said defendants, with their children." It, the state of Kansas, upon their oaths preis clear that by the decisions of this court in the case of Pilcher v. Railroad Co., 38 Kan. 516, 16 Pac. Rep. 945, and others, that the contract for the right of way across the homestead is void, because not signed by the wife. But the pleadings, the findings of the court and jury, the evidence, and the decree all fail to designate what part of the land is occupied or claimed as a homestead. The pleadings, findings, and evidence all agree that there are 320 acres of land, or two quarter sections, but we are not advised on which quarter section the dwelling-house is located. If we could determine the location and extent of the homestead, we could so modify the judgment as to conform to our views as to the ultimate rights of all parties, but, in the absence of such a showing about the homestead, we are powerless to do this. We are reasonably well satisfied that the railroad company has substantially complied with all the conditions of the contract upon its part. It is too plain for dispute that the defendants below are not entitled to hold the 320 acres of land as a homestead. Hence the error of the court below consists in decreeing specific performance for the whole tract, when a part of the right of way contract, being that over the homestead, is void as to both Mr. and Mrs. Conboy. For this error we recommend that the cause be reversed, and remanded for further proceedings. sent that one Harold Child, and Lee Bow- PER CURIAM. It is so ordered; all the sonable doubt, that they did, in this counJustices concurring. STATE V. CHILD et al. (Supreme Court of Kansas. Dec. 7, 1889.) FELONIOUS ASSAULT-INTENT-INDICTMENT. 1. In charging the commission of an assault with intent to commit a felony, where the intent characterizes and forms a part of the offense, such as an assault with intent to kill, or maim, or rob, or ravish, it is essential that the specific in tent should be averred; and a verdict and judgment finding and adjudging a defendant guilty of felonious assault under section 38 of the crimes act are not supported by an indictment which omits to describe the intent with which the assault was committed. ty, on the 18th day of November, 1887, on purpose and of malice aforethought, unlawfully and feloniously assault Willie Watson with a deadly weapon, to-wit, with two revolvers, with intent to unlawfully and feloniously kill or maim, as charged in the indictment filed in this case against them." The jury returned the following verdict: "We, the jury impaneled and sworn in the above-entitled cause, do upon our oaths find the defendants Harold Child and Lee Bowman guilty of a felonious assault, as charged in the indictment," Motions for a new trial and an arrest of judgment were overruled, and the court sentenced the defendant Harold Child to imprisonment at hard labor for four years, and the defendant Lee Bowman to like imprisonment for five years. The defendants have appealed to this court. 2. In such a case, where the indictment is sufficient to support a conviction for misdemeanor, but not for felony, the supreme court cannot modify the sentence by reducing the punishment from that imposed for a felony to some lower penJ. D. McCue, for appellants. L. B. Kelalty that might lawfully be imposed for a misde-logg, Atty. Gen., John W. Shartel, and J. meanor. It can only reverse the judgment, and D. McBrian, for the State. remand the cause. (Syllabus by the Court.) Appeal from district court, Chautauqua county; M. G. TROUP, Judge. JOHNSTON, J., (after stating the facts as above.) The objection that the indictment is not sufficient to sustain the verdict and This is an appeal from a conviction for a judgment is fatal to the conviction. The felonious assault alleged to have been com- appellants were manifestly prosecuted unmitted in the county of Chautauqua on No- der section 38 of the crimes act. It provember 18, 1887, upon the person of Willie vides that "every person who shall on purWatson. The indictment upon which the pose, and of malice aforethought, shoot at prosecution was had is in the following or stab another, or assault or beat anothlanguage: "Of the February term of the er, or assault or beat another with a deaddistrict court of Chautauqua county, in the ly weapon, or by any other means or force year of our Lord one thousand eight hun-likely to produce death or great bodily dred and eighty-eight, the grand jury, duly impaneled and sworn in and for said county of Chautauqua for said February term, 1888, in the name and by the authority of v.22p.no.21-46 harm, with intent to kill, maim, ravish, or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor indictment is sufficient under sections 41 for a term not exceeding ten years." The and 42, but there is the same necessity for court charged the jury that before they the allegation of intent under section 41 as could find the defendants guilty they must under section 