this material defect in the lots was not within the fair and reasonable reach of the vendees, as they could not discover this latent defect by the exercise of reasonable care] The silence of the appellee, Byers, and its failure to disclose this defect in the soil condition to the purchasers could constitute actionable fraudulent concealment under the rule in Jenkins v. McCormick, supra [184 Kan. 842, 339 P.2d 8 (1959)]. One who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation or concealment.
“As to privity we do not believe it is important to categorize its existence under a particular legal theory. Suffice it to say the appellants were in that class of persons desiring building lots in a choice residential area whom appellee intended and had reason to expect would purchase and build their homes. The fact that title was first taken in the names of the builders did not change the identity of those who would be ultimately affected by any fraudulent misrepresentations or nondisclosure of material defects in the lots. The building contractors were acting on behalf of their respective purchasers as a conduit or temporary way station for the legal title which, it was understood, would pass on completion of the homes to the appellants. There is no lack of privity in this case which would prevent causes of action based on fraud, and, in this, the district court erred in entering summary judgments for the appellee, Byers.” pp. 71-73.
The rule set forth in Byers was adopted in the final draft of the Restatement. Restatement (Second) of Torts §§ 531 and 533, provide:
“One who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation, for pecuniary loss suffered by them through their justifiable reliance in the type of transaction in which he intends or has reason to expect their conduct to be influenced.” p. 66.
“The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.” pp. 72-73.
In the early ease of Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), in an opinion by Justice Cardozo, the Court of Appeals of New York held that a lending institution which furnished credit to a debtor based upon a fraudulent financial statement had a cause of action for fraud directly against the debtors’ accountants who prepared the statements. In Ultra-mares the defendants were an accounting firm hired by Stern & Co. to prepare and certify a balance sheet exhibiting the condition of its business as of a certain date. The balance sheet was prepared and it showed that Stern & Co.’s capital and surplus were intact. In reality both had been wiped out, and the corporation was insolvent. The plaintiff, Ultramares, was approached by Stern with a request for loans. After examining the balance sheet prepared by defendants a substantial sum of money was lent to Stern. Subsequently, Stern went bankrupt and Ultramares filed suit for fraud to recover their loss directly against the accountants. The court held that the defendants owed a duty to creditors and investors to whom the employer exhibited the balance sheet and that the defendants were liable to the creditors if the defects in the balance sheet were the result of fraud or reckless misstatement. Ultramares was one of the early cases that held the requirement of privity between the tort-feasor and the injured party in a fraud case is not always necessary. See also Ver Wys v. Vander Mey, 206 Mich. 499, 173 N.W. 504 (1919).
Ultramares was cited in the recent case of DuShane v. Union Nat’l Bank, 223 Kan. 755, 576 P.2d 674 (1978), although in DuShane the court found no actionable fraud due to the lack of any legal or equitable obligation to disclose the concealed facts. However, in DuShane the court stated:
“Where a plaintiff and defendant are not bargaining with each other and the defendant obtains no advantage from suppressing or concealing information about a third party the law has generally absolved the defendant of liability unless he has made a statement which induced the plaintiff to act, knowing that the statement was false or at least making it recklessly. (Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 [1931].)” p. 761. (Emphasis added.)
In the case at bar, assuming plaintiff can prove its allegations, the defendant Gilmore, individually or in concert with Puls, deliberately set out to sell diseased or exposed cattle to Gaede knowing Gaede was going to obtain financing for the purchase of the cattle from the plaintiff Bank. Plaintiff Bank falls squarely within the rule of the Restatement in that it was a person or within that class of persons that Gilmore had reason to expect to act in reliance on the misrepresentation that the cattle were healthy. The fact that the misrepresentation consisted of a concealment of material facts rather than a material misstatement of facts does not alter the situation. Defendants certainly obtained an advantage ($9,000) by concealing the facts. Even though not very artfully drawn, we hold that based upon the allegations of the petition plaintiff was a real party in interest, had standing to sue and has stated a cause of action.
Appellant’s second point is the district court erred in holding the petition did not state with particularity the circumstances and facts constituting fraud or a conspiracy to defraud. The facts alleged in the petition have already been summarized and in determining their sufficiency we must look at all the allegations of the petition'and read them in context with each other. Defendant contends that the only allegation of conspiracy is found in paragraph 22 of the petition which reads:
“22. Alternatively, Gilmore and Puls entered into a conspiracy to defraud Gaede and any lending institution Gaede would acquire purchase money financing from. The conspiracy was that Gilmore, whose entire cattle herd was under quarantine would transfer possession of 16 dairy cattle from said herd to Teddy Puls, whose dairy herd was not then in quarantine. Both Gilmore and Puls knew that Gilmore could not lawfully sell dairy cattle from Gilmore’s herd. Gaede contacted Gilmore to purchase 16 dairy cattle for which he had financing assured at the Citizens State Bank. Sometime on March 11, March 12, or March 13, 1974, 16 head of Gilmore dairy cattle were transferred to Puls. Puls knew the cattle were being sold out of quarantine for the reason that Gilmore’s herd had a bangs reactor in it. Gaede purchased 16 dairy heifers which were in fact exposed to or infected with brucellosis.”
One authority states the elements of a civil conspiracy as (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. 15A C.J.S., Conspiracy § 1(2), p. 599. When the petition is given a liberal construction, as it must be, the allegations of fraud and a conspiracy to defraud are stated with sufficient particularity to meet the minimum requirements of the statute. K.S.A. 60-209(fe). Certainly the allegations that Gilmore and Puls conspired together to sell Gaede diseased or exposed cattle in violation of Kansas statutes and regulations knowing Gaede was financing the purchase through plaintiff Bank, along with the other facts set forth herein, meet the minimum requirements of the statute both as to fraud and conspiracy to defraud.
Finally, appellant contends that the sale of the cattle in violation of K.S.A. 47-624 and K.A.R. 9-2-17 and 9-2-31 creates a cause of action per se. We do not agree. A violation of the statute is a misdemeanor but does not in and of itself create a separate cause of action. If the legislature had meant for such a violation to create a cause of action, it could have so provided. See K.S.A. 47-638 for an example of such a remedy specifically provided by the legislature. Of course, evidence of the violation of the statutes and regulations could be competent evidence on the issues of whether an actual fraud had been perpetrated.
In summary, we hold that, under the facts alleged in this case, plaintiff has standing to bring the action for fraud and conspiracy to commit fraud; that the petition states a cause of action; that the allegations of fraud and conspiracy to commit fraud are stated with sufficient particularity to withstand summary judgment and that summary judgment was erroneously granted.
The judgment is reversed and the case remanded with directions to reinstate the action and for further proceedings in accordance with the views expressed above.
Fromme, J., not participating.
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The opinion of the court was delivered by
Herd, J.:
After giving the matter due consideration we hold, by a unanimous court, Chapter 153 of the 1979 Session Laws of Kansas, House Bill 2020, to be constitutional in toto, reversing in part and affirming in part the judgment of the trial court.
This abbreviated opinion announcing the decision of the court will be supplemented by a formal opinion to be filed when it is prepared.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by Albert William Schrum from his jury trial conviction of the crime of aggravated robbery (K.S.A. 21-3427).
The sole issue on appeal is whether defendant was denied his right to effective assistance of counsel. Specifically, defendant contends his trial counsel’s failure to file a notice of alibi pursuant to K.S.A. 1978 Supp. 22-3218 constitutes “wholly inadequate and ineffective” representation.
The alibi question first came before the trial court on the State’s motion in limine to suppress alibi evidence by anyone other than defendant. The motion was made after the jury had been sworn, but prior to the prosecution’s opening statement. The motion was occasioned by a remark made several months earlier by the trial counsel to the prosecutor to the effect he might use alibi evidence in the trial. The motion was sustained.
The alibi issue did not arise again in the trial except during the testimony of defense witness Pedro Garcia. The State had, during its case in chief, introduced evidence that defendant had a substantial amount of cash shortly after the robbery, had changed his physical appearance, and had left town shortly after the crime. Garcia testified in the following areas: (1) defendant’s physical appearance at pertinent times; (2) an explanation for defendant’s departure from town; (3) impeachment of a State’s witness; and (4) defendant’s lack of money the day after the robbery. The witness was asked whether he was with defendant on the day of the crime and the witness responded that they were together between 6 and 10 o’clock (a.m. or p.m. not specified). The crime occurred at approximately 8:00 p.m. The State objected as this testimony was in contravention of the alibi ruling. The objection was sustained and the jury was admonished to disregard that particular question and answer. Defendant’s trial counsel made a proffer that he wished to have the witness testify that defendant had won a substantial sum of money from the witness while they were playing pool — the pool game occurring while the crime was in progress elsewhere. This testimony would have served two purposes, alibi and an explanation of the large sum of money the State’s witnesses had seen in defendant’s possession the day after the crime. Defense counsel was particularly anxious to get the testimony in concerning the pool game winnings and tried to separate this, on proffer, from the alibi purpose of the testimony. The trial court sustained the objection on the basis of its prior alibi ruling. The witness, who on proffer was to testify that defendant had a substantial amount of cash on the evening of the crime, ultimately testified that defendant was in dire financial straits the day after the crime. Defendant testified as to the pool winnings, as well as to the time and location of the game.
Before proceeding further it should be emphasized that the propriety of any of the trial court’s rulings is not an issue before us. The sole question on appellate review is the effectiveness of defense counsel.
A good summary of the law on effective representation of counsel in Kansas is found in Schoonover v. State, 2 Kan. App. 2d 481, 582 P.2d 292, rev. denied 224 Kan. clxxxviii (1978), as follows:
“The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.”
“Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client’s conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of ‘effective’ counsel.”
“In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.” Syl. ¶ ¶ 2-4.
Identity was the issue in the trial. The State presented a strong case with two eyewitnesses who positively identified defendant as the perpetrator of the crime. Defense counsel conducted vigorous cross-examinations of the State’s witnesses as is conceded by defendant. Seven witnesses were called by defense counsel. We have carefully reviewed the record, have applied the rules set forth in Schoonover, and find the totality of defense counsel’s representation was adequate and there was no denial of the right to effective assistance of counsel.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found John McGhee (defendant-appellant) guilty of two counts of aggravated robbery. (K.S.A. 21-3427.) The appellant asserts three errors on appeal.
On December 23,1977, Bonnie Beebe and Martin Neeper were working in the 7-11 store at 3202 Parallel, Kansas City, Wyandotte County, Kansas. Shortly after 1:00 a.m. a Negro male wearing a trench coat entered the store and asked Bonnie for a large paper sack. The man pulled a long-barrel .22-caliber revolver from his right coat pocket and ordered Bonnie and Martin to empty the contents of the cash registers into the sack. After they emptied both cash registers and the petty cash box the robber ordered them to open the safe or he would shoot them. The victims told him they could not open the safe. As this occurred, a customer entered the store, and the robber left, taking the sack containing currency, coins, food coupons, and food stamps.
The 7-11 store was equipped with a silent alarm which notified the police. As Officer A. D. Block responded to the alarm he observed a car pass him from the opposite direction. Officer Block decided to follow the vehicle, and as he turned the patrol car he observed the suspect vehicle speed up and saw the dome light come on, The suspect vehicle then made a turn, and he saw something thrown from the vehicle causing sparks as it hit the pavement. Officer Block stopped the vehicle, ordered the four occupants out, and requested identification.
The appellant’s codefendant, John Kane, was the driver of the vehicle. The appellant had been seated in the front passenger seat. Percy Johnson and James Henry were the other two occupants of the vehicle. Officer Block had heard over his radio that the holdup suspect wore a coat; he observed the appellant was wearing a coat. Officer Block returned to the area where he had observed the object being thrown from the car and found a .22-caliber revolver.
The suspects were arrested and taken to the Kansas City, Kansas, police department where a lineup was conducted later that day. Both robbery victims individually viewed the lineup and filled out lineup forms. Bonnie Beebe later testified that she identified the appellant on the lineup form because he looked familiar and could have been the robber; she was “fairly positive but not absolutely positive.” Martin Neeper marked the lineup form identifying the appellant as the robber. At trial, Martin testified the appellant looked like the robber.
The coat taken from the appellant when he was arrested was identified by both victims as the robber’s coat. Both victims identified the .22-caliber long-barrel revolver recovered by Officer Block as the gun used in the robbery.
At the time of the arrests the police also confiscated contraband from a burglary or theft in Missouri. The loot from the robbery — currency, coins, food coupons, and food stamps — was never found.
The appellant asserted an alibi defense and called five witnesses who testified that the appellant was playing cards with them at the time of the robbery. The robbery occurred at 1:18 a.m. The appellant’s home was a few blocks from the 7-11 store. The appellant and his companions testified they left the card game at approximately 1:30 a.m. and were soon arrested by Officer Block.
The jury found the appellant guilty of two counts of aggravated robbery. The appellant asserts three errors on appeal: (1) that the trial court erred in not sustaining his motion for a directed verdict or judgment of acquittal, because the verdict was not supported by the evidence; (2) that the trial court erred in overruling the appellant’s motion for a mistrial, made after improper testimony by a police officer; and (3) that the trial court erroneously admitted certain evidence.
The appellant first contends the trial court erred in not granting a directed verdict or a judgment of acquittal (K.S.A. 22-3419), claiming the evidence was insufficient to support the verdict.
The appellant focuses on the identification testimony of Bonnie Beebe and Martin Neeper. He states that both victims testified only that the appellant resembled or looked like the robber; that the appellant lived by the 7-11 store and shopped there before and after the robbery; and that the appellant had ample alibi testimony. He argues that the victims’ inability to “positively” identify the appellant as the robber, when coupled with this other evidence, renders the evidence insufficient to convict beyond a reasonable doubt.
A motion for directed verdict and a motion for judgment of acquittal go to the sufficiency of the evidence to support a conviction. See State v. Ames, 222 Kan. 88, 95, 563 P.2d 1034 (1977); State v. Gustin, 212 Kan. 475, 478, 510 P.2d 1290 (1973).
Our long-standing rule for appellate review has been:
“In a criminal case, the issue on appeal is not whether the evidence established guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to. the State.” State v. Words, 226 Kan. 59, 62, 596 P.2d 129 (1979).
See State v. Moody, 223 Kan. 699, 704, 576 P.2d 637, cert. denied 439 U.S. 894 (1978); State v. Dodson, 222 Kan. 519, 524, 565 P.2d 291 (1977); State v. Childers, 222 Kan. 32, Syl. ¶ 1, 563 P.2d 999 (1977); State v. Duncan, 221 Kan. 714, 719, 562 P.2d 84 (1977); State v. Warren, 221 Kan. 10, 12, 557 P.2d 1248 (1976); State v. Soverns, 215 Kan. 775, 529 P.2d 181 (1974); State v. Ritson, 215 Kan. 742, Syl. ¶ 1, 529 P.2d 90 (1974).
In State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979), we adopted an appellate review standard which conforms to Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979). In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, Syl. ¶ 6. The change is one of form, not substance. Application of either standard in a criminal appeal will produce identical results. See State v. Mitchell, 3 Kan. App. 2d 635, 599 P.2d 1025 (1979).
Viewing the evidence in this case under the Jackson standard, we find that the jury could readily have found the appellant guilty beyond a reasonable doubt. The lack of positive identification and the circumstances placing the appellant in the store as a nearby resident and occasional customer are factors which go to the weight of the evidence. There was substantial additional evidence to support the conviction. Both victims identified the appellant’s coat and the long-barrelled .22-caliber revolver as belonging to the robber. Officer Block apprehended the appellant within minutes of the holdup. Officer Block had seen the revolver thrown from the vehicle in which the appellant was riding, and the appellant was wearing the coat later identified by the victims.
The appellant’s second claim of error is that the trial court should have granted a mistrial because of improper remarks by Kansas City Police Officer Richard Sullivan. Officer Sullivan was called to testify to his assistance in the robbery investigation. When asked the names of the suspects, he stated, “I believe one was McGhee, one was Kane, one was Henry. I know Henry on a prosecution case in Missouri.” The appellant objected, asked that the response be stricken, and moved for a mistrial. The trial court overruled the motion, but admonished the witness and instructed the jury to disregard the officer’s statement. A few minutes later Officer Sullivan was asked if he had any contact with the suspects other than the arrest and search. He responded affirmatively, and when asked where the contact occurred, he replied, “That was' at the Platte County Courthouse.” The appellant’s counsel again objected and moved for a mistrial, arguing the statement inferred the appellant was disposed to commit crimes. After discussion with counsel, the trial court admonished the jury by stating:
“THE COURT: Ladies and Gentlemen of the Jury, there has been some mention about an individual by the name of Henry being arrested on the same night as the two defendants charged herein were arrested. You are admonished Mr. Henry is not on trial in this case and any evidence that is applicable to him only would not be applicable to these two defendants and could not be considered by you in determining the guilt or innocence of these two defendants. You are also admonished anything that might have happened in Missouri, in a Missouri courthouse is not applicable to this case and has nothing to do with the guilt or innocence of these two defendants concerning this case. You are to totally disregard any such statements or other answers by this witness.”
The State did not offer the inadvertent testimony as evidence of prior crimes as limited in K.S.A. 60-455. The statements were unsolicited and unresponsive answers to proper questions, which surprised both the State and defense counsel.
The general rule is that an admonition to the jury normally cures the prejudice from an improper admission of evidence. See State v. McCambry, 225 Kan. 803, 806, 594 P.2d 222 (1979); State v. Mims, 222 Kan. 335, 336-37, 564 P.2d 531 (1977); State v. Mitchell, 220 Kan. 700, 703, 556 P.2d 874 (1976). The appellant claims the improper comments were so prejudicial that an admonition was insufficient, and a mistrial should have been declared. Terminating a trial and declaring a mistrial is largely within the discretion of the trial court. A clear showing of abuse of discretion must be made before the decision of a trial court will be set aside on appeal. State v. McCambry, 225 Kan. at 806. See State v. Goodwin, 223 Kan. 257, 260, 573 P.2d 999 (1977); State v. Wilson & Wentworth, 221 Kan. 359, 364, 559 P.2d 374 (1977).
The appellant has not shown the trial court abused its discretion in not declaring a mistrial. The trial court clearly and firmly admonished the jury to disregard any evidence or statements about James Henry or prior crimes in Missouri. The trial court also included instructions to the same effect. Any slight prejudice which occurred from the improper remarks was cured by the trial court’s action.
Finally, the appellant alleges the trial court erred in admitting the coat and the .22-caliber revolver into evidence, because a clear chain of custody was not established.
The appellant has failed to identify any time period when the chain of custody of the coat and gun was broken. Both items were placed in the police property locker soon after seizure. The gun was checked out for a little over two hours by Officer Deason for the purpose of identification. Both the gun and coat were in police custody from the time of seizure until they were admitted into evidence at trial.
A similar challenge to chain of custody was raised in State v. Hernandez, 222 Kan. 175, 176, 563 P.2d 474 (1977). In that opinion we stated:
“The rule with respect to chain of custody and guidelines for the application thereof were set forth in State v. Tillman, 208 Kan. 954, 958-59, 494 P.2d 1178, 1182 [1972]:
“ . . The rule is that a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock-and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. (State v. Cook, 17 Kan. 392 [1877]; State v. Frideaux, 207 Kan. 790, 487 P.2d 541 [1971].)’ See State v. Beard, [220 Kan. 580, 552 P.2d 900 (1976)]; State v. Baker, 219 Kan. 854, 549 P.2d 911 [1976]; State v. Steward, 219 Kan. 256, 547 P.2d 773 [1976]. The Tillman test for chain of custody has been characterized as ‘reasonable certainty that no material alterations of the objects occurred.’ State v. Baker, [219 Kan. 854, 549 P.2d 911 (1976)]; State v. Reed, 214 Kan. 562, 520 P.2d 1314 [1974].”
See also State v. Nicholson, 225 Kan. 418, 421, 590 P.2d 1069 (1979); State v. Treadwell, 223 Kan. 577, 579, 575 P.2d 550 (1978). Any deficiency in the chain of custody should go to the weight rather than to the admissibility of the evidence. State v. Crawford, 223 Kan. 127, 128, 573 P.2d 982 (1977), cert. denied 435 U.S. 930 (1978); State v. Watkins, 219 Kan. 81, 89, 547 P.2d 810 (1976); State v. Carney, 216 Kan. 704, 708, 533 P.2d 1268 (1975). The trial court did not err in admitting the coat and revolver into evidence.
