quested or given. The court said: "Another struction complained of related to a degree assignment of error is that the court neglected to inform the jury what constituted murder in the second degree and the four degrees of manslaughter. The statute provides that the court in charging the jury 'must state to them all matters of law which are necessary for their information in giving their verdict.' It also provides, in substance that upon a charge of murder in the first degree the defendant may be convicted of any offense necessarily included therein, which would embrace murder in the second degree and the various degrees of manslaughter. Now, inasmuch as it is very manifest that murder in the second degree and all the grades of manslaughter are necessarily included in the charge of murder in the first degree, it was the imperative duty of the court, made so by the statute, to explain all of them to the jury. As the provision is plainly imperative, there is no necessity for attempting to sustain it by reason. It was error to omit to do so." In the case of State v. Grubb, 55 Kan. 678, 41 Pac. 951, there was a question whether under the evidence the completed crime of rape had been committed. The court said: "Although the defendant did not ask any instruction as to the law of an attempt to commit the crime, yet we think the court ought to have informed the jury upon the subject." These cases sufficiently illustrate the peremptory character of the statute.

of crime inferior to that of which the defendant is convicted, this objection becomes immaterial"-citing State v. Dickson, State v. Potter, State v. Rhea, and State v. Yarborough. In the case of State v. McCarty, 54 Kan. 52, 36 Pac. 338, no instruction upon the law of manslaughter in the second degree was asked or given, although the law relating to other degrees of manslaughter was stated. The court said: "We agree with counsel that the court should correctly charge the jury as to all the law applicable to every state of facts fairly supported by evidence, and that the rule declared in State v. Dickson, supra, ought not to be extended to unreasonable limits. But, where the jury under proper instructions have found a defendant guilty of every element of the superior offense, erroneous instructions or a total failure to instruct, with reference to an offense inferior in degree and including less criminality, cannot logically be said to have influenced the jury. The failure of the court can only be said to be prejudicial to the defendant on the theory that the jury failed to fully comprehend the definition of the superior degree, or misconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice." In the case of State v. Peak, 66 Kan, 701, 72 Pac. 237, the Very soon, however, it became apparent defendant was convicted of selling intoxicatthat a reversal ought not to follow every ing liquors and keeping a nuisance, contrary failure to obey the statute. In the case of to the prohibitory law. The opinion reads: State v. Dickson, 6 Kan. 209, the syllabus "Another alleged error is that the court inreads: "* * And, when the instructions structed the jury that under the information, complained of relate to a degree of crime if the evidence warranted, the defendant inferior to the principal offense charged in might be convicted of keeping and maintainthe information, and inferior to that of ing a clubroom. The defendant contends which the defendant is convicted, they will that the information was not drawn under be deemed not to have prejudiced the de- the clubroom provision of the statute, and fendant, whether erroneous or not." This contains no allegations upon which the derule was given a place in the syllabus of the fendant could be convicted of keeping or decision in the case of State v. Potter, 15 maintaining a clubroom. We do not believe Kan. 302, which also announces the follow-this position is well taken. The facts charging principle: "If the court in its instruc- ed in the information are sufficient to suptions gives in general terms the elements of the crime charged, and it is not asked by defendant to enlarge upon and explain further any particular element or feature thereof, no error has been committed in failing to give fuller and more explicit instructions which will justify a reversal." The ruling in State v. Dickson was recognized, but not discussed, in the cases of State v. Rhea, 25 Kan. 576, and State v. Yarborough, 39 Kan. 581. In the case of State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, the defendant was charged with murder in the first degree and convicted of murder in the second de

No instruction relating to manslaughter was asked or given. The court said: "There is a further complaint that the court failed to submit an instruction upon manslaughter in the second degree. As the in

port a conviction either for maintaining a nuisance under the nuisance provision of the statute or for keeping a clubroom under that provision of the statute. However, since the keeping of a clubroom is an inferior degree of the offense, and since the jury found the defendant guilty of committing the greater offense, he has no cause to complain of the instruction given"-citing State v. Dickson and other cases to like effect. In the case of State v. Clark, 69 Kan. 576, 77 Pac. 287, the rule of State v. Dickson was invoked, but a formal request had been made for instructions, based on evidence difficult to interpret, relating to inferior degrees of the crime charged. The court said: "Appellant asked the court to give instructions on all the degrees of manslaughter except the first. The court requested counsel to formulate a