38; and it is apparent from be satisfied that they had made the assault the indictment, charge to the jury, and verwith "intent to unlawfully and felonious- dict, that the prosecution is not based on ly kill or maim, as charged in the indict- section 42. The indictment is a sufficient ment filed in this case against them." The charge of assault and battery, and it is assumption of the court that the indictment suggested on the part of the state that if charged an intent to unlawfully kill or the conclusion is reached that the indietmaim is not borne out by an examination ment is not sufficient to sustain the offense of that pleading. While it charges that an of felony, and therefore the sentence of the assault was feloniously made with a dead- defendants to imprisonment in the penly weapon, it fails to allege a specific in- itentiary at hard labor was erroneous, tent to kill, maim, ravish, or rob, or any this court should change the punishment other intent necessary to constitute the from that suitable to the commission of a crime of which the defendants were con- felony to such a sentence as would be suitvicted. The indictment sufficiently alleges able to the commission of willful assault an assault, which is a misdemeanor, but it and battery. This we cannot do. It is the omits the allegation of intent, which makes district court, and not the supreme court, the offense a felony. When a misdemeanor that is authorized to pronounce the senis committed with a certain intent, it be- tence, and to exercise its discretion in detercomes a felony, and therefore the specific in-mining what punishment between the mintent is a material fact to be alleged and imum and maximum penalty should be improved. The assault may be committed posed. The appellants were tried for felwith any one of the several intents men- ony, and not for a misdemeanor; and the tioned in the statute; that is, to kill, or court failed to charge the jury on the lowmaim, or rob, or ravish, or an attempt to er degrees, such as assault and assault commit burglary, or in resisting the execu- and battery. Upon conviction for as tion of legal process. The charge, however, sault and battery the defendants may be cannot be made disjunctively, or in the fined in a sum not exceeding $500, or by imalternative; that is, that the assault was prisonment not exceeding one year. We made with intent to kill or ravish, or with have no means of knowing what punishintent to rob or maim. It will be readily ment the court would have imposed,seen that the gist of the offense consists in whether imprisonment or fine, and, if a fine, the intent with which the assault was the amount of the same, or, if imprisoncommitted, and hence that intent must be ment, the length of term. We cannot distinctly alleged and proved. It is a well- change the verdict, nor fix the penalty, settled rule of criminal pleading that when and can only reverse the judgment errone a specific intent is required to constitute ously rendered, and remand the case for an offense such intent must be averred, and such further action as the state may desire no description of the offense is complete to take. That will be the judgment of this without it. Wilson v. People, 24 Mich. 411; court. All the justices concurring. Com. v. Boynton, 12 Cush. 500; State v. Freeman, 6 Blackf. 248; State v. Card, 34 N. H. 510; Johnson v. State, 1 Tex. ApP. 146; Bartlett v. State, 2 S. W. Rep. 829; U. S. v. Wentworth, 11 Fed. Rep. 52; Whart. Crim. Pl. § 163a; Chit. Crim. Law, 233. The allegation in the indictment that the assault was made unlawfully and feloniously does not remedy the defect. In charging the commission of a consummated offense the omission of a specific intent is not necessarily fatal, where it is alleged to have been done on purpose, of malice aforethought, unlawfully, and feloniously; but where the act is not consummated, and the intent characterizes and forms a part of the offense, then it is clear, according to all the authorities, that the intent must be alleged. Com. v. Hersey, 2 Allen, 180, and authorities cited. In Com. v. Slack, 19 Pick. 307, 2. And in such case, where the county board it is said: "So, if an offense at common did not, in calling the election, fix any single and law is by statute punishable with addition-specific amount of money to be raised by taxation, al severity, when committed with the inten- but submitted to the electors the question whether tion to perpetrate another and greater of- a rate per cent., to-wit, eight mills on the dollar of fense, the criminal intention must be direct-ied or not, held that this mode of submitting the the taxable property of the county, should be levly averred in the indictment, or the offender question did not render the election invalid. cannot be subjected to the additional pun- 3. Where the returns of such election are duly ishment. It is not sufficient that the in-canvassed by the county board, acting as a board dictment concludes, contra formam statuti. of canvassers, and an abstract of the vote is made, So, if a misdemeanor is declared to be fel- the failure of the county clerk to certify and sign ony when committed with a certain crim- such abstract will not render the election invalid. 