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conversation with Shirley after this prosecution was commenced: "He said, if I would go to Old Mexico, and write him a letter from there, he would send me $500." He also testified: "He asked me what I intended to do in the case. I told him that I did not know; that Martin wanted to do what was right by him; but I heard that Martin had told him he wrote several letters to Shirley, and Shirley wrote him back an insulting reply, and he had decided to take the stand against him, and testify against him." R. H. Judkins, sheriff of Harvey county, was called and asked whether he had a warrant for Shirley's arrest. An objection to this question was sustained. The witness was then asked: "Do you know where George H. Shirley is now?" This was objected to, but the objection was overruled, and the witness answered, "I do not." The other testimony offered by the state bears mainly on the relations of the defendants, Rogers and Shirley, and on Rogers' statements and interest in the destruction of the records.

On the part of the defendant, Clark Fierce was called, and testified that he ran a business in a room on the second floor of the Rogers building; that he stayed at home on the night of the 23d of March; that he got up at half past 5, came down town, and went to Tyson's restaurant, drank a cup of coffee, then went to his place of business; that he got the key to unlock it, as had been his custom, at Tyson's restaurant; that Mr. Shirley was then in bed in the front room, where he usually slept; that he stayed there about an hour, for the purpose of waiting on customers coming in on the morning trains, then locked up and went to his breakfast; that he did not see J. B. Smith there that morning before going to his breakfast; and that G. O. Smith did not come in that morning to get a bill changed: and that he did not see Fleming there that morning. Objections were duly made to the testimony as to the declarations and admissions of the persons alleged to have been co-conspirators with the defendant, made both before and after the commission of the crime. An objection was also made to all the testimony about what took place between Shirley, Carroll. and his fellows, because it appeared that they abandoned the project, and did not commit the crime. Much of the testimony with reference to the doings and sayings of the alleged conspirators was admitted in advance of any proof tending to connect the defendant, Rogers, with the crime. This also is alleged as error.

It has sometimes been said that proof establishing the conspiracy must precede proof of the acts and declarations of a co-conspirator. It is now well settled, however, that the order of proof rests largely within the sound discretion of the trial judge. It often happens that the conspiracy itself can only be proven by circumstances, and, if it is established by the whole evidence in the case,

a conviction will not be set aside merely because of the order in which the testimony is presented. Whart. Cr. Ev. § 698a; State v. Winner, 17 Kan. 298; Place v. Minister, 65 N. Y. 89; Rice, Ev. § 581. We think the evidence of the negotiations of Shirley with Carroll and others with reference to the perpetration of the crime was competent to prove the guilt of Shirley, as were also his inquiries for fit persons for such an undertaking. If a conspiracy already existed between Shirley and Rogers by which Shirley undertook to find men who would actually perpetrate the crime for money, all his acts in seeking instruments were done in pursuance of the conspiracy, and might properly be proven.

We now come to the most serious question in this case. The sheriff, over objection, was permitted to testify that he did not know where George H. Shirley then was. This could only have been offered for the purpose of showing that Shirley had fled, and must have been so understood by the jury. If the sheriff did not know where he was, and there was no counter proof, the presumption would be that he was not where he could readily be found. The witness Carroll was permitted to state that Shirley told him, after the prosecution was commenced, that if he would go to Old Mexico, and write him a letter from there, he would give him $500. But the most damaging testimony of that class was that of the witness Black concerning his conversation with Shirley at his home in Wichita, after the records were burned. The statements testified to were not only an admission of Shirley's own guilt, but tended strongly to connect Rogers with the crime. In Whart. Cr. Ev. § 699, it is said: "When, however, the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. Even the most solemn admission made by him after the conspiracy is at an end is not evidence against his accomplices. Nor can the flight of one conspirator after such time be put in evidence against the others." That the declarations or admissions of one conspirator. made after the full accomplishment and termination of the criminal design, cannot be introduced against a co-conspirator, even for the purpose of proving the guilt of the party making the admission, has been fully recognized and declared by this court in several cases. In the case of State v. Johnson, 40 Kan. 266, 19 Pac. 749, Mr. Justice Johnston, in delivering the opinion of the court, said: "To make the declarations of one conspirator evidence against the others, they must be made in furtherance of the common eriminal design. When the conspiracy has end

