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conversation with Shirley after this prosecu- a conviction will not be set aside merely be. tion was commenced: “He said, if I would cause of the order in which the testimony go to Old Mexico, and write him a letter is presented. Whart. Cr. Ev. § 698a; State from there, he would send me $500." He v. Winner, 17 Kan. 298; Place v. Minister, also testified: "He asked me what I intend-65 N. Y. 89; Rice, Ev. & 581. We think the ed to do in the case. I told him that I did evidence of the negotiations of Shirley with not know; that Martin wanted to do what Carroll and others with reference to the was right by him; but I heard that Martin perpetration of the crime was competent to had told him he wrote several letters to Sbir- prove the guilt of Shirley, as were also his ley, and Shirley wrote him back an insult- inquiries for fit persons for such an undering reply, and he had decided to take the taking. If a conspiracy already existed bestand against him, and testify against him.” tween Shirley and Rogers by which Shirley R. H. Judkins, sheriff of Harvey county, was undertook to find men who would actually called and asked whether he had a warrant perpetrate the crime for money, all his acts for Shirley's arrest. An objection to this in seeking instruments were done in pursuquestion was sustained. The witness was ance of the conspiracy, and might properly then asked: “Do you know where George

be proven. H. Shirley is now?” This was objected to, We now come to the most serious question but the objection was overruled, and the wit- in this case. The sheriff, over objection, ness answered, "I do not.” The other testi- was permitted to testify that he did not mony offered by the state bears mainly on the know where George H. Shirley then was. relations of the defendants, Rogers and Shir- This could only have been offered for the ley, and on Rogers' statements and interest purpose of showing that Shirley had Hed, in the destruction of the records.

and must have been so understood by the On the part of the defendant, Clark Fierce jury. If the sheriff did not know where he was called, and testified that he ran a busi- was, and there was no counter proof, the ness in a room on the second floor of the

presumption would be that he was not where Rogers building; that he stayed at home on he could readily be found. The witness Carthe night of the 23d of March; that he got roll was permitted to state that Shirley told up at half past 5, came down town, and him, after the prosecution was commenced, went to Tyson's restaurant, drank a cup of that if he would go to Old Mexico, and write coffee, then went to his place of business; him a letter from there, he would give him that he got the key to unlock it, as had been $500. But the most damaging testimony of his custom, at Tyson's restaurant; that Mr. that class was that of the witness Black conShirley was then in bed in the front room, cerning his conversation with Shirley at his where he usually slept; that he stayed there home in Wichita, after the records were about an hour, for the purpose of waiting burned. The statements testified to were on customers coming in on the morning not only an admission of Shirley's own guilt, trains, then locked up and went to his break- but tended strongly to connect Rogers with fast; that he did not see J. B. Smith there the crime. In Whart. Cr. Ev. § 699, it is that morning before going to his breakfast; said: "When, however, the common enterand that G. 0. Smith did not come in that prise is at an end, whether by accomplishmorning to get a bill changed; and that he ment or abandonment, no one of the condid not see Fleming there that morning.spirators is permitted, by any subsequent Objections were duly made to the testimony act or declaration of his own, to affect the as to the declarations and admissions of the others. His confession, therefore, subsepersons alleged to have been co-conspirators quently made, even though by the plea of with the defendant, made both before and guilty, is not admissible in evidence, as such, after the commission of the crime. An ob- against any but himself. Even the most soljection was also made to all the testimony emn admission made by him after the conabout what took place between Shirley, Car- spiracy is at an end is not evidence against roll.. and his fellows, because it appeared his accomplices. Nor can the flight of one that they abandoned the project, and did not conspirator after such time be put in evicommit the crime. Much of the testimonydence against the others." That the declarawith reference to the doings and sayings of tions or admissions of one conspirator, made the alleged conspirators was admitted in ad- after the full accomplishment and terminavance of any proof tending to connect the tion of the criminal design, cannot be introdefendant, Rogers, with the crime. This al- duced against a co-conspirator, even for the so is alleged as error.

