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the record showing that Boucher not only State v. Bogue, 51 Kan. - 34 Pac. Rep. 412 killed Hinton, but that he was convicted (just decided,) it was said: “It may be con therefor of manslaughter in the third degree, ceded that at common law the acquittal of and sentenced to the penitentiary for term the principal acquitted the accessory also, of three years. The same witness who tes and that the conviction of the principal must tified about the statements of Boucher also precede or accompany that of one charged testified that the defendant said in his pres

accessory. • Section 115 of ence in substance that Boucher made Hinton the Criminal Code provides: 'Any perthrow up his hands, stuck the gun up to him, son who counsels, aids, or abets in the and shot him. After the evidence had all commission of any offense, may be charged. been introduced, there was no controversy tried, and convicted in the same man over the fact that Boucher killed Hinton.

ner, as if he were principal.' The eviThe only dispute was, under what circum dent purpose of the legislature of our Own stances the homicide occurred, -whether it and other states, where similar statutes was justifiable, excusable, or felonious. We have been enacted, was to do away with think, therefore, the statement referred to those subtle distinctions of the common las was neither material nor prejudicial. The between principals in the first and second statement of Boucher to Kinney "to take the degree and accessories before the fact, and gun and give it to Patterson" was not a nar to permit the trial of participants in the rative of a past event; it was merely a di crime, independently of each other, so that rection for Kinney to give the gun he had each should suffer punishment for his On to Patterson. It was not a statement that it guilt, without being dependent on the result was Patterson's gun, or that Patterson gave of the prosecutions against others. We think him the gun. Kinney testified "that after a guilty accessory may be punished, ered this statement of Boucher to him he walked though the principal escape." In Goids T. into the office of the Gladstone Hotel, went State, 46 Ohio St. 467, 21 N. E. Rep. 476, it up to the counter, and gave the gun to Black, was observed: "If, as has been held, this the clerk.” If there was nothing else in the crime is a substantive one, for which the record but this stateinent to indicate that offender may be tried and convicted before Patterson furnished the gun for Boucher, his the conviction of the principal, it necessarily connection with that part of the transaction follows that he should be convicted of thai would be slight, surely not enough to support | degree of the crime which the evidede a verdict of guilty, or any conviction; but against him establishes; and, if this may be the same witness who testified to the direc done before, no reason is apparent why it tion of Boucher also testified that the de should not be done after, the trial of the fendant suggested to Boucher, before he left principal; and the circumstance that the the joint, “Why don't you kill the son of a principal offender, through failure of prou bitch ?” (meaning Hinton;) and when Bouch or caprice of the jury, had been convicted of ei said, "I haven't any gun,” the defendant a lower grade, or even acquitted before tbe said, "I will go and get you a gun," and aider or abettor was put on trial, cannot went out of the joint at once. That after the affect the question of the guilt or innocence homicide was committed, and when several of the latter. The degree of the guilt of the of the parties were in the joint, the defend aider and abettor, as well as the question ant said: "Where's my gun? What did whether he is guilty at all, is to be de Boucher do with my gun?" And when told termined solely by the evidence in the case." that it had been given to Black, the clerk at But counsel for defendant claim that the the office, he went out, and came back with decisions referred to apply to an aider, an abet the same gun, as the witness thought; took

tor, or principal in the second degree only, the cartridges out; those that were empty he and not to an accessory before the fact. By threw into the slop bucket; those that were the statute of this state the distinction be full, he put in his pants pocket; then he put tween a principal in the second degree an! the gun away, and detailed, as before stated, an accessory before the fact has been abol how Boucher shot Hinton with the gun. ished, and all participants in a crime are da Even if the direction of Boucher be regarded clared equally and alike guilty, without re as inadmissible, the other evidence of the gard to their proximity thereto, or the eswitness testifying to this, if given credit, tent of their participation therein. State T. connected the defendant so strongly and di Cassady, supra. In this connection it is prop rectly with furnishing the gun to Boucher er to remark that in the case of State v. Jos that such mere direction was not important ley, 31 Kan. 355, 2 Pac. Rep. 782, it was in the case,-not sufficient to influence a ver rightly decided that "upon the trial of a dict.