ed, or the crime involving conspiracy has been consummated, the admission of one, in the absence of the other conspirators, that he and others participated in the crime, is a mere narrative of a past occurrence, and can affect only the one who makes it." See, also, State v. Bogue, 52 Kan. 79, 34 Pac. 410; State v. Patterson, 52 Kan. 335, 34 Pac. 784. It is not seriously contended by counsel for the state that this evidence was admissible, but it is urged that the error is unimportant, because there was an abundance of competent evidence to show Shirley's guilt. This is true. But can we assume that the statements of Harris, a confessed criminal, guilty, according to his own statements, of active participation in the perpetration of this crime, were true? Can we assume that the jury gave credit to the testimony of one or of a number of witnesses, rather than to another? By what process of reasoning can we reach the conclusion that the conviction of the defendant is really based on the competent testimony rather than the incompetent? Would not the fact of Shirley's absence, shown by the testimony of the sheriff and the testimony of Black (who, so far as the record discloses, was a reputable witness), as to the conversation with Shirley, in which he confessed the crime, and boasted of the value of the abstract books, be likely to have as much weight with the jury as any other testimony in the case? Much of the testimony as to what took place at the joint in the Rogers building was contradicted by Clark Fierce, a witness for the defendant. We cannot say how much of the testimony of the prosecution on these matters was given credit, or how much was disbelieved. It is always the province of the jury to scrutinize the witnesses, to observe their manner of testifying, and to determine how much credit is to be given to each, and it is especially so where confessed accomplices and persons of bad character are placed on the witness stand. The court, in charging the jury, instructed them that the testimony as to admissions made after the consummation of the crime could only be considered in determining the guilt of Shirley, and that the declarations of Shirley and others could not be considered for the purpose of determining whether Rogers was a party to the conspiracy or not. If Shirley had been on trial also, the testimony as to his confessions would have been competent as against him, and the instructions of the court limiting the application of the testimony to the case against Shirley would have been proper. But Shirley was not on trial,

and all of these confessions were therefore improperly received in the first instance, and the instructions of the court did not go to the extent of wholly excluding them from the consideration of the jury. The error in its admission, therefore, cannot be said to have been cured by the instructions of the court. The statements made in April by

Shirley to Black were highly prejudicial to Rogers, if true. The instruction of the court that the jury should not consider them as evidence tending to connect Rogers with the conspiracy could hardly have wholly effaced the effect on the minds of the jurors that the declarations from the lips of the witnesses must have had at the time. The jury were still left with the erroneous instruction that all of these admissions might be considered for the purpose of determining the guilt of Shirley. The danger of allowing such admissions to be considered in evidence will be more fully appreciated when it is perceived that if the confessions of Shirley, after the crime, are competent evidence to prove his guilt, so also would be the confessions of Harris, English, and Ripple, who, according to the statements of Harris, actually perpetrated the crime, as to their connection with the offense. Would it be contended that, if Harris had narrated to another witness all of the matters disclosed in his testimony in this case, that witness might have been placed on the stand for the purpose of testifying to them?

It is apparent, from the very long record brought to this court, that this trial was long and very expensive to the county. It is extremely unfortunate that error should be found in the record, but every man charged with crime may at his trial insist on the observance of every rule of law designed for the protection of the innocent. To countenance a disregard of any important rule of law is to introduce confusion, and open the door to injustice. We perceive no other substantial error in the record, but, for the admission of the incompetent testimony above referred to, the judgment must be reversed.

HORTON, C. J., concurring.

JOHNSTON, J. (dissenting). The principal objections that were urged against the conviction of Rogers have not been sustained, and I am unable to concur in the conclusion that prejudicial error was committed in the admission of testimony. It appears to me that the testimony held to be objectionable is not very material, since the proof showing Shirley's guilt was Overwhelming. In fact, there seems to have been but little effort made to shield him from the charge alleged by the state. The statement by the sheriff that he did not know where Shirley was at the time of trial is of little consequence, and, to show that the court was guarding against any prejudice, it appears that testimony offered to the effect that he had fled from justice, and had forfeited his bond, was excluded from the jury. The testimony of the declarations and admissions of Shirley, after the conspiracy had ended and the crime had been consummated, was only competent for the purpose of showing the participation of Shirley in the criminal act. According to the