purpose of proving the guilt of the party It has sometimes been said that proof es- making the admission, has been fully recog. tablishing the conspiracy must precede proof nized and declared by this court in several of the acts and declarations of a co-conspira

In the case of State v. Johnson, 40 tor. It is now well settled, however, that Kan. 266, 19 Pac. 749, Mr. Justice Johnston, the order of proof rests largely within the in delivering the opinion of the court, said: sound discretion of the trial judge. It often "To make the declarations of one conspira. happens that the conspiracy itself can only tor evidence against the others, they must be proven by circumstances, and, if it is es- be made in furtherance of the common crimtablished by the whole evidence in the case, inal design. When the conspiracy has ended, or the crime involving conspiracy has Shirley to Black were highly prejudicial to been consummated, the admission of one, in Rogers, if true. The instruction of the court the absence of the other conspirators, that he that the jury should not consider them as and others participated in the crime, is a evidence tending to connect Rogers with the mere narrative of a past occurrence, and can conspiracy could hardly have wholly effaced affect only the one who makes it.” See, al- the effect on the minds of the jurors that so, State v. Bogue, 52 Kan. 79, 34 Pac, 410; the declarations from the lips of the witnessState v. Patterson, 52 Kan. 335, 34 Pac. 784. es must have had at the time. The jury

cases,

It is not seriously contended by counsel were still left with the erroneous instrucfor the state that this evidence was admis. tion that all of these admissions might be sible, but it is urged that the error is unim- considered for the purpose of determining portant, because there was an abundance of the guilt of Shirley. The danger of allowcompetent evidence to show Shirley's guilt. ing such admissions to be considered in eviThis is true. But can we assume that the dence will be more fully appreciated when it statements of Harris, a confessed criminal, is perceived that if the confessions of Shirguilty, according to his own statements, of ley, after the crime, are competent evidence active participation in the perpetration of to prove his guilt, so also would be the conthis crime, were true? Can we assume that fessions of Harris, English, and Ripple, who, the jury gave credit to the testimony of i'ne according to the statements of Harris, acor of a number of witnesses, rather than to tually perpetrated the crime, as to their conanother? By what process of reasoning can nection with the offense. Would it be conwe reach the conclusion that the conviction tended that, if Harris had narrated to anof the defendant is really based on the com- other witness all of the matters disclosed in petent testimony rather than the incompe- his testimony in this case, that witness tent? Would not the fact of Shirley's ab- might have been placed on the stand for the sence, shown by the testimony of the sher- purpose of testifying to them? iff and the testimony of Black (who, so far It is apparent, from the very long record as the record discloses, was a reputable wit- brought to this court, that this trial was long ness), as to the conversation with Shirley, and very expensive to the county. It is in which he confessed the crime, and boast- extremely unfortunate that error should be ed of the value of the abstract books, be found in the record, but every man charged likely to have as much weight with the jury with crime may at his trial insist on the obas any other testimony in the case? Much servance of every rule of law designed for of the testimony as to what took place at the protection of the innocent. To countethe joint in the Rogers building was contra- nance a disregard of any important rule of dicted by Clark Fierce, a witness for the de- law is to introduce confusion, and open the fendant. We cannot say how much of the door to injustice. We perceive no other subtestimony of the prosecution on these mat- stantial error in the record, but, for the adters was given credit, or how much was dis- mission of the incompetent testimony above believed. It is always the province of the referred to, the judgment must be reversed. jury to scrutinize the witnesses, to observe their manner of testifying, and to determine HORTON, C. J., concurring. how much credit is to be given to each, and it is especially so where confessed accom- JOHNSTON, J. (dissenting). The principlices and persons of bad character are pal objections that were urged against the placed on the witness stand. The court, in conviction of Rogers have not been suscharging the jury, instructed them that the tained, and I am unable to concur in the testimony as to admissions made after the conclusion that prejudicial error was comconsummation of the crime could only be mitted in the admission of testimony. It considered in determining the guilt of Shir- appears to me that the testimony held to be ley, and that the declarations of Shirley and objectionable is not very material, since the others could not be considered for the pur- proof showing Shirley's guilt was verpose of determining whether Rogers was a whelming. In fact, there seems to have party to the conspiracy or not. If Shirley been but little effort made to shield him had been on trial also, the testimony as to from the charge alleged by the state. The his confessions would have been competent statement by the sheriff that he did not as against him, and the instructions of the know where Shirley was at the time of trial court limiting the application of the testi- is of little consequence, and, to show that mony to the case against Shirley would have the court was guarding against any prejubeen proper.

