Action by Charles Rosnagle against Josh | ed at Moscow, County of Latah, State of Armstrong and others. From a judgment Idaho, this 18th day of March, 1907. Atfor plaintiff, and an order denying a new test: John Randall, Pres. Melvin Lovell, trial, defendants appeal. Affirmed. Morgan & Morgan, for appellants. ney & Moore, for respondent. AILSHIE, J. This action was instituted for the recovery of a balance of $1,340.67 alleged to be due from the defendants on a joint and several promissory note executed by them for the sum of $3,600. The defendants answered, denying all the material allegations of the complaint, and denying the execution of the note. They alleged that the note was a forgery, and that they never executed The case was tried to a jury, and a verdict was rendered in favor of the plaintiff. Defendants moved for a new trial. Their motion was denied, and they appealed from the judgment and order denying the same. their motion. If this action Sec." On the trial of the case the defendFor- ants had testified that they did not sign the promissory note that was introduced in evidence by the plaintiff, and, in corroboration of their testimony, they offered this This was offered apparstock certificate. ently upon the theory that it would corroborate the statement to the effect that they never executed any joint note or obligation. The trial court sustained an objection to the offer, and the appellants assign the action of the court as error. were being prosecuted by the payee of the note, there might be some reason for the contention made, but this case is prosecuted by an innocent purchaser, and, of course, any statement made in a certificate issued by the defendants would not bind the respondent, even though the agent who made the sale of the horse for which the note was given did make the alteration and representation set forth in the certificate. There was no error in the ruling of the court excluding this offer. The fourth assignment of error was made against the action of the court in permitting the witness Gray to answer the following question: "Now, Mr. Gray, you may tell the jury whether or not you gave to Mr. Hughes or authorized him in any manner to have notes in that style, or any note other than the note which is offered in evidence, and the yellow paper, taken in settlement of that horse." Hughes did not appear as a witness in the case, and the entire controversy revolved about the transaction in which it is claimed he secured this note. The defendants contended that they had never executed the note, but that, on the contrary, they executed their individual several notes for the obligation. plaintiff was seeking to show that the defendants had executed this particular note, and that as a circumstance Hughes, the agent, had no authority to take any other kind of note than a joint note, and that he had not been supplied by Gray with any other kind of notes. We find no error in the ruling of the court in this respect. The It seems that this note, if ever executed at all, was executed by the defendants in payment of the purchase price for a stallion. It is admitted that the defendants purchased of one M. C. Gray, through an agent Hughes, a stallion for which they agreed to pay $3,000. They contend, however, and so testify, that they refused and declined to execute a joint note for this sum, but that, on the contrary, they executed their individual notes, each to the amount of $360, in payment for this purchase. It was claimed, on the other hand, by the plaintiff, who alleged that he was an innocent purchaser for value, that the agent Hughes delivered the animal to one of the defendants in accordance with written instructions and received this joint obligation for $3,600, and thereafter delivered this note to his principal, Gray, who sold and transferred the obligation to the plaintiff, Rosnagle. It seems that at the time of the transaction Hughes was present apparently making all kinds of representations to the defendants, who appear to have been as credulous in accepting them as he was reckless in making them, and during that time they organized themselves into a company for the purpose of owning and controlling this animal, and elected Randall as president, and Lovell as secretary. Hughes seems to have had some Finally, it is urged by the appellants that blank forms that he called "certificates of the court erred in permitting the witness stock," and he made out one in favor of Matthews to testify over appellants' objecRandall, which was thereupon signed by tion in response to the following question: Randall as president and Lovell as secre- "What was said in that conversation betary. This certificate contained the state- tween you and he?" After the defendants ment that Randall had given his joint notes had rested their case, the plaintiff called in payment for one share in the company, the witness Matthews in rebuttal for the but it is shown by the evidence that Hughes purpose of testifying to a conversation that crossed out the word "joint" leaving the had taken place between the witness and certificate to read as follows: "Certificate of defendant Sheldon. It was competent for Stock. This is to certify that Mr. John the