theory of the state, Shirley was the principal actor in the conspiracy; and, to establish the conspiracy, it was necessary to show the part he took in the crime. The declarations or admissions which he may have made were competent for that purpose. State v. Johnson, 40 Kan. 266, 19 Pac. 749. In this case, as in all others where the guilt of several persons is involved in the charge, it is the duty of the court, in its instructions, to limit the application of the testimony to the one who made the declaration or admission. State v. Johnson, supra. That was done in the present case. The jury were first instructed to disregard the evidence of all statements or admissions made by Shirley in the absence of the defendant, and to consider only such as would tend to prove the conspiracy. As to the evidence of the witness Carroll, the jury were told that it was only received to prove that Shirley had committed or caused the offense to be committed, and must not be considered in determining whether Rogers had any connection with the transaction, or was a party to the conspiracy. As to the testimony of Black, the jury were advised that this testimony was only received to show that Shirley committed, or caused to be committed, the offense charged, and not to prove that there was a conspiracy or agreement to destroy the records to which Rogers was a party; and, further, that the testimony of Carroll, Harris, and Black with reference to the part taken by Shirley could not be considered by the jury in determining whether or not Rogers had any connection with the offense charged against him. In view of the care and discrimination of the court in charging the jury with reference to the effect of this testimony, it is my opinion that no prejudicial error was committed. On an appeal, judgment should be given without regard to technical errors or defects, or to exceptions which tend to affect the substantial rights of the parties. Cr. Code, § 293.

(54 Kan. 634)

CLARK et al. v. BOARD OF COM'RS OF
WALLACE COUNTY et al.
(Supreme Court of Kansas. Feb. 9, 1895.)
CONSTITUTIONAL LAW-TITLE OF ACT — BOUNTIES

-SUBMISSION OF QUESTION TO VOTERS.

1. Chapter 87. Sess. Laws 1871 (paragraph 1890, Gen. St. 1889), entitled "An act to protect fruit trees, hedge plants, and fences," and providing in the body of the act for paying bounties for gopher scalps, is unconstitutional and void; the subject of the act not being clearly expressed in its title.

2. Where a board of county commissioners have authority to submit to the voters of the county a proposition whether they shall levy for county purposes an additional tax to pay bounties upon the scalps of certain animals, which the statute makes provisions for the killing of, and in such proposition, without any authority of law, there is included the payment of a bounty for gopher scalps, such proposition, if carried, is without any force, as there v.39p.no.2-15

is no way of separating the proposition into several ones, or to separate the good parts of the proposition from the bad one. (Syllabus by the Court.)

Error from district court, Wallace county; S. J. Osborn, Judge.

Action by S. H. H. Clark and others, as receivers, against the board of commissioners of Wallace county and another. From a judgment for defendants, plaintiffs bring errot. Reversed.

On the 11th day of December, 1893, S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane, and F. R. Coudert brought this action, as receivers of the Union Pacific Railway Company, to restrain the board of county commissioners and the treasurer of Wallace county from collecting a special or extra levy of ten mills on the dollar's valuation of the Union Pacific property in that county, and to prevent the board from issuing warrants for payment of bounties on wolf, coyote, rabbit, and gopher scalps. At that time a temporary injunction was granted. Afterwards the defendants filed answer, to which plaintiffs replied. On the 19th day of April, 1894, the case was submitted to the court upon the pleadings and the following agreed statement of facts: The Union Pacific Railway Company is a corporation organized and existing under the laws of the United States, with a line of railroad and railroad property situate in the county of Wallace, Kansas, and taxable therein for the year 1893; that the value of its railroad and railroad property so situated in the county of Wallace, as assessed for taxation for the year 1893, was and is the sum of $922,006.75; and the total valuation of all the property in Wallace county, as assessed for taxation for the year 1893, was and is $1,336,000. The plaintiffs herein were duly appointed receivers, and at the time of bringing this suit were, and now are, in possession and charge of the railroad and railroad property of the Union Pacific Railway Company, invested with the powers and charged with the duties as alleged in the petition. On the 3d day of July, 1893, the defendant the board of county commissioners made an order placing a bounty of one dollar each on the scalps of wolves and coyotes, and five cents each on the scalps of rabbits and gophers. A petition was presented to the board at a special meeting held July 29, 1893, asking that a special election be called, and the question of authorizing the board of county commissioners to make a special or additional levy by which sufficient funds could be raised to enable the county to pay a bounty upon gopher, rabbit, coyote, and wolf scalps be submitted to a vote of the people of the county. The commissioners granted the petition, and ordered the sheriff to call the election for August 10, 1893. The board of county commissioners of Wallace county made a levy on August 7, 1893, of ten mills on the dollar, of all the taxable property in said county, for current expenses for the year