But Shirley was not on trial, dice, it appears that testimony offered to and all of these confessions were therefore the effect that he had fled from justice, and improperly received in the first instance, and had forfeited his bond, was excluded from the instructions of the court did not go to the jury. The testimony of the declarations the extent of wholly excluding them from and adinissions of Shirley, after the conthe consideration of the jury. The error in spiracy had ended and the crime had been its admission, therefore, cannot be said to consummated, was only competent for the have been cured by the instructions of the purpose of showing the participation of Shircourt. The statements made in April by ley in the criminal act. According to the theory of the state, Shirley was the principal is no way of separating the proposition into actor in the conspiracy; and, to establish several ones. or to separate the good parts of the conspiracy, it was necessary to show the

the proposition from the bad one.

(Syllabus by the Court.) part he took in the crime. The declarations or admissions which he may have made Error from district court, Wallace county; were competent for that purpose. State v.

S. J. Osborn, Judge. Johnson, 40 Kan. 266, 19 Pac. 749. In this Action by S. H. H. ark and others, as case, as in all others where the guilt of sev- receivers, against the board of commissioners eral persons is involved in the charge, it of Wallace county and another. From a is the duty of the court, in its instructions, judgment for defendants, plaintiffs bring erto limit the application of the testimony to ror. Reversed. the one who made the declaration or admis- On the 11th day of December, 1893, S. H. sion. State v. Johnson, supra.

That was

H. Clark, Oliver W. Mink, E. Ellery Anderdone in the present case. The jury were son, J. W. Doane, and F. R. Coudert brought first instructed to disregard the evidence of this action, as receivers of the Union Pacific all statements or admissions made by Shir. Railway Company, to restrain the board of ley in the absence of the defendant, and to county commissioners and the treasurer of consider only such as would tend to prove Wallace county from collecting a special or the conspiracy. As to the evidence of the extra levy of ten mills on the dollar's valuawitness Carroll, the jury were told that it tion of the Union Pacific property in that was only received to prove that Shirley had county, and to prevent the board from issucommitted or caused the offense to be com- ing warrants for payment of bounties on wolf, mitted, and must not be considered in deter- coyote, rabbit, and gopher scalps. At that mining whether Rogers had any connection time a temporary injunction was granted. with the transaction, or was a party to the Afterwards the defendants filed answer, to conspiracy. As to the testimony of Black, which plaintiffs replied. On the 19th day of the jury were advised that this testimony April, 1894, the case was submitted to the was only received to show that Shirley com- court upon the pleadings and the following mitted, or caused to be committed, the of agreed statement of facts: The Union Pafense charged, and not to prove that there cific Railway Company is a corporation organwas a conspiracy or agreement to destroy

ized and existing under the laws of the United the records to which Rogers was a party; States, with a line of railroad and railroad and, further, that the testimony of Carroll, property situate in the county of Wallace, Harris, and Black with reference to the part Kansas, and taxable therein for the year taken by Shirley could not be considered by 1893; that the value of its railroad and railthe jury in determining whether or not Rog- road property so situated in the county of ers had any connection with the offense Wallace, as assessed for taxation for the year charged against him. In view of the care 1893, was and is the sum of $922,006.75; and and discrimination of the court in charging the total valuation of all the property in Walthe jury with reference to the effect of this lace county, as assessed for taxation for the testimony, it is my opinion that no prejudi- year 1893, was and is $1,336,000. The plaincial error was committed. On an appeal, tiffs herein were duly appointed receivers, judgment should be given without regard to and at the time of bringing this suit were, technical errors or defects, or to exceptions and now are, in possession and charge of the which tend to affect the substantial rights railroad and railroad property of the Union of the parties. Cr. Code, g 293.