theory on which instructions respecting man- | In the case of State v. Newton, 74 Kan. 561, slaughter in the second, third, and fourth 87 Pac. 757, two paragraphs of the syllabus degree should be given, which he failed to read as follows: "Where, in a criminal prosdo. The court was justified in refusing to ecution upon a charge of murder in the first instruct on manslaughter in the first degree, degree, the evidence points so strongly to but, as to the other degrees, the failure of the guilt of the accused in the highest degree counsel to formulate a theory on which the of the crime as practically to exclude any court might instruct was not a sufficient rea- theory of guilt in a lower degree, and where son for such refusal. The testimony itself, the evidence does not naturally suggest the without the aid of counsel, presented to the absence of premeditation and deliberation in court a sufficient theory on which to base in- the commission thereof as probable, still it is structions respecting the several degrees of the duty of the trial court to define and inmanslaughter to which we have referred. struct in reference to all lower degrees of Section 5681 of the General Statutes of 1901 the crime of which there is any reasonable requires the court in a criminal case to state theory of guilt under the evidence. In such to the jury all matters of law which are nec- a case, however, it is not reversible error essary for their information in giving a ver- for the court to omit to define any lower dedict. This must be done without request gree of the crime or to instruct in reference from the defendant. Craft v. State, 3 Kan. to it unless its attention is challenged there450." In the case of State v. Walke, 69 Kan. to by a request for such instruction." These 183, 76 Pac. 408, the court failed to instruct cases are sufficient to illustrate the limitaconcerning the defense of alibi. The court tions upon the compulsory aspect of the said: "He did not request the giving of any statute which have been recognized since instruction to the jury specially calling their Craft's Case was decided in April, 1866. attention to this matter or specially explainFrom all the decisions noted it may be coning the law applicable thereto, and no such cluded that the statute means what it says instruction was given. This omission is very and should be followed; but that a duty strenuously urged as error. It is true that secrests on counsel for the defendant to aid and tion 236 of the Criminal Code (Gen. St. 1901, not to ambush the court, and consequently § 5681) requires that the judge charge the ju- instructions should be requested covering ry in writing, and in such charge state to all lesser degrees or lesser crimes involved them all matters of law necessary for their in the main charge which the defendant deinformation in giving their verdict. But this sires to be considered. A request sufficient provision cannot be construed that instruc- to direct the mind of the court to the subject tions are to be in any particular form or is enough. Good instructions need not be are required to go into all the minutiae of offered, or a good theory for them formulatthe case. Its purpose is fully satisfied if

such instructions be sufficient fairly to pre-ed; and the evidence itself may point so such instructions be sufficient fairly to pre- plainly to the necessity for such instructions sent the salient features arising upon the law of the case. If more than this be de

the jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.

that no request is necessary. Generally, sired by either party, it should be specifically however, a failure to make the request requested, and may be held to be waived, if waives error in failing to instruct, and gennot so requested." In the case of State v. erally error in failing to instruct, or in givClough, 70 Kan. 510, 79 Pac. 117, the court ing wrong instructions, upon lesser degrees omitted to instruct concerning lesser offenses or offenses, works no prejudice when the deincluded in the general charge of the infor- fendant is convicted upon satisfying evidence mation. The court said: "Even if the court of a higher charge under correct instructions erred in its instructions to the jury or in relating to it. Should it appear that, if omitting to instruct in some respects, the rec- omitted instructions duly requested or clearord fails to show that the error was properly required by the evidence had been given ly called to the attention of the court. No exception was taken to any instruction given, and no request appears to have been made for additional instructions. The attention of the court was first called to the alleged error after verdict upon the presentation of a motion for a new trial. This is not good practice. On the trial of criminal cases attorneys for defendants are in court for the purpose of protecting the interests of their clients in every legitimate way. They should not, however, lie in wait to catch the court in error for the purpose of obtaining reversals, but should claim every right of the client at the proper time, as the trial progresses, and object and except to every adverse ruling supposed to be inimical to the

Such being the law, the statute in question falls far short of declaring a public policy which nullifies all proceedings not strictly conforming to it. Neither does it grant a purely personal privilege to a defendant in a criminal case, for the state may have the right to instructions of the character discussed notwithstanding the defendant's objection. State v. Newton, 74 Kan. 561, 566, 87 Pac. 757. The statute merely prescribes a rule of criminal procedure, the benefits of which a defendant may waive, and which is qualified by another statutory rule that, on appeal, judgment must be given without re

tions which do not affect substantial rights. | proached, Tusing concluded that he had no Gen. St. 1901, § 5731. In this case the defendant's objection to an instruction on the subject of assault and battery was much stronger as a waiver than the mere failure to request such an instruction would have been, and the verdict of guilty of the crime charged in the information is so clearly and abundantly supported that the question of a mere assault and battery is no longer material.