accessory before the fact the record of the 4. It is further insisted that the defendant, conviction of the principal is proof prins If an accessory before the fact, could not be facie of that fact, but this is not conchisire. visited with a higher grade of punishment and other evidence of the commission of the than his principal. John Boucher was con crime by the principal is admissible." B victed of manslaughter in the third degree this court probably went too far in that esse only, and sentenced at hard labor in the

in saying that the statements of the priori penitentiary of the state for three years. In pal, Mrs. Martin, were admissible again


Mosley If they were made in his absence. At, sonable doubt whether his guilt is satisfaccommon law such statements of a principal torily shown he must be acquitted." Comwere admissible to charge an accessory, but sel say that the verdict in the case, resting under our statute and the authority of State upon the evidence of a witness like Kinney, V. Bogue, supra, such declarations, not made whose character is so atrocious, whose mo

in the presence of the accessory, are not re tive for lying is so apparent, and who con"ceivable.

fesses his own perjury with regard to the 5. It is still further insisted that the trial same transaction on two former occasions, is 2. court committed error in "permitting the alse not properly supported, and that the liberty of 3. to go to the jury upon the evidence of Kin no one should be cast away in such a manner. 1. ney, without saying to them that they should The degree of credit which ought to be given Es not convict upon the uncorroborated evidence to the testimony of an accomplice is a matter

of an accomplice.” Also, that the court exclusively within the province of the jury. as "abused its discretion in not instructing the Without doubt great caution in weighing such

jury that they ought not to find the defendant testimony is dictated by prudence and good guilty upon the statements of Kinney alone."

1 Greenl. Ev. $ 380. In State y. The court gave, among others, the following Adams, 20 Kan. 327, it was stated that “the instructions: "If you should find, from all unaided testimony of an accomplice is legal. the evidence, that any witness who has testi ly sufficient to sustain a verdict.” In Collins fied in this action las heretofore been guilty v. People, 99 Ill. 581, it was observed: "In of perjury in testifying falsely concerning the mapy, probably in most, cases the evidence same matters about which he bas testified in of an accomplice, uncorroborated in material tbis case, then, and in that event, you ought matters, will not satisfy the honest judgment to carefully and minutely consider all his evi- | beyond a reason:uble doubt; and then it is dence in this case, and should carefully com clearly insufficient to authorize a verdict of pare all his statements in this case, together guilty. But there may frequently occur other with all the other evidence in this case, and cases, where, froin all the circumstances, the if, after having so done, you are unable to honest judgment will be as thoroughly satissay whether such witness has or has not tes fied from the evidence of the accomplice of tified truthfully in this case concerning the the guilt of the defendant as it is possible it matters about which he has testified, then, could be satisfied from hunian testimony; and in that event, you ought to discard and and in such case it would be an outrage upon disbelieve that evidence of such witness en the administration of justice to acquit." In tirely. But if you are satisfied that any such Linsday v. People, 63 N. Y. 143, it was said: witness has testified truthfully as to the mat “Although it is not usual to suffer a convicter in this case, then you should not arbi tion upon the wholly uncorroborated evidence trarily disregard his testimony, notwithstand of an accomplice, and juries are advised not ing you may believe that he had heretofore to convict without a confirmation as to the made a different statement. In determining material facts, still, if the jury are fully what weight should be given to the testimony convinced of the truth of the statements of of any witness the jury may take into con a witness thus situated, they may convict sideration the appearance of such witness on upon his testimony alone. It is the duty of the witness stand while giving his testimony, the trial judge, if requested so to do, to adthe interest of such witness, if any, in the re rise the jury not to convict upon the tessult of the case, and any other fact or cir timony of an accomplice alone, unless his tegcumstance proven in the case, which, in the timony is corroborated by other evidence in opinion of the jury, throws any light upon some material point in issue.” State v. Kelthe question of the weight which should be lerman, 14 Kan. 135; State v. Adams, supra. given to the testimony of such witness. You In this case, Kinney was the accomplice or are the exclusive judges of the evidence, the a particeps criminis only after the fact by facts proven, and the credibility of the wit agreeing to and subsequently swearing to ness; and it is for you, and you alone, to fabricated statements at the coroner's inquest say from the evidence whether the defend and the preliminary examination of Boucher. ant is guilty or not. And, if you believe It is not shown that he was present, aiding, any witness has sworn falsely to any mate or abetting the homicide, or that he procured, rial fact in this case, then you are at liberty counseled, or commanded it. He was, at to disregard the whole of his testimony. If most, an accessory after the fact. The trial there be any reasonable doubt whether the court was not requested by the defendant or guilt of the defendant has been satisfactorily his counsel to advise the jury rot to convict shown by the evidence, he should be acquit the defendant upon the uncorroborated evited. If any one of the jurors, after having dence of an accomplice. Instructions 1, 2, 3, considered all the evidence in the case, and and 9, which were requested and refused, reafter having consulted with his fellow jury ferred to any impeached witness, and to any men, should entertain any reasonable doubt witness who had heretofore made different of the guilt of the defendant, then the jury statements under oath. The court said to the cannot find the defendant guilty. The de jury: "You are the exclusive judges of the fendant is presumed to be innocent until the evidence, the facts proven, and the credibility contrary is proven, and where there is a rea of the witnesses; and it is for you, and you