witness to testify to statements made Randall has given his notes in payment for to him by Sheldon. It is true that some his one share of three hundred sixty dollars parts of witness' answer should have been per share, in the registered Percheron stal- stricken out and not permitted. That is es It was competent for the defendant to bring out, or show, that the principal witness for the prosecution, who it was claimed was also involved in the offense charged, when called upon ment made by the witness as to what he | 5. WITNESSES (§ 374*)—ANIMUS-MOTIVE. (the witness) told Sheldon that Gray would be willing to do, and the further statement that Gray would not want to collect the debt but once. It does not appear, how-to testify at the preliminary examination of deever, that this is of such prejudicial character that it would authorize or justify a reversal of the judgment. No specifications of insufficiency of evidence have been made, and, in fact, there is a substantial conflict of evidence on all the material questions involved in the case. We could not disturb the verdict on the grounds of insufficiency of evidence. It is quite apparent from the record in this case that these appellants have permitted themselves to be hoodwinked and deceived by the man Hughes. If their statements are true, they certainly have a remedy by which they can bring this man to justice. fendant, refused to give his testimony, that he eral hours unil he became willing to testify, and was then committed to the county jail for sevthat then he was brought in, and gave testimony exculpating himself and supporting the charge against defendant; and defendant is also entitled to bring out any circumstances tending to show that the testimony of the witness was obtained by coercion, interest in the result of the trial, or which might affect his credibility. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.*1 6. CRIMINAL LAW (§ 811*)-INSTRUCTIONSEMPHASIZING PARTICULAR FACTS. It is not proper for a court in instructing a jury to call special attention to an isolated fact, and by making it prominent suggest to the jury that it is of greater significance and weight than other unmentioned facts in the case which Judgment is affirmed, with the costs in are of no less importance. favor of respondent. STATE v. TAWNEY. (Supreme Court of Kansas. Nov. 6, 1909.) [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig § 811.*] (Syllabus by the Court.) Appeal from District Court, Franklin County; C. A. Smart, Judge. Bert Tawney was convicted of hog theft, and he appeals. Reversed and remanded. See, also, 99 Pac. 268. W. J. Costigan and Ralph E. Page, for ap1. CRIMINAL LAW_(§ 137*)—VENUE-CHANGE pellant. F. S. Jackson, Atty. Gen., and W. -PREJUDICE OF JUDGE. A court is not compelled to grant a change of venue upon the affidavit of defendant alleging prejudice of the judge, although no counter affidavit, or proof, is filed, where the judge is satisfied that his mind is free from prejudice, and that the statements in defendant's affidavit are without foundation. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 253; Dec. Dig. § 137.*] 2. CRIMINAL LAW (§ 125*)-VENUE-CHANGE -PREJUDICE OF JUDGE. The fact that the court, in approving a verdict and pronouncing sentence at a former trial of defendant upon the same charge, expressed an opinion of defendant's guilt, does not of itself indicate prejudice. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 242; Dec. Dig. § 125.*] 3. CRIMINAL LAW (§ 655*)-TRIAL-CONDUCT OF JUDGE EXPRESSIONS OF OPINION. Ordinarily an expression of opinion by the judge upon an issue of fact has great weight with jurors, and he should therefore carefully abstain from indicating his opinion upon a material question of fact which it is the province of the jury to determine. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.*] 4. WITNESSES (§ 372*)-CROSS-EXAMINATIONMOTIVE. It is competent for a defendant to bring out on cross-examination of a witness against him any fact or circumstance tending to show that his testimony may have been influenced or colored by intimidation or by some selfish or personal motive, and thus aid the jury in measuring the value of the testimony. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*] B. Pleasant, for the State. JOHNSTON, C. J. This is an appeal from the second conviction of Bert Tawney for the larceny of two pigs. The first error assigned is based on the action of the court denying an application for lant alleged that the district judge was preja change of venue. In his affidavit appeludiced against him, and that it was evidenced by the manner, tone of voice, and prejudicial comments of the judge in the former trial. Upon an objection to the reading of the affidavit, the district judge stated that: "I don't care to hear the affidavit. Motions for a change of venue on the ground of prejudice of the court have become so much a matter of course in certain cases that we naturally look for them. In this motion the defendant swears that the court is prejudiced against him. That is absolutely false, and I believe he knew it was false when he swore to it. He also swears that the court has expressed the opinion that he is guilty of the