Complaint is made of the two instructions which were given. No exception was taken to them at the time, and consequently none is permissible now. However, the court has examined them, and is satisfied they are not open to the criticisms made upon them.

Misconduct of the jury is urged. The proof fails to establish the charge. At most, the testimony of the only witness called is merely conflicting, and the trial court has determined its true effect.

equity in the wheat and refused to harvest it. Thereupon the defendant informed the landowner and the plaintiff of his interest in the wheat and proposed to thresh it, if, upon examination, he concluded that it would be for his interest to do so. After such examination he threshed the wheat, delivered it to an elevator, and received the money therefor. Out of the proceeds he paid the expenses of threshing and marketing the wheat, paid the landowner his share, and appropriated $139, being the one-fourth claimed by him to his own use, leaving a balance of $4, which he paid to the plaintiff on the mortgage, leaving $155 of the mortgage debt unpaid. The plaintiff claimed this $139 under his mortgage, and brought this suit to recover it. The plaintiff's claim was based, first, upon an alleged agreement made between himself and the defendant, at the time they de termined to harvest and thresh the crop, to

The judgment of the district court is af the effect that the defendant was to do firmed. All the Justices concurring.

DODSON v. COVEY.

(Supreme Court of Kansas. Dec. 11, 1909.) CROPS (§ 2*)-CONTRACTS-PARTY FURNISHING SEED.

A person, having the right to cultivate land under an agreement with the owner that he should have a share of the crop for planting and harvesting it, agreed with another person that if the latter would furnish the seed wheat he should have one-fourth of the crop when harvested. The seed was furnished and the crop raised and harvested in accordance with the agreement. Held, that the party furnishing the seed was the owner of one-fourth of the wheat so harvested, and that his right thereto was not affected by a mortgage given by the other party on the entire crop.

[Ed. Note.-For other cases, see Crops, Dec. Dig. § 2.*1

(Syllabus by the Court.)

such work, pay the mortgage, and take an assignment thereof. This the defendant denied, and asserted that, while he had agreed to thresh the wheat, he did not agree to take up the mortgage. On the trial this issue was properly submitted to the jury upon conflicting evidence, and was finally determined by the special findings of the jury in favor of the defendant. The plaintiff also asserted a right to the proceeds of such one-fourth interest upon the further ground that the defendant's claim thereto was not valid. This proposition was presented to the trial court by the following request for an instruction: "You are instructed that if you find that a contract was made between Tusing and Covey before the crop was sown, whereby Covey was to get one-fourth of the crop for furnishing the seed to plant the same, and that plaintiff obtained a chattel mortgage on the whole of the crop after it

Appeal from District Court, Pratt County; was growing, and took possession of the crop P. B. Gillett, Judge.

Action by B. F. Dodson against W. M. Covey. Judgment for defendant, and plaintiff appeals. Affirmed.

before Covey exercised any right over it, or any new agreement was made between him and Tusing, and that the plaintiff had no notice of the existence of Covey's claim at

W. B. Hess and Charles H. Apt, for appel- the time of the execution of the mortgage, lant.

R. F. Crick, for appellee.

BENSON, J. This action was brought to recover damages for the conversion of wheat. One Tusing had agreed with a landowner to plant and harvest wheat for a share of the crop.

The defendant, Covey, furnished the seed upon an agreement with Tusing that he (Covey) should have one-fourth of the crop when harvested. The wheat planted in pursuance of this agreement was growing in the following May, when Tusing, being indebted to the plaintiff, Dodson, executed to him a mortgage upon the entire growing crop. Later, when the harvest time ap

then it is your duty to find for the plaintiff." Page 7, Abstr. This instruction was refused, and the question is presented whether the defendant owned an interest in the wheat valid as against the mortgagee.

