the forfeiture. In State v. Hughes, 35 Kan. | against the defendant, which they will be 626, 12 Pac. Rep. 28, the defendant was able to prove if the order in the above-encalled for sentence, and the court inadvert- titled action may be set aside, dismissing ently adjudged him to confinement at hard the same for want of prosecution, and a labor in the penitentiary for a term of six trial granted. Affiant further states that months. "Within an hour after sentence he was ready for trial on the 17th day of was pronounced, the attention of the court December, 1886, and had reached Pratt in was called to the mistake, and, the prison- the morning of said 17th day of December, er and his counsel being still in court, the 1886, on their way to Iuka for trial of said case was again called, and the court pro-action, and, being informed by their attor ceeded to sentence the prisoner to imprison-ney that the court was engaged in the trial ment for a term of one year. It does not of the county-seat case, and it would be appear that a formal order was made set-impossible to try said action on said day, ting aside the first sentence, but the court and relying on said information,-said pronounced the second sentence upon the plaintiffs' affairs needing their attention at same verdict, stating in the record, as a home,-returned home, to return the next reason for its action, that the statute did day; that they had no knowledge or infornot authorize the judgment first pro- mation that said action would be tried on nounced. This was, in effect, a setting aside the night of the 17th, or they would have of the first judgment; and the only formal been at Iuka at said time for trial of said judgment recorded in the case is the one un-action; that they reside 18 miles from Iuder which the prisoner is in custody, sen- ka and that they received information tencing him to imprisonment for one year. through one Sessler, claiming to have been The general rule is that the records of a sent by W. W. Noffsinger, about half past court may be corrected or revised at any seven or eight o'clock, that said case would time during the term at which the judgment be tried that night. After getting said inis rendered. The sentence first pronounced formation plaintiffs got ready as soon as against the defendant was not executed or possible and started for Iuka, arriving put into operation, and, so long as it re-there about 4 o'clock in the morning of the mained unexecuted, it was, in contempla- 18th; that at the last term of this court tion of law, in the breast of the court, and the plaintiffs were in attendance four days, subject to revision and alteration.' Com. waiting for a trial of said action; also v. Weymouth, 2 Allen, 147. We think it is plaintiffs had been in attendance two days clearly within the discretion and power of of this court, waiting for this action to be the court, until the end of the term, to set for trial." The court heard the motion amend and revise or increase the sentence and sustained the same, making the followwhich had not gone into effect." This dis-ing order, to-wit: "It is therefore ordered poses of all the matters presented. The judgment of the district court will be affirmed; all the justices concurring. CHINN V. BRETCHES et al. (Supreme Court of Kansas. Oct. 5, 1889.` NONSUIT-TENDER. 1. Where an action is dismissed for want of prosecution, and on the next day the order of dismissal is set aside, and the case reinstated upon proper terms, held no error in setting aside the order of dismissal and reinstating the case. 2. Where one party by his acts renders a tender useless and foolish, the other party is not required to make the tender. (Syllabus by the Court.) Error from district court, Pratt county; S. W. LESLIE, Judge. R. F. McGrew, for plaintiff in error. W. Noffsinger, for defendants in error. W. ; and adjudged that the former order and 1. The plaintiff in error, defendant below, as a first point, claims that the court below erred in setting aside the order of dismissal, and in reinstating the case on the trial docket. Now, this case is not governed by the rules relating to the granting of new trials where a party has had a trial, and a trial upon the merits of the case, for the order of dismissal was not a trial or the result of a trial of any kind. Nor is this case governed by the rules which obtain where a party has waited many days, or weeks, or months, or until the next term of the VALENTINE, J. This was an action commenced by J. W. Bretches and G. S. Miller before a justice of the peace of Pratt county against J. P. Chinn, for the sum of $300. After judgment in the justice's court the defendant appealed to the district court, where, on the night of December 17, 1886, the case was regularly called for trial, and, the plaintiffs not appearing, it was dis-court, before he asks for any relief, or seeks missed for want of prosecution. On the next day the plaintiffs appeared and moved the court to set aside the order of dismissal, and to reinstate the case on the docket, and filed the following affidavit, to-wit: "G. S. Miller, first being duly sworn, upon his oath states that he