crime charged against him. That is absolutely true. I did think so, and I told him so when I sentenced him. If I had not thought so, I would not have sentenced him." The personal knowledge of the judge as to the state of his own mind is not to be ignored, and he is not compelled to grant a change of venue upon the affidavit of a defendant, although there is no counter affidavit, especial ly where he is conscious that he is free from | thia Tawney, his sister: That these pigs, prejudice and believes that the statements which belonged to Mathias, were trespassing in defendant's affidavit are without founda- on the Tawney farm; that she caught two of tion. City of Emporia v. Volmer, 12 Kan. them and took them over to Lockwood's place, 622; State v. Bohan, 19 Kan. 28; State v. telling him that they belonged to Mathias; Grinstead, 62 Kan. 593, 64 Pac. 49; State that she left them with him, and later traded v. Parmenter, 70 Kan. 513, 79 Pac. 123. The them to him for a small sow. She also tesfact that, when the sentence of the law was tified that she did not inform her husband, pronounced upon the appellant at the for- the appellant, of what she had done, until mer trial, the court expressed the opinion Mathias found his pigs in Lockwood's place, that he was guilty, does not of itself indicate which was shortly before her husband's arprejudice. The jury were of the same opin- rest. The appellant proposed to prove that ion. Complaint is made, however, that the at the preliminary examination Lockwood statements of the court in denying the motion was called as a witness for the prosecution must have reached the ears of the jurors and and refused to testify, that he was then comresulted in prejudice to the appellant. The mitted to the county jail for several hours, strong language employed by the court, which and afterwards was brought in and gave tesin effect imputed perjury to the defendant, timony exculpating himself and putting the if used in the presence of jurors, may have theft of the pigs upon the appellant; but upbeen harmful to the defendant. While the on objection the testimony was excluded, the ruling was made just before the impaneling court saying that, “unless he was put in there of the jury, it does not appear that any part for some crime, it is wholly immaterial." of the panel was present at the time the Counsel for appellant suggested that he want statement was made, nor that the remarked to show that this witness, who had pos was brought to the attention of any juror session of the stolen pigs and might be conwho tried the case. cerned in the theft, was intimidated by being placed in jail for refusing to testify, and that his coming in and giving the testimony desired when released from custody had a tendency to show duress. In response the court said, "Oh, there is no evidence at all of duress." Counsel persisted in the claim that the evidence was admissible, and the court remarked that, "If he [Lockwood] was a competent witness, and refused to testify, the justice had a right to compel him." To this counsel replied that, "No man can be compelled to testify so as to incriminate himself." The court then responded: "That is the privilege of the man on trial, not of a mere witness who was competent to testify. I say again, if he was sent to jail, for some crime, you might show that; but I think this is not proper here. It is immaterial." The testimony should have been received, and that without being minimized or discredited by the remarks of the court. The appellant was entitled to any evidence affecting the credibility of Lockwood and the force to be given to his testimony. He was the principal witness against appellant, and, according to some of the testimony, was himself involved in the larceny of the pigs. He was interested in clearing himself of complicity in the theft. If, when first called upon to testify to what he knew of the transactions, he refused to answer questions, and if he was induced to testify against appellant in order to escape prison or to protect himself, or if there was any intimidation or peculiar inducement for him to testify as he did, or if he had any special interest in the result of the prosecution, it was proper to bring it out on crossexamination. There is complaint of the ruling on the admission of the testimony of Beecher Day, who was a witness in behalf of the state in the former trial, but who was declared insane and had died before the second trial. The objection to the testimony was on the ground that Day was insane when his testimony was given, and that to falsify was one of his peculiar infirmities. Counsel for appellant proposed to make a showing to this effect, but the objection was overruled; the court remarking that "I saw the witness at the former trial, and I heard him testify, and I saw no signs of insanity about him." Afterwards the defense was permitted to introduce the insanity proceedings that had been had in September, 1908, and in which it was found that Day was insane, that his disease was of two years' duration, and that he was subject to epilepsy and manifested suicidal tendencies. The testimony in question was given by Day in September, 1907. Since the main facts involved in the