1. CRIMINAL LAW AND PROCEDURE-CHANGE OF VENUe.

Where the court orders the venue of an indictment or information to be corrected, under the provisions of section 231 of the Criminal Code, the clerk of the district court in which the case is pending should make out a full transcript of the record and proceedings in the cause, including the order of removal, and transmit the same, duly certified under the seal of his court, to the clerk of the court to which the removal is ordered.

2. SAME-INDICTMENT-CHARGING TWO OR MORE FELONIES.

While two or more felonies may, under proper circumstances, be joined in one indictment or information, they must, as a general rule, be in separate counts. A less stringent rule applies to prosecutions for misdemeanors

3. SAME TAKING AWAY FEMALE FOR PURPOSE OF PROSTITUTION AND ConcUBINAGE.

Where an information charges that a defendant took away a female under the age of eighteen years from her father, without his consent, for the purpose of prostitution and concubinage, there is a joinder of two distinct offenses in one count, and, therefore, the information is bad for duplicity.

Appeal from Mitchell county.

On November 25, 1883, Richard Lawson filed his complaint under oath with A. B. CHAFFEE, a justice of the peace of Cloud county, in this state, charging that one Napoleon Goodwin, on November 24, 1883, in the county of Mitchell and state of Kansas, did then and there unlawfully and feloniously take away from him his daughter, one Nannie Lawson, a female under the age of 18 years, for the purpose of prostitution and concubinage, and brought her into the county of Cloud in said state. A warrant was issued on said November 25th by said A. B. CHAFFEE, justice of the peace, and the said Goodwin was at once arrested. A hearing was had upon the complaint before the justice of the peace, on November 26, 1883; and thereupon the said Goodwin was required by the justice to enter into a recognizance in the sum of $2,000 for his appearance at the next term of the district court of Cloud county, to answer the complaint filed against him. In default of bail defendant was committed to jail. On April 24, 1884, the following information, omitting court, title, and verification, was filed against said Goodwin, under the provisions of section 35 of the act relating to crimes and punishments:

"I, J. W. Sheafer, the undersigned, county attorney of said county, in the name, by the authority, and on behalf of the state of Kansas, come now here, and give the court to understand and be informed that on the twenty-fourth day of November, A. D. 1883, in the county of Mitchell and state of Kansas, one P. Goodwin did, then and there being, and then and there unlawfully and feloniously, take away one Nannie Lawson, a female child under the age of eighteen years, to-wit, of the age of fifteen years, from her father, one Richard Lawson, he, the said Richard Lawson, then and there having the legal charge of the person of the said Nannie Lawson,-and without the consent of said Richard Lawson, and with the intent and for the purpose of prostitution and concubinage; and the said P. Goodwin did on the said twenty-fourth day of November, 1883, bring the said Nannie Lawson into the said county of Cloud and state of Kansas, -she, the said Nannie Lawson, being then and

there a female under the age of eighteen years,--and away from the said Richard Lawson, he, the said Richard Lawson, being the father, and having then and there the legal charge of the person of her, the said Nannie Lawson,-and without the consent of the said Richard Lawson, unlawfully and feloniously, with the intent and for the purpose of prostitution and concubinage, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.

"J. W. SHEAFER, County Attorney."

On April 30, 1884, a change of venue was granted, upon the motion of the county attorney of Cloud county, and the papers and proceedings were ordered to be certified to Mitchell county. On June 23, 1884, the case came on for hearing before the district court of Mitchell county. Thereupon the defendant moved the court to dismiss the action pending against him, on the ground that the district court of Mitchell county had not jurisdiction. The court overruled the motion, the defendant excepting. The defendant then moved the court to quash the information, for the following reasons:

"(1) No information has been presented by the county attorney as required by law. (2) The information on file has not been verified as required by law. (3) The offense charged is not stated with such a degree of certainty that the court may pronounce judgment upon conviction according to the right of the case. (4) By reason of defects in the information substantial rights of the defendant would be prejudiced."