It is contended by the plaintiff that the relation between Tusing and the defendant was that of debtor and creditor merely. It must be conceded, however, that, if there was an indebtedness, it was only conditional, for if the crop had failed no obligation would have remained. It appears to have been a joint venture, in which one was to furnish the labor, and the other the seed to produce the crop. It has been frequently held that

where one furnishes land, and another furnishes labor to raise crops which are to be divided between them when harvested, they become tenants in common. Jones on Landlord & Tenant, § 54; 12 Cyc. 979; 8 A. & E. Encycl. of L. (2d Ed.) § 325; Sims v. Jones, 54 Neb. 769, 75 N. W. 150, 69 Am. St. Rep. 711. It has also been held that an agreement between a renter and another that the latter should have a portion of the crop to be grown upon the rented premises if he will help to plant and harvest it constitutes the parties tenants in common of the crop so produced. Sims v. Dame, 113 Ind. 127, 15 N. E. 217. The same rule was applied in Tripp v. Riley, 15 Barb. (N. Y.) 333, and in Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309. "Where two persons enter into an agreement for the production by manufacture or otherwise of any kind of property to

be shared between them, each party contributing to the expense of production either in labor, materials, or otherwise, they become tenants in common of the product of their labor, capital, or expenditure." 17 A. & E. Encycl. of L. (2d Ed.) 663.

defendant, and the remainder to the plaintiff. Held not error.

[Ed. Note. For other cases, see Costs, Cent. Dig. § 153; Dec. Dig. § 42.*]

2. TRIAL (8 244*) - INSTRUCTIONS - UNDUE

PROMINENCE TO EVIDENCE.

Where the evidence upon a material fact is circumstantial and conflicting, it is not error for the court to refuse an instruction which selects part of such evidence, and gives it undue prominence and importance, to the exclusion of other evidence equally material.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 578, 579; Dec. Dig. § 244.*] (Syllabus by the Court.)

Appeal from District Court, Reno County; P. J. Galle, Judge.

berly. Judgment for plaintiff before a justice, and defendant appeals. Judgment for plaintiff, and, from an order as to costs,

Action by W. S. Kerr against Horace Co

plaintiff appeals. Affirmed.

F. L. Martin, for appellant. Simmons & Tyler, for appellee.

GRAVES, J. This is an appeal from the district court of Reno county. The principal question involved relates to the taxation of costs. On August 2, 1907, W. S. Kerr filed a bill of particulars before a justice of the

The seed wheat furnished by the defendant having been combined with the labor of Tusing to produce the crop, under the agreement that the defendant should have one-peace, in which he asked judgment against fourth of it, he became the owner of that interest, and his right thereto could not be affected by a mortgage to which he was not a party.

Horace Coberly upon two separate and independent claims, one being for $30 due August 1, 1907, for pasture, and the other $195 due for plowing. On August 9, 1907, the day

The judgment is affirmed. All the Justices set for trial, both parties appeared. At that

concur.

KERR v. COBERLY. (Supreme Court of Kansas. Dec. 11, 1909.) 1. COSTS (§ 42*)-TAXATION.

time the defendant filed an answer, in which he admitted being indebted on the claim for $30, and alleged that a few days before it became due he tendered the amount to the plaintiff, which was refused. As to the $195 claim, he alleged payment. At the same time the defendant paid to the justice of the peace An action was commenced before a justice the sum of $30, which was accompanied with of the peace, in which the plaintiff claimed judg- a written memorandum, which reads: "Dement upon each of two separate and distinct fendant now tenders into court with his ancauses of action growing out of two separate swer the sum of thirty dollars in cash hereand distinct transactions, one for $30 and the other for $195. The action was commenced Au- tofore admitted to be due plaintiff from degust 2, 1907. The claims were each due August fendant in settlement of said debt." 1, 1907. When the case was set for trial, Au- plaintiff did not accept the money and the gust 9, 1907, the defendant by answer admit- trial proceeded. The justice found in favor ted liability for the $30 and paid the money into court, which the plaintiff did not ac- of the plaintiff, and the defendant appealed cept. The defendant pleaded payment as to the to the district court, where, upon a trial, other item, and a trial was had thereon in the plaintiff failed to recover upon the claim which the defendant was defeated. An appeal was taken to the district court, where a trial for $195. The offer of $30 which had been was had upon the same item only, and the kept good not having been accepted, that item plaintiff was defeated. By direction of the was submitted to the jury under an instruccourt the jury returned a verdict in favor of the tion, which reads: "I instruct you, gentleplaintiff for the uncontested item of $30, with interest from August 1, 1907. The interest on men of the jury, that on the first item of the $30 from August 1st to August 9th amount- $30 for pasture land it is admitted by the ed to less than 5 cents, and it was not included defendant that this amount is due to the in the payment. Plaintiff insisted that because of this difference between the payment and the plaintiff, and that your verdict as to that recovery all the costs should be taxed to the de- item should be for the plaintiff for $30." fendant. The court rendered judgment on this The jury returned a verdict upon this item item for the plaintiff, including interest from for $30, with interest from August 1 at 6 August 1, 1907, according to the verdict, and taxed the costs which accrued prior to August per cent. The court entered judgment on 9th, when the $30 was paid into court to the this item for the plaintiff according to the

Upon the whole case, we think that justice was done, and the judgment is affirmed. All the Justices concurring.