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 com(54 Kan. 634)

missioners made an order placing a bounty CLARK et al. v. BOARD OF COM’RS OF

of one dollar each on the scalps of wolves WALLACE COUNTY et al.

and coyotes, and five cents each on the scalps (Supreme Court of Kansas. Feb. 9, 1895.)

of rabbits and gophers. A petition was pre. CONSTITUTIONAL LAW-TITLE OF ACT - BOUNTIES sented to the board at a special meeting held -SUBMISSION OF QUESTION TO VOTERS.

July 29, 1893, asking that a special election 1. Chapter 87. Sess. Laws 1871 (paragraph 1890, Gen. St. 1889), entitled "An act to pro

be called, and the question of authorizing the tect fruit trees, hedge plants, and fences," and

board of county commissioners to make a providing in the body of the act for paying special or additional levy by which sufficient bounties for gopher scalps, is unconstitutional funds could be raised to enable the county to and void; the subject of the act not being clearly expressed in its title.

pay a bounty upon gopher, rabbit, coyote, and 2. Wbere a board of county commissioners

wolf scalps be submitted to a vote of the peohave authority to submit to the voters of the ple of the county. The commissioners grantcounty a proposition whether they shall levy for county purposes an additional tax to pay

ed the petition, and ordered the sheriff to call bounties upon the scalps of certain animals, the election for August 10, 1893. The board which the statute makes provisions for the of county commissioners of Wallace county killing of, and in such proposition, without

made a levy on August 7, 1893, of ten mills any authority of law, there is included the payment of a bounty for gopher scalps, such propo

on the dollar, of all the taxable property in sition, if carried, is without any force, as there said county, for current expenses for the year

v.39p.no.2-15

1893, and at the same time made a levy of HORTON, C. J. (after stating the facts). three mills for interest, and one mill for sink- The board of commissioners of Wallace couning fund, on bonds outstanding against the ty claim authority to pay a bounty on gopher county. The special election mentioned above scalps by virtue of the provisions of chapter was held August 10, 1893, and the following 87, Sess. Laws 1871 (paragraph 1890, Gen. proposition was voted upon: "Shall the coun. St. 1889). The title of the act is as follows: ty commissioners be authorized to make an "An act to protect fruit trees, hedge plants additional levy of ten mills over and above and fences.” The act authorizes “the county what they are authorized by law to levy for commissioners of any county of this state to county purposes, to meet the extra expense pay premium for gopher scalps taken in their incurred by the bounties being placed on county not to exceed twenty cents for each wolf, coyote, gopher, and rabbit scalps ?" A scalp.” There is nothing in the body of the majority of 18 votes was cast in favor of the act referring to fruit trees, hedge plants, or proposition. The board afterwards met on fences. In support of the act, it may be urgthe 11th day of August, 1893, and made the ed that the killing or extermination of go following order: “The additional levy of ten phers may tend to protect fruit trees, hedge mills to pay for the bounty on scalps, as voted plants, and fences; but we do not think the for at the special election August 10th, was subject of the act is clearly expressed in its ordered to be extended on the tax roll on all title, as required by section 16, art. 2, of the the taxable property throughout the county.” constitution. The title does not suggest goSaid additional levy was then extended on phers or bounties for their scalps, or the levythe tax roll as ordered, and the tax roll was ing of taxes to pay the same. The title is too then placed in the hands of the defendant general. It no more suggests gophers than it county treasurer for collection. The tax rais- does prairie fires or malicious trespassing; ed under the additional 10-mill levy is to be not, in fact, so much. If the title of the act used only to pay the bounties before mention- referred to bounties for scalps of animals or ed. At the time of bringing this suit, the coun- rodents, although gophers were aot named ty treasurer had charge of the tax rolls, and therein, a different question would be prewould have collected the tax raised by the sented. When the legislature, in 1889, passed additional 10-mill levy had he not been re- an act authorizing a bounty upon wolf, coystrained by the order of this court; and he ote, wild cat, fox, and rabbit scalps, these will now collect said tax unless enjoined from animals were named in the title of the act. so doing. After said bounties, had been es- Sess. Laws 1889, c. 90. The title of that act tablished by said board, and prior to the in- clearly expresses the subject thereof. The stitution of this suit, the said board had is- title of chapter 91, Sess. Laws 1871, in the sued, upon the proper making and presenta- case of Commissioners v. Winkley, 29 Kan. tion of proofs, a large number of warrants to 36, referred to hedges, which was the subject a very large number of persons as payment of the act. Therefore the subject of the act for said bounties, and in amount about as was expressed in its title. Commissioners v. follows: Wolf scalps, $100; coyote scalps, Bailey, 13 Kan. 600; Swayze v. Britton, 17 $100; gopher scalps, $3,250; rabbit scalps,