The judgment of the lower court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Kaul, J.:
Following a jury trial defendant-appellant, John L. Rupe, was convicted of first degree felony murder (K.S.A. 21-3401) and of aggravated burglary (K.S.A. 21-3716). After denial of his motion for a new trial and sentencing on both counts, defendant appeals from the convictions and sentences. He specifies three points of error.
There is little dispute in the facts presented. Defendant and Martha L. Locke, the victim, had been involved in a rocky, unstable relationship for a number of years. Some of their problems stemmed from defendant’s heavy drinking. Apparently defendant and Martha had been twice married and divorced and had lived together intermittently at other times. At the time of the events in question, defendant was residing with his parents. According to defendant’s own testimony he left a bar where he had been drinking about 12:30 a.m. on February 3, 1978, went to his parents’ residence and left a note which read:
“Mom and Dad, I love you. I just can’t get it together. Please forgive me. I love Marty and I can’t get it together. I’m sorry I have to die this way, but Jesus loves
Defendant then removed two firearms, a loaded shotgun and a loaded .22 caliber rifle and a sizable quantity of ammunition from a gun cabinet. He then drove to the residence of Martha Locke. Upon arriving there, defendant wrapped a coat around his hand, shattered the basement window and entered the basement carrying both of the firearms and the ammunition. Defendant left the shotgun in the basement, went upstairs into the garage and forcibly kicked in the door leading into the hallway of the home. Upon entering the home defendant observed Martha Locke on the telephone.
At trial, defendant testified that the following then occurred:
“Marty was standing there, and like I don’t remember pulling the trigger, but something startled me; I guess it was the sound of the gun going off. And then, like Marty didn’t fall or anything. She just stood there, you know. And I didn’t even know I hit her, and that’s when I just grabbed all the shells out and threw them on the table, and I loaded the gun. I was going to kill myself. I just got — you know, I got the shell in the gun. That’s when Marty put her arms out towards me. Marty, I think she dropped the phone, and — she just — she put her arms out and stepped towards me, and I dropped the gun, and I started to walk to her, and I got right to her and she fell down like on her knee, and I put my arm underneath her, and I told her I loved her, and I walked her over to — to the icebox, and we sat down right at the icebox and — ”
There was testimony by arresting officers that defendant had made statements shortly after his arrest which contradicted his testimony at trial.
Evidence at trial fixed the time of the killing at about 4:00 a.m. There was also evidence that Martha had been forewarned about a visit from defendant by defendant’s AA counselor and was talking to the police on the telephone at the time defendant entered the house. In this connection Thomas Wilkes, a dispatcher for the Olathe Police Department testified that at 4:07 a.m. on February 3rd he received a call from a woman who seemed hysterical and told him to send police to an address on Elizabeth and then after a short pause he heard the woman say, “Oh, my god, please, please don’t shoot me.” Wilkes next heard a loud hollow sound “like the phone receiver dropping and banging on the floor.” Wilkes got no further response and soon heard the connection broken as though “the receiver was hung up from the other end.”
Wilkes dispatched police to the address given. Olathe police officers Howard Kannady and James Pike arrived at the murder scene shortly thereafter. After the officers knocked several times and rang the doorbell, defendant opened the door and surrendered to the officers. Officer Pike testified that he asked defendant what was going on and defendant replied that “he and his wife had been separated and that he couldn’t handle the situation any longer, so he shot her.” Another officer, Patrolman Salmon, who arrived a few minutes later, testified that after he read Miranda rights, defendant told him that he just wanted to talk to his wife, but she wouldn’t listen.
Debbie Ann Patterson, the fourteen-year-old daughter of Martha Locke, testified that she was awakened by the noise of a basement window breaking and a banging noise on the garage door. As to the actual killing, Debbie testified, “I saw him go up the stairs, and I heard my mom say 'God, oh, no,’ and then I heard something that sounded like a gun.” She further testified that she heard defendant talking, “He said how much he loved her and that — he said that about five times, and then he said he was going to kill us all.”
The thrust of the defense at trial was insanity and lack of intent. Dr. Claude J. Werth, a psychiatrist, was called by defendant as a witness. Dr. Werth testified that defendant was most definitely susceptible to episodes of rage and extremely explosive, but that in his medical opinion defendant had the capacity to premeditate, to plan and design the killing of Martha, and that at the time of the killing defendant knew what he was doing and could distinguish right from wrong.
In his first claim of error on appeal defendant contends the trial court erred in admitting evidence of a prior incident of violence between defendant and Martha. The evidence in question consisted of the testimony of Debbie Ann Patterson, the victim’s daughter, describing a violent clash between defendant and Martha that occurred in Martha’s home in late December, 1977, about forty or forty-five days before the homicide.
During the course of the State’s case, the trial court, on request of the State, conducted an evidentiary hearing outside the presence of the jury to consider the State’s motion to present the evidence in question. The hearing was conducted in conformance with K.S.A. 60-455 and State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), for the purpose of proving intent. Debbie Ann testified in substance that shortly after defendant arrived on the day in question she saw him choking her mother and shaking her with his hands around her neck. Debbie testified that she screamed and tried to get defendant to stop; failing in this she “got out the front door . . . ran across the street and called the police.”
The trial court admitted the evidence under the intent exception to K.S.A. 60-455 and gave the proper limiting instruction.
Before the trial court defendant argued the evidence was inadmissible because of remoteness in time and further that the witness was unable to show the circumstances because she had not heard any conversation between defendant and Martha. The trial court, and we believe correctly, found no merit in either argument. Defendant also raised the proposition that an intent to kill could not be inferred from the December assault, which is the thrust of his argument on appeal. Defendant asserts that a simple assault with one’s hands is insufficient to prove an intent to kill, citing State v. Clark, 214 Kan. 293, 521 P.2d 298 (1974). The general rule adopted in Clark appears in Syllabus ¶ 2 in these words:
“While generally it is held that hands and feet are not to be classed as deadly weapons per se, it is recognized they may be a means likely to produce death, that one may commit murder by means of an attack with fists or feet, and that they may become deadly weapons when used in such manner and under such circumstances as are reasonably calculated to produce death.”
As distinguished from the vicious assault with fists in Clark, there is evidence here of strangulation — a most effective means of killing. As a basis for an inference of intent to kill we see very little distinction between use of the hands as fists in a vicious assault and use thereof to choke and effect strangulation. When hands are used to choke in such a manner and in such circumstances as are reasonably calculated to produce death they may become “deadly weapons” under the exception to the general rule as stated in Clark.
Moreover, as counsel for the State points out, the State’s offer of the 60-455 evidence was not limited only to proof of intent to kill. The defense here was insanity, intoxication and intent to commit suicide. Where an act is susceptible of two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character. State v. Wasinger, 220 Kan. 599, 603, 556 P.2d 189 (1976); State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974). The defense of insanity puts in issue the capacity of the defendant to formulate not only a specific intent as to the crime charged but also his capacity to entertain in a legal sense a general criminal intent. State v. Lohrbach, 217 Kan. 588, 590, 538 P.2d 678 (1975).
In the instant case the trial court carefully followed the teachings of State v. Bly, 215 Kan. 168, as to the admissibility of evidence under 60-455. Applying the tests set out in Bly to the evidence here we find that intent was substantially in issue; there was similarity of conduct and circumstances in that both incidents were unprovoked attacks involving the same people in the same house after a sudden entrance by defendant on both occasions when he appeared to have been drinking. The evidence was relevant, and in view of its importance as proof of the critical issue in the case, it overbalances the potentiality for bias and prejudice when the admission thereof was followed by a proper limiting instruction. We find no error shown in this regard.
Defendant next claims the trial court erred in submitting an instruction on felony murder. Defendant concedes the trial court was compelled to so instruct under the mandate of State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978), but suggests the holding in Foy was wrong and urges this court to reconsider its decision. In the alternative defendant pleads that if the court is reluctant to reverse its recent decision in Foy the defendant urges the court to limit the holding in Foy to the specific facts therein and to reject the merger doctrine only in those instances where the intended assault is of someone other than the ultimate homicide victim.
The factual background, as related in Foy, is almost identical to that presented in the case at bar. Sharon Foy, the homicide victim, was the divorced wife of defendant Roger Foy, and as in the instant case the couple had continued to live together at various intervals, and their relationship during the marriage and after was characterized by frequent periods of discord and violence. The homicide, as in the instant case, occurred in the domicile of the victim. Defendant points out that in Foy the charge was that the defendant burglarized the home with the intent to assault the victim’s mother and killed the victim during the burglary. We attached no significance to the separate identity of the intended assault victim in Foy. The thrust of our holding in Foy is simply that the merger doctrine for assault cases, as applied in State v. Clark, 204 Kan. 38, 460 P.2d 586 (1969), and cases cited therein, should not be extended to bar a felony murder instruction in a case where the underlying felony is aggravated burglary based upon an aggravated assault.
As was said in Foy, the evidence in the case at bar supports a finding that aggravated burglary was complete upon the unlawful entry of the defendant into the home with the prerequisite intent to commit a felony. In Foy, we specifically rejected the holding of People v. Wilson, 1 Cal. 3d 431, 82 Cal. Rptr. 494, 462 P.2d 22 (1969), the only case cited on the point by defendant in the instant case. We adopted the majority rule as set out in Blango v. United States, 373 A.2d 885 (D.C. 1977), and numerous other cases cited in the opinion for the court. What was said in Foy disposes of defendant’s contentions in the case at bar and we adhere to our former decision.
We find no error in the trial court’s submission of the felony murder instruction.
As his third and final point, defendant contends the trial court erred in refusing to instruct on criminal trespass as a lesser included offense of aggravated burglary. In State v. Williams, 220 Kan. 610, 556 P.2d 184 (1976), we specifically held that criminal trespass is not a lesser included offense of aggravated burglary. It follows that the requested instruction was properly rejected.
The judgment is affirmed.
Approved by the Court.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
Carroll E. Noel, Jr., was charged with murder in the first degree for the 1973 slaying of a United States Postmaster in Wyandotte County, Kansas. In 1974 a jury returned its verdict determining Noel was “not guilty because of insanity” and he was duly committed to the State Security Hospital at Larned, Kansas, pursuant to K.S.A. 22-3428. Subsequently, but pursuant to the same statute, Noel was transferred to the Larned State Hospital. In February, 1979, Noel filed an application pursuant to K.S.A. 1978 Supp. 22-3428a for hearing to determine whether or not he continued to be dangerous to himself or others. The district court found Noel “does not pose a danger to himself or others as long as he is on the prescribed medication,” and ordered his discharge from the Larned State Hospital. As a condition of the discharge Noel was ordered transferred to the Osawatomie State Hospital for a period of not to exceed ninety days, during which time the Osawatomie facility was to prepare and implement an appropriate program for Noel’s reentry to society (the specific order will be set forth elsewhere in this opinion). The State appeals from this order upon a question reserved, pursuant to K.S.A. 1978 Supp. 22-3602(h)(3). Execution of the order has been stayed pending determination of this appeal.
The issues raised on appeal are complex, broad, and of great importance to the people of Kansas. At issue is the determination of the proper role of courts in deciding whether insanity acquit- tees should be released and the conditions of release. To facilitate understanding of the issues, we will proceed on the following format:
1. Citation, in relevant part, of the statutes involved;
2. Decision of the district court;
3. Statement of the facts;
4. Statement of the issues; and
5. Discussion and determination of the issues.
STATUTES
K.S.A. 1978 Supp. 22-3428a:
“(1) Any person found not guilty because of insanity who remains in the state security hospital or a state hospital for over one year pursuant to a commitment under K.S.A. 1978 Supp. 22-3428 shall be entitled annually to request a hearing to determine whether or not such person continues to be dangerous to himself, herself or others. The request shall be made in writing to the district court of the county where the person is hospitalized and shall be signed by the committed person or such person’s counsel. When the request is filed, the court shall forthwith give notice of the request to the chief medical officer of the state security hospital or state hospital where the person is committed, and such officer or such officer’s designee, shall conduct a mental examination of the person and shall send the district court of the county where the person is hospitalized a report of such examination within twenty (20) days from the date upon which notice from the court was received.
“(2) Upon receipt of the report provided for in subsection (1), the court shall set a date for the hearing, giving notice thereof to the county or district attorney of the county where the person is hospitalized, the county or district attorney of the county in which the person was originally ordered committed, the committed person and such person’s counsel. If there is no counsel of record, the court shall appoint a counsel for the committed person. The committed person shall have the right to procure, at his or her own expense, a mental examination by a physician of his or her own choosing. . . . Copies of each mental examination of the committed person shall be filed with the court at least five days prior to the hearing and copies thereof, when requested, shall be supplied to the county or district attorneys receiving notice pursuant to this section and the committed person’s counsel.
“(3) At the hearing the committed person shall have the right to present evidence and cross examine the witnesses. Both county or district attorneys receiving notice pursuant to this section shall be permitted to participate in the hearing. At such hearing the court may make any order that a court is empowered to make pursuant to subsection (3) of K.S.A. 1978 Supp. 22-3428, and any amendments thereto. If the court finds the committed person is no longer dangerous to himself, herself or others, the court shall order the person discharged; otherwise, the person shall remain committed.”
K.S.A. 1978 Supp. 22-3428(3):
“If the court finds from evidence presented at the hearing that the discharge of the patient will not pose a danger to the patient or others only if the patient continues to take prescribed medication or to receive periodic psychiatric treatment or guidance counseling, then the court, if it orders the discharge of the patient, may order as a condition to the discharge that the patient continue to take prescribed medication and report as directed to a person licensed to practice medicine and surgery to determine whether or not the patient is taking such medication, or that the patient continue to receive periodic psychiatric treatment or guidance counseling. The court also may order that the patient be placed under the temporary supervision of a state probation and parole officer or district court probation or parole personnel, or any appropriate private agency, who will be authorized to prepare a suitable community reentry program for the patient consistent with the recommendations, if any, of the person designated by the court to perform the mental evaluation. Such reentry program will be specifically designed to facilitate the return of the patient to the community as a functioning, self-supporting citizen, and may include appropriate supportive provisions for assistance in establishing residency, securing gainful employment, undergoing needed vocational rehabilitation, receiving marital and family counseling, and such other out-patient services that the designated agency identifies as beneficial. The jurisdiction of the court over the patient will terminate two years from the date of his or her conditional release and the supervisory authority over the patient then will expire unless earlier vacated by court order. At any time during the conditional release period, the patient, through his or her attorney, may move for full or partial release from the conditions of discharge, and the court shall hold an evidentiary hearing on the motion within fifteen (15) days of its filing. A copy of such motion shall be served on the county or district attorney at the time of filing. If the court finds from the evidence at the hearing that the conditional provisions of discharge should be modified or vacated, it shall so order. If at any time during the transitional period the designated medical officer or supervisory personnel informs the court that the patient is not satisfactorily complying with the provisions of the conditional release, the court after a hearing for which notice thereof has been given to the county or district attorney and the patient, may make orders for additional conditions of the discharge designed to effect the ends of the reentry program, or the court may order the county or district attorney to file an application to determine whether the patient is a mentally ill person as provided in K.S.A. 1978 Supp. 59-2913. In cases where such an application is ordered to be filed, the court shall proceed to hear and determine the application pursuant to the provisions of the act for obtaining treatment for a mentally ill person and such provisions shall apply to all subsequent proceedings.”
DECISION OF THE DISTRICT COURT
The decision was announced in open court on March 16, 1979, immediately following the closing arguments of counsel. The decision, from the transcript, is as follows:
. . . [T]his is my first experience working under 22-3428a, and the power it gives the Court is about anything that is set out in 22-3428. There really isn’t any argument but the fact that the petitioner, Carroll E. Noel, Jr., does not pose a danger to himself or others as long as he is on the prescribed medication. That tends to make me — it’s incumbent upon the Court to discharge Mr. Noel. I see that I really have little or no alternative in that regard. It is the conditions that we placed on Mr. Noel. Mr. Noel’s family is not here today.-1 have no assurance that upon his discharge he even has a place to live, a job, or anything else. It’s totally irresponsible for me to place him out into the community and simply say, ‘Mr. Noel, you should take your medication every day.’
“The file indicates that Mr. Noel does not believe he should take his medication. I am, therefore, going to direct that Mr. Noel, on the 26th day of March, 1979, be transferred by personnel of Larned State Hospital to Osawatomie State Hospital. I would direct that Mr. Rein would give notice to Osawatomie State Hospital and that Mr. Noel would be arriving on March 26, 1979. I would further direct that Osawatomie State Hospital maintain Mr. Noel on his present medication; however, there I think I should leave it in the discretion of the medical personnel of Osawatomie State Hospital. If they decide that his medication should be changed due to some circumstances that I do not foresee, that they should have the discretion to give what they believe a reasonable amount of medication. That they should take into account the files and records compiled by Larned State Hospital over the past five years.
“I would further direct under this statute that Osawatomie State Hospital, within 90 days, beginning March 26, 1979, undertake to develop a program for Mr. Noel’s reentry into the community.
“How far is Osawatomie State Hospital from where Mr. Noel’s parents live? Is it a great distance?
“MR. TOMASIC [Wyandotte County District Attorney]: I think it’s less than a hundred, Your Honor.
“THE COURT: It’s quite a lot less distance than from Wyandotte County to Larned State Hospital. That’s for certain, so the personnel of Osawatomie State Hospital would be in a much better position in order to develop a workable program.
“I would further direct that the Osawatomie State Hospital, once they have developed a plan, that they should have from this Court the discretion to implement their plan, and that plan should include continuation of Mr. Noel on medication, the medication, the type which controls his behavior which led him to Larned State Hospital in the first place. Osawatomie State Hospital should have benefit of parole officers available to the Secretary of Corrections. They should have available to them any court services which may be offered by the Wyandotte County District Court in order to see that Mr. Noel stays on his medication, and that’s where the problem will come, is if Mr. Noel does not take the medication and his condition reverts back. If that should happen, would you gentlemen have suggestions under this statute a course of action that this Court should take?
“MR. FELDT [Noel’s counsel]: Your Honor, I only have a question regarding the release plan that the hospital is to develop, and then go forward with implementing it, or is it to submit the plan for the Court’s approval?
“THE COURT: I would rather have Osawatomie State Hospital in the position to develop a plan and have the discretion to implement it without having to put together a plan, mail everything back here to Larned for me to review, I go through it, I okay it and mail it back to them.
“They are professionals; they understand that Mr. Noel is a citizen of that local community. I would rather they would have that amount of discretion.
“MR. REIN [Larned State Hospital counsel]: Your Honor, I would ask whether or not the Court is indicating that the authority for Osawatomie State Hospital hold Mr. Noel during the 90 day period, which is completely pursuant to 3428a?
“THE COURT: That is correct. I think the condition of his release from Larned State Hospital — I can require him to stay in Osawatomie State Hospital for at least 90 days to enable us to develop a plan for his eventual reentry into the community.
“MR. FELDT: I think the one thing that needs to be stressed in the Journal Entry is the specific direction to Osawatomie that the release plan contain requirement of daily supervision of taking the medication.
“THE COURT: That’s the only reason Mr. Noel is being discharged, is because the daily medication should be supervised and given to him.”
STATEMENT OF FACTS
The evidence before the trial court splits itself into two categories:
1. Pre-commitment data (prior to March, 1974).
2. Post-commitment data (after March, 1974).
The pre-commitment data is summarized as follows:
Noel, a black male, has never married. He was approximately 38 years old at the time of commitment. Prior to the homicide, he was described as a quiet man who apparently had never broken the law, even to the point of acquiring a traffic ticket. Throughout his life he was characterized as a “loner”, unable to make friends or trust anyone. These characteristics began in childhood and became more pronounced as the years went by. Feelings of persecution developed, with Noel believing that people were laughing at him, ridiculing him, and plotting against him. In time, the feelings of persecution deepened and became the dominant factor in his life. In. 1972 he was working for the United States Post Office in Wyandotte County. By this time his condition had deteriorated to such a degree that outsiders were noticing that something was wrong. In 1972 Noel was complaining to the union steward and other authorities at the post office about plots against him and his sisters. The union steward concluded Noel had a serious psychiatric problem and urged Noel’s family to seek psychiatric treatment for him. As a result thereof, in June, 1972, Noel became a patient in the psychiatric ward of a Veterans Administration Hospital.