offer were subsequently received in evidence at the instance of appellant, there is little reason to complain of the earlier ruling. There is some ground, however, for complaint of the remark of the trial judge in the presence of the jury that he had observed the witness when he testified, and "saw no signs of insanity about him." Ordinarily an expression of opinion by the judge upon an issue of fact has great weight with jurors, and he should not indicate his opinion upon a fact which it is the province of the jury to determine. It is not easy to say that this one had no influence with the jury. Error is assigned on rulings made on the cross-examination of Joe Lockwood, the principal witness against the appellant. The stolen pigs were found in the possession of It was competent for appellant to show any circumstance which might tend to show that the testimony given may have been influenced ed of. [Ed. Note.-For other cases, see Pardon, Dec. Dig. § 4.*] 2. CRIMINAL LAW (§ 1147*)-REVIEW-DISCRETION OF COURT-PAROLE OF PRISONER. The exercise by a judge of his discretion in paroling a prisoner, under section 2, c. 178, p. 281, Laws 1907, authorizing such action when has been assessed, or a jail sentence imposed, satisfied that any person against whom a fine etc., is not open to review on appeal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3072, 3073; Dec. Dig. § 1147.*] Appeal from District Court, Finney County; William H. Thompson, Judge. Samuel Nite was released from jail on parole, and the State appeals. Order of parole affirmed. F. S. Jackson, Atty. Gen., and Edgar Roberts, for the State. W. R. Hopkins and H. O. Foster, for appellee. and in that way aid the jury in measuring | punishment imposed, and not the crime convictthe value of his testimony. It was his privilege to refuse to give testimony which would expose him to a criminal charge or to any kind of punishment. This privilege is not confined to the one on trial, as was suggested, but is available to any witness called to testify in the case. The materiality of the ruling excluding this evidence was enhanced by an instruction of the court singling out the testimony of Lockwood to the effect that appellant had offered him money to "hike out" and remain away for two years until the trouble would "blow over." The instruction was: "If you believe from the evidence that the defendant attempted to corrupt witnesses for the state, or offered to pay witnesses for the state to absent themselves, and thus deprive the state of their testimony, you have a right, and it is your duty, to take such matters into consideration in determining the guilt or innocence of the defendant." The testimony on the subject had been submitted to the jury, and it does not appear that there was any danger of it being overlooked by the jury; nor is any reason seen why it was necessary to place special emphasis upon this single circumstance. It is a dangerous practice to call special attention to an isolated fact, and thus, by making it prominent, lead the jury to the opinion that it is of greater significance and weight than other unmentioned facts in the case which may be of no less importance. 12 Cyc. 649. Under the circumstances, it would seem that undue prominence was given to this phase of the case, and, as stated, it made more material the error of the court in limiting the inquiry as to the motives and credibility of the witness who gave the emphasized testimony. There are some other objections; but, as they may not arise in another trial of the cause, it is not deemed necessary to consider ONER. The power of the district court and courts of common pleas or the judges thereof, under section 2, c. 178, p. 281, Laws 1907, providing that "when satisfied that any person against whom a fine has been assessed or a jail sentence imposed by said court" may parole such person upon certain conditions, is not limited by section 3, relating to the parole of another class of persons, so as to make the parole of one convicted of manslaughter in the third degree and sentenced to imprisonment in the county jail unlawful; the power to parole depending upon the PER CURIAM. Samuel Nite was convicted of manslaughter in the third degree and sentenced to imprisonment in the county jail for one year and to the judgment the court added an order that, upon giving a bond of $1,000 for his good behavior and appearance in court from time to time, he would be paroled. In an appeal from the order of parole the state contends that under the provisions of chapter 178, p. 281, Laws 1907, there was no power in the court to parole the appellee or any one else convicted of manslaughter. In section 2 of that chap ter specific authority is given to district courts and courts of common pleas to parole persons "against whom a fine has been assessed or a jail sentence imposed by said court or any person actually confined in jail under judgment of a justice of the peace, city court, or other like inferior court, but not police court." Under this section, the power to parole depends upon the punishment imposed, and not upon the crime charged or of No mention is which he was convicted. made of either misdemeanor or felony in the section, but it