The court overruled the motion, to which ruling the defendant excepted. The defendant then moved the court that the prosecution be required to elect under which charge in the information the state would proceed, whether for taking away for the purpose of prostitution, or taking away for the purpose of concubinage. The court overruled the same, to which ruling the defendant excepted. The defendant was thereupon arraigned, and the information read to him, and he was asked to plead thereto; but, standing mute, the court directed the clerk to enter a plea to the information of "not guilty," to which ruling the defendant then and there excepted. Thereupon a jury was called, and the trial proceeded with. After the introduction of all the evidence, the arguments of counsel and charge of the court, the jury returned a verdict finding the defendant guilty, as charged. The defendant filed a motion for a new trial, which was overruled, and then filed a motion in arrest of judgment, which was also overruled. The defendant was sentenced to be confined at hard labor in the state penitentiary for the term of one year from and including June 23, 1884, and also to pay all costs of the action. The defendant appeals. S. B. Bradford, Atty. Gen., and F. J. Knight, for appellee.

L. J. Crans, for appellant.

HORTON, C. J. 1. After the district court of Cloud county ordered the venue of the information to be corrected, and directed that all the papers and proceedings be certified to the district court of Mitchell county, the clerk of the district court of Cloud county should have made out a full transcript of the record and proceedings in the cause,

including the order of removal and the recognizance of appellant and of all witnesses, and should have transmitted the same, duly certified under the seal of his court, to the district clerk of Mitchell county. There is no certified transcript in the record, and it does not appear that such transcript was either lost or destroyed. After the transcript of the record and proceedings of the case in the district court of Cloud county had been filed with the clerk of the district court of Mitchell county, then the latter court could have proceeded with the case in the same manner as if it had been commenced there. Although the district court transferred the case under, the provisions of section 231 of the Criminal Code, yet the transcript and proceedings thereafter should have conformed as nearly as possible with the provisions of sections 188, 189, and 190 of the Criminal Code.

2. The information was drawn, we suppose, under section 35 of the act relating to crimes and punishments, which reads:

"Every person who shall take away any female under the age of eighteen years from her father, mother, guardian, or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall, upon conviction thereof, be punished by confinement and hard labor for the term of not exceeding five years."

The information charges that the female, Nannie Lawson, was taken away for prostitution and concubinage. In the information there is a joinder of two distinct felonies in one count. If the appellant took away the female for the purpose of prostitution, under the circumstances alleged in the information he would be guilty of one offense; but if he took her away for the purpose of concubinage, but not for prostitution, he would be guilty of another offense. If the appellant took the female away for the purpose of prostitution, he did so for the purpose of devoting her to infamous purposes; that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce without the authority of law or a legal marriage. Now, two or more offenses may, under proper circumstances, be joined in one information, but it must be in separate counts. Each count,

as a general thing, should embrace one complete statement of a cause of action, and one count should not include distinct offenses, at least, distinct felonies. There are many prominent exceptions to this rule, but as this case is not within the exceptions, they need not be noted. Whart. Crim. Pl. & Pr. §§ 244-254; Bish. Crim. Proc. §§ 433-440. Again, if the appellant took away the female for the purpose of prostitution, the jurisdiction of the case was in Mitchell county where the offense was committed, and also in Cloud county, where the female was brought. Section 25, Crim. Code. But if the female was taken away for the purpose of concubinage only, then the jurisdiction of the case was in Mitchell county, where the offense was committed, and not in Cloud county. The information was attacked by a motion to quash, and also by a motion to compel an election. Both were

overruled. This was error, and also error prejudicial to the rights of the appellant. The evidence offered upon the trial tended to prove that the appellant took away the female for the purpose of concubinage only, yet the jury found a verdict that the appellant was guilty as charged in the information; therefore, we cannot tell from the verdict whether the jury found the appellant guilty of taking away the female for the purpose of prostitution, or for the purpose of concubinage, or for both. Whart. Crim. Pl. & Pr. § 255; 1 Bish. Crim. Proc. § 444. The rule herein announced does not apply in cases merely of misdemeanors.. State v. Schweitzer, 27 Kan. 499; 1 Chit. Crim. Law, 54. In offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect upon which charge he shall proceed, does not prevail.

The judgment of the district court will be reversed, and the cause remanded.