Kan. 625; State v. Barrett, 27 Kan. 213; Rail$3,250. The county commissioners will, un- way Co. v. Long, 27 Kan. 684; In re Wood, less enjoined by ihis court, issue other war- 34 Kan. 645, 9 Pac. 758; Commissioners V. rants in payment of bounties on the scalps Snow, 45 Kan. 332, 25 Pac. 903. We there. of wolves, coyotes, rabbits, and gophers. The fore conclude that chapter 87, Sess. Laws plaintiffs have paid all the taxes levied on 1871, is void, as being in conflict with section the railroad and railroad property of the 16, art. 2, of the constitution. Union Pacific Railway Company after this As chapter 87, Sess. Laws 1871, is unconstisuit was commenced, except the 10-mill tax tutional, the board of commissioners of Walauthorized by vote. The plaintiffs do not at- lace county had no legal right to call a special tack the regularity of any of the proceedings election for August 10, 1893, asking for auof the board in placing the bounty on the thority to make an additional tax levy to pay animals mentioned, or in calling the election, a bounty on gopher scalps. The proposition to or in making the additional levy. The only incur extra expenses for bounties for gopher, questions to be decided are whether the board rabbit, and other scalps was submitted as had a right under the law to make the orders an entire proposition. As a bounty on gopher and levies set out in this statement, or to scalps is not authorized by any constitutional issue the warrants mentioned herein. Judg- statute, we cannot bold the proposition, which ment was rendered dissolving the temporary was submitted as an entire one, good for any injunction and refusing the prayer of the pe: purpose. There is no way of separating the tition for a perpetual injunction. From that good from the bad. The majority in favor judgment the plaintiffs appeal, and bring the of the proposition submitted was only 18. A case here.

part of these votes may have been induced

because a bounty was proposed in the propoA. L. Williams, N. H. Loomis, and R. W. sition voted upon for gopher scalps. There Blair, for plaintiffs in error. Waters & Wa- is no way of separating the one proposition ters and J. M. Sanders, for defendants in er- into several, or to determine what the reror.

sult of the election would have been if the commissioners had not proposed a bounty that he butchered a steer on Friday night, upon gophers. For the same reasons, the and his answers concerning the matter were power of the commissioners to make the tax evasive and conflicting. Then there is teslevy of August 11, 1893, must be void. As timony that the defendant went to the house a logical result, the county commissioners of one Griffith, and attempted, by promise had no power to issue warrants to pay boun- of reward, to induce Griffith to tell Finney, ties on the scalps of the animals named in who had lost the steer, that he (Griffith) had the order of July 3, 1893.