4. On the trial of the case the court limited the inal intent, it is not sufficient to aver in number of witnesses who might testify as to the the indictment that the criminal act was value of the land purchased by the county board done feloniously." It is intimated that the for a poor-farm to six on each side. Held, under STATE ex rel. BARRETT, County Attorney, TION. an order of the board of county commissioners, to 1. Where an election is held, in pursuance of determine whether a fund shall be raised, by taxation upon the taxable property of the county, with which to purchase a poor-farm, and the people of the county generally vote at such election, and a vast majority of the votes cast are in favor of the proposition, and afterwards the board purchases a clerk to enter the order of the county board calling poor farm, held, that the failure of the county the election upon the records of the county will not invalidate the election. the circumstances of the case, that such limitation | tices as required by law.' That the name was not erroneous. 5. The tax to be levied was eight mills upon the valuation of the taxable property of the county for the year 1857. The land for the poor-farm was purchased on October 6, 1857. The tax was not levied during the year 1887. Held, that such failure to levy the tax does not render the purchase of the poor-farm invalid. (Syllabus by the Court.) Error from district court, Pratt county; S. W. LESLIE, Judge. of A. J. Eggleston, the then chairman of the board of commissioners, was affixed to said order, as well as that of Demcy Lewis, county clerk, by one J. W. Naron, publisher of the Pratt County Times, who delivered same to sheriff for publication. That they both, with full knowledge of their said signatures being so affixed, made no objection thereto, but acquiesced in the fact. That the sheriff of Pratt county afterwards published said order, together This was an action brought in the dis- with his proclamation, attached thereto; trict court of Pratt county, in the name of said proclamation being as follows: 'Now, the state of Kansas, by William Barrett, therefore, I, Max Lamont, sheriff of Pratt county attorney of Pratt county, to per- county, Kansas, by virtue of the authorpetually enjoin John Burkholder, E. N. ity in me by law vested, and in pursuance Watson, and J. D. Fitzsimmons, county of the above order of said board, do hereby commissioners: Demcy Lewis, county clerk; give public proclamation and due notice E. W. Farmer, county treasurer; and that the above and foregoing proposition James K. Beauchamp and Tirzah F. will be voted on at the general election to Beauchamp, from carrying into effect be holden in Pratt county, November 2d, a certain transaction whereby the Beau- 1886, the returns made, and the result aschamps sold and conveyed 240 acres certained and declared, as by law providof land to Pratt county, and received in ed. In witness whereof, I, Max Lamont, payment therefor a county warrant or sheriff of Pratt county, Kansas, have herescrip, signed by the chairman of the board unto set my hand at Iuka, Kansas, this of county commissioners and the county 11th day of October, 1886. MAX LAMONT." clerk, for $11,050, and an agreement by That said order and proclamation was the county to assume and pay an incum- published in the Pratt County Times by brance upon the land of $950, making a said sheriff. Third. That the record shows total of $12,000, as the purchase price of that 1,082 votes were cast in favor of said the land. The case was tried before the proposition, and 338 against it, at the gencourt without a jury, and the court made eral election held November 2d, 1886, the the following findings and conclusions, and record showing same being as follows: rendered the following judgment, to-wit:Assessment with which to purchase poor"Findings of Fact. First. That on the farm: For: Haynesville, 39; Carmi, 46; -day of 1886, the board of coun- Naron, No. 1, 72; Naron, No. 2, 27; Iuka, ty commissioners of Pratt county, Kansas, 42; McClelland, 96; Center, 417; Logan, 3; while in regular session, made an order to McPherson, 7; Valley, 59; Saratoga, 9; submit the question to the voters of Pratt Gove, 23; Elm, 39; Pusey, 32; Grant, 41county whether or not a tax should be Springvale, 51; Banner, 30; Richland, 43. levied to raise money with which to pur-Total, 1,082. Against: Haynesville, 8; chase a poor-farm for said county; that Carmi, 4; Naron, No. 1, 2; Naron, No. 2, 1; no record of said order appears on the Iuka, 91; McClelland, 5; Center, 4; Logan, journal of the proceedings of said board. 