is one of the plaintiffs in the above-entitled action, and that the plaintiffs have a just and valid claim any redress, for the plaintiffs in this case, defendants in error, appeared on the very next morning after the dismissal at night, and at the same term of court, and asked to have the order of dismissal set aside. The power of the court to set aside orders of dismissal, when relief is sought at the same term, and at the earliest moment, is almost unlimited, and especially so where proper terms are imposed, or such terms as were imposed in the present case. The court in this case required the plaintiffs to pay all the costs which had accrued up to the time of the setting aside of the dismissal. Under such circumstances the defendant could lose but little by the order reinstating the case, for, when the plaintiffs' case was dismissed, they failed in their action otherwise than upon the merits, and therefore they had at least one year within which to commence another action. Civil Code, § 23. And if they had been forced, by a refusal to set aside the order of dismissal, to commence a new action, such a proceeding would have subjected the defendant to the payment of more costs than he will be required to pay as the case has been actually conducted. In connection with this question, see the case of State v. Sowders, ante, 425, (just decided,) and State v. Hughes, 35 Kan. 626, 633, 12 Pac. Rep. 28. to permit the plaintiffs to have further charge of the machinery was a refusal to fulfill the contract on his part, and such refusal was a sufficient waiver of all the acts of tender on the part of the plaintiffs. The plaintiffs were not bound to perform the useless and foolish thing of tendering to the defendant a note and mortgage, and their threshing-machine, after he had refused to perform the contract on his part, and when they knew he would not accept them if tendered. The judgment ofthe court below will be affirmed; all the justices concurring. STATE V. JACKSON. (Supreme Court of Kansas. Oct. 5, 1889.) CRIMINAL LAW-PROVINCE OF JURY. In a criminal prosecution, where it is necessary for the maintenance of the action that a cer2. As a second and final point the plain-tain fact should be shown, and such fact is disputtiff in error, defendant below, claims that the evidence does not sustain the judgment, and this for the reason that the plaintiffs below did not make a tender of certain things, which the plaintiff in error claims ought to have been tendered. The action is for damages for an alleged breach of a contract. The contract was for the exchange of threshing-machines, with their accompaniments. The plaintiffs were to receive Appeal from district court, Cowley counfrom the defendant his threshing-machine ty; M. G. TROUP, Judge. ed by the defendant, both by his plea of not guilty, is introduced with reference to such fact, but the and during the trial by his evidence, and evidence evidence introduced does not clearly, unquestiona bly, directly, and conclusively prove the fact, it is error for the trial court to take the question with reference to such fact away from the jury and to decide it itself. (Syllabus by the Court.) VALENTINE, J. This is a criminal prosecution upon indictment instituted in the district court of Cowley county, wherein it is charged that the defendant, J. H. Jackson, "did unlawfully set up and keep a certain bawdy-house in the city of Arkansas City in said county." We suppose the prosecution was instituted under section 242 of the act relating to crimes and punishments. The case was tried before the court and a jury, and the court instructed the jury, among other things, as follows: "The evidence is abundantly satisfactory that this and engine, and, in consideration therefor Peckham & Henderson, for appellant. S. they were to deliver to him their threshing- B. Bradford, Atty. Gen., and C. L. Swarts, machine and horse-power, and a promisso- for appellee. ry note of $1,300, secured by a second mortgage on certain real estate belonging to them. The plaintiffs, however, were to have the privilege of trying the defendant's threshing-machine before the final consummation of the trade, and they did so try it on the farm of Louis Lockart, which took three or four days, and they were satisfied with it, and started to take it to their home, but on the way defendant stopped them, and would not let them go any further with it. Plaintiffs told the defendant that they had tried the machinery, and were ready to go to Pratt and execute the note and mortgage, and turn over the oth-place was a place of ill repute, and that this er machinery; but they did not do so, and plaintiffs did not tender to defendant their note and mortgage, except, as before stated, by offering to go to Pratt and execute the note and mortgage. It does not appear that the defendant gave any testimony, or introduced any evidence of any kind. It does not appear what he said when the plaintiffs offered to go to Pratt and fulfill their part of the contract, but, from the evidence that was given, we think the court below was justified in finding that it was the defendant who refused to fulfill and