1893, and at the same time made a levy of three mills for interest, and one mill for sinking fund, on bonds outstanding against the county. The special election mentioned above was held August 10, 1893, and the following proposition was voted upon: "Shall the county commissioners be authorized to make an additional levy of ten mills over and above what they are authorized by law to levy for county purposes, to meet the extra expense incurred by the bounties being placed on wolf, coyote, gopher, and rabbit scalps?" A majority of 18 votes was cast in favor of the proposition. The board afterwards met on the 11th day of August, 1893, and made the following order: "The additional levy of ten mills to pay for the bounty on scalps, as voted for at the special election August 10th, was ordered to be extended on the tax roll on all the taxable property throughout the county." Said additional levy was then extended on the tax roll as ordered, and the tax roll was then placed in the hands of the defendant county treasurer for collection. The tax raised under the additional 10-mill levy is to be used only to pay the bounties before mentioned. At the time of bringing this suit, the county treasurer had charge of the tax rolls, and would have collected the tax raised by the additional 10-mill levy had he not been restrained by the order of this court; and he will now collect said tax unless enjoined from so doing. After said bounties. had been established by said board, and prior to the institution of this suit, the said board had issued, upon the proper making and presentation of proofs, a large number of warrants to a very large number of persons as payment for said bounties, and in amount about as follows: Wolf scalps, $100; coyote scalps, $400; gopher scalps, $3,250; rabbit scalps, $3,250. The county commissioners will, unless enjoined by this court, issue other warrants in payment of bounties on the scalps of wolves, coyotes, rabbits, and gophers. The plaintiffs have paid all the taxes levied on the railroad and railroad property of the Union Pacific Railway Company after this suit was commenced, except the 10-mill tax authorized by vote. The plaintiffs do not attack the regularity of any of the proceedings of the board in placing the bounty on the animals mentioned, or in calling the election, or in making the additional levy. The only questions to be decided are whether the board had a right under the law to make the orders and levies set out in this statement, or to issue the warrants mentioned herein. Judgment was rendered dissolving the temporary injunction and refusing the prayer of the pe tition for a perpetual injunction. From that judgment the plaintiffs appeal, and bring the case here.

A. L. Williams, N. H. Loomis, and R. W. Blair, for plaintiffs in error. Waters & Waters and J. M. Sanders, for defendants in error.

HORTON, C. J. (after stating the facts). The board of commissioners of Wallace county claim authority to pay a bounty on gopher scalps by virtue of the provisions of chapter 87, Sess. Laws 1871 (paragraph 1890, Gen. St. 1889). The title of the act is as follows: "An act to protect fruit trees, hedge plants and fences." The act authorizes "the county commissioners of any county of this state to pay premium for gopher scalps taken in their county not to exceed twenty cents for each scalp." There is nothing in the body of the act referring to fruit trees, hedge plants, or fences. In support of the act, it may be urged that the killing or extermination of gophers may tend to protect fruit trees, hedge plants, and fences; but we do not think the subject of the act is clearly expressed in its title, as required by section 16, art. 2, of the constitution. The title does not suggest gophers or bounties for their scalps, or the levying of taxes to pay the same. The title is too general. It no more suggests gophers than it does prairie fires or malicious trespassing; not, in fact, so much. If the title of the act referred to bounties for scalps of animals or rodents, although gophers were not named therein, a different question would be presented. When the legislature, in 1889, passed an act authorizing a bounty upon wolf, coyote, wild cat, fox, and rabbit scalps, these animals were named in the title of the act. Sess. Laws 1889, c. 90. The title of that act clearly expresses the subject thereof. title of chapter 91, Sess. Laws 1871, in the case of Commissioners v. Winkley, 29 Kan. 36, referred to hedges, which was the subject of the act. Therefore the subject of the act was expressed in its title. Commissioners v. Bailey, 13 Kan. 600; Swayze v. Britton, 17 Kan. 625; State v. Barrett, 27 Kan. 213; Railway Co. v. Long, 27 Kan. 684; In re Wood, 34 Kan. 645, 9 Pac. 758; Commissioners v. Snow, 45 Kan. 332, 25 Pac. 903. We there fore conclude that chapter 87, Sess. Laws 1871, is void, as being in conflict with section 16, art. 2, of the constitution.

The

As chapter 87, Sess. Laws 1871, is unconstitutional, the board of commissioners of Wallace county had no legal right to call a special election for August 10, 1893, asking for authority to make an additional tax levy to pay a bounty on gopher scalps. The proposition to incur extra expenses for bounties for gopher, rabbit, and other scalps was submitted as an entire proposition. As a bounty on gopher scalps is not authorized by any constitutional statute, we cannot hold the proposition, which was submitted as an entire one, good for any purpose. There is no way of separating the good from the bad. The majority in favor of the proposition submitted was only 18. A part of these votes may have been induced because a bounty was proposed in the proposition voted upon for gopher scalps. There is no way of separating the one proposition into several, or to determine what the result of the election would have been if the

commissioners had not proposed a bounty upon gophers. For the same reasons, the power of the commissioners to make the tax levy of August 11, 1893, must be void. As a logical result, the county commissioners had no power to issue warrants to pay bounties on the scalps of the animals named in the order of July 3, 1893.