In the V.A. Hospital Noel’s illness was diagnosed as paranoid schizophrenia. Even as early as 1972, the object of Noel’s delu sions was the United States Postal Service. With tranquilizing medication, Noel’s symptoms were controlled. He was discharged from the hospital after a short stay, with instructions to continue taking the medication. Noel stopped taking the medication, apparently, shortly after his discharge. The delusions resurfaced with ever increasing intensity. Noel concluded the post office was going to force his sisters into prostitution; he saw postal trucks and their drivers as being armed with machine guns; and he believed a great postal conspiracy existed to harm him and his sisters. The postmaster, in Noel’s mind, became the head of the conspiracy and his chief tormentor. Voices told him he must kill the postmaster to end the danger.
On November 29, 1973, after some two weeks of planning, Noel drove to the Kansas City, Kansas, post office, lawfully parked his car, concealed a long knife on his person, walked into the postmaster’s office, and stabbed the postmaster to death (inflicting nine separate wounds). After having completed the task he came to do, he remained in the office and offered no resistance when arrested.
Noel was originally charged with murder in the federal court. Subsequently, this charge was dismissed and he was charged with first degree murder in the state court. While the federal charge was pending, Noel was examined, at federal request, by Dr. William V. McKnelly, Jr. Dr. McKnelly contacted the V.A. Hospital and obtained the data on Noel’s prior hospitalization. He testified at the state trial. The doctor concurred with the V.A. diagnosis of paranoid schizophrenia and characterized the V.A.’s release of Noel as a blunder. Dr. McKnelly’s testimony was thorough and showed extensive knowledge of Noel’s background and condition. The bottom line of the McKnelly opinion is that Noel is and always will be a paranoid schizophrenic; that his is an extreme case of the disease; that Noel’s potential for violent acts will remain; and that the disease may be suppressed in a structured.setting with a low stress factor and daily appropriate administration of tranquilizing medication.
At trial Noel was found not guilty because of insanity and he was committed to the State Security Hospital at Larned. He was admitted to that facility on March 20, 1974.
The post-commitment data is summarized as follows:
In late 1975 the staff of the State Security Hospital reached the conclusion that Noel was not dangerous to other patients and recommended transfer to Osawatomie State Hospital. About the same time, Noel filed a petition for writ of habeas corpus. Public opinion was aroused and pressure was brought not to make the transfer. By letter of March 12,1976, Dr. Robert Harder, Director of Social and Rehabilitation Services, of which the state hospital system is a part, squelched the proposed transfer and pointed out to the Larned State Hospital Superintendent the undesirability of such a transfer and the dangers involved if Noel were returned to the community. Noel, as a result of the Harder letter, was transferred from the State Security side of the hospital to the regular Larned State Hospital. This was done pursuant to K.S.A. 22-3428(2), which authorized the chief medical officer of the security hospital to make such a transfer without hearing whenever he concludes the person is not dangerous to other patients. This transfer procedure does not involve a finding that the patient is no longer dangerous to himself or others, as required for discharge, but only that the patient is not dangerous to other patients. The Larned staff at no time in the proceeding recommended any discharge of Noel.
Having stated how Noel went from the security hospital to the regular Larned State Hospital, we will turn to the evidence as to Noel’s condition during the committed years.
The principal evidence presented was the report of the Forensic Board of Review, dated February 26, 1979, and prepared for submission to the district court for consideration in the proceeding herein. Dr. John R. Tilton, a clinical psychologist who was Chairman of the Forensic Board of Review of the Larned State Hospital, testified, but the testimony was mainly confined to how the report was prepared, an explanation of the report, board procedures, etc. The only other witness was Ann Parker, a social worker employed by the Larned State Hospital. She was apparently called by defendant to lay the foundation for the admission into evidence of Noel’s hospital records (Respondent’s Exhibit No. 2). The court admitted the exhibit, but stated:
“But to save a lot of paperwork, in case there would be an appeal from this Court’s decision, certainly all of Respondent’s Exhibit 2 would not be relevant. It appears to me to be four or five inches thick, probably weighing close to 20 pounds; to process all of that on appeal would be somewhat ridiculous. I would admit Respondent’s Exhibit No. 2, but if there is an appeal, I would invite counsel to go through that record and only extract from it that which would be relevant.”
Immediately following the above statement, counsel made their closing arguments and the court made its oral ruling in the case. The district court had no apparent opportunity to examine the exhibit, nor is it before us, except for the transcript of the testimony of Dr. McKnelly at the jury trial. So that brings us back to the Forensic Board report and the testimony of Dr. Tilton.
Because of its importance, the report is included herein in its entirety (except for the background statement as to murder charge, transfer between institutions, etc.):
“SUMMARY OF CURRENT HOSPITALIZATION: On 1/29/79, a Ninety-day Reassessment was made by the Treatment Team responsible for Mr. Noel’s care and treatment. It was noted in the report that Mr. Noel’s psychotic symptoms presently are in remission,- and have been for some time. He was not seen as a management problem, and it was noted that he was currently involved in the Larned State Hospital work program with special permission from Topeka to allow him to work four hours a day for an indefinite period. The established diagnosis is Schizophrenia, Paranoid Type in Remission (295.35).
“A psychological examination was performed on 2/5/79. A personality test given during this evaluation indicated that the clinical scale measurements were valid, and the clinical scales themselves were well within the normal range, suggesting that there was no psychosis, neurosis or cháracter disorder. Discussions with Mr. Noel generally confirmed the suggestion. Another test suggested that Mr. Noel was currently investing much energy in obsessive-compulsive defenses against anxiety, with general success. He presents an apparently open facade to the world) but there is an underlying suspicion of others that produces a wariness that is greater than normal. Associated with the suspicion, and probably motivating it, is a great deal of repressed hostility.
“There is an element of grandiosity still present in his thinking which is not delusional, but which is great enough that it tints his thought processes. This might be expected in an adolescent but is inappropriate in a man of his age. It undoubtedly helps compensate for underlying feelings of inferiority and inadequacy.
“There is also indication of an underlying feeling of instability which could be related to his present situation, in that he does not know how long he will be in the hospital or what he will do when he gets out. However, other indices suggest that he may have occasional feelings of losing control, which supports the idea that the instability derives from a more fundamental anxiety and uncertainty about his ability to remain in control.
“The most recent comment of the social worker (2/21/79) states that regardless of the disposition of his case, some type of mandatory supervision of his medication and contacts on a frequent basis with a mental health facility is necessary. Mr. Noel has made statements that he doesn’t think he has a mental problem, nor does he need medication. This attitude leaves the social worker to believe that it is a real possibility that he will discontinue his medication, and possibly become psychotic again if he is not highly supervised.
“Mr. Noel was systematically observed by Licensed Mental Health Technicians for a period of time and a rating was given on 2/22/79. Manifest ward behavior received a composite rating, was quantified on the Psychotic Inpatient Profile, and compared to standardized norms for drug-treated, inpatient males as a reference group. There were no statistically significant positive findings on the 12 syndromes rated.
“On the same day a Nursing Summary was written. In this summary it was noted that Mr. Noel maintains his adjustment to the ward. He knows and follows ward and hospital rules and regulations. He has not been a behavior or management problem. He still does not socialize to any great extent with other residents in the ward setting, but socializes better on a one-to-one basis. He is pleasant and courteous in most of his contacts with others. He can, on occasion, make mildly sarcastic comments when ward routine is changed for what he feels are insufficient reasons, but does not show any further behavior which is considered a problem.
“His hygiene and physical grooming, care of clothing and sleeping area remain very good. He is involved in a four-hour work program where he functions well and is involved also in activities the rest of the day. He attends his classes on time and participates well.
“At the present time, he has not indicated any evidence of being a danger to others or himself. His behavior and statements have been appropriate and do not evidence signs of psychosis or delusions.
“He has been stabilized on Thorazine 100 mg., p.o., b.i.d. His condition on this medication remains stable as it has been for quite sometime.
“Mr. Noel has indicated that he wishes he could be somewhere closer to his parents. He acknowledges that he is here for a crime he committed, but has indicated recently that he would rather not discuss what brought him here with the Team as a group, but is willing to discuss it privately with individual Team members.
“A current psychiatric up-date was conducted by the psychiatrist on 2/22/79. In the report, it was noted that Mr. Noel’s pre-morbid lifestyle seemed to be quite schizoid. According to Mr. Noel, he experienced difficulties in high school with his studies. Mr. Noel does not have any significant heterosexual relationships, although he claims to have had a lot of girl friends. During his stay at the Larned State Hospital, his behavior has been observed to be mostly cooperative and motivated to help himself remain well. In an interview with Mr. Noel, the psychiatrist observed significant secretiveness where Mr. Noel did not wish to talk about certain events in his life, particularly in front of the Treatment Team and he requested to be seen privately. It appeared that his concept of friendship is one which is extremely superficial. He states that he has many friends at the Larned State Hospital, but there is nobody in the Larned State Hospital to whom he can talk to about his problems, tell his worries or be helped.
“Mr. Noel’s pre-morbid personality and current adjusted personality features show a significantly secretive, rigid, lonely man who does not know what or whom to trust. Paranoia has been a feature of his personality for most of his life. It is conceivable that if Mr. Noel is exposed to a stressful circumstance, he would decompensate, but at this time and during the number of years he has been at the Larned State Hospital, he has not been observed to decompensate to the psychotic level. His adaptation has been fair, and his ability to work has been good. His ability to make relationships is superficial, and he does use some denial and some projection as his main defenses. It was noted during the examination that Mr. Noel is well oriented in all spheres, and his memory for recent and remote events is intact. Thought processes are essentially non-psychotic. His mood is cooperative, shows signs of rigidity, inability to trust, and secretiveness. Affect is appropriate to his mood. He has no suicidal or homicidal ideations at the present time. The patient’s judgment while living in a structured environment, like Larned State Hospital, has been fair. His insight has been minimal.
“SUMMARY OF FORENSIC REVIEW: The Larned State Hospital Forensic Review Board (J. R. Tilton, Ph.D., Psychologist III, M. Ryou, M.D., Ann Parker, LBSW, Barbara O. Keeley, R.N., B.S.) and staff members of the Larned State Hospital (Sharad Patel, M.D., Carol McConnell, R.N., Raymond Stacey, Psychologist I, Johanna Eddy, TQA) met on February 26, 1979, to study the case of Carroll E. Noel, Jr. The staff members unanimously noted that they had serious reservations about any direct discharge of Mr. Noel into the community. It was felt by the staff that Mr. Noel would stop taking his medication, and as a result, would decompensate quickly into a psychotic condition if he were to be put out on his own. It was also thought by the staff that Mr. Noel has received maximum benefits from treatment at the Larned State Hospital. One disturbing circumstance is the fact that Mr. Noel now thinks that he is innocent of the charges that have been made against him, and he wants to go to court to prove his innocence. This is seen by the staff as a very poor judgment on the part of the patient. The staff members went on to say that Mr. Noel is quite paranoid in his ideation, secretive, however, he denies having any hallucinations. The staff felt that he does not show any signs of hallucinations at the present time, and they consider him to not be presently psychotic.
“Mr. Noel was interviewed. He is a man of medium height and build, and he wore glasses which appeared to have a broken frame. He also wore a hat throughout the interview. He was casually dressed, and his appearance appeared to be somewhat neglected. His overall demeanor during the interview was fairly composed, however he was quite tense at times which might readily be expected under these circumstances. When asked if he was frightened, he responded by saying that he was ‘a little nervous.’ The quality of his speech was clear and comprehensible, and he answered all questions when asked with short and brief responses. He did appear to be very careful of his answers to all questions and when he was challenged about this fact, he did agree that he was not too trusting. His overall use of words was appropriate, and the organization of his speech was sequential and relevant. His affective expression was a studied calm, but it was quite obvious to all that he was quite anxious. However, this was considered to be situationally derived. His overall response to the interview was cooperative. However, he took an extended period of time to answer some of the questions and appeared to have to work quite hard to come up with a reasonable answer. He was very explicit in the fact that he felt that he does not need further hospitalization, and also that he does not need further psychotropic medication.
“When asked how he was getting along at the Larned State Hospital, he responded by saying, ‘Pretty fair.’ When he was asked why he was in the hospital, he responded by saying, ‘They said I committed a felony and that I committed an assault, and they called it first degree murder.’ He also recognized the fact that an acquittal was the outcome because he was considered to be insane during the time that he committed the actions for which he was accused. He seems to be completely aware of this fact. Upon further questioning, Mr. Noel said that he felt that he was not presently mentally ill, and he also felt that he never had been mentally ill. When he was asked what he felt his future held for him, he responded by saying that he did not know. He also made the statement that he would, ‘Like to get back into the mainstream.’ Mr. Noel was then asked if he felt that he would be able to derive some benefit from being hospitalized at the Osawatomie State Hospital, and he responded by saying, ‘Either there or the VA.’ Mr. Noel was then asked if he felt he needed further psychiatric treatment, and he responded by saying, quite emphatically, that he needs no more treatment and also needs no more medication.
“Mr. Noel also expressed the fact that he had a talk with his attorney in the past, and he feels that the reason he is unable to either be discharged or transferred to the Osawatomie State Hospital is for what he calls, ‘political reasons.’ Also he stated that there was nothing wrong with him mentally or physically, and that he did not know why everyone was so concerned about him. He also stated that he doesn’t feel that he needs further hospitalization. With regard to medication in the past, Mr. Noel stated that he was ‘off and on’ medication prior to the charges that were given to him. He also stated that he didn’t have any plans to continue the medications that he was on at that time because they would make him have, ‘the weirdest nightmares.’ On further questioning, Mr. Noel stated that he feels he could support himself outside, but he, at the present time, does not know exactly how he would accomplish this. He was asked if he had any friends, and he responded by saying, 7 don’t have any personal friends.’ He also expressed the fact that he had heard voices for about a year in 1973 to 1974. He was then questioned again about where he would go if he were to be directly released, and he said that his parents ‘probably’ wanted him to come home. He was asked if he had talked with them about this, and he denied this fact stating, ‘They have never talked to me about this at all.’ Throughout the entire interview, Mr. Noel was very hesitant to respond to all questions asked of him, and appeared to be self-contained in his thinking and, perhaps, somewhat suspicious of the reasons why these questions were asked.
“After the interview, there was an extended discussion, and of general concern of the Board members and the staff was the fact that Mr. Noel does not feel that he needs hospitalization or any type of psychotropic medication in the future. It was also noted however, that he has not appeared to be dangerous to himself or other patients, or the staff for some period of time in the past.”
Dr. Tilton’s direct testimony concluded with the following:
“Q. You are telling us then, Doctor, that it was a consensus of the Forensic Review Board that the patient is not dangerous to himself or to others at the present time?
“A. As long as he keeps taking his medication, with that qualification.”
STATEMENT OF ISSUES
The appellant designates a number of issues to be determined on appeal. Looking through form to substance, it is apparent that there is one basic issue and various sub-issues as follows:
1. Did the district court misperceive the role of the court in this proceeding, held pursuant to K.S.A. 1978 Supp. 22-3428a and, as a result of that fundamental misperception, did the district court err in
(a) concluding that the opinion of the Forensic Review Board, as expressed by its chairman, to the effect that Noel “is not dangerous to himself or to others at the present time” (regardless of qualification thereon), was conclusive on the court and dispositive of the question of whether or not Noel should be discharged;
(b) concluding that the question of conditions of such discharge, as authorized by K.S.A. 1978 Supp. 22-3428a and 22-3428, was a separate and distinct matter to be considered only after the determination to discharge had been made;
(c) concluding that the court could legally delegate the development and implementation of Noel’s reentry plan to the Osawatomie State Hospital, and thereby divest itself of any further involvement therein;
(d) failing to assign the burden of proof to Noel; and
(e) ordering that Noel be discharged from the Larned State Hospital?
DISCUSSION AND DETERMINATION OF THE ISSUES
The basic issue on appeal is whether the district court misperceived the role of the court in the proceeding and, as a result of that fundamental misperception, committed a number of specifically enumerated errors. In order to resolve the basic issue we must first determine the proper role of the court.
The Kansas legislature has varied from time to time in our history as to whether the discharge of an insanity acquittee should be treated as a medical or a legal determination. See e.g., L. 1911, ch. 299, § 5; L. 1915, ch. 339, § 1; K.S.A. 62-1532 (Corrick); K.S.A. 22-3428; In re Timm, 129 Kan. 126, 281 Pac. 863 (1929). In 1976 the question again became a matter for judicial determination. L. 1976, ch. 163, § 23. Under K.S.A. 1978 Supp. 22-3428 and 3428a involved herein (amended by L. 1979, ch. 97, §§ 1, 2, but not relative to the medical versus legal determination), the court is given the responsibility of making the final determination in all proceedings for discharge except where the hospital seeks the discharge and the county or district attorney from the committing county does not object thereto. In such proceedings the court must determine whether the patient continues to be a danger to himself, herself or others.
The State argues that in making this determination the court’s prime consideration should be whether that person continues to pose a danger to the public. Kansas law at one time provided that insanity acquittees should not be released by the court unless the asylum superintendent certified that “in his opinion such person is wholly recovered and that no person will be in danger by his discharge.” L. 1911, ch. 299, § 5. The language in Kansas cases cited by the State is based upon this 1911 statute. In re Beebe, 92 Kan. 1026, 142 Pac. 269 (1914); In re Clark, 86 Kan. 539, 121 Pac. 492 (1912). See also Hodison v. Rogers, 137 Kan. 950, 22 P.2d 491 (1933); In re Ostatter, Petitioner, 103 Kan. 487, 175 Pac. 377 (1918). In Clark, 86 Kan. at 553, this court said:
“The purposes of the statute are highly beneficent. It gives protection to the public against repetitions of homicides or other acts of irresponsible frenzy or distraction, and affords to the unfortunate persons so committed safe seclusion and humane treatment, which it is the province of the state to give in the exercise of its parental power. The judicial department may not interfere with the legislative conscience, unless there is a clear violation of some provision of the constitution.”
The statutes in effect herein (K.S.A. 1978 Supp. 22-3428a and 3428) use the term “others,” but the intent to protect the public or community is clearly still within the statute. This is apparent from legislative action taken subsequent to the district court decision in this case. In 1979 HB 2501, amending the statutes herein, the Senate adopted the language “whether or not such person continues to be dangerous to the patient’s self or others, including persons in the community in the event the committed person is discharged or conditionally released. ” The House did not concur with that and other amendments, and the conference committee dropped the emphasized portion, noting:
“It was further agreed that the Senate amendments which added the language ‘or a danger to persons in the community if the patient is discharged or conditionally released’ following the phrase ‘continues to be a danger to the patient’s self or others’ was not needed, because the present law presently should be interpreted in that manner, and that it was the legislative intent when the present statute was adopted that the phrase ‘or others’ includes persons in the community if the patient is discharged or conditionally released. Therefore, the additional language suggested by the Senate amendments are not necessary, since the law presently includes a consideration of the potential for danger to persons in the community.”Minutes, Conference Committee on House Bill 2501, p. 3, April 24, 1979. Emphasis added.
How, then, does the court proceed to make this determination? Numerous other jurisdictions have been faced with this question. The following is some well reasoned rationale from cases in other jurisdictions:
Hill v. State, 358 So. 2d 190, 206-207, 208 (Fla. App. 1978):
“Expert psychiatric testimony is essential in these proceedings. But the committing court’s determination of release issues cannot be dictated by such testimony. When determining the accused’s competency at the time of an offense, the trial judge or jury is not bound to accept unrebutted psychiatric opinions when there is other evidence of the accused’s competence. For stronger reasons, judges weighing the complex questions of dangerous propensities may properly find that unrebutted psychiatric opinion testimony is overcome by other substantial evidence. We do not denigrate psychiatric expertise. But that discipline does not claim infallible prophetic powers. Even within the field, opinions on the nature and extent of mental illness vary with ‘the examining psychiatrist’s personal conception of normal social behavior.’ . . .
