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Fring, Gard & Gard, for appellant. F. S. Jackson, Atty. Gen., and C. L. Evans, for the State.

the indebtedness to the bank was paid. Bank v. Jewelry Co., 123 Iowa, 432, 39 N. W. 121; Barbour v. Priest, 103 U. S. 293, 26 L. Ed. 473. While "insolvency," as used in Bankr. Act July 1, 1898, c. 511, 30 Stat. 514 (U. S. Comp. St. 1901, p. 3118], bas a meaning different from what the same term had in the act of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), still decisions by the courts upon questions arising under the act of 1867 are applicable, in so far as they announce a rule of law for determining whether a creditor receiving a preference had reasonable cause to believe that his debtor was insolvent. A leading case upon this subject is Grant v. Bank, 97 U. S. So, 24 L. Ed. 971, wherein, among other things, it is said: “It is not enough that a creditor has some cause to suspect the insolvency of his debtor; but he must have such a knowledge of facts as to induce a reasonable belief of his debtor's insolvency, in order to invalidate a security taken for his debt. To make mere suspicion a ground of nullity in such a case would render the business transactions of the community altogether too insecure. It was never the intention of the framers of the act to establish any such rule. A mau may ave many grounds of suspicion that his debtor is in failing circumstances, and yet have no cause for a well-grounded belief of the fact. He may be unwilling to trust him further, he may feel anxious about his claim and have a strong desire to secure it, and yet such belief as the act requires may be wanting. Obtaining additional security, or receiving payment of a debt, under such circumstances, is not prohibited by law." Stucky v. Bank, 108 U. S. 74, 2 Sup. Ct. 219, 27 L. Ed. 610. See, also, In re Eggert, 102 Fed. 735, 43 C. C. A. 1, where the cases are reviewed at length.

Finding no error in the record, the judg. ment and order are affirmed.

Affirmed.

PER CURIAM. The appellant was convicted in the district court of Allen county of a violation of the prohibitory liquor law. The appeal is based entirely on an alleged error of the court in overruling the appellant's motion for a continuance. The aflidavit filed in support of the motion fails to show diligence in an effort to obtain the desired evidence. The evidence was desired to dispute a witness for the state, whose name, it is to be presumed, was indorsed upon the information. Due diligence required the appellant to prepare, in advance of the trial, to rebut the evidence which such witness might give of a transaction which the appellant knew, as shown by the atidavit, occurred in the presence of the absent witness and the witness who testified for the state

The judgment is affirmed.

(76 Kan. 424) STATE V. FORD. (Supreme Court of Kansas. Oct. 5, 1907.) INTOXICATING LIQUORS-ILLEGAL SALE-EviDENce.

In a prosecution upon a charge of keeping a place where intoxicating liquors were sold in violation of law, where evidence has already been introduced tending to show that the defendant was in control of the premises in question, it is not error to permit the state to show that a number of bills for liquor and other goods found there at the time of the arrest, apparently relating to the business there carried on, were made out in bis name, as a circumstance tending to show that he was the proprietor. (Syllabus by the Court.)

Appeal from District Court, Allen County ; Oscar Foust, Judge.

Lyman Ford was convicted of an illegal sale of liquor, and appeals. Atfirmed.

Ewing, Gard & Gard, for appellant. F. S. Jackson, Atty. Gen., and C. L. Evans, for the State.

BRANTLY, C. J., and SMITH, J., concur.

(77 Kan. 850)

STATE v. BAILEY. (Supreme Court of Kansas. Oct. 5, 1907.) CRIMINAL LAW-CONTINUANCE-ABSENT TESTIMOXY-DILIGENCE.

Due diligence required accused to prepare in advance of the trial, to rebut the evidence which a witness, whose name presumably was indorsed upon the information, might give of a transaction which accused knew occurred in the presence of such witness and another person; and, in the absence of diligence to procure the attendance of the other person as a witness, accused was not entitled to a continuance for his absence.

(Ed. Note.-For_cases in point, see Cent. Dig. vol. 14, Criminal Law, $8 1335–1311.)

Appeal from District Court, Allen County; Oscar Foust, Judge.

William Bailey was convicted of violating the prohibitory liquor law, and he appeals. Affirmed

MASON, J. Lyman Ford was arrested upon the charge of being the keeper of a place where intoxicating liquors were sold in violation of law. It was shown at the trial, in addition to other evidence tending to connect him with the management of the place, that at the time of his arrest there were found in a cash register in use there several bills or statements purporting to show the sale to him of liquors, ice, and other goods. No effort was made by the state to prove by whom these documents were made, or any fact in regard to them, except as has already been stated, and the defendant, upon an appeal from a conviction, contends that they were not competent as evidence against him, and that their admission was erroneous. The fact that bills found in Ford's pres

