terial. The party extending the invitation owes a duty to the party accepting it to see that at least ordinary care and prudence is exercised to protect him against dangers not within his knowledge, and not open to observation." In 1 Thomp. Neg., commencing at page 283, an English case, the final decision of which was reached in the exchequer chamber, is set forth in full. Indermaur v. Dames, L. R. 1 C. P. 274, and L. R. 2 C. P. 311. The doctrine of that case is stated by Kelly, C. B., in quoting with approval the following in the judgment of the court below: "With respect to such a visitor, at least, we consider it settled law that he, using reasonable care on his part for his own safetý, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage or unusual danger which he knows, or ought to know." The cases of Shumacher v. Railroad Co., 39 Fed. Rep. 174, and Eskridge v. Railroad Co., (Ky.) 12 S. W. Rep. 580, turn upon the question of willful negligence. In the latter case, willful negligence is defined to be "conduct such as to evidence reckless indifference as to the safety of the public, or an intentional failure to perform a plain and manifest duty, in the performance of which the public and the party injured had an interest;" and in the former the principle is stated thus: "The fact that one has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. An act may be legally willful without a direct intent. It may be so willful if reckless." We find nothing in these authorities in any manner applicable to the facts of the case before us. The deceased had a tacit invitation to enter the building for the transaction of his business, and had a right to use the elevator to be conveyed to the floor he desired to reach, and to return therefrom. He had a right to assume that the elevator was in good order and condition, and would convey him safely, and that the means of ingress and egress could be used without danger. But, outside of the elevator, he had no right to use the shaft for any purpose. He had no right to be within, or to have any part of his person within, the shaft, except as he was at the same time within the elevator. As long as he was using the building and its appliances for the purposes for which he was invited to use them, and for which he had a right to use them, he was in no danger. It was only when he undertook to use them in a manner outside of any invitation and any right which he had that the disaster occurred. If the employe of defendants in charge of the elevator had, while descending, observed the position of the deceased, and had neglected to warn him, or had neglected to stop the elevator, if he had time to do so, and had nevertheless suffered the elevator to proceed until it came in contact with the deceased, that would have been evidence of

willful negligence, and a wanton disregard of life, against which the careless act of the deceased would not avail the defendants; but the complaint shows no negligence of that kind. The negligence complained of is the failure to properly protect the entrance to the elevator, which, when the elevator was not present, was also an entrance to the shaft. It is true that if the opening had been so protected the deceased would probably have been unable to thrust his head into the shaft, but we are not sure that he could not have found some other means of equally unnecessary danger; and as to him, with the knowledge of the situation which he possessed, or ought to have possessed, the failure of the defendants in that regard can hardly be said to be negligence. It is possible that while the opening was in the exposed condition described in the complaint a case might have arisen in which the defendants would be held liable for a resulting injury, but such a case would differ widely, in all its distinctive features, from the one before us. If a man, in his sound senses, with his eyes open, voluntarily and deliberately, even if carelessly, thrusts himself into the jaws of death, we know of no theory upon which any one can be held responsible for the consequences of his act but himself. The demurrer was rightly sustained, and the judgment below was correct, and will be affirmed.

(3 Colo. App. 344)

McDONALD v. McLEOD. (Court of Appeals of Colorado. May 22, 1893.) RECORD ON APPEAL-DISMISSAL-PARTNERSHIP.

1. Where the abstract on appeal contains no statement whatever of the pleadings from which the issue is to be derived, and the brief filed is without statement of any errors on which appellant relies, or a discussion of any of the assignments on which he predicates his right to a reversal, the appeal should be dismissed, though the brief states that appellant refers to the opinion of the court below as his best argument for reversal.

2. The entering into of a joint contract by two persons for the construction of a house on the land of another, and the joint reaping of the benefits and profits therefrom, constitute them partners as to such undertaking; and one of them is liable for lumber ordered by the other, and used in the construction of the house, though he may not have known of this fact.

Appeal from district court, Arapahoe

county.

Action by A. G. McLeod against R. P. McDonald and others for the price of lumber alleged to have been sold to defendants. From a judgment in plaintiff's favor, defendant R. P. McDonald appeals. Affirmed.

John P. Brockway, for appellant. O. E. Jackson and Geo. F. Dunklee, for appellee.