EDSON v. CITY OF OLATHE. (Supreme Court of Kansas. Dec. 11, 1909.) 1. MUNICIPAL CORPORATIONS (§§ 724, 7452*) -REPEAL OF STREET RAILWAY FRANCHISELIABILITY OF CITY.

A city is not liable in damages for the repeal of a street railway franchise ordinance which does not engage the city in any private proprietary capacity, nor for the conduct of its officers in publishing and subsequently enforcing the repealing ordinance.

verdict, which exceeds the offer made in a | as evidence of payment, and, if given, might sum less than five cents. The court held that have been misleading; and we think it was the payment made in court and kept good properly refused. The instructions given by thereafter was equivalent to an offer to con- the court upon the subject of payment were fess judgment under the statute. The costs full, very clear, and not likely to be misunwhich accrued up to August 9th were there- derstood. fore taxed to the defendant, amounting to $21.10. The costs accruing after that date were taxed to the plaintiff amounting to $242.60. No costs accrued in the case on account of the $30. They were all made in the contest concerning the $195, and, the plaintiff having failed to recover, the costs should properly be taxed to him. The fact that the $30 item was not involved in the litigation, but was recognized in the action as a mere formality, ought in fairness to exempt it from being used for the mere purpose of carrying the costs of the case. The defendant wanted to pay the $30 before it was due, and after it was due, and all during the litigation; and the refusal to accept the repeated offers of the defendant was not due to the fact that the plaintiff was claiming more, but apparently it was to prevent any possible embarrassment in the collection of the larger item on account of such acceptance. It would have been fair and just to tax all the costs to the plaintiff including the $21.10 taxed to the defendant because they were all made in the contest wherein the plaintiff lost. It would seem unjust and grossly unfair to compel the defendant to pay $263.70 costs for the mere omission to tender the few cents interest for which no demand was made and no objection as to amount suggested at the time the money was paid. The substantial rights of the plaintiff have not been materially prejudiced by the judgment of the court, and therefore, even if the acts of the court complained of were erroneous, they are unavailing here under section 581 of the Code of 1909.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. §§ 724, 745%.*] (Syllabus by the Court.)

2. MUNICIPAL CORPORATIONS (§ 724*)-LIA

BILITY OF CITY "IMPOSED DUTIES.

"Imposed duties" for the neglect of which a city may be liable are those which are superadded to merely governmental functions like the special private corporate duty to duty to maintain streets in a safe condition for public travel, or the duty to maintain and manage corporate property so that city employés shall have safe places in which to work.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 724.*]

Appeal from District Court, Johnson County: W. H. Seldon, Judge.

Action by Street Railway Company against the City of Olathe. Demurrer to the petition sustained, and J. A. Edson, receiver of the company, appealed. Affirmed.

Ogg & Scott, A. F. Hunt, and S. F. Seaton, for appellant. C. L. Randall, for appellee.

BURCH, J. The railway company sued the city for damages following the repeal of an ordinance granting the use of the streets of the city for the construction and operation of a street and interurban railway. A demurrer was sustained to the petition, and the railway company, by its receiver, appeals. After alleging the passage of the original ordinance, acceptance of its terms, and compliance with its conditions on the part of the plaintiff, the petition proceeds as follows: "The plaintiff further avers that, notwithstanding its rights in the premises, the said defendant refused to permit said plaintiff to enter said city for the purpose of constructing and operating its line of railway as provided for in said ordinance, and to enjoy the franchise, rights, and privileges by said ordinance conferred, and therein did on the 25th day of June, 1906, enact a certain ordinance repealing the ordinance hereinbefore mentioned of May 21, 1906, and from thence on did

As to the item of $195, defendant testified that on November 1, 1906, he gave his note for that amount due August 1, 1907; that subsequently he paid the note, and received it from the plaintiff. The plaintiff denied this statement. The defendant, to corroborate his statement, produced the note, and was fully interrogated as to how and when he obtained the money, and many inquiries were made concerning the transaction of payment for the purpose of weakening his testimony. At the close of the evidence, the plaintiff requested an instruction to be given which reads: "The jury are instructed that the note in evidence not having been marked paid is not a receipt and is not evidence of payment." This was refused, and the refusal is urged here as error. The note was not offered as proof of payment, but merely as a circumstance corroborative of the testimony of the defendant, who testified that payment was made. The instruction refused unduly magnified the importance of the note *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes