the record showing that Boucher not only killed Hinton, but that he was convicted therefor of manslaughter in the third degree, and sentenced to the penitentiary for term of three years. The same witness who testified about the statements of Boucher also testified that the defendant said in his presence in substance that Boucher made Hinton throw up his hands, stuck the gun up to him, and shot him. After the evidence had all been introduced, there was no controversy over the fact that Boucher killed Hinton. The only dispute was, under what circumstances the homicide occurred,-whether it was justifiable, excusable, or felonious. We think, therefore, the statement referred to was neither material nor prejudicial. The statement of Boucher to Kinney "to take the gun and give it to Patterson" was not a narrative of a past event; it was merely a direction for Kinney to give the gun he had to Patterson. It was not a statement that it was Patterson's gun, or that Patterson gave him the gun. Kinney testified "that after

this statement of Boucher to him he walked into the office of the Gladstone Hotel, went up to the counter, and gave the gun to Black, the clerk." If there was nothing else in the record but this statement to indicate that Patterson furnished the gun for Boucher, his connection with that part of the transaction would be slight, surely not enough to support a verdict of guilty, or any conviction; but the same witness who testified to the direction of Boucher also testified that the defendant suggested to Boucher, before he left the joint, "Why don't you kill the son of a bitch?" (meaning Hinton;) and when Boucher said, "I haven't any gun," the defendant said, "I will go and get you a gun," and went out of the joint at once. That after the homicide was committed, and when several of the parties were in the joint, the defendant said: "Where's my gun? What did Boucher do with my gun?" And when told that it had been given to Black, the clerk at the office, he went out, and came back with the same gun, as the witness thought; took the cartridges out; those that were empty he threw into the slop bucket; those that were full, he put in his pants pocket; then he put the gun away, and detailed, as before stated, how Boucher shot Hinton with the gun. Even if the direction of Boucher be regarded as inadmissible, the other evidence of the witness testifying to this, if given credit, connected the defendant so strongly and directly with furnishing the gun to Boucher that such mere direction was not important in the case,-not sufficient to influence a verdict.

4. It is further insisted that the defendant, If an accessory before the fact, could not be visited with a higher grade of punishment than his principal. John Boucher was convicted of manslaughter in the third degree only, and sentenced at hard labor in the penitentiary of the state for three years. In

as

an

State v. Bogue, 51 Kan., 34 Pac. Rep. 412 (just decided,) it was said: "It may be con ceded that at common law the acquittal of the principal acquitted the accessory also, and that the conviction of the principal must precede or accompany that of one charged • accessory. Section 115 of the Criminal Code provides: 'Any per son who counsels, aids, or abets in the commission of any offense, may be charged. tried, and convicted in the same manner, as if he were principal.' The evident purpose of the legislature of our own and other states, where similar statutes have been enacted, was to do away with those subtle distinctions of the common law between principals in the first and second degree and accessories before the fact, and to permit the trial of participants in the crime, independently of each other, so that each should suffer punishment for his own guilt, without being dependent on the resul: of the prosecutions against others. We think a guilty accessory may be punished, even though the principal escape." In Goins v. State, 46 Ohio St. 467, 21 N. E. Rep. 476, it was observed: "If, as has been held, this crime is a substantive one, for which the offender may be tried and convicted before the conviction of the principal, it necessarily follows that he should be convicted of that degree of the crime which the evidence against him establishes; and, if this may be done before, no reason is apparent why it should not be done after, the trial of the principal; and the circumstance that the principal offender, through failure of proví or caprice of the jury, had been convicted of a lower grade, or even acquitted before the aider or abettor was put on trial, cannot affect the question of the guilt or innocence of the latter. The degree of the guilt of the aider and abettor, as well as the question whether he is guilty at all, is to be de termined solely by the evidence in the case" But counsel for defendant claim that the decisions referred to apply to an aider, an abettor, or principal in the second degree only. and not to an accessory before the fact. By the statute of this state the distinction be tween a principal in the second degree ar! an accessory before the fact has been abol ished, and all participants in a crime are de clared equally and alike guilty, without re gard to their proximity thereto, or the er tent of their participation therein. State T Cassady, supra. In this connection it is proper to remark that in the case of State v. Mos ley, 31 Kan. 355, 2 Pac. Rep. 782, it was rightly decided that "upon the trial of accessory before the fact the record of the conviction of the principal is proof prim facie of that fact, but this is not conclusive and other evidence of the commission of the crime by the principal is admissible." B this court probably went too far in that eas in saying that the statements of the prin pal, Mrs. Martin, were admissible agains

Mosley if they were made in his absence. At common law such statements of a principal were admissible to charge an accessory, but under our statute and the authority of State v. Bogue, supra, such declarations, not made in the presence of the accessory, are not receivable.

5. It is still further insisted that the trial court committed error in "permitting the case to go to the jury upon the evidence of Kinney, without saying to them that they should not convict upon the uncorroborated evidence of an accomplice." Also, that the court "abused its discretion in not instructing the jury that they ought not to find the defendant guilty upon the statements of Kinney alone.” The court gave, among others, the following instructions: "If you should find, from all the evidence, that any witness who has testified in this action has heretofore been guilty of perjury in testifying falsely concerning the same matters about which he has testified in this case, then, and in that event, you ought to carefully and minutely consider all his evi- | dence in this case, and should carefully compare all his statements in this case, together with all the other evidence in this case, and if, after having so done, you are unable to say whether such witness has or has not testified truthfully in this case concerning the matters about which he has testified, then, and in that event, you ought to discard and disbelieve that evidence of such witness entirely. But if you are satisfied that any such witness has testified truthfully as to the matter in this case, then you should not arbitrarily disregard his testimony, notwithstanding you may believe that he had heretofore made a different statement. In determining what weight should be given to the testimony of any witness the jury may take into consideration the appearance of such witness on the witness stand while giving his testimony, the interest of such witness, if any, in the result of the case, and any other fact or circumstance proven in the case, which, in the opinion of the jury, throws any light upon the question of the weight which should be given to the testimony of such witness. You are the exclusive judges of the evidence, the facts proven, and the credibility of the witness; and it is for you, and you alone, to say from the evidence whether the defendant is guilty or not. And, if you believe any witness has sworn falsely to any material fact in this case, then you are at liberty to disregard the whole of his testimony. If there be any reasonable doubt whether the guilt of the defendant has been satisfactorily shown by the evidence, he should be acquitted. If any one of the jurors, after having considered all the evidence in the case, and after having consulted with his fellow jurymen, should entertain any reasonable doubt of the guilt of the defendant, then the jury cannot find the defendant guilty. The defendant is presumed to be innocent until the contrary is proven, and where there is a rea

sonable doubt whether his guilt is satisfactorily shown he must be acquitted." Commsel say that the verdict in the case, resting upon the evidence of a witness like Kinney, whose character is so atrocious, whose motive for lying is so apparent, and who confesses his own perjury with regard to the. same transaction on two former occasions, is not properly supported, and that the liberty of no one should be cast away in such a manner. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. Without doubt great caution in weighing such testimony is dictated by prudence and good reason. 1 Greenl. Ev. § 380. In State v. Adams, 20 Kan. 327, it was stated that "the unaided testimony of an accomplice is legally sufficient to sustain a verdict." In Collins v. People, 98 Ill. 584, it was observed: "In many, probably in most, cases the evidence of an accomplice, uncorroborated in material matters, will not satisfy the honest judgment beyond a reasonable doubt; and then it is clearly insufficient to authorize a verdict of guilty. But there may frequently occur other cases, where, from all the circumstances, the honest judgment will be as thoroughly satis fied from the evidence of the accomplice of the guilt of the defendant as it is possible it could be satisfied from human testimony; and in such case it would be an outrage upon the administration of justice to acquit." In Linsday v. People, 63 N. Y. 143, it was said: "Although it is not usual to suffer a convic tion upon the wholly uncorroborated evidence of an accomplice, and juries are advised not to convict without a confirmation as to the material facts, still, if the jury are fully convinced of the truth of the statements of a witness thus situated, they may convict upon his testimony alone. It is the duty of the trial judge, if requested so to do, to advise the jury not to convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence in some material point in issue." State v. Kellerman, 14 Kan. 135; State v. Adams, supra. In this case, Kinney was the accomplice or a particeps criminis only after the fact by agreeing to and subsequently swearing to fabricated statements at the coroner's inquest and the preliminary examination of Boucher. It is not shown that he was present, aiding, or abetting the homicide, or that he procured, counseled, or commanded it. He was, at most, an accessory after the fact. The trial court was not requested by the defendant or his counsel to advise the jury not to convict the defendant upon the uncorroborated evidence of an accomplice. Instructions 1, 2, 3, and 9, which were requested and refused, referred to any impeached witness, and to any witness who had heretofore made different statements under oath. The court said to the jury: "You are the exclusive judges of the evidence, the facts proven, and the credibility of the witnesses; and it is for you. and you

alone, to say from the evidence whether the defendant is guilty or not; and if you believe any witness has sworn falsely to any material fact in this case, then you are at liberty to disregard the whole of his testimony." The court also cautioned the jury that if any witness had been guilty of perjury in testifying previously concerning the facts at issue they ought to carefully and minutely consider such evidence, and carefully compare the statements testified to with all the other evidence; and if, having done so, they were unable to say whether the witness had or had not testified truthfully, then they ought to discard and disbelieve the evidence of such witness entirely. In view of the special instructions requested, and the instructions actually given, the trial court seems to have advised the jury to discard and disbelieve the witness Kinney if not thoroughly satisfied that his evidence upon the trial was truthful, and that they were at liberty to disregard his whole testimony if they believed he had sworn falsely to any material fact.

6. Again, it is insisted that upon the evidence of the state the defendant was guilty of murder in the first degree; therefore, that the trial court committed grievous error in instructing the jury they might find him guilty of murder in the second degree, or of manslaughter in the third or fourth degree. State v. Whitaker, 35 Kan. 731, 12 Pac. Rep. 106, and other similar cases of this court are cited. It was proper for the trial court to give instructions upon the theory of the defendant as well as that of the state. The defendant himself and other witnesses testified that when Hinton left the joint, after the fight there, he said to Boucher "that he would kill him;" that soon afterwards the defendant met Hinton upon the street with his knife, and that Hinton said "he would be revenged upon Boucher; that he would never sleep until he killed him;" and that soon afterwards there was a fuss or quarrel on the street between Boucher and Hinton, in which Hinton was killed. All of this and other evidence introduced upon the part of the defendant tended to show that Boucher was justified in killing Hinton, or was guilty of some offense less than murder. This also tended to show that Patterson was either not guilty, or, if guilty at all, guilty in a less degree than charged.

7. As to the complaint of the instruction about counseling, aiding, or abetting the commission of the offense charged, see State v. Shenkle, 36 Kan. 45, 12 Pac. Rep. 309.

8. Another claim is that, if all of the other alleged errors in the record were unavailing, the verdict should be set aside, and the judgment reversed, on account of the closing argument for the state. Four specific objections were made during the argument, and a general objection at the close. of the objections concerned wholly immaterial matters not prejudicial One statement

Two

complained of was: "They would not let us prove that the officers of the law were after one of the witnesses for the same crime, whose testimony they introduced.” The second was "that the commissioners of Cowley county, in their public capacity, made an order employing John Pollock and W. P. Hackney to prosecute the case, and did it in the obedience to public sentiment." Yet those statements, according to the aff davits on file, were partly made in answer to remarks of counsel for the defendant. The third objection made was sustained by the court. After this objection was sustained, counsel said, "I will take that back, and strike it all out." At the time the fourth objection was made counsel was commenting upon the fact that the defendant, although having lived in Arkansas City for 23 years, had introduced no witness to testify to his good character. The court sustained the objection to these remarks, and thereupon the counsel said, "I withdraw them." But see State v. Yordi, 30 Kan. 224, 2 Pac. Rep. 161. In the general objection no particular sentence or specific part of the argument was indicated, but the court was asked "to caution and admonish the jury not to be misled by the intemperate and inflammatory speech of the counsel who closed for the state, nor to the statements of that counsel out of the record, or to any of the incompetent statements that have been made in this case." The court, in reply, said to the jury: "So far as any question of intemper ate speech made to close the argument here, the court had no just criticism to make. However, if, in your judgment, the counsel closing this case has made any remarks or said anything that is out of the record, then, and in that event, the court tells you not to permit such statements to come before you in any way. Of course, you will try this case according to the law and testimony alone." The final objection to the argument at the close of the case was too general. This court has decided several times that, even if the statements of counsel are improper, if no sufficient objection is made at the time, error will not lie. State v. Wilgus, 32 Kan. 126, 4 Pac. Rep. 218; State v. Nusbaum, 51 Kan. 34 Pac. Rep. 407, and cases cited; State v. Comstock, 20 Kan. 654; State v. Mortimer, Id. 93; and State v. McCool, 34 Kan. 613, 9 Pac. Rep. 618.

9. Lastly, it is insisted that a new trial should be had on account of newly-discovered evidence. A part of this evidence was cumulative only; the other parts were answered or contradicted by counter affidavits. There was no error on the part of the court in refusing the new trial for this reason. State v. Rohrer, 34 Kan. 427, 8 Pac. Rep. 718: State v. McCool, supra; State v. Smith. 35 Kan. 618, 11 Pac. Rep. 908; Douglass v. Anthony, 45 Kan. 439, 25 Pac. Rep. 853. In this case, unlike some criminal cases that

CRIPPEN v. SCHNEE et al. (Supreme Court of Kansas. Nov. 11, 1893.) TRIAL-SPECIAL FINDINGS-APPOINTMENT OF NEW JUDGE-POWER TO ENTER JUDGMENT.

Where a case is tried before the court and a jury, and a verdict and special findings are returned by the jury, and thereupon a motion to set aside the general verdict and special findings is heard and decided by the trial judge, and sufficient findings are permitted to stand to support a judgment for the plaintiff, and subsequently the county in which the court is held is made a new judicial district, and a new judge is appointed, such new judge may direct a judgment upon the special findings.

(Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by H. F. Crippen against F. M. Schnee and wife and John Horton for specific performance of a contract. There was judgment for plaintiff, and defendants bring error. Affirmed.

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

This action was brought in the Saline county district court, by H. F. Crippen against F. M. Schnee and Sadie Schnee, his wife, and John Horton, to enforce the specific performance of a certain agreement in writing, in words and figures as follows: "Memoranda of agreement made this 26th day of October, A. D. 1885, by and between F. M. Schnee and H. F. Crippen, witnesseth: Whereas certain differences, litigations, and complications exist between the above-named parties, [who] being desirous of settling the same [do] agree as follows: First. The said F. M. Schnee agrees to convey to the said H. F. Crippen, by good and sufficient warranty deed, any portion of the south 35 feet of lot number 164 on Santa Fe avenue, Salina, Kansas, to be not less than the north 27 feet of the same, or more than the amount of 35 feet, at the option of said F. M. Schnee, for which said H. F. Crippen agrees to pay said F. M. Schnee at the rate of twelve (12) dollars per front foot; the said deed to be made as soon as said F. M. Schnee shall obtain a good title to lot number 168 and said 35 feet of lot 164 on Santa Fe avenue. Second. F. M. Schnee agrees to pay to said

lars as her expenses incurred in and about said premises. The said F. M. Schnee further agrees to pay or see paid the costs in a certain suit now pending in the district court of Saline county, wherein H. F. Crippen is plaintiff and Harriet E. Buchanan et al. are defendants; said H. F. Crippen agreeing to dismiss said action as to said F. M. Schnee. It is further agreed that F. M. Schnee shall perfect his title to said premises as soon as possible, and that said H. F. Crippen and her counsel, John G. Spivey, shall render any and all assistance in their power to aid in perfecting the title of the said F. M. Schnee to said premises. In witness whereof the said parties have hereunto set their hands this day and year first above written. [Signed] F. M. Schnee. H. F. Crippen." May 12, 1886, John Horton answered, setting up briefly that Schnee and wife had made and delivered to him a note for $960, and secured the payment of the same by the execution of a mortgage as shown by copies attached, but no claim was made on this account on the trial of the action. July 15, 1886, Schnee and wife answered with a general denial, and also alleged that the premises described in the written agreement were purchased on the 14th day of March, 1885, as a homestead, and that the same was the homestead of the defendants at the date of the contract; that F. M. Schnee was at that time, and ever since has been, a married man, and the head of a family, residing in Saline county, in this state, and therefore that the agreement was and is void. On December 27, 1888, at the December term, 1888, of the Saline county district court, this action came on for trial to a jury. The trial was continued through December 28 and 29, 1888, when the further hearing of the action was adjourned until January 2, 1889. January 2, 1889, the trial was resumed, and was continued through January 3 and 4, 1889, when the jury returned into court their general verdict for the defendants, and special findings. On January 4, 1889, the plaintiff filed a motion to set aside the general verdict, and all of the special findings of the jury, and to award the plaintiff a new trial, upon the ground, among others, that the verdict and special answers of the jury were contrary to and not sustained by any evidence. On the same day the motion to set aside the general verdict and certain of the special findings was sustained. On the same day the plaintiff filed his motion for judgment on the pleadings, evidence, and findings of fact, and at the same time the defendants filed their motion for judgment in their favor upon the special findings of the jury. Up to this time, Hon. S. O. Hinds was presiding judge of the district court of Saline county. but by the act of the legislature approved February 27, 1889, the thirtieth judicial dis

