rule denying foreign corporations the right to avail themselves of the statute of limitation. Williams v. Railway Co., 68 Kan. 17, 29, 74 Pac. 600, 64 L. R. A. 794, 104 Am. St. Rep. 377. In American Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393, it was held (four justices dissenting) that a statute providing that a foreign corporation upon coming into the state should be subjected to all the liabilities of domestic corporations implied that it should be subjected to no greater liabilities, and that an acceptance of the conditions of the act by a foreign corporation resulted in a contract which prevented the state from imposing any greater tax upon it than was exacted from domestic corporations, and that this restriction lasted for 20 years that being the term of life of a domestic corporation. It is not necessary to decide whether the principle there announced would apply to the present case. Railroad companies originally created under the laws of another state, but which have availed themselves of the Kansas act of 1870, are fairly to be described as at least quasi-domestic corporations. In 1886 it was thought necessary to pass a law expressly exempting such companies from the requirements imposed upon domestic companies relative to resident directors and the maintenance of general offices in the state. Gen. St. 1901, Gen. St. 1901, § 5872. We think it clear that the provisions of the act of 1898 (Laws Sp. Sess. 1898, p. 27, c. 10), relating to foreign corporations seeking to do business in the state, were not intended to apply to them. We do not think that the Legislature intended, if it had the power, to require a railway company to make application to the charter board for permission to do business here, after it had entered the state under a statutenting it, upon nting it, upon specified conditions with which it had fully complied, the same privileges and franchises enjoyed by local organizations. We therefore conclude that the answer states a good defense to the portion of the petition relating to the failure of the defendant to make application to the charter board for leave to do business in the state, and to the payment of fees in connection therewith. The remaining question is whether the defendant is required to pay any fee on account of the increase in its capital stock. According to its answer the original capital was $50,000,000. On June 18, 1901, its stockholders by an order duly made directed that the capital stock should be increased to $100,000,000, but no part of this authorized increase was ever paid in, none of the additional stock was ever sold, and no certificates were issued therefor. On August 27, 1907, a like order was made authorizing a further increase of $100,000,000, but none of this additional stock was ever subscribed for or issued. No certificate of increase was ever filed with the Secretary of State of Kansas. as follows: "When any corporation doing business in this state shall hereafter increase its authorized capital stock it shall pay to the State Treasurer, *** for the benefit of the permanent school fund, the fee of one-tenth of one per cent. of the amount of such increase, and shall pay to the Secretary of State, for filing and recording the amendment or certificate authorizing such increase, the same fee as provided in section 5 of this act for filing and recording charters; and the Secretary of State shall not file, record or certify to such increase of its authorized capital until all the provisions of this act have been fully complied with." In 1901 this was amended; no important change being made excepting as to the amount of the fee to be paid. Gen. St. 1901, § 1265. In 1907 the whole corporation act was revised, and the following provision was substituted for that just quoted, the earlier one not being in terms repealed, although such a repeal was mentioned in the title: "When any corporation doing business in this state shall increase its capital stock, as heretofore provided, such corporation shall pay to the Secretary of State, at the time of filing the certificate thereof, a capitalization fee upon the amount of such increase, which fee shall be computed in the same manner as heretofore provided for the original capitalization; provided that the minimum capitalization fee for increase of capital stock to be paid by any corporation, foreign or domestic, shall be ten dollars." Laws 1907, c. 140, § 23, subd. 5. Section 20 of the act of 1907, which is not materially different from section 1273 of the General Statutes of 1901, reads: "Any state may increase its capital to any amount not exceeding three times the amount of its authorized capital by vote of the stockholders as heretofore provided, or such corporation may increase its capital to any amount by vote as aforesaid, provided there be an actual bona fide, additional paid-up subscription thereto equal to the amount of such increase, and such increase shall become a part of the capital of the corporation from and after the date of filing the certificate of such amendment in the office of the Secretary of State." Section 27 of the act of 1907 is precisely the same as section 1267 of the General Statutes of 1901, which reads: "Any corporation organized under the laws of another state, territory, or foreign country, and authorized to do business in this state, shall be subject to the same provisions, judicial control, restrictions, and penalties, except as herein provided, as corporations organized under the laws of this state." therefore appears that at all times