simply provides that at the discretion of the trial court it may parole a convict against whom a fine is assessed or a jail sentence is imposed. The provision is so explicit that no room is left for interpretation. Nothing in section 3 would justify reading into section 2 a limitation wholly inconsistent with the positive language of that section. Provision is made in section 3 for the parole of another class of persons based on different conditions. It authorizes the parole of minors convicted of any felony, except murder, manslaughter, rape, arson, or robbery, where the punishment provided for is imprisonment in the penitentiary or industrial reformatory. While the whole act relates to the general subject of the parole of persons convicted of crime, each section of the act treats of different classes of convicts, and each is complete in its provisions so I placed thereon; and that the petition did not far as the power to parole is concerned. The allege violation of that statute as it existed court had undoubted power to parole the when the accident occurred. Railway Co. appellee, and it is conceded that the exercise v. Brinkmeier, 77 Kan. 14, 93 Pac. 621. Upof the discretion of the court in such cases is on a new trial on July 8, 1908, the plaintiff not open to review. asked leave to amend his petition by adding averments which this court had held to be necessary in order to bring the case under the federal law. The request was denied, and a demurrer to his evidence was sustained. He brings this proceeding to review these rulings. The order must therefore be affirmed. BRINKMEIER v. MISSOURI PAC. RY. CO. INGS. The defect in the petition, regarded as an attempt to state a cause of action under the A written stipulation as to the existence act of Congress, was its failure to allege of certain facts entered into by the parties to that the car having the defective coupling an action for the express purpose of avoiding apparatus which caused the plaintiff's inthe necessity of taking depositions, the agree-jury was "used in moving interstate traffic." ment being that the statements contained may be read in lieu thereof, subject to objections as to competency and relevancy, does not enlarge the issues made by the pleadings or operate as a waiver of any omission therein. [Ed. Note. For other cases, see Depositions, Dec. Dig. § 15.*] 2. COURTS (§ 97*) DECISION OF FEDERAL COURT-CONSTRUCTION OF FEDERAL STAT UTE. The several sections of Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), making it unlawful for railroad companies engaged in interstate commerce to use cars not equipped with certain specified appliances, are framed upon the same general plan, and, notwithstanding any minor differences in their language, a declaration by the Supreme Court of the United States that one of them is intended to impose upon the carrier the absolute duty of keeping in good repair the equipment therein required, irrespective of any question of negligence, determines that a like interpretation is to be given to the others. The first paragraph of the syllabus in Railway Co v Brinkmeier, 77 Kan. 14, 93 Pac. 621, overruled. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 332; Dec. Dig. § 97.*] (Syllabus by the Court.) The provision in force at the time of the * * * The petition contained no allusion what Error to District Court, Sedgwick Coun- ever to interstate commerce, except in a ty; Thomas C. Wilson, Judge. Action by Henry Brinkmeier against the Missouri Pacific Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed. C. B. Ferguson, Kos Harris, V. Harris, and Phillip J. Doherty, for plaintiff in error. J. H. Richards, C. E. Benton (Smythe & Helm, of counsel), for defendant in error. statement that the defendant was a corporation doing business as a railway company "as a common carrier into and through the counties of Sedgwick and Reno in the state of Kansas and into the states of Colorado, Nebraska, Missouri, Arkansas, Texas, Oklahoma, and Indian Territory.' sufficient allegation that the company was engaged in interstate commerce, and warrants the inference that the car in question MASON, J. On November 12, 1900, in or was used on a railroad over which internear the city of Hutchinson, Kan., Henry state commerce was conducted. Therefore Brinkmeier, a brakeman in the employ of the facts pleaded would have constituted a the Missouri Pacific Railway Company, was good cause of action under the letter of the injured while engaged in coupling cars. He law as it now stands. But, prior to the sued the company, alleging that his injury amendment of 1903, the statute did not apwas occasioned by various defects in the ply to any car excepting those "used in movdefendant's equipment, and recovered a judg- ing interstate traffic." There was nothing ment, which was reversed by this court on in the petition to suggest, even remotely. two grounds, namely: That an instruction that the car the defective equipment of had been given relating to the federal safety which caused the plaintiff's injury was so appliance act, which was not in accordance used. Therefore, as decided at the former with the interpretation which this court hearing, the petition stated no cause of ac |