VALENTINE, J., concurring; JOHNSTON, J., not sitting in the case.

(33 Kan. 491)

WHEELER & WILSON MANUF'G Co. v. THOMPSON and another.

Filed May 8, 1885.

1. SALE SEWING MACHINE-BREACH OF WARRANTY - RETENTION OF MACHINE -DAMAGES.

Where a sewing-machine is sold, which is not of the kind represented and warranted, and the purchaser retains the property, the measure of damages for the breach of the warranty is the difference between the contract price and the value of the machine actually delivered. Weybrich v. Harris, 31 Kan. 92; S. C. 1 PAC. REP. 271.

2. SAME-REPAIRING MACHINE.

Where the defect in such a machine is in the tension, or parts connected with the tension, it is error for the court, in a controversy over the measure of damages for the breach of the warranty, to reject evidence from the seller showing that a new tension complete could be put in the machine at a trifling expense and with but little trouble. In such a case, all evidence tending in any way to establish what it would cost to supply the defect existing in the machine ought to be received as some evidence showing the value of the machine when delivered.

Error from Cowley county.

Action by the Wheeler & Wilson Manufacturing Company against Peter Thompson, and M. A. Thompson, his wife, brought originally before a justice of the peace of the city of Winfield, in Cowley county, upon two instruments in writing, for the payment of money. One of the instruments, dated May 8, 1878, due six months after date, was for the payment of $25, with interest at the rate of 10 per cent. per annum from date, but after maturity the rate of interest to be 12 per cent. per annum. The other instrument, dated May 8, 1878, due 12 months after date, was for the payment of $20, with 10 per cent. interest per annum from date, and interest at the rate of 12 per cent. after maturity. These instruments in writing were executed by Thompson and wife for the purchase or use of a sewing-machine. The an

swer set forth that the machine was warranted to be in good condition and capable of doing good work, but that in fact it was useless and worthless as a sewing-machine. The case was taken to the district court, on appeal, May 2, 1881. This case was here before, and is reported in 29 Kan. 476.

Trial had at the January term of court for 1884, before the court with a jury. The jury returned a verdict for the defendants, and also made the following special findings of fact:

"(1) Was there any defect in the machine itself at the time the machine was delivered to the defendants? Answer. There was. (2) If there was a defect in the machine or its construction at the time delivered, what was that defect? A. The defect was in the tension, or parts connected with the tension. (3) If there was any defect in the machine at the time delivered, cov'ered by the warranty of the plaintiff, what was the amount of the damage to the machine by reason of such defect? A. $45. (4) If the machine sold to defendants did not do good work, was it the fault of some defect in the machine itself, or was the fault in the operator? A. In the machine. (5) What was the market value of the machine at the time sold, at the place sold and delivered, in the condition it then was? A. $30."

The plaintiff filed its motion for a new trial which, upon due consideration, was overruled. Thereupon the court rendered judgment in favor of the defendants for all costs, taxed at $229.90. To the rulings and judgment of the court plaintiff excepted, and brings the case here.

S. D. Pryor, for plaintiff in error.

McDermott & Johnson, for defendants in error.

HORTON, C. J. It is claimed that the court should have sustained. the objection of plaintiff to the introduction of the testimony of defendants, for the reason that the answer of defendants did not state facts sufficient to constitute any defense. This court decided, when the case was here before, (29 Kan. 476,) that the defendants were entitled to prove the whole of the transactions had in connection with the machine and the notes; and, therefore, in admitting the testimony of plaintiff, it acted in obedience to the direction of this court. Of course, in this there was no error.

It is next claimed that the court should have suppressed the deposition of one N. Shomber, which was taken on February 28, 1881, before James H. Harkless, a notary public of Barton county, in the state of Missouri. The objection urged to the deposition is that it was taken while the action was pending before the justice of the peace, but the caption thereof recites that it was taken in an action pending in the district court. At most, the error complained of is merely a clerical one, and could not have prejudiced the plaintiff; but the objection now presented comes too late. The motion to suppress the deposition filed in the district court embraced several grounds, but did not contain the one now relied upon.

It is further claimed that the district court erred in admitting the oral evidence offered by the defendants to prove that Best and Shom