The judgment of the district court will be reversed, and case remanded, with direction to the district court to enter judgment, upon the agreed statement of facts, in favor of plaintiff's below. All the justices concurring.

(54 Kan. 627)

STATE v. MEDLEY. (Supreme Court of Kansas. Feb. 9, 1895.) LARCENY-EVIDENCE-INSTRUCTIONS.

1. In the trial of a charge of larceny, the court properly instructed the jury with reference to the presumption of innocence which surrounds the defendant throughout the trial, and afterwards briefly stated the reason for that rule. Held not error.

2. The testimony examined, and held to be sufficient to sustain the conviction.

(Syllabus by the Court.)

Appeal from district court, Wabaunsee county; William Thomson, Judge.

John H. Medley, convicted of theft, appeals. Affirmed.

Geo. G. Cornell, for appellant. John T. Little, Atty. Gen., for the State.

that he butchered a steer on Friday night, and his answers concerning the matter were evasive and conflicting. Then there is testimony that the defendant went to the house of one Griffith, and attempted, by promise of reward, to induce Griffith to tell Finney, who had lost the steer, that he (Griffith) had sold to another a similar steer, stating at the same time that Finney was making a great howl about the loss of a steer, and that if Griffith would make this statement to Finney it would quiet the matter, and he would look no further. It may be further remarked that at the place where the wires were cut and the steer taken out were the tracks of two horses,-one on either side of the tracks of the steer,-and that the tracks of the latter were sliding, indicating resistance, and that the animal was pulling back on the rope or halter with which it was being led out of the pasture. Although there was some confusion in the testimony with reference to the description of the animal, and evidence which was contradictory of that recited, the circumstances tended strongly to show that the steer was stolen from the pasture, and that the defendant participated in the larceny. In view of the testimony that was given, it cannot be said that the verdict and judgment are without support.

It is further contended that the court gave an instruction that divested the defendant of the presumption of innocence which the law throws around every person charged with crime. The charge of the court stated strong

JOHNSTON, J. On the 3d day of October, 1894, John H. Medley was convictedly and well that the defendant was presumed upon a charge of stealing a yearling steer, the property of Thomas C. Finney, and the penalty adjudged was imprisonment in the state penitentiary for a term of three years. He appeals, and alleges two grounds of error: One. That the testimony is insufficient to sustain the conviction; and the other, that the instructions given were misleading and improper.

The conviction rests largely upon circumstantial evidence, but, in our view, it is sufficient to uphold the verdict and judgment. On Friday, June 1, 1894, the steer was seen in the pasture with others, and on the next morning the pasture fence, which was made of wire, had been cut and taken down, and the steer was missing. Late on Friday evening, Simpson (a butcher) and the defendant were seen going from the town of Paxico towards the pasture, each of them riding a horse. Later on the same night, they were seen by another returning to Paxico with an animal which looked like the one taken from the pasture, one of them leading and the other driving it. At a still later time on the same night, they were seen by another witness killing a steer which, in size, sex, and color, corresponded with the one taken from the pasture. A few days afterwards, in response to an inquiry made by Finney, the owner of the steer, the defendant denied

to be innocent of the offense charged, and of each and every ingredient necessary to constitute the offense, and that this presumption continued to operate in his favor until his guilt was proved, by competent evidence, beyond a reasonable doubt. The jury was told, in different ways, that the burden which was upon the state never shifted to the defendant, in any state of the case, because he was charged with an offense. After these instructions were given, the court further charged that "the rule of law which throws around the defendant the presumption of innocence, and requires the state to establish beyond a reasonable doubt every material fact averred in the information, is not intended to shield those who are actually guilty from just and merited punishment, but is the humane provision of the law, which is intended for the protection of the innocent, and to guard, so far as human agencies can, against the conviction of those unjustly accused of crime." Although this statement may not have been necessary to the proper submission of the case, it fairly states the reason for the rule; and, in its application to the present case, we discover nothing which is misleading, or prejudicial to the defendant. The judgment of the district court will be affirmed. All the justices concurring.

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