“To sum up, if a mental acquittee’s entitlement to release is to be determined by a rule of law and according to evidence, there must be evidence. By evidence the court is to be given a rich understanding of the patient’s medical history, present condition and behavior; prospective environment at liberty; the available resources for professional and lay observation and control; and the practicality of monitoring the success of a release plan.”
State v. Cook, 66 Wis. 2d 25, 32, 224 N.W.2d 194, 198 (1974):
“The opinion of the trial judge shows that he carefully evaluated the expert medical testimony. In his opinion, the trial judge recited the circumstances under which the defendant would in all probability be obliged to live were he released. He carefully balanced the psychiatric conclusion that the defendant was no longer acutely mentally ill against the testimony that the defendant still had a mental disorder, that his personality contained an abnormal amount of sociopathic anger, and that he had not been completely tested in normal environment. On the basis of these conflicting considerations, the trial judge, after a thoughtful and articulated analysis, concluded that he was not ‘satisfied’ that the defendant was not dangerous.”
State v. Fields, 77 N.J. 282, 307-308, 390 A.2d 574, 587 (1978):
“Judges considering the committee’s [patient’s] likely dangerousness for the purpose of assessing the appropriate level of restraints upon his liberty to be initially imposed and subsequently modified or terminated too often accord undue deference to the presumed expertise underlying psychiatric opinion on that issue. While such psychiatric opinion certainly possesses probative significance, it is no more conclusive on the dangerousness issue than is evidence from lay sources concerning particular instances where the committee has manifested actual or potential harmful behavior. The final decision on the need for and appropriate extent of restrictions on the committee’s liberty is for the court, not the psychiatrists.
“Judges may appropriately consider both expert opinion evidence and lay factual evidence in making their evaluation of the committee’s potential dangerousness under the Krol [State v. Krol, 68 N.J. 236 (1975)] guidelines and the consequent need for restraint: They must always be mindful that it is their responsibility to ensure that the restraints imposed on the committee will adequately promote the goals of societal and personal safety. The determination of the level of restraints suitable for a particular committee is a matter entrusted to their sound discretion. Their decisions should be based upon their evaluation of all of the relevant evidence before them concerning the committee — psychiatric or otherwise — according each type such weight as they see fit. The ultimate order should reflect a careful judicial weighing of the competing concerns in light of that evidence, explicitly stating the bases for the conclusion reached.”
People v. Giles, 192 Colo. 240, 246, 557 P.2d 408 (1976):
“In a release hearing, the scope of inquiry is necessarily broad. The jury must weigh the defendant’s desire for freedom against the risk that, if released, he may harm himself or others. To require the jury to decide this issue in an informational vacuum would be unfair to both the defendant and the public. A jury charged with such a heavy responsibility is entitled to hear all competent evidence relevant to the ultimate issue of whether the defendant meets the legal standard for release. Obviously, this includes evidence of the defendant’s psychiatric history, the circumstances leading to his insanity plea and the resultant commitment, his prognosis for recovery, and all other relevant facts.”
Note: In Colorado, release is determined by a jury, but the principle is the same.
In United States v. Ecker, 543 F.2d 178, 183-187 (D.C. Cir. 1976), cert. denied 429 U.S. 1063 (1977), the court discussed the standard of review to be applied by the district court in determining the release of an insanity acquittee, which is summarized as follows: In both conditional and unconditional release proceedings, the district court must weigh the evidence in the same manner that it does in deciding matters de novo. The reviewing court, as the trier of fact, must independently weigh and evaluate the evidence. Thus, the weight to be given any expert opinion admitted into evidence is exclusively for the judge, and the judge is not bound to accept the opinion of any expert witness or group of expert witnesses. The hospital’s certification that the patient is ready for conditional release should be viewed as an amalgamation of expert opinion which the trial judge must weigh along with all other evidence. The judge’s determination can be based on other evidence in the record besides expert testimony, such as the patient’s hospital file, the court files and records in the case, and illumination provided by counsel. The policy rationale underlying judicial review of both conditional and unconditional release is to provide for the treatment and cure of the mentally ill in a manner which affords reasonable assurance for public safety; it assures that members of the patient’s exceptionally dangerous class are kept under hospital restraint until the district court approves a relaxation of that restraint. Thus, the role of the district court, is not simply to review the hospital’s decision for unreasonableness, but rather to decide the ultimate question of whether the present status of the patient is such that continued confinement without release is justifiable.
The above are but examples of how other jurisdictions have dealt with the complex question of the proper role of the court in insanity acquittee proceedings.
We conclude the determination of whether the patient continues to be dangerous to himself, herself or others is a legal rather than a medical decision. In any such determination, due consideration must be given to the protection of the public. The court has the obligation to weigh all the evidence in the case, including medical opinions, and reach an independent judgment. A medical opinion as to dangerousness, even if undisputed by other medical opinions, is not conclusive upon the court and must be weighed with the other evidence.
The determination of both dangerousness and the suitability of conditional discharge safeguards (discussed later in this opinion) involves prediction of the patient’s future conduct rather than mere characterization of past conduct. Nonetheless, the patient’s past conduct is important evidence as to his future conduct. It is appropriate for the court to give substantial weight to the nature and seriousness of the crime committed by the patient and its relationship to his present medical condition. See State v. Fields, 77 N.J. at 307.
Obviously, if the court determines the committed person is no longer dangerous to himself, herself or others, it must order the person discharged. If the court makes an unqualified finding that the committed person continues to be a danger to himself, herself or others, then the person must continue to be committed.
We turn now to the area of conditional releases. The precise language of K.S.A. 1978 Supp. 22-3428(3) is significant and will be repeated with emphasis added:
“If the court finds from evidence presented at the hearing that the discharge of the patient will not pose a danger to the patient or others only if the patient continues to take prescribed medication or to receive periodic psychiatric treatment or guidance counseling, then the court, if it orders the discharge of the patient, may order as a condition to the discharge that the patient continue to take prescribed medication and report as directed to a person licensed to practice medicine and surgery to determine whether or not the patient is taking such medication, or that the patient continue to receive periodic psychiatric treatment or guidance counseling.”
If the finding is conditional as to the patient’s not posing a danger to himself or others, the court is not required to discharge the patient. To discharge or not to discharge is still discretionary with the court. In exercising its discretion, the district court must consider whether any proposed conditions of discharge would truly accomplish their purpose; that is, to safeguard the patient and the public. If the court determines adequate safeguards are not present, then the patient should not be discharged. In any consideration of a reentry plan, the court should look to all aspects of the risks posed by the patient, the patient’s condition, and examine every facet of the plan to determine if it will realistically accomplish its purpose. If the court is satisfied that conditional discharge is appropriate, it may order the conditional discharge in accordance with the statutory provisions of K.S.A. 1978 Supp. 22-3428(3).
In the district court’s consideration of conditional discharge of the patient, the determination as to dangerousness, whether discharge should or should not be ordered, and whether the conditional safeguards will accomplish their purpose, are all aspects of the same consideration and cannot be separately determined. If conditional discharge is ordered, the court should state with particularity the basis for its conclusion. Throughout any such period of conditional release the court’s jurisdiction continues in a similar manner as to persons on probation from criminal convictions.
Before concluding this discussion of the court’s proper role, we note that among the 1979 amendments to K.S.A. 1978 Supp. 22-3428(3) is the following:
“In order to insure the safety and welfare of the patient and the citizenry of the state the court may allow the patient to remain in custody at a facility under the supervision of the secretary of social and rehabilitation services for a period of time not to exceed thirty (30) days in order to permit sufficient time for said secretary to prepare recommendations to the court for a suitable reentry program for the patient.” L. 1979, ch. 97, § 1.
This should be of assistance to the courts in making these difficult determinations.
We turn now to the basic issue as to whether the district court misperceived its role in the proceedings and, as a result of that fundamental misperception, committed a number of specifically enumerated errors.
The district court’s decision appears in its entirety earlier in this opinion and will not be repeated.
We must conclude that the district court did misperceive its role in the proceedings and, as a result of that fundamental misperception, did commit the following errors:
1. The court considered the determination as to “dangerousness” to be medical rather than legal. The only current medical opinion at trial was the amalgamated hospital position (Forensic Review Board’s report and the testimony of its chairman) to the effect that Noel was not presently dangerous, with qualification of continued medication. The Forensic Review Board’s report goes somewhat further and adds qualifications of suitable environment and lack of stress. The court clearly felt it had no alternative but to accept the medical opinion as to the ultimate fact, and did not weigh any evidence or reach an independent judgment.
2. The court determined the “dangerousness” question and ordered Noel’s discharge prior to even considering the conditions to be imposed. As we previously stated, when conditional release is being considered, dangerousness, discharge, and conditional safeguards are all aspects of this consideration and cannot be separated. The court appears to have been unaware of the fact it could have found that Noel did not pose a danger to himself or others as long as he was on the prescribed medication, and it could still have denied discharge by virtue of the conditions being insufficient safeguards.
Dr. McKnelly, the psychiatrist testifying at the murder trial, evaluated Noel when his paranoid schizophrenia was out of control. It has been controlled at the hospital. The Forensic Board of Review evaluating Noel saw him when the medicine and his environment were controlling the disease. The hospital readily admitted that if Noel’s special needs were not met he would go out of control again.
The following analogy illustrates the inappropriateness of splitting consideration of dangerousness from consideration of safeguards. Let us suppose a court is called upon to determine whether a shipment of nitroglycerine can be stored in the center of a large city. The experts testify that nitroglycerine is not dangerous as long as it is stored at temperatures below 180° Fahrenheit and is not jiggled. No evidence is admitted as to the conditions under which the nitroglycerine is proposed to be kept, or supervision thereof. It would obviously be error for the court to conclude the explosive presented no risk as long as its needs were met, and to delegate determination of proper conditions to others.
3. The court had no authority to shift the responsibility of fixing conditions of discharge (i.e., reentry program), and of implementing and supervising same, to the Osawatomie State Hospital. If conditional discharge were to be ordered, it had to be on conditions specifically approved by the court. Further, no statutory authority exists for placing Noel under the supervision of a state hospital upon conditional discharge.
4. The court had no authority to divest itself of jurisdiction of Noel during the conditional release, which is the effect of the order.
5. The court ordered the discharge of Noel, with no information whatsoever as to such basics as the circumstances under which he would be living, how he would support himself, or what measures would be taken to assure continuance of the medication.
By virtue of the numerous errors hereinbefore listed, and without further elaboration, we conclude the discharge of Noel was erroneous.
One other issue is raised. The State contends the court erred in failing to assign the burden of proof to Noel. The record is clear that Noel was the moving party. At the beginning of the hearing, Noel’s counsel was asked by the court whether he was “prepared to go forward.” Counsel responded that he was and called his first witness. There is no evidence that the court placed the burden of proof other than on Noel. The statute herein, K.S.A. 1978 Supp. 22-3428a, is silent as to burden of proof. The statute was amended in 1979, subsequent to the proceedings herein, to provide:
“The committed person shall have the burden of proof to show by a preponderance of the evidence that the committed person is not a danger to such person’s self or others.” (L. 1979, ch. 97, § 2)
All issues herein have been determined.
Before concluding, however, some additional comments will be made in the hope of preventing a repetition in future cases of some of the basic problems present in this case. We note that whereas K.S.A. 1978 Supp. 22-3428a and 3428 have been amended subsequent to this case, the amendments do not alter the court’s role in determining such cases.
As we previously stated, K.S.A. 1978 Supp. 22-3428 applies to hospital-initiated discharge proceedings. Under this statute the court is required to order an independent mental evaluation of the patient. In such a proceeding, presumably both patient and hospital are seeking the patient’s discharge and are allied to a certain degree in interest. The independent evaluation gives the court a second medical opinion to weigh along with the other evidence. K.S.A. 1978 Supp. 22-3428a applies to patient-initiated discharge where, presumably, the hospital position and that of the patient are in opposition. In such a proceeding the court, on request of the patient, must order an evaluation. It is the statutory plan that generally the court will have the benefit of a medical opinion other than that of the hospital. Because the case before us was a patient-initiated proceeding (under K.S.A. 1978 Supp. 22-3428a), the mandatory outside evaluation procedures of K.S.A. 1978 Supp. 22-3428 did not apply. The patient requested no outside evaluation, so none was ordered. Accordingly, the court had only one medical opinion on the patient’s current mental condition.
The area of insanity acquittee discharge is a highly sensitive issue with the public. The earlier statements herein, relative to the circumstances of Noel’s transfer from the State Security Hospital to the civil side of the Larned facility, reflect the sensitivity of the hospital. The Forensic Review Board’s report herein was carefully phrased. Noel’s potential for being dangerous to others appears throughout. The hospital at no time recommends discharge. The report basically says Noel is not presently dangerous if (1) he takes the prescribed medication; (2) he is in a suitable environment; and (3) he is not subject to stress. The report makes no suggestion of specific conditions to be imposed to safeguard the public.
If Noel’s discharge had not been stayed, and if a further act of violence had been committed by Noel, the hospital would have been in an ideal position to respond to public criticism by simply showing from the court’s own files:
1. The hospital never recommended Noel’s discharge;
2. The hospital told the court Noel was dangerous unless his various special needs were met; and
3. The court discharged Noel anyway.
It is indeed ironic that the court felt, based solely on the hospital’s opinion, that it had no alternative but to discharge Noel. It is incumbent upon courts, for the protection of the public, to give due consideration to all factors in weighing the evidence and making their determinations in all cases such as the case herein.
In uncontested discharges of insanity acquittees, the hospital makes the final determination and is responsible therefor. In contested discharges of insanity acquittees, the court makes the final determination and is responsible therefor. The case before us resulted in the worst of both worlds. The hospital did not determine discharge was appropriate and the court ended up discharging Noel because it felt it was bound by the hospital’s position. Accordingly, Noel was discharged with neither hospital nor court satisfied such action was appropriate.
The application to discharge herein was filed on February 14, 1979. K.S.A. 1978 Supp. 22-3428a permits annual filing of such applications by an insanity acquittee. Any new filing of an application by Noel will be governed by the amendments to said statute (L. 1979, ch. 97, § 2), which provide, inter alia:
“Within five (5) days after receiving the report of the examination pursuant to this subsection, the county or district attorney receiving the same may file a motion with the district court that gave the notice, requesting such court to change the venue of the hearing to the district court of the county in which the person was originally committed. Upon receipt of such motion and the report of the mental examination such court shall forthwith transfer the hearing to the district court specified in the motion and send a copy of the court’s records of the proceedings to such court.”
The judgment is reversed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant, William B. Roberts, Jr., was convicted of aggravated robbery (K.S.A. 21-3427). The case arose out of the robbery of a Vickers Service Station occurring in Wichita on September 13, 1978. The facts in the case are essentially as follows: At approximately 8:35 p.m. on that day a young black male entered the station where two attendants were employed. After passing one attendant who was outside waiting on a customer, the robber approached the other attendant who was behind the counter. The robber displayed a small handgun in his right hand and demanded money. The attendant gave the robber money and then went into the back room of the station until the robber departed. When the other attendant reentered the station, he discovered the robbery had occurred.
Both of the attendants at the filling station identified the defendant as the robber. The testimony disclosed that the defendant had been in the service station earlier in the day during the afternoon and had spent approximately 15 minutes there. There was evidence that the defendant told a fellow inmate of the jail that he, the defendant, committed the robbery, and after leaving the filling station, stashed the stolen money and weapon in a dog house, and ran to his vehicle which was parked approximately four blocks away. The defendant, in his defense, offered the testimony of Kevin Edgar, a fellow inmate at the Sedgwick County jail, which questioned the identification by one of the attendants. The identification by the other attendant was not contradicted. The defendant also called as a witness a woman, recently acquainted with defendant, who testified that on the evening of the robbery the defendant had on different clothing than did the robber at the scene of the crime. This witness did not pinpoint the actual time when she saw the defendant. The evidence of guilt and the identification of the defendant as the robber were strong. Following the submission of the case, the jury promptly convicted the defendant. The defendant has appealed to this court raising five points of error.
Points 1, 2, and 3 raise essentially the same issue and, hence, should be considered together. The defendant contends that the trial court erred in excluding the alibi testimony of his girl friend on the basis that defense counsel had failed to file the statutory notice of alibi required by K.S.A. 1977 Supp. 22-3218, which provides in part as follows:
“(1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.
“(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
“(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.”
To determine the issue we must consider the events which occurred during the course of the proceedings in the district court. The defendant was arraigned on October 11, 1978, and entered a plea of not guilty. At that time, the case was set for trial on the October 23, 1978, trial docket. On October 23, 1978, the trial was continued to November 6,1978. On that date, trial of the case was actually commenced. The State’s case in-chief consisted only of the testimony of the two filling station attendants. They testified that the robbery occurred and identified defendant as the robber. At that point, the State rested. Defense counsel then waived his opening statement and proceeded to call witnesses. The defense presented the testimony of Kevin Edgar and L. T. Baker. At this point, defense counsel called as a witness the defendant’s girl friend. In the absence of the jury, the State objected to her testimony on the basis that her testimony would support the defense of alibi and defense counsel had failed to give the written notice required by K.S.A. 1977 Supp. 22-3218. The proposed witness would have testified that at the time of the robbery she was with the defendant at another place, thus placing the defendant away from the scene of the crime. Defense counsel indicated to the court that he had not given the statutory notice of alibi because he had not been notified until November 1,1978, by the district attorney’s office that the case would be tried on November 6, 1978. The trial court excluded the testimony because of the failure of defense counsel to comply with the notice of alibi statute. In so ruling, the trial court noted that the case had been set for jury trial originally on October 23, 1978, at which time it was specifically set for trial on November 6. He concluded that the defense counsel had had ample opportunity to file the statutory notice of alibi and that good cause had not been shown for failure to file the notice.
On appeal, the defendant maintains that the trial court committed prejudicial error in its exclusion of the alibi testimony for three reasons: (1) The exclusion was an abuse of judicial discretion; (2) the State must claim and demonstrate surprise and prejudice before unnoticed alibi testimony may be excluded; and (3) the ruling deprived defendant of his constitutional right to compulsory process.
When faced with a similar issue, this court has consistently held that the exclusion of alibi testimony, because of noncompliance with the notice requirement, is within the trial court’s sound discretion and will not be overturned absent a showing that the court’s discretion was abused. State v. Kirk, 208 Kan. 645, 646, 493 P.2d 233 (1972); Bush v. State, 203 Kan. 494, 499, 454 P.2d 429 (1969); State v. Sharp, 202 Kan. 644, 451 P.2d 137 (1969). We have further held the notice of alibi statute does not deprive the accused of his defense of alibi but simply makes notice of the defense a prerequisite. State v. Rider, 194 Kan. 398, 401, 399 P.2d 564 (1965). As pointed out in Williams v. Florida, 399 U.S. 78, 81, 26 L.Ed.2d 446, 90 S.Ct. 1893 (1970), “Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.”
We have concluded that no abuse of discretion in the ruling of the trial court has been shown. Defense counsel was notified at arraignment on October 11, 1978, that the case was ripe for trial and was being set on the October 23, 1978, jury docket. On that date, the case was continued until November 6, 1978, at which time the trial commenced. Admittedly, defense counsel knew on November 1 that the State had issued subpoenas for its witnesses to appear November 6. Perhaps at that time, if written notice of alibi had been filed, the court in its discretion would have permitted the late filing of the notice as provided for in K.S.A. 1977 Supp. 22-3218(2). However, it was not until after the State had rested its case and two defense witnesses had already testified, that defense counsel advised the court he desired to call defendant’s girl friend as an alibi witness. At that late date, the State would have been powerless to investigate the alibi testimony or to come forward with evidence to contradict it.
The fact that the trial court did not at that time insist the State offer evidence to show prejudice or surprise cannot be held to be an abuse of discretion. In this regard, we note that under section (2) of K.S.A. 1977 Supp. 22-3218, the trial court may permit defendant to endorse additional names of witnesses on filed notice of alibi, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. It is clear from the record here that at no time, either during or before the trial, did defense counsel attempt to give written notice of alibi to the prosecuting attorney as required by the statute. Although in many cases the issue of surprise and prejudice would be proper matters for the trial court to take into consideration in deciding whether to permit the defendant to introduce unnoticed alibi testimony, we cannot say that evidence of prejudice and surprise were required under the circumstances shown in this case.
We, likewise, reject the defendant’s contention that his constitutional right to compulsory process for obtaining witnesses was violated. As pointed out in State v. Smith, 88 N.M. 541, 543 P.2d 834 (1975), cases deciding this issue have found no violation of the right of compulsory process. We agree. The alibi rule does not prevent a defendant from compelling the attendance of witnesses; rather the rule provides reasonable conditions for the presentation of alibi evidence. For the reasons stated above, we reject the defendant’s contention that the trial court erred in excluding the alibi testimony of defendant’s proposed witness.
The defendant’s next point on the appeal is that he was denied his constitutional right to the effective assistance of counsel. The basis of the defendant’s claim is that he had informed his trial counsel of the existence of alibi witnesses well in advance of the trial and that his counsel had ample time to file the required notice of alibi but failed to do so. There is attached to the defendant’s brief filed in this court an affidavit which was not presented to the district court and which does not constitute a part of the record in this case. We note, from an examination of the record, that this point was never raised at any time during the trial nor on the defendant’s motion for a new trial. The trial court was not given an opportunity to consider this issue, nor did the defendant introduce evidence in the trial court in support of his contention. In State v. Jones, 214 Kan. 568, 521 P.2d 278 (1974), this court held that an issue will not be considered on appeal where it was not presented to or determined by the district court and where the determination of the issue depends upon facts which do not appear in the record. To the same effect is State v. Kelly, 204 Kan. 715, 466 P.2d 350 (1970). Following this well established rule, we decline to determine the issue on this appeal. Defendant’s remedy, if any, is under K.S.A. 60-1507.
The defendant’s last point on the appeal is that the defendant was deprived of a fair trial by the prosecutor’s reference in his closing argument to one of the defense witnesses as a “fellow robber.” At the trial, the defendant called as a witness Kevin Edgar, a fellow jail inmate of the defendant. Edgar testified that he was present at the time the defendant was identified as the robber by one of the filling station attendants, Joseph Burns. Edgar’s testimony tended to show that at the time of the identification at the Sedgwick County jail, Joseph Burns could not positively identify the defendant and that Burns was uncertain as to the defendant’s identity. During the course of his closing argument, the prosecutor referred to this witness as having been convicted of robbery and further advised the jury that common sense would tell them that he would be on the side of his fellow robber. The court sustained the defense’s objection to this argument and admonished the jury to disregard it. It appears that the prosecutor inadvertently failed to ask .the witness about his prior convictions of crime.
The State concedes that the remarks of the prosecutor were outside the scope of the evidence but denies prejudice to the defendant. We have concluded that these improper remarks of the prosecuting attorney do not justify a reversal of the case. In State v. Jones, 218 Kan. 720, 725, 545 P.2d 323 (1976), it was held that improper remarks by a prosecutor in closing argument will not constitute reversible error where the jury has been instructed to disregard the same unless the remarks were so prejudicial as to have been incurable. In this case it was brought out on direct examination of Kevin Edgar that he was an inmate of the Sedgwick County jail. This meant, of course, that he was being held in custody for some criminal violation. The relationship between the defendant and this witness as fellow jail inmates was clearly apparent. The fact that the prosecutor referred to some specific crime in attacking the credibility of the witness would not likely have increased the prejudice of the jurors toward the witness. Under all the circumstances, we hold that the trial court’s admo nition to the jury to disregard the statement cured the error and hence the case should not be reversed on this point.
The judgment of the district court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Herd, J.:
Appellant Steven Parson appeals from a conviction of involuntary manslaughter (K.S.A. 21-3404) in a trial to the court. The charge stems from an automobile accident in which his car collided with a car driven by a Mr. Steven R. Baptist. Baptist was killed in the accident. Appellant appeals. We affirm.
The undisputed facts are as follows: Appellant Steven Parson and Steven R. Baptist were involved in an automobile accident at about 3:40 a.m. on February 4, 1978. It appeared to be almost a head-on collision on South Broadway in Wichita. There were no other persons involved and no eye witnesses. The officers arrived at 3:42 a.m. and thereafter Parson and the body of Steven Baptist were taken by ambulance to St. Joseph Medical Center in Wichita. Parson was examined by Dr. Thomas Hayes, emergency room physician, at 4:25 a.m. Hayes ordered urine and blood alcohol tests be given the defendant as well as a blood count. The blood alcohol test showed appellant’s blood alcohol level to be 0.14, indicating intoxication pursuant to K.S.A. 8-1005(b).
Appellant was charged with involuntary manslaughter (K.S.A. 21-3404). The information reads:
“Steven W. Parson, did then and there unlawfully, willfully, unintentionally kill a human being, to-wit: Steven R. Baptist, while in the commission of an unlawful act not amounting to a felony, to-wit: drive a motor vehicle, to-wit: 1970 Oldsmobile bearing license #SG-R-6986, at approximately 162 feet north of 63rd Street South on South Broadway, Sedgwick County, Kansas, while under the influence of intoxicating liquor, contrary to K.S.A. 8-1567, and did drive the aforedescribed motor vehicle left of the center lane at said location, contrary to K.S.A. 8-1514; contrary to K.S.A. 21-3404 (Involuntary Manslaughter, Class E Felony).”
Appellant waived a jury trial. The court tried the case and found Parson guilty as charged and sentenced him to prison for not less than one nor more than five years, then granted him probation. From this judgment appellant appeals.
Appellant claims the trial court erred in admitting Dr. Hayes’ testimony because it is barred by the physician-patient privilege under K.S.A. 60-427. He argues the privilege is applicable in a misdemeanor action and seeks to advance the novel theory that because the felony with which he is charged is made up of “three entirely separate and distinct charges only one of which is a felony,” the State cannot use the physician’s testimony to prove the misdemeanors. Without that testimony, the felony charge cannot be proven. His argument is without merit. K.S.A. 60-427(b) clearly states the privilege may be invoked only “in a civil action or in a prosecution for a misdemeanor . . . .” See State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975); State v. Campbell, 210 Kan. 265, 500 P.2d 21 (1972). This case is neither a civil action nor a prosecution for a misdemeanor. The physician-patient privilege may not be invoked.
Appellant next asserts the blood alcohol test result was not admissible in the absence of a showing that the test procedure was accepted as reliable by the witness and by experts in the field. As a second part of this issue, appellant urges the blood alcohol test results contain no probative value because the sample of blood was taken approximately one hour after the accident.
Appellee argues these issues are not before the court because appellant failed to raise timely objections during trial. Appellant’s objections to the issues were made for the first time in his argument for judgment of acquittal.
The contemporaneous objection rule has its origin in K.S.A. 60-404, which states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
This statute is intended to prevent reversals for improper admission of evidence unless a specific objection is made at the time the evidence is introduced. It does not, however, operate in a vacuum and has been relaxed to fit trial situations, such as where the objectional matter isn’t readily apparent or in a trial to the court rather than to a jury. In State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), we stated:
“Ordinarily, failure to make timely, specific objection to the admission of evidence will bar consideration of the admissibility question on appellate review. [Citation omitted.] Here, the appellant’s objection was not ‘timely’ in the strict sense, but there is no doubt the district court was apprised of the issue before it rendered its decision .... What transpired is consistent with the rationale underlying the contemporaneous objection rule — i.e. objecting to admissibility and stating the grounds therefore permits the court to preclude improper evidence from affecting the decision. This was a trial by the court; no jurors had been swayed by the improper evidence. The court had not rendered its decision when the issue was raised, and we think under the circumstances of this case the spirit if not the letter of the contemporaneous objection rule was satisfied.”
Such is the situation in the instant case. The court and opposing counsel were apprised of appellant’s objections to the evidence in his argument on the motion for judgment of acquittal at the close of the State’s case, giving each ample notice of the specific objections prior to the decision. We hold appellant’s objections to the admission of appellee’s evidence were sufficiently timely in this case to obtain appellate review.
Now let us turn to the merits of appellant’s objections. First he maintains the expert testimony on the blood alcohol test is inadmissible because the expert did not testify “that the particular test method employed in a given case is reliable and accurate in his opinion, and also that it is generally accepted as such by other experts in the field.” City of Abilene v. Hall, 202 Kan. 636, Syl. ¶ 4, 451 P.2d 188 (1969).
It is clear there was sufficient testimony that the procedure used was reliable and accurate. Marilyn Rock, the medical technologist, was thoroughly questioned regarding the accuracy of the test and the procedure used in administering it. She explained the procedure in a step-by-step process and carefully evaluated the findings. It is well established that a properly educated medical technologist has the necessary qualifications for evaluating the findings or results of chemical tests for alcoholic content of blood. City of Abilene v. Hall, 202 Kan. at 643.
As to whether the test method is accepted by others in the field, we find appellant’s reliance upon the statement in City of Abilene v. Hall misplaced. The statement from City of Abilene was based upon a line of cases which required a showing of acceptance of the test procedure where there is a “disagreement ... in the scientific and medical community as to the reliability of a particular test method.” City of Abilene v. Hall, 202 Kan. at 641. Appellant has failed to introduce evidence that the test might be considered to be unreliable and unacceptable. Moreover, the facts indicate Dr. Hayes routinely ordered the test be administered to accident victims in order to assess the extent of injury and any factors that might be influencing the injury. Ms. Rock testified the blood alcohol test was run on an automated clinical analyzer, the machine routinely used by St. Joseph Medical Center for this type of test. In addition, she testified she had participated in well over 500 such tests.
We find there was sufficient evidence to show acceptance of this testing procedure by the medical community. We adhere to the test found in State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967), which states a proper foundation is laid for the admission of the results of such an analysis where a qualified witness identifies the report and explains the method and procedure of administering the test. See also State v. Sanders, 224 Kan. 138, 146, 578 P.2d 702 (1978).
As a second part of this issue of error, appellant contends that even if the blood alcohol test is properly before the court the blood sample was taken an hour after the accident which renders it unreliable and inaccurate. He further argues K.S.A. 1978 Supp. 8-1005(a) specifically states the percentage of alcohol found must reflect the percentage in the accused’s body at the time of the accident. A claim of remoteness with evidence of this type goes only to the weight of the evidence not to its admissibility. State v. Betts, 214 Kan. 271, 276, 519 P.2d 655 (1974). The blood alcohol test must be considered in conjunction with all other relevant evidence to determine whether appellant was intoxicated at the time of the accident.
Applying these rules to this case and viewing the facts surrounding the accident, we find Parson was taken unconscious from his car to an ambulance, after having driven his car across the center line of the highway. He was admitted to the emergency room, smelling of alcohol, incoherent, and was held under observation continuously from a few minutes after the accident until the blood sample was taken. We find the results of the blood alcohol test were properly admitted into evidence. The time which elapsed between the accident and its discovery and the taking of defendant’s blood goes only to the weight of the evidence received. This issue is without merit.
The judgment is affirmed.
Fromme, J., not participating.
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John D. Logsdon did on the 2nd day of October, 1979, execute and file with the Office of the Disciplinary Administrator an affidavit in which he states that he wishes to voluntarily surrender his license to practice law in the State of Kansas and states that he is at this time unable to surrender his certificate for the reason that the same is in the physical possession of his ex-wife.
It Is Therefore Ordered that the affidavit filed herewith be accepted by the Clerk of the Appellate Courts of Kansas in lieu of the certificate; that the certificate of John D. Logsdon be considered cancelled and that the Clerk of the Appellate Courts indicate on the records that the certificate and license of John D. Logsdon to practice law have been cancelled.
It Is Further Ordered that if the certificate of John D. Logsdon is delivered to the Clerk of the Appellate Courts that such certificate be marked void.
It Is Further Ordered that the Clerk of the Appellate Courts is ordered to strike John D. Logsdon’s name from the roll of attorneys.
By Order of the Court this 9th day of October, 1979.
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The opinion of the court was delivered by
Herd, J.:
Randall Francis Newell was convicted by a jury of possession of heroin with intent to sell and of possession of marijuana. He was sentenced, pursuant to the Habitual Criminal Act (K.S.A. 21-4504), to prison for not less than 10 years nor more than 40 years. The defendant appeals.
In November, 1977, Randall F. Newell lived at 819 East 4th Street, Hutchinson, Kansas, and was suspected by the Hutchinson police of being a drug dealer.
At the same time Brian Collins and Sherrie Davis were arrested in Wichita and charged with possession of heroin. To reduce their potential penalty, they agreed to become informants for the Wichita Police Department narcotic section.
Late in the morning of November 1, 1977, Collins, Davis, and several Wichita narcotics detectives went to Hutchinson and met with detective Earl Baxter where plans were made for a “controlled buy” of narcotics from the appellant.
Shortly after noon of that day, the officers followed the informants to Newell’s residence at 819 East 4th Street, which they entered at 12:21 P.M. and departed at 3:00 P.M. During the time informants were in the defendant’s house there was no apparent activity observed except that one Debra Rogers entered and remained therein.
Upon the informants departing defendant’s residence, they were searched by the officers who had them under surveillance and a packet of white powder was recovered. Later tests proved the powder contained heroin.
Based on these facts, a warrant was obtained from the Reno County District Court authorizing a search for heroin at the Newell residence.
The search warrant was executed at 4:40 P.M. of that day by forcing the front door of the house since no one was home at the time.
While the search was being conducted, Randall Newell and Debra Rogers arrived on the premises. Upon discovering the officers in his house, Newell fled, falling down as he crossed the front yard with the officers in pursuit. He was arrested at that time and a small packet containing brownish powder was discovered at the place defendant had fallen. The contents of the packet were later determined to be partially heroin.
The search of Newell produced $9,344.00 in cash; and a pestle with a small amount of heroin, two boxes of lactose, two baggies containing heroin, and a .22 caliber revolver were seized from a search of the house.
All of the seized items plus the packet of heroin found in the front yard were introduced in evidence at the trial.
Defendant was charged with possession of heroin with intent to sell (K.S.A. 1977 Supp. 65-4127a), possession of marijuana (K.S.A. 1977 Supp. 65-4127b) and unlawful possession of a firearm (K.S.A. 21-4204). He was acquitted of the gun possession charge and convicted of the other two.
Appellant Newell maintains as his first issue of error he was entitled to an instruction on possession of heroin as a lesser included offense of possession of heroin with intent to sell under authority of K.S.A. 21-3107(3).
This is an interesting point. There can be no doubt the in struction on possession of heroin should have been given if it is a lesser included offense of possession with intent to sell. In State v. Collins, 217 Kan. 418, 420, 536 P.2d 1382 (1975), we held:
“While possession of marijuana, which is designated a misdemeanor in K.S.A. 65-4125(o) (now K.S.A. 1974 Supp. 65-4127b[oJ), is not a lesser included offense of sale of marijuana, we have no doubt it is a lesser included offense of possession of marijuana with the intent to sell, which is named in K.S.A. 65-4125(fc) (now K.S.A. 1974 Supp. 65-4127b[fc]), as a class D felony.” Emphasis added.
This court decided in State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974), and reaffirmed in State v. Collins, 217 Kan. 418, that a lesser included offense is when all the elements necessary to prove the lesser offense are present and are required to establish the elements of the greater offense.
Possession of a narcotic drug contains all the required ingredients of a lesser included offense of possession with intent to sell, except one; each offense is of the same dignity; they are equal. Both offenses are contained in the same section of the statutes (K.S.A. 1977 Supp. 65-4127a); they are both class C felonies; and the penalty for violation of each is the same. We hold neither offense is the lesser of the other and it follows an instruction thereon is unnecessary.
Appellant’s first issue of error is without merit.
For his second issue of error, appellant claims the trial court’s limiting instruction on evidence of the commission of other crimes was inadequate.
The State presented evidence without objection of defendant’s prior crimes. The court gave the standard P.I.K. limiting instruction thereon to this effect:
No. 10
“Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s intent.”
Appellant complains the instruction is not sufficiently limiting and cites State v. Rambo, 208 Kan. 929, 495 P.2d 101 (1972), and State v. Roth, 200 Kan. 677, 438 P.2d 58 (1968), in support of his argument. These two cases illustrate situations in which no limiting instruction was given and are thus inapplicable to this case.
This court stated the appropriate rule in State v. Hampton, 215 Kan. 907, 908, 909, 529 P.2d 127 (1974):
“[EJvidence of other similar crimes or civil wrongs is admissible when relevant to establish motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
“We have been careful to point out, however, that the trial court, in its instructions to the jury as to the purpose for which evidence of other offenses may be considered, must designate with particularity the specific elements to which the evidence may be relevant.”
The trial court followed the rule in the instant case where the defendant was charged with, among other things, possession with the intent to sell narcotic drugs. The court gave the limiting instruction specifying that evidence of prior crimes should be considered for the purpose of showing intent only. The instruction was proper and adequately limiting under the circumstances.
For a third issue of error appellant contends the search warrant failed to recite sufficient information to determine if the informant was credible and all the evidence seized as a result should have been suppressed.
The defendant properly filed a motion to suppress the evidence which was heard and denied by the trial court prior to trial. The same objection is reasserted on appeal in this way:
“The affidavit requesting the search warrant did not set forth any basis or belief whatsoever that the unidentified informant was credible or reliable, as required by law.”
In denying the motion, the trial court found the only assertions made by the informant were that he purchased the heroin from the defendant who stated he had more heroin for sale. The trial court found the statements of Detective Baxter, who accompanied the informant on the controlled buy, were relied upon by the magistrate to supply the underlying information of probable cause that narcotics were present in defendant’s house.
The law is well established with regard to the requirements for the issuance of a search warrant based upon information provided by an informant; i.e., hearsay evidence. It is a two-pronged test set forth in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964) which was recently noted in State v. Sanders, 222 Kan. 189, 192, 563 P.2d 461, cert. denied 434 U.S. 833, rehearing denied 434 U.S. 1002 (1977), and Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978):
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was ‘credible’ or his information ‘reliable’.” Aguilar v. Texas, 378 U.S. at 114.
Defendant concedes the first prong of the Aguilar test is met. He states, “[T]here is sufficient corroboration by Detective Baxter’s personal observations to support an inference of personal knowledge by the informant.” But he doesn’t believe the second prong is met because there was not sufficient information alleged in the affidavit to obtain the warrant to apprise the magistrate of the informant’s credibility.
It’s true there is no direct statement in the affidavit that Baxter believed the informant to be credible and the information accurate, nor is there a statement he had relied on the informant in the past and the informant proved to be correct as this court suggested in State v. Sanders, 222 Kan. at 191, and State v. Hubbard, 215 Kan. 42, 44, 523 P.2d 387 (1974), although the U.S. Supreme Court explained in United States v. Harris, 403 U.S. 573, 581-582, 29 L.Ed.2d 723,91 S.Ct. 2075 (1971) that it had “never suggested that an averment of previous reliability was necessary.”
In State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967) by way of analyzing pertinent U.S. Supreme Court decisions including Aguilar on this point, this court stated:
“We are mindful of what has been said in Nathanson v. United States, 290 U.S. 41, 78 L.Ed. 159, 54 S.Ct. 11; Giordenello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245; and Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509; and we recognize the precedent established by those cases. The import of those decisions, as we read them, is that before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant’s personal knowledge or his knowledge concerning his informant, or as to the informant’s personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.” (p. 162)
See also State v. Sanders, 222 Kan. 189; Wilbanks v. State, 224 Kan. 66.
Even though the facts of the instant case do not meet the highest possible standards enunciated by this court in establishing probable cause we believe the totality of the circumstances involving Detective Baxter’s personal knowledge coupled with the informant’s statement are sufficient to support the trial court’s conclusions. Baxter’s affidavit is part personal knowledge and part hearsay which is stronger than pure hearsay and is sufficient in this case to show probable cause that narcotics were present in the defendant’s house. State v. Morgan, 222 Kan. 149, 563 P.2d 1056 (1977); Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725 (1960).
Appellant’s fourth issue of error is that the trial court erred in imposing the habitual criminal act (K.S.A. 21-4504) on defendant since he was convicted under K.S.A. 1977 Supp. 65-4127a which contains its own habitual criminal provisions.
The applicable statutes are: K.S.A. 1977 Supp. 65-4127a which provides:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under his control, possess with intent to sell, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon conviction for the second offense, such person shall be guilty of a class B felony, and upon conviction for a third or subsequent offense, such person shall be guilty of a class A felony, and the punishment shall be life imprisonment.”
K.S.A. 21-4504; the relevant sections provide:
“Every person convicted a second or more time of a felony, the punishment for which is confinement in the custody of the director of penal institutions, upon motion of the prosecuting attorney, may be by the trial judge sentenced to an increased punishment as follows:
“(5) The provisions of this section shall not be applicable to:
(b) any person convicted of a felony for which punishment is confinement in the custody of the director of penal institutions and where a prior conviction of such felony is considered in establishing the class of felony for which such person may be sentenced.”
The legislature provided both statutes for enhancement of punishment for the recidivist. There is no conflict between the statutes. Chapter 65 provides for using prior convictions under the act to establish a higher class of felony and chapter 21 provides generally for sentence enhancement for prior convictions of felonies. Subsection (5)(b) thereof prevents further enhancement of the punishment after a prior conviction of a felony is considered in establishing the class of felony. The instant case does not fall in that category. Newell’s prior conviction was not considered in establishing the class of felony, therefore, K.S.A. 21-4504 was properly invoked by the trial judge. We find no merit to appellant’s fourth issue of error.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a criminal proceeding brought by the city of Junction City against the defendant, Voyne D. Mevis, for an alleged violation of Junction City Ordinance 12-410 (d), which deals with the unlawful use of weapons. The defendant was found guilty in municipal court of Junction City and appealed to the district court. There the defendant filed a motion to dismiss the complaint on the grounds that the ordinance was unconstitutional. The district court sustained the defendant’s motion, found the city ordinance unconstitutional, and dismissed the complaint. The city has appealed to this court.
There was no evidence presented in district court either by the city or by the defendant. For the purposes of his motion to dismiss, the defendant admitted the following facts: His automobile was stopped by the Junction City police on November 10, 1978; defendant exited the vehicle at the request of the police officer; a search of the vehicle disclosed the pistol described in the complaint on the floor under the front seat; the defendant was alone in the automobile at the time it was stopped; and both the automobile and pistol were owned by the defendant. In his motion to dismiss, the defendant challenged the constitutionality of ordinance 12-410 on the basis that it deprived him of due process of law, contrary to the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights. The trial court, in sustaining the defendant’s motion to dismiss, made the following findings of fact and conclusions of law:
“1. Junction City Ordinance No. 12-410(d) proscribes the carrying of any pistol, revolver, or other firearm on the person or in any land, water or air vehicle, except when on his land or in his abode, fixed place of business or in his office;
“2. That in the reading of that proscription, there is a clear and definite meaning as to what is outlawed by the terms of that ordinance;
“3. That other ordinances of the City of Junction City, Kansas, allow for the sale and purchase of certain weapons which this ordinance prohibits persons from transporting or carrying;
“4. That in an analysis of the general police powers of the City, the law allows the City to legislate in this area, but:
“(a) The prohibition in 12-410(d) is so general in scope that it prohibits certain acts that cannot be reasonably classified as unlawful;
“(b) that the general nature of the ordinance includes and makes unlawful activities in which the police power cannot operate;
“(c) that the ordinance severely limits the actions of dealers and purchasers of weapons, which are legal by themselves;
“(d) that Ordinance 12-410(d) provides no way to transport a weapon to and from a place of business;
“5. Although the City may have a valid purpose in legislation dealing with the control of weapons, it cannot achieve this goal when its legislation is so broad as to invade legal activities or protected freedoms;
“6. That the ordinance is so broad that it is an infringement upon lawful activities;
“7. With respect to the issue of waiver raised by the plaintiff, the Court finds that, although stipulated by the parties that this constitutional attack was not raised by the defendant in the Municipal Court, the Court finds that since the Municipal Court is not a court of record, and since this is a constitutional issue going directly to the essence of the Ordinance, this matter is properly presented to the District Court since this is a “de novo” hearing on appeal and has not been waived by the defendant;
“8. With respect to the issue of standing raised by the plaintiff, the Court finds that the Court simply need look to the Ordinance itself, and not place a different construction on the Ordinance, and overbreadth is such an issue that this defendant may raise.”
On appeal, the city*contends that the district court erred (1) in holding Ordinance 12-410(d) was unconstitutionally overbroad; (2) in ruling that the defendant had not waived the defense of unconstitutionality by failing to assert that defense in the original proceeding in the municipal court; and (3) in ruling that the defendant had standing to attack the ordinance on constitutional grounds.
We shall first consider the contention by the city that the defendant waived his right to attack the constitutionality of the ordinance because he failed to raise that issue initially in the municipal court. It is well-settled law in this state that a constitutional challenge to a statute or city ordinance should be raised at the earliest possible opportunity or is considered to be waived. Willoughby v. Willoughby, 178 Kan. 62, 283 P.2d 428 (1955). Although we recognize that the defendant might well have raised the constitutional question in municipal court, we have concluded that his failure to do so here should not be fatal. His appeal to the district court was as a matter of right under K.S.A. 12-4601. In district court, the defendant was entitled to a trial de novo where he had the right to raise any defense to the charge. The situation is entirely different than in those cases where the constitutional question was never raised in the trial court but was first presented at the appellate level. We hold that the defendant did not waive his right to challenge the constitutionality of the ordinance by failing to assert that defense in municipal court.
The city contends that the defendant lacked standing to challenge the city ordinance as unconstitutionally overbroad, because his argument of unconstitutionality applies to other persons and he has made no showing that he falls into that category of persons whose rights are adversely affected by the ordinance. In support of its position, the city cites United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524, 80 S.Ct. 519 (1960); City of Junction City v. White, 2 Kan. App. 2d 403, 580 P.2d 891 (1978); and State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976). Here the defendant was convicted in municipal court of violating the ordinance and sentenced to a term in the county jail and a fine of $1,000. His constitutional attack on the statute was on the basis that the city ordinance is void on its face without consideration of the factual circumstances involved in the case. Defendant’s position is that the ordinance, by its language, is unconstitutional on its face because it is so broad in its application as to be beyond the legitimate exercise of the police power. He maintains that where a statute is void on its face, any allegations in a complaint, purporting to charge a public offense, cannot serve to validate an offense intended to be charged under the void statute. Citing, State v. Hill, 189 Kan. 403, Syl. ¶ 3, 369 P.2d 365 (1962). It cannot be denied that the defendant has been adversely affected by the application of the ordinance to him since he has been convicted under it and sentenced to a fine and imprisonment. Under the circumstances, we have concluded that the defendant has standing to raise the constitutional issue and it should be determined in this action.
We turn now to the primary issue raised in the case — the constitutionality of Ordinance 12-410(d). The predecessor to Ordinance 12-410 was before this court for consideration in City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). The former Junction City ordinance considered in Lee was enacted in 1973 and provided in part as follows:
“12-410 (1) Unlawful use of weapons is knowingly:
“(d) Carrying any pistol, revolver or other firearm on the person or in any land, water or air vehicle except when on his land or in his abode, fixed place of business or office; or
“(2) Exemptions, (a) Subsections (1) (a), (b), (c), (), and (g) of this section shall not apply to or affect any of the following: (i) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer; (it) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime; (Hi) Members of the armed services or reserve forces of the United States or the Kansas national guard while in the performance of their official duty; (iv) Manufacture of, transportation to, or sale of weapons to persons authorized under (t) through (Hi) of this subsection to possess such weapons.
“(b) Subsection (1) (b) and (d) of this section shall not apply to or affect the following: (i) Watchmen while actually engaged in the performance of the duties of their employment; or (it) Licensed hunters or fishermen while engaged in hunting or fishing and traveling in places to hunt and fish; or (Hi) Persons licensed as private detectives by the state of Kansas, detectives or special agents regularly employed by railroad companies or other corporations to perform full-time security or investigative service.
“(d) Subsection (1) (d) shall not apply to persons carrying unloaded weapons directly from or to places where said weapons are to be or have been repaired or sold by a gunsmith or dealer.
“(3) It shall be a defense that the defendant is within an exemption.” (pp. 499, 500.)
In Lee, the ordinance was attacked on the following grounds: (1) The ordinance violates the right of a citizen to bear arms provided for in the Kansas Constitution, § 4; (2) the city ordinance is in conflict with K.S.A. 21-4201, which prohibits only the carrying of concealed weapons and not unconcealed weapons; and (3) the state legislature, by enacting K.S.A. 21-4201 has preempted the field of weapons control to the exclusion of municipal regulations. On appeal this court reversed, rejecting each of the defendant’s contentions, all three of which had been sustained in the district court. Following the decision in Lee, Ordinance 12-410 was amended to read in part as follows:
“12-410 DEADLY WEAPONS: Section 10. Unlawful use of weapons is knowingly:
' “(d) Carrying any pistol, revolver or other firearm on the person or in any land, water or air vehicle except when on his land or in his abode, fixed place of business or office; or
“(2) (a) Subsections (1) (a), (b), (c) and (d or affect any of the following:
“(i) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officers; (ii) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crimes; (iii) Members of the armed services or reserve forces of the United States or the Kansas national guard while in the performance of their official duty; (id) Manufacture of, transportation to, or sale of weapons to persons authorized under (i) through (iii) of this subsection to possess such weapons. (G-387; 3/21/75)
“(b) Subsection (1) (b) and (d) of this section shall not apply to or affect the following: (i) Watchmen while actually engaged in the performance of the duties of their employment; or (ii) Licensed hunters or fishermen while engaged in hunting or fishing and traveling to and from places to hunt and fish; those engaged in camping, scouting, trap, skeet or target shooting and instruction and training in safety and skillful use of weapons and traveling to and from places to engage in such activities; or (iii) Persons licensed as private detectives by the State of Kansas, detectives or special agents regularly employed by railroad companies or other corporations to perform full-time security or investigative service. (G-371; 4/16/74)”
The ordinance now before us differs from the ordinance considered in Lee in five specific respects:
(1) A former section (1) (g) dealing with automatic weapons was deleted in its entirety.
(2) The exemption in (2) (b) (ii) dealing with hunters and fishermen was enlarged to include, in addition to licensed hunters and fishermen while engaged in hunting or fishing and traveling to and from places to hunt and fish, “those engaged in camping, scouting, trap, skeet or target shooting, and instruction and training in safety and skillful use of weapons and traveling to and from places to engage in such activities.”
(3) An exception in (2) (c), which permitted a barber or licensed doctor making house calls, to carry a knife or razor was eliminated.
(4) Former section (2) (d), which exempted from the application of (1) (d), “[P]ersons carrying unloaded weapons directly from or to places where said weapons are to be or have been repaired or sold by a gunsmith or dealer,” was deleted in its entirety.
(5) Section (3) of the former ordinance was deleted. That section in the old ordinance provided that “it shall be a defense that the defendant is within an exemption.”
Before turning to the issue of constitutionality, we should also note the provisions of another Junction City ordinance which prohibit the sale of firearms unless the purchaser first obtains a registration certificate issued by the chief of police. The ordinance referred to is 18-3al01 et seq., which is denominated the “Handgun Ordinance” and provides in part as follows:
“18-3al01 — REGISTRATION. Section 1. From and after the effective date of this Ordinance, no pistol, revolver or other firearm with a barrel less than 10 inches in length shall be sold in the City of Junction City, Kansas, unless the purchaser thereof shall have first obtained a registration certificate to be issued by the Chief of Police of the City.
“18-3al03 — PERSONS NOT ELIGIRLE FOR CERTIFICATE OF REGISTRATION. No certificate of registration shall be issued to any of the following classes of persons:
“a. Any person under the age of Eighteen (18) years.
“b. Any person convicted of a felony as defined in K.S.A. 21-3105 (1).
“c. Any person who is addicted to the use of narcotics or is mentally retarded or is a habitual drunkard. (G-418; 8/17/76)
“18-3al04 — WAITING PERIOD. Section 4. No firearm as herein described shall be delivered into the possession of the purchaser thereof until a period of 48 hours shall have transpired from the time of issuance of such certificate of registration and said certificate shall have been presented to the seller.
“18-3al05 — EXCLUSIONS. Section 5. The provisions of this Ordinance shall not apply to any duly authorized police officer, marshal, sheriff, constable, or other law enforcement officer designated by the federal, state, county or municipal governments, who purchase weapons to be used in the performance of their duties.
“18-3al06 — PENALTY. Section 6. Any person who shall violate or fail to comply with the provisions of this Ordinance, or any person, firm or corporation who shall either directly or indirectly or by agent or employee, violate or fail to comply with any of the provisions of this Ordinance, shall upon conviction be fined not more than $100.00 or imprisoned in the City Jail for not more than 90 days, or both such fine and imprisonment.”
This ordinance must be kept in mind in our consideration of the constitutionality of Ordinance 12-410.
In support of its position that 12-410 is unconstitutionally overbroad, defendant points out the provisions of 18-3al03 et seq. which permit the sale and purchase of handguns upon obtaining a registration certificate, and then directs our attention to the fact that under Ordinance 12-410 (d) it is unlawful to possess a firearm anywhere within the city limits of Junction City except in one’s home or fixed place of business. The defendant argues that it is thus a criminal offense to transport a firearm from the place of purchase to the purchaser’s home or between a person’s office or place of business and his home. He suggests that even a licensed hunter or sportsman who purchases a gun can avoid a charge of unlawful possession only by immediately departing on his hunting trip from the gun dealer’s place of business. This situation exists because the city, in enacting the new ordinance, failed to include therein former section (3) which specifically provided that subsection (1) (d) shall not apply to persons carrying unloaded weapons from or to places where weapons have been repaired or sold by a gunsmith or dealer. Applying the city ordinance literally, it appears that virtually every private citizen of Junction City who has purchased a firearm since the passage of 12-410 has committed a crime in possessing that firearm.
The defendant does not contend that weapons control in general is not an appropriate place for the exercise of the police power. He maintains, however, that Ordinance 12-410(d) is arbitrary, unreasonable, and oppressive, and that its prohibitions and exclusions are not reasonably related to its purpose and thus it is an unlawful exercise of the police power. In support of his position, the defendant cites a Colorado case, Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972), where a city ordinance quite similar to the Junction City ordinance was held to be unconstitutionally overbroad. That case involved the constitutionality of an ordinance of the city of Lakewood which made it unlawful to carry and possess dangerous weapons. The Lakewood ordinance provided as follows:
“ Unlawful to Possess, Carry or Use Dangerous or Deadly Weapons, (a) It shall be unlawful for any person to have in his possession, except within his own domicile, or to carry or use, a revolver or pistol, shotgun or rifle of any description, which may be used for the explosion of cartridges, or any air gun, gas operated gun or spring gun, or any bow made for the purpose of throwing or projecting missiles of any kind by any means whatsoever; provided that nothing in this section shall prevent use of any such instruments in shooting galleries or ranges under circumstances when such instruments can be fired, discharged or operated in such manner as not to endanger persons or property and also in such manner as to prevent the projectile from traversing any grounds or space outside the limits of such gallery or range; and provided further, that nothing herein contained shall be construed to prevent the carrying of any type of gun, when unloaded, or any bow, to or from any range, gallery or hunting areas, (b) Nothing in this section shall prevent the possession or use of any of said instruments by persons duly licensed for such purpose by the City of Lakewood, (c) Nothing in this section shall prevent the use of or possession of any said instrument by law enforcement personnel.” (pp. 22-23.)
It should be noted that the Lakewood ordinance made it unlawful for any person to have a revolver or pistol in his possession except within his own domicile, making an exception in cases of shooting galleries or ranges or hunting or by persons duly licensed or when used by law enforcement personnel. The Supreme Court of Colorado held the Lakewood ordinance to be invalid on the grounds that it was unconstitutionally overbroad. Among other deficiencies, the Colorado court noted that the ordinance prohibited an individual from transporting guns to and from places of business such as gunsmiths, pawnbrokers, and sporting goods stores.
The city of Junction City, in its defense of the ordinance, contends that a validly passed statute or ordinance is presumed to be constitutional and should be construed to be constitutional, if possible. Counsel then argues that this court should, by judicial construction, add to the exceptions contained in Ordinance 12-410 to meet the objections raised by the defense. Under the listed exceptions, the city maintains that the ordinance is amenable to a construction which permits the use of weapons for all recreational or business purposes without the flat prohibitions or inef fective licensing provisions often employed in other statutes and ordinances. In its brief, the city states that under the ordinance, the police do not usually find a violation by those citizens who can show that the purpose or reason for transporting the weapon was either for recreational or business purposes since the exemptions in Sections (2) (a) and (b) of 12-410 can be reasonably construed to permit the possession and transportation of the regulated weapons for all business or recreational purposes. In other words, the city maintains that the courts should read additional exceptions into the act which are not specifically contained therein.
We have concluded that the district court properly held Ordinance 12-410 to be unconstitutionally overbroad and an unlawful exercise of the city’s police power. We, of course, recognize the basic principles which the courts must apply in determining the constitutionality of a statute or city ordinance. The basic principles are set forth in our recent opinion in City of Baxter Springs v. Bryant, 226 Kan. 383, 598 P.2d 1051 (1979), as follows:
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.” (Syl. f 1.)
“In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” (Syl. f 2.)
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.” (Syl. f 3.)
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.” (Syl. 14.)
“Once a subject is found to be within the scope of the state’s police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose.” (Syl. ¶ 5.)
In State v. Pendarvis, 181 Kan. 560, 313 P.2d 237 (1957), at page 566, we stated that the fixed rule and basic standard by which the validity of all exercises of the police power is tested is that the police power of the state extends only to such measures as are reasonable and that all police regulation must be reasonable under all circumstances.
In Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P.2d 82 (1969), the limitation on the police power of a city is stated as follows:
“While the police power is wide in its scope and gives a governmental body broad power to enact laws to promote the health, morals, security and welfare of the people, and further, a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unreasonable and oppressive legislation or that which is in violation of the fundamental law.” (Syl. ¶ 4.)
See also Gilbert v. Mathews, 186 Kan. 672, 677, 352 P.2d 58 (1960), and Little v. Smith, 124 Kan. 237, 257 Pac. 959 (1927).
The difficulty with the city ordinance in question here is that it clearly and unequivocally prohibits any non-exempt person within the city limits of Junction City from having in his possession a firearm, except when he is on his own land or in his abode, fixed place of business or office. Anyone reading the ordinance could only conclude that, unless he fell within the category of exempted persons, he could not lawfully transport a firearm from the place where he purchased it or had it repaired or between his office and his home without being in violation of the ordinance. The fact that the Junction City police have taken the benign position that the ordinance should be enforced only against those who have no good reason to have a gun does not make the express language of Ordinance 12-410 any less unreasonable and oppressive. We have no doubt that the governing body of the city of Junction City can enact a valid gun ordinance, thus correcting the infirmities now existing. It is not up to the courts to engraft exceptions to legislative enactments which were not placed there by the legislative body which adopted the statute or ordinance. That is properly a legislative function and not for the courts. We have thus concluded that Junction City Ordinance 12-410(d) is constitutionally overbroad and that the district court was correct in so holding. The other sections of Ordinance 12-410 are not affected by this decision.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought in the district court of Woodson county by the state of Kansas, on the relation of the county attorney, against J. W. Turner, as principal, and T. W. Wilson, J. B. Fry, I. S. Jones, M. Reedy, N. F. Follett, J. H. Bayer, A. Hamilton, and August Todman, as sureties on the official bond of J. W. Turner, former treasurer of said county, to recover $2,216.47, an amount alleged to be still due from Turner as treasurer and never paid over by him to his successor in office or accounted for in any manner. At the June term, 1889, a trial was had before the court without a jury, and the court found generally in favor of the plaintiff and against the defendants, and rendered judgment against them jointly and severally for the recovery of the sum of $2,026.40, the amount found due against the defendant,. Turner, as county treasurer, and for costs of suit; and to reverse this judgment the defendants, as plaintiffs in error, bring the case to this court for review.
I. The first alleged error, as stated in the brief of the plaintiffs in error, is as follows: “The court erred in overruling the demurrers filed, for the reason that the petition shows an accounting and settlement between the county commissioners and J. W. Turner, the county treasurer, and no sufficient showing is made to justify going back of the settlement, particularly as against the other defendants (plaintiffs in error) who were his sureties.” The petition is not fairly subject to the above objection, and the ruling of the court below upon the demurrers was correct; but whether it was correct or not, it cannot be considered by this court, for the reason' that no exception was taken thereto or saved in any manner. (Lott v. K. C. Ft. S. & G. Rld. Co., 42 Kas. 293.)
II. The next alleged error is stated in the brief of plain tiffs ia error as follows: “The court erred in overruling the motion for a new trial, there being an error in the assessment of the amount of recovery.” The real objection seems to be this: That the court below upon the evidence introduced on the trial found and assessed too great an amount as the amount of the plaintiff’s recovery. Now we cannot say from the evidence that any such error was committed. Indeed, from the case brought to this court, it cannot be ascertained that we have all the evidence that was introduced on the trial in the court below. On the contrary, the case shows affirmatively that we do not have all such evidence, and therefore it is utterly impossible for us to say whether the court below erred or not in the assessment of the amount of the- plaintiff’s recovery, or whether it erred or not in making any other finding of fact upon the evidence. (See the case of Hoopes v. Implement Co., just decided.)
It is our opinion that no material error was committed in the ease, and therefore the judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action brought by Rich township, in Anderson county, to enjoin the board of county commissioners of that county from issuing, and the Kansas City & Pacific Railroad Company from receiving, bonds amounting to $21,000, voted by. the township in payment of a subscription to the capital stock of the railroad company. The facts in this case are substantially as follows:
On January 25, 1887, under the provisions of chapter 107, Laws of 1876, as amended by chapter 142, Laws of 1877 (Comp. Laws of 1885, p. 783), the board of county commissioners of Anderson county ordered an election to be held in Rich township on March 1, 1887, on a proposition for the township to subscribe $25,000 to the capital stock of the railroad company, the same to be paid by a like amount of the bonds of the township — the road to be constructed on or before the 31st day of December, 1888. The election was held, the vote canvassed, an order made that the county clerk subscribe for $25,000 of the capital stock of the railroad company, for and on behalf of the township, and the subscription was made, as ordered, on the regular stock-book of the railroad company furnished for that purpose. Several petitions were circulated asking for this submission; some of them designated one point in the northern part of the township as the site of a depot to be erected by the company, while the others designated another point a half-mile east. This discrepancy grew out of a mistake in copying the forms for the petition prepared by the railroad company. When the order was made, one of the petitions containing the mistake was taken as correct, so that the same mistake was carried into the order, notice, and proposition submitted, by which the depot was designated at a point a half-mile east from the point really intended by the company and by the people of the township. Relying upon the subscription, the company proceeded to, and did, build its road from the south into the township, before it discovered that its line as located did not extend to the point named for a depot in the proposition voted. Thereupon it suspended work, and finally, as a proposed way out of the difficulty, the company prepared and circulated petitions reciting the former vote and mistake, and asking for an election for $21,000 of bonds and a like subscription upon the route as located, designating the depot site at the point originally intended — the railroad to be constructed on or before the 31st day of July, 1888. On the 14th of October, 1887, at a special meeting of the board of county commissioners of Anderson county, at which two members of the board were present, an order was made for another election, to be held on the 14th day of November.» 1887, for the township to subscribe $21,000 to the capital stock of the railroad company; the same to be paid for by a like amount of the bonds of the township. The petition upon which the board ordered the election to be held was signed “by a majority of the qualified electors of Rich township.” A majority of the legal voters favored the proposition, and the board declared it carried, and made a second subscription for stock, for $21,000. The road was built within the time, and according to the terms stated in the second petition and vote. In the order and proposition of-the board, upon which the last vote was had, was a recital that, “if the subscription for $21,000 was made, then the $25,000 subscription before voted should be void, and no bonds should issue in payment thereof.” The second petition was presented and the election thereon held under the provisions of chapter 183, Laws of 1887 (Gen. Stat. of 1889, ¶ 1283). The railroad company, through its general attor ney and vice-president, initiated and had general charge of the proceedings upon which both subscriptions were based. The railroad company offered a certificate of its stock for $21,000 to the proper officers, and demanded the issuance of a like amount of township bonds, as provided in the second subscription, after the board of county commissioners had gone over the road and declared the terms of the subscription complied with.
The first question in this case is, whether, under the provisions of chapter 183, Laws of 1887, the election of the 14th day of November, 1887, was “a second election for the same purpose” for which the prior election of March 1,1887, was ordered and held. Section 1, chapter 142, Laws of 1877, provides: “That at any subsequent election to be held for the same purpose, the same shall not be held, unless upon a petition of a majority of the legal voters of such county, township or city.” Section 1, chapter 183, Laws of 1887, provides: “That a second election for the same purpose shall not be held, unless upon a petition of a majority of the legal voters of such county, township or city.”
The petition for the proposition submitted at the first election' was for a subscription for $25,000 of stock, the road to go over a definite route to a particular place specified for one of the depots. In the last election, the petition was for a subscription of $21,000, the road to take a different route to a point where one of the depots should be built. The proposition submitted at the first election was for the construction of the railroad on or before the 31st day of December, 1888. In the second election, the proposition was for the construction of the road on or before the 31st day of July, 1888. The second election was for a different purpose than the first election. The amount of the subscription was different, the route of the railroad was different, the location of one of the depots of the road was different, and the time for the completion of the road was different; therefore we cannot decide, upon the facts found by the trial court, that the second election was “for the same purpose” as the first election. The proposi tions as submitted were not substantially the same, but materially different. As the jurisdictional facts or conditions Prece<Jent to a valid subscription by the township under the last proviso of § 1, of said chapter 183, were not complied with m voting or subscribing the $21,000 of stock to be paid for in township bonds, the railroad company has no right to have issued to it, under such proviso, the $21,000 of bonds.
In this connection, we copy the following from the able opinion of the learned trial judge, delivered at the time of rendering judgment:
“If this be not the proper construction of the statute, then almost any proposition may be voted upon in the first instance providing for a subscription by a township for stock in a railroad company, and then, if defeated, or if carried, a vote can be had upon another proposition asked by a majority of voters, entirely different from the one asked for by the tax-payers in the first instance. This construction would break down completely one of the statutory barriers against the hasty assumption of burdens by municipalities, viz., the tax-payers’ petition.”
The trial court, after properly holding that there tras no valid second election under the last proviso of §1, of said chapter 183, further ruled that the second subscription to the stock of the railroad company in its inception was illegal for want of power to make it, because the petition presented to the board of county commissioners was not signed by two-fifths of the resident tax-payers of the township. The railroad company vigorously contests this finding of fact and the conclusion of law of the trial court thereon. Counsel for the company says that—
“This point was not raised upon the trial of the case at all. The reasons set forth in the petition why the railroad company was not entitled to the bonds in substance are : 1st, because of the first subscription for $25,000, which it is alleged has never been canceled or annulled; 2d, because there were only two commissioners present at the meeting at which the election was called; and because the petition for the election had never been presented to the chairman of the board, and there had been no call for the meeting, and the meeting at which the election was called was held without authority of law; 3d, because there was no security given for the expenses of the election; and 4th, because certain articles were published by the railroad company in a newspaper circulated in the township, wherein it was claimed that the first subscription was valid, and would be enforced unless the last proposition was carried, and if the last proposition was carried the first would be released; and because these publications, together with the proviso in the last proposition to the same effect, operated as an inducement and bribe to the voters of the township to vote in favor of the last proposition, but for which the same would have been defeated. This covers and includes the substance of every allegation of fact in the petition except the formal allegations of incorporation, official character, etc. Not a single allegation, not a word attacking the sufficiency of the petition for the election, can be found in the petition. No testimony was introduced upon the trial showing or tending to show that the petition did not contain two-fifths, or any other proportion of the resident tax-payers of the township. The ease was taken under advisement by the court and briefs were filed. The only attack made upon the petitions was because they ‘did not contemplate a completed’ railroad, as the word ‘constructed’ was used instead of ‘completed.’ ”
The opposing counsel answer as follows:
“The railroad company press the alleged fact that the point upon which the district judge decided the casein favor of the township was not urged in the court below. The principle underlying this point was pressed with all the force at our command. The broad general allegation in the petition is, that the railroad company is not entitled to these or any other bonds of Rich township. It is true that the allegations are very general, but they were sufficient to present the question considered and decided. If the defendant was not satisfied with the petition, it should have filed its motion to have it made more definite and certain. The sufficiency of the petition for the last election was assailed at the outset, and continuously, and after all, in the opinion of the district judge, the ease turned upon it. A copy of it was attached to the petition of the township in this case; it showed on its face that it was signed by voters only, and the board of county •commissioners so found. What more could have been re quired? The question was presented upon the pleadings; it was in the case; and the trial judge considered it as conclusive in the township’s favor.”
This is an equitable suit, and in considering the complaint against the ruling of the trial court, that the second petition was not a tax-payers’ petition, various other matters disclosed by the record should be referred to. The township trustee signed the second petition and voted for the proposition. Everybody supposed the second subscription contract to be valid, and ¿11 parties interested treated it as valid until the trial before the district court. The form of ballots used at the second election in favor of the proposition was “for extending aid to the Kansas City & Pacific Railroad Company on the new proposition,” and against the proposition was, “Against extending aid to the Kansas City & Pacific Railroad Company on the new proposition.” In building the railroad through the township, the line had to be lengthened several thousand feet and considerable additional expense incurred in order to comply with the terms of the subscription. But for the subscription of Rich township the road would have been located and built, by an equally favorable route, through Blue Mound township, about six miles east of its present location. The railroad has been regularly operated through the township since its completion.
On February 27, 1888, the township board, believing that the railroad company was about to have the bonds issued while the road was yet unfinished and not in operation as required by the subscription, met and took action in the matter, the result of which was that the treasurer, trustee and clerk caused to be sent to the company a written notice, signed by all of them, in substance stating that the township board would not accept the railroad in its present condition. About ten days thereafter the township commenced an action to enjoin the issuing of the bonds, in which the railroad company filed an answer, setting forth in substance, among other things, that it did not claim to be then entitled to receive the bonds in payment of the subscription, and did not propose asking for them until the railroad was completed and in operation in all respects as required by the terms of the subscription, and thereupon the township caused the action to be dismissed without prejudice. Ou April 30,1888, the company had the railroad completed and in operation, with depots and side-tracks and stock yards, in'all respects in compliance with the terms of the subscription, and thereupon notified the proper county and township officers of that fact; and on May 2 the board of county commissioners met as requested, and, accompanied by the county clerk and township officers, went over and carefully inspected the road. The record of the meeting of the board of county commissioners shows, among other things, that “the board went over the said railroad on May 2,1888, . . . and noted carefully the construction thereof, and finds that said railroad is fully completed and in operation in accordance with the subscription of said township to the capital stock/’ And, after reciting the facts about the tender of the stock, the refusal thereof, and demand for the bonds, the record further shows that “the board finds that while the company ... is entitled to the bonds, yet the board having been, on May 2, at seven o’clock p.m., enjoined from issuing them, it cannot take further action until said injunction suit is settled.” In 1887, Rich township, including the little villages within it, had nine hundred and ninety-nine inhabitants. At the first election one hundred and thirty-six votes were cast for the proposed subscription, and one hundred and twenty-four against. At the second election one hundred and twenty-eight votes were cast for the subscription and one hundred and nine against. The act of 1877, as also the act of 1887, prescribes that before a first election shall be held in any town-skip to subscribe to the capital stock of any railroad company, a petition in writing should £jrgj. q,e presented to the board of county commissioners signed by two-fifths of the resident tax-payers of the township. The petition presented to the board of county commissioners on the 15th day of October, 1887, did not show upon its face that it was signed by two-fifths of the resident tax-payers.
If the petition was merely defective, or irregular only, within the authorities, the township is not in a position to refuse the payment of its subscription.
“A municipality may be estopped by its course of dealing with the railroad company to interpose a defense of irregularity in the exercise of the power of issuing bonds; and its position then in regard to the company is similar to that which it occupies to bona fide holders of the bonds without notice. A distinction is to be observed that ratification by acquiescence, or by affirmative acts, has been established only in cases of irregularities in the exercise of the power to issue bonds, and not in any case where there was a total want of power to issue the bonds.” (Jones, Rly. Secur. § 280, and cases there cited.)
See also Comm’rs of Morris Co. v. Hinchman, 31 Kas. 729; Railroad Co. v. Comm’rs of Osage Co., 38 id. 597; Railroad Co. v. Evans, 41 id. 94; Railroad Co. v. Stewart, 39 Iowa, 267; Hitchcock v. Galveston, 96 U. S. 340; Brown v. Kramer, 25 N.W. Rep. 356.
Even in judicial matters, this court has already decided that if the jurisdictional facts necessary to warrant service upon a defendant by publication were in existence at the commencement of the action, and the affidavit for publication is defective only and not void, the court, after judgment, may permit an amended affidavit for publication to be filed, and such affidavit when filed gives jurisdiction to the court and relates back to the time of the commencement of the action. (Long v. Fife, just decided; Pierce v. Butters, 21 Kas. 124; Wilkins v. Tourtellott, 28 id. 833; Harrison v. Beard, 30 id. 532.)"
The railroad company has proceeded upon the faith that it was to receive the bonds in due time; has complied with all the conditions upon which it was to become entitled to them; has expended large sums of money in constructing its road through the township, which it would not have done but for the promise of the legal voters that the bonds should issue in payment of the township subscription when the company had performed its part of the contract. During all of this time, the board of county commissioners, the township officers, the tax-payers and citizens of the township, seeing and knowing that the railroad company was expending its money within the township, in the construction of a public improvement which was to benefit the township and the property therein, stood by and made no complaint or objection to the petition presented for the second election. The first time that it was suggested that the proceedings were wholly void, because of the absence of a tax-payers’ petition, was upon the trial of this case, and if the statement of the counsel of the railroad company is correct, the suggestion was not seriously considered by the parties until the decision of the trial court was rendered. In view of all the facts presented, we think that the question, whether the petition for the second election was signed by two-fifths of the resident tax-payers of the township, ought to be fully litigated. The evidence pro and eon upon this question should be presented to the trial court.
We think, considering the conduct of the county and township officers, the tax-payers and citizens of the township, and the form of the petition praying for the injunction against the issuance of the bonds, that the railroad company never understood, until after the decision against it, that the validity of the petition presented to the board of county commissioners was challenged. It was not specifically informed on the trial by the allegations of the pleadings, or any evidence offered, that the petition was defective upon the ground of not having been signed by two-fifths of the resident tax-payers of the township. So it had no fair opportunity on the trial of supplying proof in that regard. Of course, the rule is that if a petition is not sufficiently definite, a defendant may file his motion to have it made more specific, but the petition for the injunction nowhere alleged that the proceedings were void for the want of a tax-payers’ petition, and the petition did specifically state several other reasons why the railroad company was not entitled to the bonds. These specific alie- gations limited and qualified the general allegations of the petition, and therefore we cannot say that the counsel of the railroad company was negligent or guilty of laches in failing to file a motion to make the petition more certain, or in failing to understand that the question of a tax-payers’ petition was in controversy. (Wiley v. Keokuk, 6 Kas. 94; Banking Co. v. Riley County Bank, 30 id. 163.) The allegations of a pleading are to be taken most strongly against the pleader. If, upon a new trial, it shall be made to appear that the petition presented to the board of county cominis- . , . r* n i r> i . n sioners was signed, by two-fifths ot the resident tax-payers of Rich township, then, at most, the petition -for the second election was merely de- * . j fective, or irregular only. It ought to have stated upon its face that it was signed by two-fifths of the resident tax-payers of the township, or the board in ordering the election should have so found, but if, as a matter of fact, it was actually thus signed, then §1, of chapter 183, for a first election, would be so far complied with as to uphold the proceedings, considering all the other facts of the case. The jurisdictional facts or conditions precedent to a valid subscription by a township under the act referred to are, a petition of two-fifths of the resident tax-payers, an order by the commissioners for an election, a notice for such election, and an affirmative vote upon the proposition.
The power of the township to vote aid was not exhausted by the election of March 1, 1887, if the second election be regarded as a vote upon a new proposition. If irregularities only intervened and the second subscription was otherwise valid, it annulled and canceled the prior subscription. (Supervisors v. Galbraith, 9 Otto, 214.) If it can be established by sufficient proof that the petition for the second election was signed by two-fifths of the resident tax-payers of Rich township, as it is conceded that the commissioners ordered the election, that notice of the election was given and an affirmative vote of a majority of the legal voters of the township was cast upon the proposition, it cannot well be urged that there was a total want of power to make the subscription. If there was power to make the subscription, although the proceedings were irregular, then, in view of all the equities favoring the railroad company, the bonds ought to issue. It is not contended that there was anything unfair in the election, or that the voters of the township did not generally participate therein. As before stated, all of the parties interested treated the second petition as sufficient and valid, until the perpetual injunction was granted. If, as a matter of fact, this petition was signed by two-fifths of the resident tax-payers of the township, then the proceedings precedent to making the subscription were irregular only, not fatally defective — not void.
There is nothing in the petition presented to the board of county commissioners, or in the order or notice for the election, stating or showing that the signers to the petition were not tax-payers of the township. The petitioners were qualified electors of the township and may have also been taxpayers. Generally, a majority of the qualified electors of a township in this state embraces two-fifths of the tax-payers of the township; at least, a majority of the qualified electors of a township is more likely to include two-fifths of the taxpayers of a township, than a majority of the qualified electors of a city or large village is likely to include two-fifths of the tax-payers of such city or village. Whether the majority of the qualified electors of Rich township, signing the petition, included among them two-fifths of the tax-payers of the township, will be determined upon the new trial.
Noffzigger v. McAllister, 12 Kas. 315, referred to, was a night-herd-law decision. The only evidence introduced on the trial in that case to show that any petition was ever presented to the board of county commissioners, was merely the order of the board mentioning the same. Of course, the mere recital in the order of the county commissioners that a petition had been previously presented to them to consider and act upon, is not sufficient evidence of such fact, if it be specifically denied.
Other questions in the record as to the alleged conditions precedent to a valid subscription need not be considered, because they all concern irregularities merely, and the township is “estopped by its course of dealing with the railroad company to interpose a defense of irregularity in the exercise of the power of issuing the bonds.”
In view of another trial, the pleadings should be amended so as to allege specifically that the petition upon which the second election was called was not signed by two-fifths of the resident tax-payers of the township. Then this matter will be clearly in issue.
The judgment of the district court will be reversed, and the cause remanded for new trial in accordance with the views herein expressed.
All the Justices concurring.
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Opinion by
StraNG, C.:
Action for replevin. Plaintiff held a chattel mortgage upon a stock of millinery goods, store furniture and fixtures in possession of the defendant. By the terms of the mortgage the goods were to remain in possession of the defendant until condition broken, or the plaintiff deemed himself insecure. The plaintiff, deeming himself insecure, demanded possession of the goods, which was refused. He then commenced his action of replevin in the district court of Franklin county, Kansas, April 23, 1887. Defendant first answered by a general denial, and afterward filed an amended answer, in which she admitted the execution and delivery of the note and mortgage sued on, but averred that, after the execution and delivery of the note and mortgage, the plaintiff agreed to purchase of her the entire stock of goods, furniture and fixtures, at a price to be determined by an invoice to be taken by Holt, the agent of the plaintiff, and to pay her the difference between the value of the goods so ascertained and the amount of plaintiff’s lien, in cash. She also alleges that Holt, under the instructions of the plaintiff, took an invoice of the goods, furniture and fixtures, and that, after the defendant had submitted to the interruption and inconvenience necessarily incident to the taking of the invoice, the plaintiff failed and wholly refused to carry out his said agreement to take the goods, and pay the defendant therefor the difference between the amount of the invoice and the amount of the plaintiff’s note, notwithstanding she offered the plaintiff the goods according to said agreement, and demanded the money due her thereon. The invoice of said goods amounted to $1,259.09, and the furniture and fixtures to $335.75, a total of $1,594.84. There was a third defense in the amended answer, in which defendant claimed damages for the wrongful taking of the property by the plaintiff. The plaintiff replied by a general denial, and the case went to trial by the court and jury, at the October term, 1887. Verdict for the defendant for $808.37 as the value of her interest in the property, and as damages $28.29. Afterward, on motion for a new trial, the court required the defendant to remit $88.14 of the amount of her interest in the goods, and $3.09 from the amount of her damages, which was done; whereupon the court overruled the motion for a new trial, and entered judgment upon the verdict as modified, for $720.23, as the interest of defendant below in the' goods, and $25.20 for damages.