alone, to say from the evidence whether the complained of was: “They would not defendant is guilty or not; and if you believe us prove that the officers of the law were any witness has sworn falsely to any mate after one of the witnesses for the same rial fact in this case, then you are at liberty crime, whose testimony they introduced.* to disregard the whole of his testimony." The second was "that the commissioners of The court also cautioned the jury that if any Cowley county, in their public capacity, made witness had been guilty of perjury in testify an order employing John Pollock and W. P. Ing previously concerning the facts at issue Hackney to prosecute the case, and did it they ought to carefully and minutely consider in the obedience to public sentiment." Yet such evidence, and carefully compare the those statements, according to the afistatements testified to with all the other evi-davits on file, were partly made in answer to dence; and if, having done so, they were un remarks of counsel for the defendant. The able to say whether the witness had or had third objection made was sustained by the not testified truthfully, then they ought to court. After this objection was sustained. discard and disbelieve the evidence of such counsel said, "I will take that back, and witness entirely. In view of the special in strike it all out." At the time the fourth structions requested, and the instructions ac objection was made counsel was commenttually given, the trial court seems to have ad- ing upon the fact that the defendant, alvised the jury to discard and disbelieve the though having lived in Arkansas City for 23 witness Kinney if not thoroughly satisfied years, had introduced no witness to testify that his evidence upon the trial was truthful, to his good character. The court sustained and that they were at liberty to disregard his the objection to these remarks, and thereur whole testimony if they believed he had on the counsel said, "I withdraw them." But sworn falsely to any material fact.