5; McPherson, 4; Valley, 19; Saratoga, 43; Second. That afterwards the following or- Gove, 40; Elm, 33; Pusey, 20; Grant, 26; der was drawn up by the then county at- Springvale, 4; Banner, 24; Richland, 7. torney, and delivered to the sheriff of the Total, 338.' Fourth. It was generally uncounty for publication, to-wit: 'Order of derstood throughout the county that a County Commissioners. Whereas, the pres-purchase would be made of a poor-farm ent system of caring for the poor of Pratt for said county, pursuant to said election, county has become burdensome, and the and numerous offers were made to the board of commissioners believing it to be commissioners by parties who had farms expedient and economy to purchase a to sell; and on the 6th day of October, poor-farm, it is therefore ordered that at 1887, said commissioners accepted the offer the general election in November, 1886, a of Tirzah F. Beauchamp to sell the folvote be had on the proposition, "Shall an lowing described premises, situated in asessment on the next year's valuation, Pratt county, to-wit: The east half, northnot to exceed eight mills on the dollar, be west quarter, and the north half, northmade to raise a fund to purchase and east quarter, and south-west quarter of equip a poor-farm." Persons voting in north-east quarter, and north-west quarfavor of the assessment to make the pur-ter, south-east quarter, section 15, townchase shall have printed or written on ship 28 south, of range 13 west,-and agreed their ballots, "For the assessment, not to exceed eight mills on the dollar, with which to purchase a poor-farm." Persons voting against the assessment, and against the purchase of a poor-farm, shall have printed or written on their ballots, "Against an assessment, not to exceed eight mills on the dollar, with which to purchase a poor-farm." It is further ordered that the sheriff of Pratt county give due notice by publication of the above order in the Pratt County Press and in the Pratt County Times; also, by posting no to and did pay therefor $12,000, in scrip of said county; and said Tirzah Beauchamp and her husband conveyed the same to the county by warranty deed, and the county now has title thereto, subject only to an incumbrance of $950, which the county as sumed by the terms of said purchase and conveyance; that the same was paid for by county warrant No. 1594, payable out of the poor-fund of Pratt county, Kansas; that said warrant is as yet unpaid. Fifth. That the said board of county commissioners did not levy a tax in the year 1887 to raise money with which to purchase a poorfarm, and have not since made any levy for such purpose." ties forming such joint ownership as is by this act provided for their respective counties." "Sec. 29. To raise the sum neces"Conclusions of Law. First. That de- sary for the purchase of land, and the erecfendants are entitled to judgment. Sec- tion and furnishing of the buildings for ond. In this case, the fact that, in sub- such asylums, the board of county committing to a vote of the people the missioners in the several counties shall amount of money to be raised to pur- have power to assess a tax on property chase and equip a poor-farm, the same liable to taxation for raising a county revwas done by submitting the rate per cent. enue, not exceeding five hundred dollars, instead of a sum total, if irregular, does unless the amount of taxes to be assessed not invalidate the purchase. Third. The shall be submitted to a vote of the people fact that said commissioners may have at some general election, and a majority of levied said tax at a time or year subse- all the votes cast at a poll opened for that quent to the time expressed in the vote purpose shall be in favor of such assessauthorizing them to make such levy does ment." By virtue of the foregoing statnot render said levy void. Fourth. In mat- utes an election was ordered by the board ters of the character involved in this suit of county commissioners of Pratt county, the court has little to do with the judg- and the election was held and the land purment of the board of county commission-chased; but it is claimed that all this was ers. The question of good or bad bargain is only important as a circumstance throwing light upon the bona fides of the transaction. It is therefore considered, ordered, and adjudged by the court that the prayer in plaintiff's petition, that the county warrant therein described be canceled, and held for naught, is refused, and that the writ of injunction therein prayed for be, and the same is, hereby denied." For the purpose of having the foregoing judgment reversed, the plaintiff, as plaintiff in error, brings the case to this court. Geo. H. Closson, William Barratt, and J. F. King, for the State. J. C. Ellis and Rossington, Smith & Dallas, for defendants in error. void for the reasons following: 1. It is claimed that the election was void for the reason that no record of the order of the board of county commissioners calling the election was ever made. It is true that the county clerk failed to enter of record the order of the