perform the contract, and not the plaintiffs; and that, except for the acts of the defendant, the contract would have been completely performed. If the defendant did not want to go to Pratt to have the contract fulfilled there, he should have said so, and permitted the plaintiffs to perform their part of the contract somewhere else. From the evidence it may fairly be inferred that the defendant was not willing to perform his part of the contract anywhere, or at any time, and that his refusal house was, at the times mentioned, or at least some of the times mentioned, in the evidence, a house of ill fame, or a bawdyhouse; and the circumstances surrounding this place, and the circumstantial evidence surrounding this case, is, in the judgment of the court, abundantly sufficient to satisfactorily show to the court and this jury that illicit sexual intercourse was carried on at this place at the times mentioned in the testimony; so that, in the opinion oʻ the court, the vital and only question i this case is whether or not this defendant set up and kept this place, or had anything to do with setting up and keeping and encouraging this business, at the times when it was carried on at that place. That is the vital question of fact I desire to submit to you." The defendant was found guilty, and sentenced to pay a fine of $1,000 and costs, and to stand committed to the coun ty jail until such fine and costs were paid; and he now appeals to this court. We think the above instruction is erroneous. By it the court, in effect, took away ment of the court below will be reversed, and cause remanded for a new trial; all the justices concurring. V. SHEPHERD, City Clerk. (Supreme Court of Kansas. Oct. 5, 1889.) ELECTIONS AND VOTERS-REGISTRATION. The act of the legislature relating to the regis tration of voters, etc., approved March 2, 1889, (being chapter 206 of the Laws of 1889,) applies only to cities of the first class where more than 6,000 votes were cast at the general election in November, 1888, or shall be cast at some future general election. (Syllabus by the Court.) Original proceeding in mandamus. L. B. Kellogg, Atty. Gen., for the State. w. C. Hook and Thomas P. Fenlon, for respondent. from the jury the question whether the alleged bawdy-house was in fact a bawdyhouse or not, and decided the question itself. Now, it is just as necessary in cases like this, where all the questions of fact are disputed, and none admitted. for the prosecution to STATE ex rel. KELLOGG, Attorney General, show that the house in question was a bawdy-house, as it is for the prosecution to show that the defendant was the keeper thereof. Such a question is one of fact for the jury to determine, and not one of law for the court to determine. If there had been no dispute with reference to this matter, if the defendant had admitted that the house in question was a bawdy-house, or if all the evidence in the case, without the slightest exception, had clearly, conclusively, beyond all question, and directly, shown that the house was a bawdy-house, then the instruction might not have been prejudicially erroneous. But such is not this case. In this case the defendant never admitted, either expressly or tacitly, that VALENTINE, J. On March 2, 1889, an act the house was a bawdy-house, and he at- of the legislature relating to the registratempted, during the trial, and by his evi- tion of voters, etc., in certain cities of the dence, as well as by his general plea of not first class, was passed, and on March 13, guilty, to dispute this fact. In criminal | 1889, the act took effect. The title to the cases it is never competent for the court to act reads as follows: "An act to provide take a question of fact away from the jury, for and regulate the registration of voters, and to decide it itself. Of course a neces- to regulate elections, and to provide for the sary fact may, in some cases, not be a ques-appointment of a commissioner of elections tion of fact, for the fact itself might be ad- in certain cities of the first class." The remitted by the parties, or it might not be disputed, and the entire and uncontradicted evidence in the case might clearly, unquestionably, conclusively, and directly prove the same. In such a case there might not be any question of fact to be decided by either the court or the jury, and the only question with reference to such fact might be a question of law, to be stated by the court. But such is not this case. For the purposes of this case it will be admitted that the evidence clearly proved that the house in question was a bawdy-house, and that the evidence so clearly proved the same that, if the question had been submitted to the jury, the jury would and should have found that the house was in fact a bawdy-city of the first class to which the provis house. But that is not sufficient to author- ions of this act apply, immediately upon the ize the court to take the question away from going into effect of this act, a commissioner the jury. A court is not authorized, in any of elections, who shall hold his office for the criminal case tried by a jury, to make find- term of four years, and