see State v. Yordi, 30 Kan. 224, 2 Pac. Rep. 6. Again, it is insisted that upon the evi- '161. In the general objection no particular dence of the state the defendant was guilty sentence or specific part of the argument of murder in the first degree; therefore, that was indicated, but the court was asked “to the trial court committed grievous error in caution and admonish the jury not to be instructing the jury they might find him guil- misled by the intemperate and inflammatory ty of murder in the second degree, or of speech of the counsel who closed for the manslaughter in the third or fourth degree. state, nor to the statements of that counsel State v. Whitaker, 35 Kan. 731, 12 Pac. Rep. out of the record, or to any of the incom. 106, and other similar cases of this court are petent statements that have been made in cited. It was proper for the trial court to this case.” The court, in reply, said to the give instructions upon the theory of the de jury: "So far as any question of intemperfendant as well as that of the state. The ate speech made to close the argument here, defendant himself and other witnesses testi the court had no just criticism to make. fied that when Hinton left the joint, after However, if, in your judgment, the counsel the fight there, he said to Boucher "that he closing this case has made any remarks or would kill him;" that soon afterwards the said anything that is out of the record, then, defendant met Hinton upon the street with and in that event, the court tells you not to his knife, and that Hinton said "he would be permit such statements to come before you revenged upon Boucher; that he would nev in any way. Of course, you will try this er sleep until he killed him;" and that soon case according to the law and testimour afterwards there was a fuss or quarrel on alone.” The final objection to the argu. the street between Boucher and Hinton, in ment at the close of the case was too gen. which Hinton was killed. All of this and eral. This court has decided several times other evidence introduced upon the part of that, even if the statements of counsel are the defendant tended to show that Boucher improper, if no sufficient objection is made was justified in killing Hinton, or was guilty at the time, error will not lie. State 5. of some offense less than murder. This also Wilgus, 32 Kan. 126, 4 Pac. Rep. 218; State tended to show that Patterson was either v. Nusbaum, 51 Kan. 34 Pac. Rep. 407, not guilty, or, if guilty at all, guilty in a less and cases cited; State v. Comstock, 20 Kao. degree than charged.

054; State v. Mortimer, Id. 93; and State . 7. As to the complaint of the instruction McCool, 34 Kan. 613, 9 Pac. Rep. 618. about counseling, aiding, or abetting the com 9. Lastly, it is insisted that a new trial mission of the offense charged, see State v. should be had on account of newly-discovered Shenkle, 36 Kan. 45, 12 Pac. Rep. 309. evidence. A part of this evidence was cumu

8. Another claim is that, if all of the oth- lative only; the other parts were answered er alleged errors in the record were unavail or contradicted by counter affidavits. There ing, the verdict should be set aside, and the was no error on the part of the court in re judgment reversed, on account of the clos fusing the new trial for this reason. State ing argument for the state. Four specific v. Rolirer, 34 Kan. 427, 8 Pac. Rep. 718; objections were made during the argument, State v. McCool, supra; State v. Smith. 35 and a general objection at the close. Two Kan. 618, 11 Pac. Rep. 908; Douglass v. Anof the objections concerned wholly immate thony. 45 Kan. 439, 25 Pac. Rep. 853. In rial matters not prejudicial. One statement this case, unlike some criminal cases that

have been before us for review, there was H. F. Crippen the sum of fifty-nine (59) dol. direct and positive testimony before the jury lars as her expenses incurred in and about to sustain the conviction of the defendant said premises. The said F. M. Schnee furif that evidence was believed. The jury ther agrees to pay or see paid the costs were the exclusive judges of the evidence in a certain suit now pending in the disand of the credibility of the witnesses. We trict court of Saline county, wherein H. F. have before us the verdict of the jury, and Crippen is plaintiff and Harriet E. Buchanalso the approval of the trial judge of that an et al. are defendants; said H. F. Crip

verdict. We cannot interfere. There are pen agreeing to dismiss said action as to 2. other matters discussed in the briefs, but we said F. M. Schnee. It is further agreed 1 do not think it necessary to comment there that F. M. Schnee shall perfect his title

The judgment will be affirmed. All the to said premises as soon as possible, and - Justices concurring.

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 paaCRIPPEN v. SCHNEE et al.

ties have hereunto set their hands this day (Supreme Court of Kansas. Nov. 11, 1893.)

and year first above written. [Signed] F. CRIAL-SPECIAL FINDINGS-APPOINTMENT OF New M. Schnee. H. F. Crippen." May 12, 1886,

JUDGE-POWER TO ENTER JUDGMENT. John Horton answered, setting up briefly that

Where a case is tried before the court Schnee and wife had made and delivered to and a jury, and a verdict and special findings

him a note for $960, and secured the payment are returned by the jury, and thereupon a moition to set aside the general verdict and special

of the same by the execution of a mortgage findings is heard and decided by the trial judge, as shown by copies attached, but no claim and sufficient findings are permitted to stand was made on this account on the trial of the to support a judgment for the plaintiff, and Bubsequently the county in which the court is

action. July 15, 1886, Schnee and wife anheld is made a new judicial district, and a new swered with a general denial, and also aljudge is appointed, such new judge may direct leged that the premises described in the a judgment upon the special findings.

written agreement were purchased on the (Syllabus by the Court.)