since the defendant entered the state the law has required both domestic and foreign corporations to pay a fee upon every increase of their capital stock, and the defendant is liable for such payment as a condition for con corporation organized under the laws of this It sas, unless it is relieved therefrom upon one | is to be paid whenever the corporate power of these grounds: (1) That it is also engaged in interstate commerce; (2) that the facts stated do not show an increase of capital within the meaning of the statutes; and (3) that the omission to file a certificate of increase with the Secretary of State prevents liability attaching for the payment of the fees. All questions growing out of the fact that the defendant does an interstate as well as an intrastate business have been passed upon in State v. Telegraph Co., 75 Kan. 609, 90 Pac. 299, and nothing now need be said upon the subject further than that the court adheres to the views expressed in the opinion in that case. to issue stock is increased, regardless of whether any new stock is actually issued or subscribed for. If, therefore, the pleadings show an increase in corporate capacity to issue stock-an amendment of the charter in that regard-the defendant is liable for the payment of the statutory fee therefor. The answer denies that such an increase has taken place, unless that result necessarily follows from the steps detailed. These steps, however, fall just short of the consummation of the increase. We must presume that the statutes of Missouri, like those of Kansas, make the increase of the corporate stock of a domestic corporation effective from the time of the filing of a certificate with the Secretary of State. Unless such a certificate has been filed with the Secretary of State of Missouri, there has been no change in the defendant's chartered power. The plaintiff by pleading a valid increase of capital asserts that a certificate has been filed in Missouri. The defendant denies this by saying that no increase has been effected, although all the other steps necessary to that end have been taken. Issue is thus joined on this question of fact, and the answer is therefore not demurrable in this aspect of the case. The failure of the defendant to file a certificate of an amendment to its charter with the Secretary of State of Kansas is a very different matter. That is not a prerequisite to a valid change, nor to liability for the fee exacted on that account. True, the statute makes the fee payable when the certificate is filed, and by delaying such filing the corporation may incur an additional liability under a new statute (Cudahy Co. v. Denton, 79 Kan. 368, 97 Pac. 439), but it cannot by its own neglect defeat or postpone the right of the state to exact the payment. The second question suggested involves this one: Does the statute relating to the payment of fees upon the increase of the capital stock of a corporation have reference to actual or potential stock? It is said that, when the phrase "capital stock" is used in a statute, it usually, but not always, means stock which has been paid up or is subject to be paid up. 10 Cyc. 365. The real meaning in a particular instance is, of course, to be determined by the subject-matter and context. Illustrative cases are collected in 1 Words & Phrases Judicially Defined, 960961. There is no difficulty in determining that in the statutes under consideration the authorized capital stock is meant. The original law on the subject (Gen. St. 1901, § 1265) referred explicitly to an increase in the "authorized" capital stock. The corresponding part of the present act (Laws 1907, c. 140, § 23, subd. 5) must be deemed a continuation of the earlier provision, not a new en actment. Gen. St. 1901, § 7342, subd. 1. In the act of 1907 the provisions for the payment of fees based upon the original capitalization and upon the increase are included in the same section (Laws 1907, c. 140, § 23), the first sentence of which relates to the payment of a fee based upon the amount of the "authorized" capital. In the subsequent provision relating to an increase of the cap- PORTER, J. (concurring specially). I conital stock the word "authorized" is not re- cur in the result, but not in all that is said peated, but it is perfectly obvious that the in the opinion respecting the liability of desame character of capital is meant. The fendant to pay fees on a potential increase repetition of the term "authorized" was un- of its capital. I concur in holding that denecessary to make the meaning clear, because fendant cannot avoid liability for payment that was plainly the kind of capital that was of an increase of its capital by its own negin the mind of the Legislature. That body, lect to file a certificate of such increase with having fixed a fee to be paid measured by the Secretary of State here; and I think, if the authorized capital, added: "When any it has been authorized to increase its capital corporation shall increase the cap- stock and has in fact issued so much as one ital stock such corporation shall share of the increase, it becomes liable for pay a capitalization fee upon the the payment of fees upon the entire amount amount of such increase, which fee shall be of increased capital, but that the power to computed in the same manner as heretofore issue must be first exercised before the state provided for the original capitalization." | can lawfully exact payment of fees for such This can only mean that the additional fee increase. * * For the reasons stated, the demurrer to the answer is overruled. All the Justices concurring. STATE v. JACKETT. ed his life to be in danger; that he had been warned that an attempt would be made on (Supreme Court of Kansas. Nov. 6, 1909. Re- that night to kidnap him, and take him from hearing Denied Nov. 18, 1909.) HOMICIDE (§ 300*)-SELF-DEFENSE-SUBMISSION OF ISSUES. In a prosecution for a homicide, where there is substantial evidence tending to show that the accused acted in self-defense, the fact that he denies having committed the act which caused the death is not necessarily a ground for refusing to submit to the jury the question whether the killing was justifiable. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 614-632; Dec. Dig. § 300.*] (Syllabus by the Court.) Appeal from District Court, Kingman County; P. B. Gillett, Judge. W. E. Jackett was convicted of manslaughter, and he appeals. Reversed and remanded. John W. Adams and George W. Adams, for appellant. F. S. Jackson, Atty. Gen., H. E. Walter, D. M. Dale, and Charles D. Shukers, for the State. MASON, J. W. E. Jackett appeals from a conviction of manslaughter in the fourth degree. The state's evidence tended to show these facts: On the night of October 31st, at about 1 o'clock, a party of 13 boys and young men, of ages varying from 17 to 23 years, while engaged in a number of lesser depredations, for a period of three or four minutes stoned a small wooden house occupied by Jackett as a restaurant, and also as his home, throwing against the sides and roof stones described as varying in size from that of a hen's egg down. Some one, presumably Jackett, came out of the building, and fired five shots from a revolver. The assailants left, but returned in about 20 minutes, and the episode was repeated. This time two shots were fired, one of which wounded a member of the party, causing his death. On being arrested, Jackett admitted that he had probably fired the fatal shot. his house; that about a month before he had had trouble with a member of the attacking party, and had caused his arrest; and that the person arrested had since threatened him with personal violence. This offer was rejected. The trial court refused to instruct the jury upon the law of self-defense, taking the view that no issue of justifiable shooting could be involved after the defendant had testified that he had not shot at all. This view is certainly a plausible one; for, in denying that he did the shooting the defendant necessarily denied that he had done it for his own In a civil protection under stress of fear. case the testimony which a party gives in person ordinarily is absolutely binding upon him, and limits the scope of inquiry quite as much as though the statements made by. him on the stand were formally inserted in his pleading by amendment. But in a criminal case no further pleading can be required of the defendant who has entered a plea of not guilty, and under that he may make any ordinary defense. He is not absolved from all obligation to be consistent in his attitude. but he is not to the fullest extent controlled by the rules of equitable estoppel. Here the testimony offered by the accused was not contradictory to that which he had already given. It might be true that he did not shoot, and yet the circumstances might have been such that shooting would have been justifiable; just as one sued for uttering defamatory words may truthfully maintain that he never spoke them, and that they were true. Cole v. Woodson, 32 Kan. 272, 4 Pac. 321. The fact that a man denies that he killed another is not complete proof that, if he did, the act was without excuse, inasmuch as in making the denial he may be actuated by a repugnance to admit that he has taken human life under any circumstances. Jackett's proffered testimony that during the attack upon his house he entertained a reasonable fear of bodily harm was not objectionable on the ground that it contradicted what he had already sworn to, but only on the theory that what he had already said by eliminating the issue of self-defense had made testimony as to his own state of mind immaterial. theory is unsound because the jury were not bound to treat his testimony as wholly false or wholly true, for it in fact might be partly false and partly true. State v. Kittle, 70 Kan. 241, 243, 78 Pac. 407. Their first duty was to decide whether he did the killing. If they had found otherwise, their labor would have been at an end. But, having disbelieved his testimony on this point, it then became necessary to determine the circumstances of the killing. This involved inquiring, not only whether certain conditions were present, such That At the trial Jackett took the stand on his own behalf, and denied having done the shooting, denying also that he had any recollection of having admitted it. He testified that during the assault upon his house he had heard some person using oaths, and telling others to shoot. This was partially corroborated by a witness for the state, who said that such language was used by one of the assailants, possibly more than once, but not until the last shot had been fired. There was also evidence that at the time of the trialsome six weeks after the homicide-holes were observable in the building apparently made by bullets. The defendant further testified that shortly before the attack some one came to his door and tried to get in. He also made an offer to show that during the throwing of the stones against the building he was in great fear of personal injury, and believ*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes as willfulness and premeditation, that would aggravate the offense, but also whether certain other conditions existed, such as heat of passion or the appearance of imminent peril, that would palliate it or even absolve the defendant from legal liability altogether. In a number of homicide cases it has been held that the denial by the defendant that he did the killing rendered it unnecessary to instruct upon the matter of self-defense. But in nearly or quite all of them there was an entire lack of evidence that the killing was justifiable, so the decisions resulted from the application of the ordinary rule. 10 Encycl. of P. & P. 173. Where there is evidence that would support a finding of self-defense, it has been held that the instructions should cover that feature of the case, notwithstanding the defendant's testimony that he did not do the act from which the death resulted. Reed v. State, 141 Ind. 116, 40 N. E. 525; Morris v. Commonwealth (Ky.) 46 S. W. 491; Gatliff v. Commonwealth, 107 S. W. 739, 32 Ky. Law Rep. 1063. In the Indiana case cited the defendant not only testified that he did not throw the stone that caused the death for which he was prosecuted, but he also objected to instructions being submitted on the theory of self-defense. The court said: "In view of the fact, therefore, that appellant in his testimony to the jury testified to some which might have given color or tended to make it appear to the jurors in the event they believed that appellant did cast the fatal stone, that he was justified in so doing under the belief, upon his matters * * * part, that the deceased intended to inflict upon him bodily harm, we cannot hold in a legal sense that the instructions thus assailed were wholly irrelevant and inapplicable to the evidence. It was the duty of the court, under the statute, at least, to state to the jury all matters of law for their information in arriving at a verdict. If there were any facts or circumstances in the case, although quite meager, to which the instructions might upon any view be pertinent, provided they were correct in the statement of the law, it would not be erroneous for the court to give them, although they were so given to the jury over the protest and disclaimer of appellant's counsel. A judge in his instructions to a jury has a duty to perform, in the discharge of which he cannot be circumscribed or controlled by the protest or disclaimer of a litigant." Pages 122-123 of 141 Ind., page 526 of 40 N. E. In the Morris Case it was said: "From the testimony in this record Philpot's assault upon Bundy was without excuse or justification. From the testimony of the appellant and his witnesses, the defendant had a right to shoot Philpot in his own necessary defense. fendant's testimony, to the effect that he did not shoot Philpot, does not deprive him of the right to have the jury instructed upon the question of his right to shoot Philpot in defense of Bundy. The jury might have believ De wealth that the appellant did fire the shot, and they might have further believed from the testimony in the case that he shot to save the life of Bundy, or in his own self-defense." Page 491 of 46 S. W. And in the Gatliff Case: "Now it may have been that the defendant made a false statement as to the accidental discharge of the pistol, being moved thereto by fear of the result of the trial, and believing that his chances of acquittal were more favorable by saying that the pistol was accidentally discharged than by testifying that he killed the deceased in self-defense. The mere fact that the accused rested his defense on false or mistaken testimony did not deprive him of any defense which he might have truthfully made. It was the duty of the court to give an instruction upon every phase of the homicide which had a substantial basis in the evidence, leaving to the jury to say, if conflicting theories were presented, which was true." Page 740 of 107 S. W., page 1065 of 32 Ky. Law Rep. In State v. Stephens, 96 Mo. 637, 10 S. W. 172, the court held that although the defendant testified that the killing was accidental, and there was no evidence whatever tending to support the theory of self-defense, still that issue should have been submitted to the jury. This decision was manifestly wrong, and was overruled in State v. Smith, 114 Mo. 406, 21 S. W. 827. dence required the question whether Jackett In the present case it is plain that the eviacted in self-defense to be left to the jury, unless his denial of the shooting eliminated that issue. If the evidence tending to justify the killing had been clear and convincing, there would be little difficulty in saying that the jury should pass upon that feature of the case, notwithstanding his protest that he fired no shot. Suppose, by way of illustration, a bystander had seen the fatal shot fired while the pistol was pointed upwards at an angle of 45 degrees, and that marks on a building had been found indicating that the bullet had been deflected downwards. such circumstances, the theory that the defendant fired merely to frighten away his assailants, the death of one of them resulting from an accident, would have presented itself so insistently that the defendant's denial of the shooting obviously should not prevent the jury from acting on the real facts. Whether an affirmative defense which is inconsistent with a part of the defendant's own testimony should be submitted to the jury cannot depend upon the amount of proof back of it, so that it is supported by some substantial evidence. Under Aside from his