BISSELL, P. J. This action was brought against the owner of certain property and the two McDonalds, as contractors, to re

cover a balance due for lumber claimed to have been sold and delivered to the contractors, and used in the erection of the building. It is with great reluctance that we consider this appeal, and do not dismiss it for the failure of the appellant to present it to this court in accordance with the rules, This proceeding, in our judgment, would be entirely justifiable, since the abstract contains no statement whatever of the pleadings from which the issue is to be derived, and the brief filed is without statement of any errors upon which the appellant relies, or a discussion of any of the assignments upon which he predicates his right to a reversal of the judgment. The brief simply states that the appellant refers to the opinion of the court below as his best argument for reversal. Manifestly, this is without force as an argument to reverse the cause, since, if the judgment is adequately supported by the proof, and can be upheld, under well-settled principles at law, it is unimportant that inadequate reasons may have been pressed for the finding. It not infrequently happens that judgments are affirmed or reversed, and that in nisi prius tribunals judgments are entered or refused, and the right conclusions reached, in both instances, when unsatisfactory reasons are expressed, and counsel have failed to present either authorities or arguments by which the proceedings could be legitimately upheld. But we are so well satisfied that the proper and equitable result was reached in this case that it will be considered, and the judgment affirmed, although the appellant has not so proceeded as to entitle him to call on the court to express its opinion regarding the merits of his controversy. But we desire it to be distinctly understood by the profession that this failure to enforce the rules is not to be taken as a precedent on which they can rely in submitting their cases to this court.

ex

The technical defense on which R. P. McDonald, the appellant, and one of the defendants, relied to escape liability for the price of the goods sold is the failure to establish facts on which a joint liability could be predicated, and out of which, if at all, his responsibility would arise. It appeared that in September, 1890, J. R. and R. P. McDonald entered into a contract with W. R. Farrington to build him a house of a certain description, and for a definite sum, in one of the subdivisions of Denver. This contract was signed by both of the McDonalds, and the record shows a performance on their part, by which they became entitled to the profits and benefits of the contract. While the work was progressing, McLeod, the appellee, sold and delivered a lot of lumber, which went into the building. The lumber was not all paid for, and McLeod sued the McDonalds, as stated, to recover the selling price. It was seriously argued by the appellant in the oral argument by which the case was submitted that a joint liability on the

part of the McDonalds could not be legitimately inferred from the production and proof of this joint contract between them and Farrington. This is true, and, if that were all that the record contained of evidence upon this subject, the judgment could not stand. It was insisted with equal accuracy that the suit was not brought upon the written contract, under which circumstance the plaintiff might have the right of recovery upon the production of the instrument, since its execution was not denied under oath. These considerations do not dispose of the suit. There is enough in the case to have warranted the court below in holding that the transaction between the McDonalds and Farrington and between them and McLeod constituted the McDonalds copartners for the single transaction, to wit, the building of the house. That there may be a copartnership with reference to a single enterprise, as with reference to all of a certain class or kind of business, is as well settled as any other principle of copartnership law. Pars. Partn. (2d Ed.) *52. It not infrequently happens that what persons do with reference to a single thing sometimes, even without their intention, subjects them to all the responsibilities which would flow from a general partnership, which would include the particular transaction. The case discloses the making of a contract on the part of the McDonalds to build a house for a certain sum of money, and there is enough in the record from which the court had the right to infer that the contract was entered into for their joint benefit and profit. They jointly contracted, were jointly responsible, jointly reaped the results, and were as to it copartners in the undertaking to build the house. The lumber went into the construction of the building, and it must be assumed, in absence of evidence to the contrary, that this lumber was used for the purposes of the contract, to which R. P. McDonald was a party, with his knowledge and with his consent. Even though it might have happened-which this court is not inclined to believe-that R. P. McDonald did not authorize J. R. to buy the lumber previous to its purchase, its purchase by J. R. and the delivery by McLeod, and the appropriation by R. P. to the purposes of the joint contract, must be held, under the circumstances, to be such a ratification of the purchase as to estop him, from denying the agency of J. R. in the premises. It certainly is ample, under the circumstances, as proof of an agency springing from the copartnership, with reference to a single undertaking, and with the other proof in the case would probably warrant the court in holding that J. R.'s agency was sufficiently established to warrant a recovery against R. P. McDonald, his principal, even though they were adjudged not to be copartners in the enterprise, which is established by the record. It would have been so exceedingly easy for R. P. McDonald to have gone upon the stand, and

made clear, by his own denials, his want of cornection with the purchase of the lumber, that the trial court was entirely warranted In concluding, even from slight testimony, the existence of those facts which would render R. P. McDonald liable for the price of the lumber of which he had had the benefit.

The Judgment contravenes no well-established principle of law, and to our minds Is justified by the testimony, and will ac cordingly be affirmed.