14th day of March, 1885, as a homestead, Error from district court, Saline county;

and that the same was the homestead of R. F. Thompson, Judge.

the defendants at the date of the contract; Action by H. F. Crippen against F. M. that F. M. Schnee was at that time, and Schnee and wife and John Horton for spe ever since has been, a married man, and citic performance of a contract. There was the head of a family, residing in Saline counjudgment for plaintiff, and defendants bring ty, in this state, and therefore that the agreeerror. Affirmed.

ment was and is void. On December 27, The other facts fully appear in the follow 1888, at the December term, 1888, of the Ling statement by HORTON, C. J.:

Saline county district court, this action came * This action was brought in the Saline coun on for trial to a jury. The trial was con

ty district court, by H. F. Crippen against F. tinued through December 28 and 29, 1888, M. Schnee and Sadie Schnee, his wife, and when the further hearing of the action was John Horton, to enforce the specific per- adjourned until January 2, 1889. January 2, formance of a certain agreement in writing, 1889, the trial was resumed, and was conin words and figures as follows: “Memo tinued through January 3 and 4, 1889, when randa of agreement made this 26th day of the jury returned into court their general October, A. D. 1885, by and between F. M. verdict for the defendants, and special findSchnee and H. F. Crippen, witnesseth: ings. On January 4, 1889, the plaintiff filed Whereas certain differences, litigations, and a motion to set aside the general verdict, complications exist between the above-named and all of the special findings of the jury, parties, (who] being desirous of settling the and to award the plaintiff a new trial, upon same [do] agree as follows: First. The said the ground, among others, that the verdict F. M. Schnee agrees to convey to the said and special answers of the jury were conH. F. Crippen, by good and sufficient war trary to and not sustained by any evidence. ranty deed, any portion of the south 35 feet On the same day the motion to set aside of lot number 164 on Santa Fe avenue, Sali the general verdict and certain of the spena, Kansas, to be not less than the north 27 cial findings was sustained. On the same day feet of the same, or more than the amount the plaintiff filed his motion for judgment on of 35 feet, at the option of said F. M. Schnee, the pleadings, evidence, and findings of fact, for which said H. F. Crippen agrees to pay and at the same time the defendants filed said F. M. Schnee at the rate of twelve (12) their motion for judgment in their favor upcollars per front foot; the said deed to be on the special findings of the jury. Up to made as soon as said F. M. Schnee shall this time, Hon. S. 0. Hinds was presiding obtain a good title to lot number 168 and judge of the district court of Saline county, said 33 feet of lot 164 on Santa Fe avenue. but by the act of the legislature appruved Second. F. M. Schnee agrees to pay to said February 27, 1889, the thirtieth judicial dis

trict was created, composed of Saline and certain of the special findings of the jury, Ottawa counties. Laws 1889, c. 118, $ 25. but permitted others to stand. The pivota Thereafter Hon. R. F. Thompson was the question of fact in the case was whether the district Judge of Saline county, and all subse lots referred to in the agreement were the quent proceedings were had in this case be homestead of F. M. and Sadie E. Schnee fore him. On the 4th of January, 1889, by The findings of the jury, which Hon. S. 0. consent of all the parties, the case was pass