until his successor ings of fact, and especially not where it is is appointed and qualified," etc. "Sec. 19. necessary in doing so to draw inferences or That in any city of the first class where more conclusions from a number of merely proba- than 6,000 votes were or may be cast, as tive facts or circumstances. Indeed it is not specified in section 1 of this act, but where the province of the court, in any criminal the metropolitan police law is not in force, case tried by a jury, to draw inferences of a commissioner of elections shall be apfact at all, for the purpose that such infer-pointed as previously provided; and it shall ences should govern the jury, or be treated be his duty to appoint one councilman from as facts in the case, but it is the province of each ward, who shall act as a board of suthe court only to announce the law correct pervisors of elections, to be confirmed by ly to the jury. the council, whose duties as such supervisors shall be identical in every respect with those prescribed forsuch supervisors in cit mainder of the act, so far as it is necessary to quote the same, reads as follows: "Section 1. That in cities of the first class, where the metropolitan police law is or may be in force, and where more than 6,000 votes were cast at the general election in November, 1888, or shall be so cast at any future general election, the members of the board of police commissioners, and a commissioner of elections, to be appointed as hereinafter provided, shall constitute a board of supervisors of elections, of which the president of the board of police commissioners shall be president, and the commissioner of elections shall be secretary," etc. "Sec. 2. The governor of the state shall appoint for each There were other instructions given by the court to the jury upon this same subject, some of which were the correct state-ies where the metropolitan police law is in ments of the law, and others were not, and force." At the time of the passage and the were erroneous; but we do not think it is taking effect of this act the city of Leavennecessary to make any comment upon any worth was, and still is, a city of the first of these other instructions. As to when a class, in which the metropolitan police law court may instruct the jury in a criminal was, and still is, in force. At the general case, with reference to the facts of the case, election held in November, 1888, less than see, on one side, the case of People v. Rich- 6.000 votes were cast in said city, but at the mond, 26 N. W. Rep.770; and, on the other city election held in April, 1889, more than side, the case of U. S. v. Taylor, 3 McCrary, 6,000 votes were cast in said city, to-wit, 500. See, also, Crim. Code, § 236. The judg-7,439, of which 3,000 were cast by women It is our opinion that the aforesaid act does not apply to the city of Leavenworth, and therefore the peremptory writ of mandamus will be refused, and judgment will be rendered in favor of the defendant. All the justices concurring. STATE V. TENNISON. (Supreme Court of Kansas. Oct. 5, 1889.) CRIMINAL LAW-REMARKS OF COUNSEL. 1. In a criminal prosecution, where the attorney on the part of the state in his closing argument refers to the fact that the defendant failed to deny the charge or to testify on her own behalf, or uses language calculated to call the attention of the jury to such facts, held, that for such irregularity the defendant, on a proper motion, should be grant ed a new trial; and further held, that where such statement is objected to at the time, and excepted to by the defendant, and afterwards presented in a motion for a new trial, such objection is made in On April 10, 1889, the governor, under the to make it applicable to any city other than aforesaid act, appointed William W. Rob- a city of the first class, or to any city other erts, a citizen and householder of Leaven- than one where more than 6,000 votes have worth city, a commissioner of elections for been cast at some general election. When the city, and he duly accepted the office and this law took effect it immediately applied, qualified. At that time, and since, the de- under section 1 of the act, to the cities of fendant, Carrie Shepherd, was and has been Wichita and Kansas City, for each of such the city clerk of said city. On April 24, 1889, cities was a city of the first class, each was Roberts, as such commissioner, demanded under the metropolitan police law, and in of the defendant, as city clerk, the entries each more than 6,000 votes were cast at the of registration made by the clerk since the general election in November, 1888; and unfirst Monday in January, 1889, and all rec- der section 19 of the act the law immediateords of registration, and the books and ly applied to the city of Topeka, for it was papers connected therewith, which demand a city of the first class in which more than was refused by the defendant. On April 25, 6,000 votes were cast at the general elec1889, this action, which is mandamus, was tion in November, 1888, although it was commenced in this court by the attorney not at that time under the operation of the general in the name of the state