county board calling the election, but the order was nevertheless made and published, and the election was in fact held, in pursuance of such order, and the people of the county generally voted at such election, and the proposition received in its favor a vast majority of all the votes cast at such election; and no effort, it would seem, was ever made until this action was commenced to contest the election, or to set it aside, or to have it declared illegal or void, but, on the VALENTINE, J., (after stating the facts as contrary, it was treated as legal and valabove.) The principal question involved id, and the rights of third parties have in this case is with reference to the validity now intervened. And for all these reasons or invalidity of a certain purchase, by the we think that the election should now be board of county commissioners of Pratt held to be valid. See the following cases, county, of certain real estate, to be used where records were either defective or not for a poor farm. The authority given by made at all: Gillett v. Commissioners, 18 statute to the board of county commis- Kan. 410; Railroad Co. v. Tontz, 29 Kan. sioners to purchase land to be used for 460; Railroad Co. v. Commissioners, 36 such a purpose, and to levy taxes to pay Kan. 121, 12 Pac. Rep. 593; Bigelow v. City for the land so purchased, will be found in of Perth Amboy, 25 N. J. Law, 297; Taysections 25 and 29 of the act relating to re-mouth v. Koehler, 35 Mich. 22; Bank v. lief for the poor. Comp. Laws 1885, c. 79, §§ 25, 29. These sections read as follows: "Sec.25. It shall be lawful for the board of county commissioners in the several 2. It is further claimed that the election counties in this state, whenever they may is void for the reason that the order of the deem it advisable, to purchase a tract of county board calling the election submitland, in the name of their respective coun- ted to the electors, to be voted upon the ties, and thereon to build, establish, and question of a rate per cent. as the limit of organize an asylum for the poor, and to the amount of the tax that might be asemploy some humane and responsible per-sessed on the taxable property of the counson or persons, resident in their respective ty, and did not fix, as it is claimed that the counties, to take charge of the same, upon board should have done, a single and specific such terms and under such restrictions as amount of money to be voted on, above the board shall consider most advanta- which and below which the commissioners geous for the interests of the county, who could not go in procuring a poor-farm shall be called 'Superintendent of the Coun- fund by taxation; and the following cases ty Asylum;' and when two or more coun- are cited in support of this claim: Johnties shall have jointly purchased any tract son v. Commissioners, 34 Kan. 670, 691, 9 of land, and erected an asylum for the Pac. Rep. 384; Mercer Co. v. Railroad Co., poor of their several counties, they shall 27 Pa. St. 389; Dowdney v. Mayor, etc., 54 have the power to continue such joint N. Y. 186; Also, Burroughs, Pub. Secur. ownership during their pleasure; and it 273. We do not think that the authorities shall be lawful for the county commission- above cited are in point. In fact, the first ers of two or more counties to jointly pur-case cited, that of Johnson v. Commissionchase lands, erect asylums, or do other ers, is to some extent adverse to the plainthings proper and necessary for the relief tiff's claim. The amount designated in and comfort of the poor within the coun- that case was not a specific amount, but it Dandridge, 12 Wheat. 64, 74; Hutchinson v. Pratt, 11 Vt. 402, 421; City of Troy v. Railroad Co., 13 Kan. 70. 5. It is further claimed that the time lim was "a sum not to exceed thirty thousand | the land to six on each side. Under the cirdollars; and yet the election in that case cumstances of this case, however, we think was held to be valid and binding. The the court below certainly did not err. The next case, that of Mercer Co. v. Railroad question as to the value of the land was Co., might at first glance seem to be appli- not, directly in issue in the case, and had cable, but even that case is not in point. but very little materiality therein. The In that case, under the statutes of Penn- value of the land could be shown only as a sylvania, the county commissioners were circumstance tending to show either good mere instruments for carrying out the will, faith or bad faith in the purchase and sale intention, and determination of the grand of the property. If the purchase and sale jury, and had no discretionary power of were in good faith, and without fraud, it is their own. Under the laws. of Pennsylva- immaterial whether the commissioners paid nia, the grand jury determined everything, too much or too little for the property. and the commissioners determined nothing. Under the circumstances of the case, we The court in that case says: "The action think