(51 Kan. 651)

STATE ▼ O'NEIL 1

(Supreme Court of Kansas. June 10, 1893.) MURDER INFORMATION-CHARGING Use of DIF FERENT MEANS-EVIDENCE-PREVIOUS ASSAULTS -READING FROM BOOKS TO JURY-INTOXICATION AS A DEFENSE.

1. Where a murder may have been committed by different means, and it is doubtful which was employed, its commission by all may be charged in one count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count of the information must not be repugnant.

2. Il treatment, and previous assaults by husband on wife, are admissible to prove motive in cases of marital homicide.

3. In addressing the jury in a criminal cause counsel may be allowed, in the discretion of the trial court, to read from standard works on matters of science and art, when pertinent, by way of argument or illustration; but it would be an abuse of this privilege to make it the pretense of getting improper matter before the jury as evidence, or to present matters of law conflicting with the instructions of the court.

4. Voluntary intoxication is no justification or excuse for crime. State v. Yarborough, 18 Pac. Rep. 474, 39 Kan. 581.

5. Under a statute establishing degrees of the crime of murder, and providing that willful, deliberate, and premeditated killing shall be murder in the first degree, evidence that the accused was intoxicated at the time of the killing is competent for the consideration of the jury upon the question whether he was in such a condition of mind as to be capable of deliberate premeditation.

6. Where a person at the time of the commission of an alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is generally responsible if he commits such act or acts, whatever may be his capacity in other particulars; but, if he does not possess this degree of capacity, then he is not so responsible. State v. Nixon, 4 Pac. Rep. 159, 32 Kan. 205; State v. Mowry, 15 Pac. Rep. 282, 37 Kan. 369.

(Syllabus by the Court.)

Appeal from district court, Marion county; Lucien Earle, Judge.

Hugh O'Neil was convicted of murder in the second degree, and appeals. Affirmed.

The other facts fully appear in the followIng statement by HORTON, C. J.:

On the 4th day of December, 1891, an information was filed in the district court of Marion county against Hugh O'Neil, char'Rehearing pending.

ging him with the murder of Mary O'Neil his wife. On March 1, 1892, an amended information was filed, which, omitting cap tion, verification, and indorsements on the back thereof, was as follows: "In the name and by the authority of the state of Kansas, I, W. H. Carpenter, county attorney in and for the county of Marion, in the state of Kansas, who prosecutes for and on behalf of said state in the district court of said county, sitting in and for the county of Marion, and duly empowered to inform of offenses committed within said county of Marion, come now here, and give the court to understand and be informed that one Hugh O'Neil, at the county of Marion, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 18th day of November, A. D. 1891, did then and there feloniously, will. fully, premeditatedly, deliberately, and with malice aforethought, make an assault in and upon one Mary O'Neil, with the intent her, the said Mary O'Neil, feloniously, willfully. premeditatedly, deliberately, and with malice aforethought, to kill and murder; and that the said Hugh O'Neil did then and there feloniously, willfully, deliberately, premeditatedly, and with malice aforethought, and with a certain blunt instrument, to said county attorney unknown, and in a manner to said county attorney unknown, feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, inflict upon the head, face, and body of her, the said Mary O'Neil, certain mortal wounds, bruises, cuts, and contusions; and that the said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, strike, kick, beat, and choke her, the said Mary O'Neil, with his hands and feet, in and upon the head, face, neck, legs, arms, and other parts of the body of her, the said Mary O'Neil, thereby inflicting certain other mortal wounds, bruises, cuts, and contusions on her, the said Mary O'Neil; and that the said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberate ly, and with malice aforethought, and with the intent aforesaid, cast and throw said Mary O'Neil down upon the ground, and against a certain stone wall, with great force and violence, thereby inflicting upon the head, face, legs, arms, and other parts of the body of her, the said Mary O'Neil, certain other mortal wounds, bruises, cuts, and contusions, of which mortal wounds, bruises, cuts, and contusions so received by said Mary O'Neil as aforesaid, and so inflicted upon her, the said Mary O'Neil, by said Hugh O'Neil, as aforesaid, Mary O'Neil did then and there instantly die; wherefore the said county attorney sayeth that said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, kill and murder the said Mary

O'Neil, contrary to the statute in such cases made and provided, and contrary to the peace and dignity of the state of Kansas. W. H. Carpenter, County Attorney of Marion County, Kansas." The defendant challenged the information by a motion to quash, by a motion to compel the state to elect, and by a motion in arrest of judgment, which were overruled. On the 21st of March, 1892, the trial of the cause was commenced, and continued from day to day until the 4th of April, 1892. After hearing the evidence, the instructions of the court, and the argument of counsel, the jury returned a verdict against the defendant of guilty of murder in the second degree. On the 4th of April, 1892, the motion for a new trial, which had been filed by the defendant, was overruled, and thereupon the court sentenced him to confinement in the penitentiary of the state for 25 years at hard labor. He appeals.