of Kansas, metropolitan police law; and by the terms to compel the defendant, as city clerk, to de- of the act the act might become applicable liver to Roberts, as commissioner of elec-in time to every city of the first class in the tions, the aforesaid registration records, state of Kansas. etc. Upon these facts the legal question arises, and it is the principal question involved in this case,-does the aforesaid registration act apply to the city of Leavenworth? If it applies, then Roberts was, and is, entitled to the aforesaid records; but if it does not apply, then his appointment was a nullity; he was not, and is not, entitled to the records, and the defendant, as city clerk, properly refused his demand. The plaintiff claims that the aforesaid registration act is "applicable to all cities of the first class where the metropolitan police law is or may be in force," regardless of the fact whether more than 6,000 votes have ever been cast in such cities at a general election or not; and claims that the act is also applicable "to all cities of the first class where more than 6,000 were cast at the general election in November, 1888, or shall be so cast at any future general election, regardless of the fact whether these last-named cities casting more than 6,000 votes are or are not under the operation of the metropolitan police law." On the other hand, the defendant, so far as this case is concerned, will admit that all that the plaintiff claims is correct, except as follows: she denies that the law is applicable to any city in which not more than 6,000 votes have ever been cast at a general election. Indeed, the only question involved in this case is whether the law is applicable to cities of the first class or not, where the metropolitan police law is in force, and where as many as 6,000 votes have never been cast at a general election. The first section of the act makes the law applicable only to cities of the first class where the metropolitan police law is or may be in force, and where more than 6,000 votes were cast at the general election in November, 1888, or shall be cast at any future general election; and H. L. Burgess and I. O. Pickering, for does not make the law applicable to any appellant. L. B. Kellogg, Atty. Gen., and city other than a city of the first class, nor J. W. Parker, for appellee. to any such city where the metropolitan police law is not in force, nor to any city where not more than 6,000 votes have been cast at a general election. Section 19 of the act, however, extends the applicability of the law to any city of the first class where more than 6,000 votes have been cast, although the metropolitan police law may not be in force in such city; but neither this section nor any other section or provision of the act attempts to so extend the law as time to be available. 2. Where incompetent statements are made in the presence of the court to a jury, in a criminal trial, by counsel on the part of the state, and such incompetent statements are incorporated in the bill of exceptions and allowed by the court, held, such statements are properly made of record, although no proof be presented to the court showing such statements, and no opportunity given for making a counter-showing. (Syllabus by Clogston, C.) Commissioners' decision. Appeal from district court, Johnson county; J. P. HINDMAN, Judge. The defendant, Lucy Tennison, was charged with the murder of her husband, J. D. Tennison, and at the January term, 1889, was convicted in the district court of Johnson county of murder in the first degree. She appeals from that judgment of conviction. CLOGSTON, C. The defendant was charged with the murder of her husband, J. D. Tennison, by means of poison, and was convicted of murder in the first degree upon that charge. Numerous errors are assigned in the record for reversal, but deeming the last one of the most importance, and of sufficient magnitude to require the reversal of the action, we shall not pass upon the other questions presented. The defend PER CURIAM. It is so ordered; all the justices concurring. BOARD COUNTY COM'RS OF HODGEMAN COUN TY v. BOARD COUNTY COM'RS OF GARFIELD COUNTY. (Supreme Court of Kansas. Oct. 5, 1889.) COUNTIES-DIVISION-LIABILITIES. ant at the trial did not testify as a witness | ed in the bill of exceptions, and cannot be reon her own behalf, and no confession of vived here. This claim is based upon the the commission of the offense charged was fact that it is included in the bill of excepproven. John T. Burris, one of the coun- tions, and is not in the form of an affidavit sel for the state, made the closing argu- presented to the court upon which counment, and in the latter part of his argu- ter-proof might have been made. Counsel ment used the following words: "The de- seems to forget the universal rule that what fendant is the only living person who is done in the presence of the court and knows the truth of the charge against her, made of record cannot be disputed by affidaand she has refused to divulge it. She says vit. Coming in this way it is the best form that she is innocent, and it devolves upon that it should be made