Hinds, district judge, sustained as supported ed over without any formal order of con by the evidence, established that the agree tinuance until the June term of 1889. July ment set forth in the petition was void, be 1, 1889, the motions of the plaintiff and the cause it attempted to affect the homestead defendants, before referred to, came on to be of the defendants, without the joint conset heard, and were by the court taken under of both husband and wife. Upon these findadvisement, and on July 5, 1889, the court ings the plaintiff was not entitled to a made certain additional findings of fact and specific performance of the agreement, #bich conclusions of law, denied the plaintiff's mo was signed by the husband, F. M. Schnet. tion for judgment for specific performance, only. Therefore the plaintiff had his motion and held the further motion of the plaintiff for a new trial heard and determined be for money judgment, and the motion of the fore the district judge, who presided at the defendants for judgment, under advisement. trial, sa w the witnesses and could inJuly 8, 1889, the plaintiff filed a motion to telligently pass upon their testimony. After vacate and set aside the special findings, and & motion for a new trial has once been for a new trial. On July 11, 1889, the mo made, heard, and decided, a court may artion of the plaintiff for judgment for $59 bitrarily overrule all further motions made and interest, and the motion of the defend for the same purpose and based on the same ants for judgment on the findings of facts grounds. The subsequent findings made by came on to be heard, and both were sus Hon. R. F. Thompson did not materially tained. On the same day the plaintiff filed change or affect the findings of the jury, another motion for a new trial, and the de which were sustained by his predecessor, fendant F. M. Schnee made his motion for The conclusion of hion. R. F. Thompson that a new trial for error of law in awarding the premises in question were the homestead judgment against him in favor of the plain- of the defendants on October 26, 1885, wis tiff for $59 and interest, amounting to $73.45, in accord with the findings of the jury. and on the same day these motions were Upon the record presented, after Hon. S.O. heard, and each denied, and the ruling of the Hinds overruled the motion for a new trial. court was excepted to by the parties respec Hon. R. F. Thompson had no other duty to tively. H. S. Crippen brings the case here. perform than to pass upon the special findF. M. Schnee files a cross petition.

ings of fact returned by the jury. The findOwen A. Bassett, for plaintiffs in error.

ings of fact support the judgment rendered, Garver & Bond, R. A. Lovitt, and J. O. Wil and this case, upon the facts presented, does son, for defendant in error.

not come within Bass v. Swingley, supra.

Upon the cross petition filed by the de HORTON, C. J., (after stating the facts.)

fendant F. N. Schnee, it is claimed, as the The contention in this case is that Hon. S. agreement affecting the homestead is poid. 0. Hinds, district judge of the fourteenth because Sadie E. Schnee, his wife, did not judicial district, heard a part of this case sign or consent thereto, that there could be in Saline county, but, before judgment was no recovery by H. F. Crippen of the $59 rendered, that the thirtieth judicial district mentioned in the agreement. We think otherwas created, embracing Saline county, and

wise. By the agreement signed by F. M. that Hon. R. F. Thompson, as district judge Schnee he was to pay H. F. Crippen the sum of the thirtieth judicial district, disposed

of $59 for expenses incurred upon the premof the motion for a new trial, and rendered ises. This part of the agreement was bindjudgment, and, therefore, that a new trial ing upon the parties, and the court commitmust of necessity be granted, under the au ted no error in rendering judgment for that thority of Bass V. Swingley, 42 Kan. 729, amount. The case of Thimes v. Stumpfr. 33 22 Pac. Rep. 714. It appears from the rec Kan. 53, 5 Pac. Rep. 431, differs from this ord that, after the thirtieth judicial district In that case, the money attempted to be re was created, Hon. R. F. Thompson, as dis covered was a part of the purchase price of trict judge, made additional findings, over the homestead, which the wife did not conruled a motion for a new trial, and rendered sent to sell. The amount in this case recorjudgment. If the record showed nothing ered is for expenses, and interest paid by further, the case of Bass v. Swingley, supra, the plaintiff upon the homestead, which the would be applicable. But it also appears husband, F. M. Schnee, agreed to pay. This that Hon. S. 0. Hinds, the judge who first part of the agreement of the parties is Dot tried the case, also heard and determined invalid or void. The judgment of the disa motion for a new trial before the thirtieth trict court will be affirmed. All the justics judicial district was created. He set aside concurring.

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