Madden Bros. and Frank Doster, for appellant. John T. Little, Atty. Gen., C. M. Clark, and W. H. Carpenter, for the State.

HORTON, C. J., (after stating the facts.) It is contended that the motions challenging the sufficiency of the information should have been sustained. In support of this contention it is argued that at least three separate death strokes or attacks upon the deceased were alleged in one count, and therefore that the information was bad for duplicity, uncertainty, and want of precision. It is further argued that, if there were separate death strokes or attacks, they should have been charged in different counts of the information; not in the same count. Under the common-law system of criminal pleadings the facts alleged in the information cught, perhaps, to have been stated in different counts, but under the criminal procedure in force in this state we think the court committed no error in overruling the motions attacking the information. Section 103 of the Criminal Procedure reads: "The indictment or information must contain-First, the title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties; second, a statement of the facts constituting the offense, in plain and concise language, without repetition." See, also, section 109, which prescribes the sufficiency of an indictment or information; and also section 110, only authorizing an indictment or information to be quashed for certain defects. The mortal wounds, bruises, cuts, and contusions were alleged in the information as having occurred at one time, and, although the information stated that each of the wounds was mortal, it concludes as follows: “Of which mortal wounds, bruises, cuts, and contusions so received by said Mary O'Neil as aforesaid, and so inflicted upon her, the said Mary O'Neil, by said Hugh O'Neil, as aforesaid, Mary O'Neil did then and there instant

ly die; wherefore the said county attorney sayeth that said Hugh O'Neil did then and there feloniously, willfully, premeditatedly, deliberately, and with malice aforethought, and with the intent aforesaid, kill and murder the said Mary O'Neil contrary to the statute in such cases made and provided, and contrary to the peace and dignity of the state of Kansas." "Even at common law it may be alleged that the party died of the divers poisons or wounds charged to have been administered or given, without averring that he died of any one of them in particular; for, as it is said, the truth may be that none of them alone, but all together, caused the death." State v. Edmondson, 43 Tex. 102; Maxw. Crim. Proc. 187. Bish. Crim. Proc. § 453, states the rule thus: "We have seen that if an offense may be committed by different means, and the pleader doubts which was employed in the particular instance, he may in one count charge its commission by all, and proof of any one will sustain the allegation. The limit to this doctrine is that the means must not be repugnant." In this case the means employed to cause the death of the deceased are not sufficiently repugnant to compel different counts. The first stroke or attack was alleged to have been made upon the head, face, and body of the deceased with a blunt instrument; the second by striking, kicking, beating, and choking the deceased; and the third, by throwing the deceased upon the ground and against a stone wall with great force and violence.

It is next contended that the court committed error in the admission of previous assaults of the defendant upon the deceased. To prove these previous assaults the state introduced the evidence of several witnesses, showing that they were all made within less than a year before the death of the deceased. They were cruel and brutal, and continued down to the time of her death. This evidence was admissible on the question of motive, for the purpose of showing hatred and malice on the part of the defendant. Whart. Crim. Ev. § 786; Sayres v. Com., 88 Pa. St. 291; McCann v. People, 3 Parker, Crim. R. 272. In its instructions the court limited this evidence as follows. "You are further instructed that if you find from the evidence the defendant ill-treated or abused his wife on oc casions prior to the act alleged against him in the information, such acts are relevant to prove motive and for such purposes only." It is also contended that the court erred in not permitting further evidence to be given tending to show that the deceased was in the habit of becoming intoxicated. The court permitted evidence of such intoxication at the times of the alleged assaults. There was some evidence introduced of her habits of intoxication, but the court announced that it would not continue such evidence unless connected with the assaults. The deceased, on the 19th of November, 1891, was found upon a sofa or settee in a room in her home, dead,

with her head fractured on the right side, her face beaten and bruised, a portion of her nose torn off, an eye injured, her right arm torn, her limbs black and blue, her hair full of weeds and dirt, and with marks of a thumb and fingers on her throat.