sold to another a similar steer, stating at The judgment of the district court will be the same time that Finney was making a reversed, and case remanded, with direction great howl about the loss of a steer, and that to the district court to enter judgment, upon if Griffith would make this statement to Finthe agreed statement of facts, in favor of ney it would quiet the matter, and he would plaintiffs below. All the justices concurring. look no further. It may be further remark

ed that at the place where the wires were

cut and the steer taken out were the tracks (51 Kan. 627)

of two horses,-one on either side of the STATE v. MEDLEY.

tracks of the steer,-and that the tracks of (Supreme Court of Kansas. Feb. 9, 1895.) the latter were sliding, indicating resistance, LARCENY-EVIDENCE-INSTRUCTIONS.

and that the animal was pulling back on the 1. In the trial of a charge of larceny, the rope or halter with which it was being led court properly instructed the jury with refer- out of the pasture. Although there was some ence to the presumption of innocence which surrounds the defendant throughout the trial,

confusion in the testimony with reference and afterwards briefly stated the reason for to the description of the animal, and evithat rule. Held not error.

dence which was contradictory of that re2. The testimony examined, and held to be

cited, the circumstances tended strongly to sufficient to sustain the conviction.

show that the steer was stolen from the pas(Syllabus by the Court.)

ture, and that the defendant participated in Appeal from district court, Wabaunsee

the larceny. In view of the testimony that county; William Thomson, Judge.

was given, it cannot be said that the verJohn H. Medley, convicted of theft, ap

dict and judgment are without support. peals. Affirmed.

It is further contended that the court gave Geo. G. Cornell, for appellant. John T. an instruction that divested the defendant of Little, Atty. Gen., for the State.

the presumption of innocence which the law

throws around every person charged with JOHNSTON, J. On the 3d day of Octo- crime. The charge of the court stated strong. ber, 1894, John H. Medley was convicted ly and well that the defendant was presumed upon a charge of stealing a yearling steer, to be innocent of the offense charged, and the property of Thomas C. Finney, and the of each and every ingredient necessary to penalty adjudged was imprisonment in the constitute the offense, and that this presumpstate penitentiary for a term of three years. tion continued to operate in his favor until He appeals, and alleges two grounds of er- his guilt was proved, by competent evidence, ror: One. That the testimony is insufficient beyond a reasonable doubt. The jury was to sustain the conviction; and the other, that told, in different ways, that the burden which the instructions given were misleading and was upon the state never shifted to the deimproper.

fendant, in any state of the case, because The conviction rests largely upon circum- he was charged with an offense. After these stantial evidence, but, in our view, it is suf- instructions were given, the court further ficient to uphold the verdict and judgment. charged that “the rule of law which throws On Friday, June 1, 1894, the steer was seen around the defendant the presumption of in the pasture with others, and on the next innocence, and requires the state to establish morning the pasture fence, which was made beyond a reasonable doubt every material of wire, bad been cut and taken down, and fact averred in the information, is not intendthe steer was missing. Late on Friday even- ed to shield those who are actually guilty ing, Simpson (a butcher) and the defendant from just aud merited punishment, but is the were seen going from the town of Paxico humane provision of the law, which is intowards the pasture, each of them riding a tended for the protection of the innocent, and horse. Later on the same night, they were to guard, so far as human agencies can, seen by another returning to Paxico with against the conviction of those unjustly acan animal which looked like the one taken cused of crime." Although this statement from the pasture, one of them leading and may not have been necessary to the proper the other driving it. At a still later time on submission of the case, it fairly states the the same night, they were seen by another reason for the rule; and, in its application witness killing a steer which, in size, sex, to the present case, we discover nothing and color, corresponded with the one taken which is misleading, or prejudicial to the from the pasture. A few days afterwards, defendant. The judgment of the district in response to an inquiry made by Finney, court will be affirmed. All the justices conthe owner of the steer, the defendant denied curring.

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