denial of the actual shooting, the defendant did nothing to forfeit the right to have the jury pass upon the question whether it was justifiable or excusable. Instructions were asked in his behalf bearing upon that issue, and, while they may not have been framed with entire accuracy (as to 827, 48 Pac. 137), they served to show an in- | title until the purchase price was fully paid. tention to insist upon that ground of defense. The judgment is reversed, and the cause remanded for a new trial. All the Justices concur. ROWELL et al. v. DOSBAUGH et al. It was stipulated that the plaintiffs should drill certain wells for the gas and oil company at a stated price per foot, and a part of the amount due them for such work was to be credited upon the purchase price of the tools, as earned. A part of the casing was to be furnished by the gas and oil company. The plaintiffs completed one well. When the second well was about 850 feet deep, a part of the casing collapsed and stopped the work. Where a motion for a new trial, in which The plaintiffs became discouraged and abanthere are 10 separate and distinct grounds doned the job. The tools were not paid for, stated, has been sustained by the district court and were left by the plaintiffs. During their generally, and the record does not indicate any absence the defendants took the tools into specific ground upon which the ruling of the court was placed, such decision will not be re- their possession, and sold them at public sale, versed by the Supreme Court, unless it is made applying the proceeds upon the unpaid purclearly to appear that it cannot be justified un-chase price. The secretary of the oil and gas der either of the several grounds of the motion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3425-3427; Dec. Dig. § 856.*] (Syllabus by the Court.) Appeal from District Court, Chautauqua County; G. P. Aikman, Judge. Action by H. Rowell and others against J. M. Dosbaugh and another. Judgment for plaintiffs, and from an order granting a new trial, plaintiffs appeal. Affirmed. company, J. M. Dosbaugh, bought the tools in his own name for the company. It was contended upon the trial by the plaintiffs that the failure of the second well was due to the negligence of the gas company in furnishing an inferior quality of casing, which caused the collapse, and therefore they ought to be credited on the purchase price of the tools the full amount which they would have realized if the well had been completed according to the contract. It was claimed that if Brooks & Spencer, for appellants. W. H. such credit were given, the purchase price Sproul, for appellees. GRAVES, J. This action was commenced in the district court of Chautauqua county by H. Rowell and others against the Cedarvale Gas, Oil & Mining Company, to recover the value of an outfit of tools used in drilling oil and gas wells. The plaintiffs claimed to be the owners of the tools and alleged a conversion thereof by the defendants. The value of the property was averred to be $2,617.05. The defendants answered with a general denial. Upon the trial the jury returned a verdict in favor of the plaintiffs for the sum of $1,667. The defendants moved for a new trial, and the motion was sustained. The motion contained 10 separate and specific grounds. It was sustained generally; the court giving no specific reason for its ruling. To this decision the plaintiffs excepted, and bring the case here for review. for the tools would be fully paid. It was claimed by the gas company that the plaintiffs were indebted to it, in addition to the purchase price of the tools, for the extra use thereof, as stipulated in the contract, which amount should be credited to it in determining whether the tools had been paid for by plaintiffs or not. From this it will be seen that before the plaintiffs could establish ownership to the property in controversy, it was necessary to determine several important questions. Among these, the following may be mentioned: How much should be credited on the purchase price of the tools on account of the failure of the second well? Was such failure due entirely to defective casing? Who selected the casing used? During what length of time did the plaintiffs use the tools for their own purposes? It is unnecessary to state further the details of the controversy. Enough has been shown to indicate several propositions upon which there would naturally be conflicting testimony, and an examination of the record shows the usual disagreement of witnesses in a sharply contested controversy. It is conceded by the appellants that the decision of the district court cannot be disturbed by this court unless the ruling is made clearly to appear to be unjustifiable under any of the several grounds of the motion. To make this showing the appellants assume that of the 10 grounds of the motion the court must have considered but 2, each of which relate to the amount of recovery. We do not think that this assumption is warranted by the record. It appears that the gas and oil company had been the owners of the tools, and sold them to the plaintiffs for $1,800. In the contract of sale the company retained We are unable to find from the record that the court clearly acted arbitrarily and without just cause in granting a new trial in this case, or that there was an abuse of discretion, or indeed any cause for criticism. a general rule, trial courts are reluctant to grant new trials, and more often err in refusing than in granting them. It is seldom that trial courts have been reversed here |