trict was created, composed of Saline and Ottawa counties. Laws 1889, c. 118, § 25. Thereafter Hon. R. F. Thompson was the district judge of Saline county, and all subsequent proceedings were had in this case before him. On the 4th of January, 1889, by consent of all the parties, the case was passed over without any formal order of continuance until the June term of 1889. July 1, 1889, the motions of the plaintiff and the defendants, before referred to, came on to be heard, and were by the court taken under advisement, and on July 5, 1889, the court made certain additional findings of fact and conclusions of law, denied the plaintiff's motion for judgment for specific performance, and held the further motion of the plaintiff for money judgment, and the motion of the defendants for judgment, under advisement. July 8, 1889, the plaintiff filed a motion to vacate and set aside the special findings, and for a new trial. On July 11, 1889, the motion of the plaintiff for judgment for $59 and interest, and the motion of the defendants for judgment on the findings of facts came on to be heard, and both were sustained. On the same day the plaintiff filed another motion for a new trial, and the defendant F. M. Schnee made his motion for a new trial for error of law in awarding judgment against him in favor of the plaintiff for $59 and interest, amounting to $73.45, and on the same day these motions were heard, and each denied, and the ruling of the court was excepted to by the parties respectively. H. S. Crippen brings the case here. F. M. Schnee files a cross petition.

Owen A. Bassett, for plaintiffs in error. Garver & Bond, R. A. Lovitt, and J. O. Wilson, for defendant in error.

HORTON, C. J., (after stating the facts.) The contention in this case is that Hon. S. O. Hinds, district judge of the fourteenth judicial district, heard a part of this case in Saline county, but, before judgment was rendered, that the thirtieth judicial district was created, embracing Saline county, and that Hon. R. F. Thompson, as district judge of the thirtieth judicial district, disposed of the motion for a new trial, and rendered judgment, and, therefore, that a new trial must of necessity be granted, under the authority of Bass v. Swingley, 42 Kan. 729, 22 Pac. Rep. 714. It appears from the record that, after the thirtieth judicial district was created, Hon. R. F. Thompson, as district judge, made additional findings, overruled a motion for a new trial, and rendered judgment. If the record showed nothing further, the case of Bass v. Swingley, supra, would be applicable. But it also appears that Hon. S. O. Hinds, the judge who first tried the case, also heard and determined a motion for a new trial before the thirtieth judicial district was created. He set aside

certain of the special findings of the jury, but permitted others to stand. The pivotal question of fact in the case was whether the lots referred to in the agreement were the homestead of F. M. and Sadie E. Schnee The findings of the jury, which Hon. S. 0. Hinds, district judge, sustained as supported by the evidence, established that the agree ment set forth in the petition was void, be cause it attempted to affect the homestead of the defendants, without the joint consent of both husband and wife. Upon these findings the plaintiff was not entitled to a specific performance of the agreement, which was signed by the husband, F. M. Schnee. only. Therefore the plaintiff had his motion for a new trial heard and determined be fore the district judge, who presided at the trial, saw the witnesses, and could intelligently pass upon their testimony. After a motion for a new trial has once been made, heard, and decided, a court may ar bitrarily overrule all further motions made for the same purpose and based on the same grounds. The subsequent findings made by Hon. R. F. Thompson did not materially change or affect the findings of the jury, which were sustained by his predecessor. The conclusion of Hon. R. F. Thompson that the premises in question were the homestead of the defendants on October 26, 1885, was in accord with the findings of the jury. Upon the record presented, after Hon. S. 0. Hinds overruled the motion for a new trial. Hon. R. F. Thompson had no other duty to perform than to pass upon the special findings of fact returned by the jury. The findings of fact support the judgment rendered. and this case, upon the facts presented, does not come within Bass v. Swingley, supra.

Upon the cross petition filed by the de fendant F. M. Schnee, it is claimed, as the agreement affecting the homestead is void. because Sadie E. Schnee, his wife, did not sign or consent thereto, that there could be no recovery by H. F. Crippen of the $50 mentioned in the agreement. We think otherwise. By the agreement signed by F. M. Schnee he was to pay H. F. Crippen the sum of $59 for expenses incurred upon the premises. This part of the agreement was binding upon the parties, and the court committed no error in rendering judgment for that amount. The case of Thimes v. Stumpff, 33 Kan. 53, 5 Pac. Rep. 431, differs from this. In that case, the money attempted to be recovered was a part of the purchase price of the homestead, which the wife did not consent to sell. The amount in this case recov ered is for expenses, and interest paid by the plaintiff upon the homestead, which the husband, F. M. Schnee, agreed to pay. This part of the agreement of the parties is not invalid or void. The judgment of the district court will be affirmed. All the justices concurring.