The first ground for reversal discussed by the plaintiff in his brief, is the refusal of the court to require the defendant, in the trial below, to elect upon which defense set out in her answer she would reply. Plaintiff suggests that the second and third defenses set out in the answer are inconsistent with each other. The second defense sets out a sale of the goods replevied, by the defendant to the plaintiff, after the execution and delivery of the note and mortgage, and his refusal to carry out the contract of sale. This defense is based upon matters arising subsequent to the execution of the plaintiff’s mor I gage. The third count in the answer sets up matters and things, which if they amount to a defense, relate to the original transaction between the parties. This count may contain some things that are not matters of defense at all, but no motion to make it more definite and certain was interposed, and no demurrer was pleaded to it. Whatever matter of defense it stated was not inconsistent with the second defense. If the second defense failed, she might still have whatever benefit could be derived from the matters stated in her last defense. The sale of the goods subsequent to the making and delivery of the note and mortgage was not inconsistent with the defendant’s version of the original transaction sought to be detailed in the third count.
The plaintiff complains of the action of the court in overruling his objection to the following question: “ Who first suggested the mortgage being given?” This was objected to as being incompetent. It cannot be said that this question was incompetent. It would be immaterial unless followed by something rendering it material; but, as a preliminary question, it was not incompetent. The next question objected to was, “You may state all the conversation.” To this question the plaintiff objected, but stated no ground of objection, and the court properly overruled it. The following question was asked: “Did you read it [the mortgage] before you signed it?” The answer was, “Mr. Deford read it, but I did not understand it.” There was no objection to this question, but plaintiff objected to the answer, failing, however, to assign any ground of objection, and he made no motion to strike the answer out. This ruling cannot be complained of. The next question was, “What part of it was it that you didn’t understand?” This question was objected to as incompetent, and sustained by the court, showing the court to be with the plaintiff so far as the substance of this part of the examination was concerned, as soon as the counsel put himself within the rule and stated his ground of objection.
The next complaint is the ruling of the court against the plaintiff’s objection to the following question: “What would have been the aggregate value, in your judgment?” This question was probably not competent, since, if the sale of the goods by the defendant to the plaintiff is enforced, the invoice of the goods is their fair value; and if said sale is not enforced, the plaintiff is only required to return to the defendant any surplus in his hands after paying his debt and costs. But, under the instructions of the court, and the verdict of the jury, the admission of this evidence is not prejudicial error. The court instructed the jury that, if they found the existence of the contract of sale contended for by the defendant, the value of the goods would be the invoice of the same, made by Holt. The jury evidently found for the defendant on the allegation of sale of the goods by her to Deford, and in enforcing said contract considered the amount of the invoice of the goods as the value of the goods. But if the plaintiff is right in his argument upon his tenth assignment of error, when he says that the jury should have found what the whole property was worth, then this question might have been competent and proper.
Plaintiff complains of the exclusion of testimony. We do not think any error exists here. The witness was asked her understanding in relation to the matter of inquiry, and if she understood certain things from either Deford or Miss Hutchi-son. Her understanding was not evidence. What she understood from Deford or Miss Hutchison, was not evidence. What she heard Miss Hutchison say in regard to the matter might have been. But she was not asked that question.
The sixth complaint relates to the charge of the court. The averment is that the court erred in telling the jury that it was necessary that plaintiff “should have some reasonable ground for deeming himself insecure.” The instruction, as a whole, shows that the court did not instruct the jury that the plaintiff should have some reasonable grounds for deeming himself insecure. After using the above words, the court adds: “ But that is not the question we are trying here. If he deemed himself insecure, he must be the sole judge of that question, and we are not trying the question of whether he had reasonable grounds or not, but the fact whether or not he deemed himself insecure.” We do not think the instruction, as a whole, misled the jury.
We think the instruction complained of in the seventh assignment is the law. If, subsequent to the delivery of the note and mortgage, and while the defendant was in the actual possession of the goods, the plaintiff purchased the goods of the defendant, and agreed to pay her the difference between the amount of his lien thereon and the invoice of the goods, he waived his rights as mortgagee and stood upon his rights as vendee; and, the goods being in the defendant’s actual possession, she had a right to hold them until he paid her the purchase-price, or the difference between his lien and the amount of the invoice.
The next error assigned relates to the instructions of the court, in which the court told the jury that they might find the value of the fixtures from the evidence. There is, at least, no reversible error in this instruction, when considered in connection with the evidence, the verdict of the jury, and its modification by the court. Holt did invoice the' fixtures. The evidence shows that he put them down in the book, and attached a value to them. It is true he put them in at the price the defendant said they were worth, instead of putting them in at a value fixed by himself. But he had a right to do so, and, having done so, they were none the less invoiced because of the fact that he had them put in at a price fixed by her. He might have taken her judgment upon the goods, and if he had, and had actually put them in at a valuation fixed by her, it would still have been his invoice. A little figuring shows that the jury took the fixtures at the invoice. The invoice of the goods and fixtures was $1,594.84. The amount of the plaintiff’s lien, including the sum paid the First National Bank, taken from the invoice of the goods and fixtures, leaves the amount of the defendant’s interest in the same as found by the j ury; and, taking the amount of the goods from the amount of the goods and fixtures, the remainder is the invoice of the fixtures. It follows that the jury accepted the invoice of the fixtures as taken, and did not find the value of the fixtures from the evidence, and hence the instruction did no harm. But the court finally required the defendant to remit $88.14 from the amount found by the jury, and the probability is that the court cut down the price of the fixtures that much, which would likely place them at a fair valuation.
The failure of the court to instruct the jury in relation to matters set up in the third count of defendant’s answer did not work any injury to the plaintiff, since it is patent that the jury gave that defense no consideration. ' They took the invoice as to the value of the goods, and the damages found was evidently the interest on the sum the jury found as due the defendant from the plaintiff on the sale of the goods.
The tenth and eleventh errors relate to the verdict, and the action of the court in modifying it. There is nothing in the complaint in these matters that requires this court to reverse. The jury in effect found the aggregate value of the property. They said the defendant’s interest in the property was $808.37; that her interest in the property remained at that sum, after paying the First National Bank mortgage, and the amount due the plaintiff on his mortgage; and, as we have already said, the whole value of the property is thus shown, and is $1,594.84. It was not necessary in this case to find the general value of the property. (Earle v. Burch, 33 N. W. Rep. 254.)
The pláintiff also complains because the court did not grant him a new trial. The evidence on the application for a new trial was conflicting, and that which was new was impeaching in its character. All of this was addressed to the discretion of the trial court. Not being satisfied that the court abused its discretion, its ruling will not be disturbed. These are all the questions that are seriously discussed in the plaintiff’s brief. In his oral argument, however, counsel for plaintiff discussed another, and perhaps the most important question of the case. In this argument he claimed that the second count of defendant’s answer could not be set up in this action; that this action is replevin, an action in tort, and the defendant’s cause of action, being founded on contract, cannot be set off against the plaintiff’s second cause of action. In the argument, the cause of action set up in defendant’s second count was treated as a set-off. Considering it in this light, the question is not free from doubt. But should the cause of action complained of be considered as a set-off? Is it not rather a counterclaim? Paragraph 4178, Gen. Stat. 1889: “The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” . A counterclaim must be a claim existing in favor of a defendant and against a plaintiff to an action under such circumstances as that a several judgment might be had between them in relation thereto: And, first, it must arise out of the contract set forth in the petition as the foundation of the plaintiff’s claim; or, second, it must arise out of the transaction set forth in the petition as the foundation of the plaintiff’s claim; or, third, it must be connected with the subject of the action. The cause of action set out in the defendant’s second count is a cause of action existing in favor of the defendant and against the plaintiff, under such circumstances as that a separate action might have been maintained thereon in favor of the defendant against the plaintiff, and if maintained, a several judgment rendered therein. In fact, the plaintiff claims that the defendant should have so proceeded. The cause of action set out in the defendant’s answer as her second defense did not arise out of any contract set forth in the petition as the foundation of the plaintiff’s claim. If any contract may be said to be the foundation of the plaintiff’s claim, it was that contained in the plaintiff’s mortgage on the defendant’s goods, which is a distinct contract from that set up as the foundation of the defendant’s second cause of action. Did said cause of action of the defendant arise out of the “transaction” set forth in the petition as the foundation of the plaintiff’s claim? What is to be understood by the word “transaction” as found in our statute? In Remedies and Remedial Rights, by Pomeroy, in discussing a statute like ours, the author says:
“As already stated in a former chapter, the difficulty in arriving at the true interpretation of the term ‘ transaction ’ lies in the fact that it had no strict legal meaning before it was used in the statute. Being placed in immediate connection with the word ‘contract,’ and separated therefrom by the disjunctive ‘or,’ one conclusion is certain, at all events, namely, that the legislature intended by it something different from and additional to ‘contract.’ The most familiar rules of textual interpretation are violated by the assumption that no such signification was intended. The only question at all doubtful is, How far did the law-makers design to go, and how broad a sense did they attach to the words? Is it to be used in the widest popular meaning, or must it be narrowed into some limited and technical meaning, and thus be made a teim of legal nomenclature?” (Section 769.)
From the same author we learn that the whole of a fraudulent scheme, or all the connecting statements and acts constituting a cheat, would form a transaction in its broadest sense; and so we may say that the connecting acts and statements, oral and in writing, concerning a trade, may be in the same sense, a “transaction.” A' contract is the result of a transaction,- while the transaction covers all things done and said which result in a contract. In Woodruff v. Garner, 27 Ind. 4, Judge Frazer, puts it thus:
“The plaintiff’s cause of action is the alleged fraud of the defendant in procuring the deed sought to be rescinded. The defendant’s cause of action averred in the counterclaim does not arise out of the plaintiff ’s cause of action, for it cannot even exist consistently with it. If the fraud alleged by the plaintiff was perpetrated, then the defendant cannot have any right of action whatever; so tbe defendant found it necessary to deny the fraud. But the deed sought to be set aside constitutes a part of the transaction upon which the plaintiff and the defendant both rely for a recovery. It is the link which forms the direct connection between the two diverse causes of action. The transaction set forth in the complaint was not simply the alleged fraud — it was the entire business or matter of agreeing to sell and purchase the land, and of executing and delivering the deed in pursuance of such agreement. The plaintiff averred that the defendant was guilty of fraud, and such fraud was therefore a part of the transaction according to the plaintiff’s version. The defendant’s cause of action arose out of the same transaction; in fact, it was the entire transaction, except the element of fraud, which he asserted did not exist. The term ‘transaction’ refers to the actual facts and circumstances from which the rights result, and which are averred, and not to the mere form and manner in which the facts are averred.”
The word “transaction,” then, as employed in our code, would seem to include all that is said and done in connection with a purchase and sale, or other trade; and all that is said and done in connection with the perpetration of a fraud or cheat.
Woodruff, J., in Xenia Branch Bank v. Lee, 7 Abb. Pr. 372, p. 389, uses the following language:
“This division of the section shows that there may be a counterclaim when the action itself does not arise on contract, for the second clause is expressly confined to- actions arising on contracts, and allows counterclaims in such or any other causes of action also arising on contract; and this may embrace, probably, all cases heretofore denominated ‘set-off,’ legal or equitable, and any other legal or equitable demand liquidated or unliquidated, whether within the proper definition of set-off or not, if it arise on contract. The first subdivision by its terms assumes that the plaintiff’s complaint may be set forth as the foundation of the action, a contract, or a transaction. The legislature, in using both words, must be assumed to have designed that each should have a meaning; and, in our judgment, their construction should be according to the natural and ordinary signification of the terms. In this sense, every contract may be said to be a transaction; but every transaction is not a contract.”
The form of plaintiff’s action is in tort. The cause of his action, as set forth in his petition, is the alleged wrongful detention of the goods and fixtures described in his petition. This cause of action, technically considered, does not arise out of a contract, though it would not be far out of the way to say the note and mortgage are the foundation of the plaintiff’s claim. In the light of our code, and judicial interpretations of similar codes, can we look beyond the technical cause of action, to the whole transaction set forth in the petition as the plaintiff’s cause of action — that is, to the taking of the note and mortgage, the allegation of insecurity, the demand and refusal to deliver the property, and the detention of them by the defendant, and say that the defendant’s second defense arises out of the “transaction” set forth in plaintiff’s petition, and thus sustain said defense? Some cases go quite as far as this. (Xenia Branch Bank v. Lee, 7 Abb. Pr. 372; Judah v. Trustees, 16 Ind. 56-60; Bitting v. Thaxton, 72 N. C. 541-549.) But we prefer, so far as this case is concerned, to put the matter upon what we consider safer ground, and justify the defendant’s second cause of action upon the ground that it is directly connected with the subject of the plaintiff’s action. In Xenia Branch Bank v. Lee, above cited, which is referred to with approval in Pomeroy in his work cited herein, Justice Woodruff reaches the conclusion that, even if the defendant’s cause of action does not arise out of the “transaction” set forth in the complaint, it is directly and immediately connected with the subject of the action. This was an action in trover for damages for the conversion of certain bills of exchange. The answer was placed as a counterclaim. It set up the drawing of the bills, their indorsement by plaintiffs, .their delivery to the Ohio Trust Company, their transfer to the defendants for full value and without notice, demand of payment, non-payment and notice thereof to plaintiffs, and prayed judgment against the plaintiffs as - indorsers for the amount due on the drafts. The judge says:
“The subject of the action is either the right to the possession of the bills of exchange, or the bills themselves. The defendant’s counterclaim is not only connected with, but is inseparable from, either or both. The object of the action is damages, but the subject is the bills of exchange, or the right to their possession.”
Again referring to Pomeroy, we quote:
“Some judges have said that in all possessory actions, and all actions to establish property, .the ,£subject of the action’ denotes the things to assert a right over which, or to obtain the possession of which, the action is brought — as the land in ejectment, and many equity suits, or the chattels in re-plevin.”
The author himself puts it thus:
“It would, as it seems to me, be correct to say, in all cases legal or equitable, that the ‘subject of the action’ is the plaintiff’s main primary right. Thus, the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to money in all cases of debt and the like, would be the subject of the respective actions.”
So far as the case at bar is concerned, it is immaterial whether we treat the chattels themselves, for the possession of which the action is brought, as the subject of the action, or adoptjthe other view, and say that the “primary right of the plaintiff,” to wit, his right to recover the possession of the chattels described in his petition, is the subject of the action; for, in either view of the matter, the defense complained of relates to the subject of the action, since it affects equally the chattels themselves and the plaintiff’s right to recover their possession. The defendant would have had a right, under the general denial, to prove her contract of sale set up in her second defense, for the , • purpose of showing that the plaintiff was not entitled to the possession of the property, the possession of which he sought. The plaintiff’s right to recover the possession of the goods is founded upon his mortgage. But if the defendant’s contention that she sold the goods to him subsequent to the execution of the mortgage, by which sale he was to pay her the difference between the sum of his own lien on the property and the lien in favor of the national bank, and the invoice of the goods, is true, she had a right to refuse their delivery until he paid her the money coming to her on the sale. Under the general denial, she is entitled to any defense that defeats the plaintiff’s right to recoyer the possession of the property, but not to prove a cause of action in her favor against the plaintiff. Can the defendant, by pleading the sale, recover a judgment against the plaintiff for a balance her due? It seems clear to us that she can, under our statute relating to counterclaims. Since the adoption of codes in most of the states, the doctrine of set-off and recoupment has undergone much change. In New York, the former rule that in an action for a tort, a counterclaim, no matter whether arising on contract or based upon another tort, could not .be allowed, has been so far modified as to allow the interposition of a counterclaim, in the full sense of the code, whether arising on contract or based upon a tort, in an action for a tort, whenever such counterclaim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or whenever it is connected with the subject of the action. (Wat. Set-off, §616; Woolen Mills v. Eull, 37 How. Pr. 299; Dougherty v. Stamps, 43 Mo. 243; Kisler v. Tinder, 29 Ind. 270; Tinsley v. Tinsley, 15 B. Mon. 454; Railroad Co. v. Thompson, 18 id. 735.)
The action was brought for injuries done the plaintiff’s boat while passing through the canal, caused by a break in the canal, alleged to have resulted from defendant’s negligence. The defendant set up a counterclaim that the break itself was caused by the plaintiff’s negligence, and prayed a judgment for the damages. This counterclaim was sustained, the court saying, “If it does not arise out of the transaction set forth in the complaint, it certainly is connected with the subject of the action.” (McArthur v. Canal Co., 34 Wis. 139-146.)
“A claim on the part of the defendant for the price and value of the identical goods which are the subjecc of the action, is the cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or is at least connected with the subject of the action, and is strictly a counterclaim.” (30 N. Y. 383.)
“Since the code, however, of 1852, it seems if the defendant’s demand is sufficient, a defendant may not only defeat a plaintiff’s claim by recoupment, but recover a balance, notwithstanding the former rule . . . that a defendant could only use his claim to defeat that of the plaintiff.” (37 How. Pr. 301; 2E.D. Smith, 317.)
“Counterclaims under the code [since 1852] embrace both set-offs and recoupments, as they were understood prior to that time.” (Pattison v. Richards, 22 Barb. 146.)
“But while the counterclaim authorized by the code embraces both set-off and recoupment, it is broader and more comprehensive than either.” (3 Kern. 256; 7 How. Pr. 294.)
“ It secures to the defendant the full relief which a separate action at law, bill in chancery, or a cross-bill would have secured him on the same state of facts.” (37 How. Pr. 301; 2 Duer, 642.)
“It may be for either liquidated or unliquidated damages (34 Barb. 447); and for unliquidated damages arising on contract different from the contract on which the action is brought (4 E. D. Smith, 285), and of an equitable or legal nature.” (37 How. Pr. 301;,6 Bosw. 453.)
“It is not required that the counterclaim itself shall be founded in, or arise out of the contract set forth in the petition; but it is sufficient that it arise out of the transaction set forth in the petition, or is connected with the subject of the action.” (15 B. Mon. 454-459; 63 Barb. 500; 7 Abb. Pr. 372-389; 66 N. C. 233-237.)
The counterclaim is allowed, though the plaintiff’s form of action is in tort.
“The plaintiffs, trustees of the Vincennes University, sue to recover the value of certain bonds belonging to the corporation, received by the defendant as its attorney, and converted by him to his own use. He admits the receipt and detention of the securities, and alleges, by way of counterclaim, that the university was indebted to him for certain professional services particularly described, including his services in procuring these very bonds, among others, to be issued to it by the state, and prays judgment for the amount of such indebtedness.”
In pronouncing upon the validity of this answer as a counterclaim, the court says:
“The point is that the action is in the form of trover, an action ex delicto, and that under such action the defendant cannot avail himself of any claim which he may have against the plaintiffs for services rendered, or money expended on their behalf, even if it was in the recovery of the identical property which is the subject of the action. We are clear it was the-intention of those who initiated and inaugurated the present code of procedure, that parties litigant might, and perhaps should, determine in each suit all matters in controversy between them which could legitimately be included therein, keeping in view their substantial rights. As proceedings so distinct as those were at law and in equity are no longer required to be separated, but are now blended in one action, we are unable to see any reason for requiring two actions to determine a controversy in which the rights of each party are so dependent upon the rights of the other as in the case at bar.” (Judah v. Trustees, 16 Ind. 56-60.)
See also Bitting v. Thaxton, 72 N. C. 541-549; Xenia Branch Bank v. Lee, 7 Abb. Pr. 372; 4 Rob. 668; 10 Bosw. 143; 33 Barb. 320; 4 Keyes, 335.
After a' careful reading of our code in relation to counterclaims, and a somewhat thorough examination of the books upon the question involved in this last assignment of error, we conclude that the defendant not only had the right, under her general denial, to prove the matter set up in her second count to defeat the plaintiff’s cause of action, but that, having plead it, she should be allowed to prove it as a counterclaim, as an affirmative cause of action against the plaintiff, and recover in this case a balance against the plaintiff. We therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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