that the limitation imposed by the of the grand jury was intended to be man- court as to the number of witnesses was datory; a command, and not merely an very reasonable. Hilliard v. Beattie, 59 authority." The other authorities cited N. H. 462; Railroad, etc., Co. v. Moore, 80 are not in point. Under our statutes, and Ind. 458; Everett v. Railway Co., 59 Iowa, especially under section 29, above referred | 243, 13 N. W. Rep. 109; Bays v. Hunt, 60 to, we think the election held in Pratt Iowa, 251, 14 N. W. Rep. 785. county conferred an authority upon the board of county commissioners to pur-ited by the election for purchasing a poorchase a poor-farm for an amount greater than $500, but not for an amount exceeding the amount that a tax of eight mills on the dollar of the taxable property of the county for the year 1887 would bring. After that election the commissioners had the power to purchase any piece of land in the county for a poor-farm, and to pay therefor whatever it might be worth, provided, of course, that they kept within the limits above mentioned. Their discretion was not limited and controlled under our statutes to the extent that the discretion of the board of county commissioners in Pennsylvania was limited and controlled under their statutes. There is no statute in Kansas requiring that prior to an election such as was held in Pratt county the county board should determine and submit to the electors any specific amount of money to be voted on. Sections 17 and 19 of the act relating to counties and county officers, providing for the borrowing of money in definite amounts, have no application to this case. 3. It is further claimed that the election is void for the reason that the abstract of the votes made at the time of the canvass of the election returns by the board of county commissioners, acting as a board of canvassers, was not signed as provided by law. The abstract was not in fact signed by any person. This was another failure of duty on the part of the county clerk. It does not appear from the statutes that the members of the canvassing board should sign the abstract of votes, but the statute does require that the county clerk should certify and sign the same. Comp. Laws 1885, c. 36, § 31. We do not think that such failure on the part of the county clerk invalidates the election. farm, or for levying a tax to pay for the same, had expired before the land was purchased in this case. The election, however, furnished no such limitations. The election was held in November, 1886, and it authorized the raising of a fund to purchase a poor-farm by an assessment on the next year's valuation of taxable property, not to exceed eight mills on the dollar. The proper time for levying the tax under this election would have been on the first Monday of August, 1887, (Tax Law, § 83,) provided the commissioners could at that time have known that they would need the money to pay for the poor-farm within the next year, but the commissioners failed to levy the tax in August, 1887, and had not done so when they purchased the land, which was on October 6, 1887. But they still had time, after purchasing the land, to levy a tax for that year, and put the tax upon the tax-roll of that year; but this action was immediately commenced, and a temporary injunction allowed, which prevented them from doing so. But they can still levy the tax, provided they have not heretofore done so; for their failure at the proper time to levy the tax will not prevent their levying it afterwards. And certainly, under the circumstances of this case, their failure to levy the tax at the proper time will not invalidate their purchase of the land; and that is the only question now to be considered. We have now examined every point presented in this case that merits consideration, and we do not think that the court below committed any material error; and therefore its judgment will be affirmed; all the justices concurring. 4. It is further claimed that the purchase ALLEN et al. v. FUGET. DOUGLAS et al. v. of the land was void for the reason that the land was not worth the amount which the commissioners agreed to pay for it. Now, several witnesses testified that it was worth that amount, and several others testified that it was not worth that much; some of them testifying that it was not worth even half that much. In this connection the plaintiff in error also claims that the court below erred in limiting the number of witnesses to prove the value of SAME. CHASE et al. v. SAME. (Supreme Court of Kansas. Dec. 7, 1889.) ATTACHMENT-FRAUD. 1. The giving of a mortgage for a larger amount than was loaned thereon, and with a view of covering future loans up to the amount of the mortgage, is not conclusive of fraud, but is open to explanation as to the good or bad faith of the parties to the transaction. 2. The findings of the court that the charges of fraud upon which attachments were obtained are untrue, and the orders dissolving the attach |