of record, and is the the state to prove her guilt by circumstan- better practice, and ought to prevail. Hential evidence." To this statement counsel ning v. State, 106 Ind. 391, 6 N. E. Rep. 803, for the defendant at the time objected and 7 N. E. Rep. 4. Again, counsel insist that excepted, and the court then said that no the objection, being made in the motion for reference must be made to the defendant's a new trial, came too late; that at the failure to testify, and said to the jury that time the counsel for the state made the obthey had been instructed upon that point, jectionable statement to the jury it was the and must not consider the same. Thereup- duty of the defendant, if she saw fit to avail on Counsel Burris said that he had no "ref- herself of the error, to have asked that the erence to that matter, but far from it," and jury be discharged, and a new trial grantproceeded with his argument. Defendant ed. We think this claim not tenable. This insists that this statement by counsel was occurred in the closing argument of the in violation of section 215 of the Criminal case, at the last moment of the trial, and Code, part of which section is as follows: we think, when presented in the motion for "And provided, further, that the neglect or a new trial, it was in time. It is therefore refusal of the person on trial to testify, or recommended that the judgment of the of a wife to testify in behalf of her hus-court below be reversed, and the cause reband, shall not raise any presumption of manded for a new trial. guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place." With some hesitation we agree with counsel for defendant. While it is not very clear that this statement was made with the intention of calling the jury's attention particularly to the fact that the defendant did not testify, yet we think it was calculated to attract their attention in that direction. The crime charged was death caused by the administration of poison, and the state relied upon circumstantial evidence to establish it. The record fails to disclose any direct testimony that poison was administered by the de2. Under chapter 142, Laws 1873, the county fendant. She then was the only living per- clerk of the county from which territory is deson who knew the truth of that charge, and, tached is required to certify to the county clerk of as counsel said, she refused to divulge it. the county to which such territory is attached the As far as the trial was concerned, there per centum of taxes necessary to be levied to meet was but one of two ways in which she the indebtedness of the old county which is a lien could have divulged it,—either by confes-certified is in gross, and for the purpose of paying against the detached territory; and where the levy sion of the crime, or by going upon the wit- several classes of bonds, some of which are not a ness stand and testifying to her innocence; charge against the detached territory, the authorand doubtless the jury so understood it. ities of the county to which such territory is atIt is obvious, from the remarks of the tached may refuse to extend the levy, and they court, that the court thought the jury like- will not be compelled by mandamus to take any ly to so consider it, and therefore instruct- steps towards extending any such levy or tax until the proper certificate has been made. ed them, or referred them to a former in(Syllabus by the Court.) struction upon that point. In conclusion we can do no better than to quote the language of Mr. Justice VALENTINE, in the case of State v. Mosley, 31 Kan. 357, 2 Pac. Rep. 782: "We understand the statute is explicit that, when a defendant in a criminal case declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial, and that the court will hold the pros-ing the interst on and providing a sinking ecuting attorneys to a strict observance of fund for certain bonded indebtedness of their duty in this respect." See Long v. Hodgeman county. The cause was subState, 56 Ind. 182; State v. Balch, 31 Kan. mitted on an agreed statement of facts, 465, 2 Pac. Rep. 609, and cases there cited; which is as follows: "It is hereby stipulated City of Topeka v. Myers, 34 Kan. 500, 8 Pac. and agreed, by and between the parties Rep. 726. Counsel for the state, however, hereto, that the following facts exist, and insist that, if the statement made in the ar- that this cause be submitted and detergument was error, it is not properly includ-mined upon the following agreed statement 1. Refunding bonds, executed and issued by the county commissioners of Hodgeman county, under chapter 50, Laws 1879, without a vote of the electors, are not a liability against territory subsequently detached from such county and attached detached territory to pay such bonds. to Garfield county, and no tax can be levied on the This is an original proceeding in mandamus, brought by the authorities of Hodge man county to compel the board of county commissioners of Garfield county to levy certain taxes on territory which is now a part of Garfield county, but which was formerly included within the boundaries of Hodgeman county, for the purpose of pay |