William Hendricks testified: "Question. Was you working for Hugh O'Neil in November last? Answer. Yes, sir. Q. At the time this tragedy occurred? A. Yes, sir. Q. You knew his wife, Mary O'Neil? A. Yes, sir. Q. When was the last time you saw Mrs. O'Neil alive? A. The last time I saw Mrs. O'Neil alive she was sitting by the table, crying. Q. Where was that? A. At Hugh O'Neil's house. Q. When was this that you saw her with reference to the time the body was discovered? A. The day before. Q. Where had you been, or where was you when you saw her? A. When I saw Mrs. O'Neil at the table, crying? Q. Yes, sir. A. When I took in the milk in the morning. Q. When was that with reference to the time of breakfast,-before or after breakfast? A. That was after breakfast. Q. How long after breakfast? A. Ten or fifteen minutes. Q. Did you see the defendant after you saw Mrs. O'Neil sitting by the table, crying? A. I didn't see him until between ten and eleven o'clock. Q. Of that day? A. Yes, sir. Q. In the daytime? A. Yes, sir. Q. Where did you see him then? A. I saw him out at the north side of the house. Q. Was anybody with him? A. Mrs. O'Neil was on the ground. Q. In what position was she on the ground? A. Lying on the ground. I couldn't tell from where I was whether she was lying on her back or on her side. Q. What, if anything, did you see him do? A. He was pouring water on her. Q. What was he pouring water out of? A. A wash basin, I guess. Q. You may state how long you saw him in that position, and how long you saw him pouring water on her. A. He was not there over two or three minutes.. Q. What, if anything, did you see him do after he poured the water on Mrs. O'Neil? A. He took her by the arm or the leg, I couldn't say which, and took her around the corner of the house. Q. How did he take her? A. By the arm or the leg, I couldn't say exactly which, from where I was. Q. State how he took her. Did he lift her up off the ground? Dragging her on the ground? A. Yes, sir. Q. How far did you see him drag her. A. Just around the corner of the house. I couldn't see him any more. Q. When did you see Mr. O'Neil next? A. I didn't see anything more of Mr. O'Neil until that evening. Q. When you saw him, what was he doing? Go on and state the circumstances. A. When I saw him, he sent one of the children out to tell me to come in; he wanted to see me. I went in, and he sent me to town. Q. What time in the evening was that? A. That was in the evening, about 5 o'clock, I guess; pretty nearly sundown. Q. What did he send you to v.33P.no.5-19

town for? A. A pint of whisky and a quarter's worth of baker's bread. Q. Did you go to town? A. Yes, sir. Q. What time did you return? A. I don't know. I guess it must have been nine or ten o'clock. Q. Well, did you see him when you returned? A. Yes, sir. Q. What time in the night? A. It must have been between ten and eleven. Q. Where did you see him next time? A. Up stairs. Q. What, if anything, did he say, and what, if anything, did he do at that time? A. Why, I was going up stairs to bed, and he went out of the bedroom. When he went in he came and asked if the bed was fixed. We told him, 'Yes,' and he said we would have to get along with it the best we could, because mamma was awful sick. Q. He told you that about ten or eleven o'clock in the evening, Wednesday? A. Yes, sir. Q. Did you see him the next morning? A. Yes, sir. Q. What time? A. I guess it must have been about six o'clock. Q. Where did you see him then? A. Down stairs. Q. Did you see him again after that morning,-Thursday morning? A. No, sir; I didn't see him again until I saw him in town. Q. After the arrest? A. Yes, sir. Q. Now, when did you next see Mrs. O'Neil, and under what circumstances? A. The next time I saw Mrs. O'Neil she was in the parlor on the sofa. Q. How did you happen to go in there, and who was with you? A. Mr. O'Neil's father was with me. Q. What time was that? A. It was in the evening,-seven or eight. Q. Well, state- Did you carry a light and go into the room? A. Yes, sir. Q. By what door did you enter the parlor? A. By the outside door. Q. When you went in there, did you have a light? A. Yes, sir. Q. The old gentleman was with you? A. Yes, sir. Q. Where did you go, and what did you do? A. I and John Farrel and grandpa [O'Neil's father] took a light from the kitchen, went out through the hall, and onto the porch. I and grandpa went in, and John stood at the door. He told me to come on with the light, so he could see. I went back with the light, and he raised up the quilt, and there she was laying there on the sofa. Grandpa caught hold of her and says: "The poor thing is dead. She is cold.' He then put the quilt back over her. Q. Then threw the quilt back over her? A. Yes, sir; and then we left."

John Farrel testified: "Question. When did you commence working for Hugh O'Neil? Answer. The 13th of April, 1891. Q. Was you working for him at the time this tragedy occurred at his house? A. Yes, sir. Q. When was the last time you saw Mrs. O'Neil? A. Friday morning. Q. Friday morning of what month and week, if you can remember. I mean when alive? A. Wednesday morning Q. During what month? A. November. Q. Last November? A. Yes, sir. Q. What week was it? What week in reference to the week you saw her dead? A. The same week. Q.