upon the premises, and apparently relating to the business there carried on,

were made out in his name, certainly had purchases of ice, sugar, and lemons, and of some tendency to establish, not perhaps that express charges on liquors paid by the any specific items therein named had actual Warren ('lub, averaging over $10 per day, ly been sold to him, but that he was the were admitted in evidence, against the deproprietor of the place. Such evidence is fendant's objection, and the defendant exadmissible upon much the same principle by cepted.” “The paper and the book, to the which, upon an issue of ownership, it is admission of which in evidence exception permissible to show that the accused as was taken, were on the premises of which sumed to be in control of the place in ques the defendant had the care, and where he tion (State v. Skinner, 31 Kan. 236, 8 l'ac. might have seen them. They pertained to 420), or that his name appeared upon the the business of which he had charge, and sign Commonwealth v. Intoxicating Liquors, were rightly admittedl." A recent case to the 122 Mass. 36), or that his initials were same effect is Reynolds P. State (Fla.) 42 marked upon casks containing liquor which South. 373; the first paragraph of the sylwere clelivered there (Com. 1. Jennings, labus reading: "Under the rule that indi107 Mass. 488). In the case last cited, it rect, collateral, or circumstantial evidence was said: "Couch further testified, with is admissible when it tends to elucidate the out objection, that he made it seizure at inquiry, or to assist, though remotely, to a the tenement in October, 1870, when the determination probably foundeil in truth, defendant was not present; and that some it is proper, in a prosecution for illegally kegs stood near the door, with bright and selling liquor, to admit in evidence jugs fresh express tags attached to them. The which smelled as if they had had whisky district attorney asked how the kegs came In them, found at defendant's place of busithere, and the witness said he did not know, ness when he was arrested under the charge. except what the tags said. The district l'pon the same principle, papers acknowledyattorney asked what was on the tags, and ing the receipt of orders for whisky, and a the defendant objected. The judge overruled letter, offering commissions on sales of liqthe objection, and admitted the evidence to uor, found at his place of business a few show that the tenement was kept and used days after his arrest, are admissible in eviby the defendant at the time alleged in the dence; their probative force and effect to indictment; and the witness answered that be determined by the jury in connection the tags were marked 'J. J.,' and also with with other evidence." the name of the express from Ware. Yo The judgment is affirmed. All the Jusfurther evidence was given as to these tags, tices concurring. and all the testimony in relation to them was excepted to by the defendant. * The

(76 Kan. 416) testimony as to the tags was admissible. It constituted a part of the description of the

STATE v. CORY. kegs found at the tenement in question, and (Supreme Court of Kansas. Oct. 5, 1907.) in connection with the evidence of the de 1. INTOXICATING LIQUORS-PUBLIC NUISANCE fendant's continued presence there, and acts

-EVIDENCE. of control, had some tendency to show that

Bills and accounts, found in a place al

leged to be a public nuisance, are admissible he was still keeping the tenement. It was

in evidence against a defendant charged with for the jury to say whether the keys were being the keeper of such nuisance, without any thus marked with his knowledge." More further evidence connecting him therewith, for closely in point upon the facts is the case

the purpose of showing the kind of business

conducted at such place. of Commonwealth v. Jacobs, 152 Mass. 276,

[Ed. Note.-For cases in point, see Cent. Dig. 23 N. E. 403. The scope of the decision is vol. 29, Intoxicating Liquors, $ 284.] indicated by the last paragraph of the syl 2. SAME-EVIDENCE. labus, which reads: "Upon an indictment Evidence in this case examined, and found for maintaining a place used by a club for

to be sufficient to sustain a conviction of the

defendant for being the keeper of such a nuiillegally selling, distributing, and dispensing

sance. intoxicating liquors, books, and papers re

[Ed. Xote.-For cases in point, see Cent. Dig. lating to the business of the club, and found vol. 29, Intoxicating Liquors, 88 300-322.] lying about the premises, of which the de

(Syllabus by the Court.) fendant had charge, as well as of such busi

Appeal from District Court, Allen County ; ness, are admissible in evidence against

Oscar Foust, Judge. him." The character of the documents there

Jim Corn was convicted of maintaining a referred to, and the theory upon which they were admitted in evidence, are shown by

public nuisance, and appeals. Affirmed. these extracts from the statement and opin

Ewing, Gard & Gard, for appellant. F. S. ion: "A paper found in an unlocked locker, Jackson, Atty. Gen., and C. L. Evans, for the on one of the occasions above referred to, State. which was a printed form of receipt for 'initiation fee' and 'monthly dues' to the Warren GRAVES, J. On July 20, 1906, an informaClub, and a book also found on the top of a tion was filed in the district court of Allen locker, in plain sight, projecting over and be county, charging the appellant, Jim Corn, yond the topcontaining memoranda of with keeping, maintaining, and assisting in

maintaining a public nuisance, in violation kegs, liquors, or anything found in the buildof the prohibitory law. He was subsequent- | ing which tends to give character thereto is ly tried, convicted, and sentenced for such admissible in evidence for the purpose of offense. From that judgment, he has appeal-showing whether the place is a public nuied to this court, and asks that it be reversed sance or not. We find no error, therefore, on the grounds that the district court erred in the ruling of the court permitting this in admitting improper testimony, and that evidence to go to the jury. the evidence was insufficient to establish the We also think the testimony sufficient to guilt of the appellant.

justify the verdict. The defendant was lockThe only witnesses for the state were the ed in the building, and was apparently in sheriff, Assistant Attorney General for that charge and possession of the property and county, and a dealer in ice. The defendant business. That this place was a common rested upon the testimony of the state. In joint, run behind the ordinary mask of a presubstance it was shown that: The place al tended lunch counter and cigar stand, can leged to be a nuisance was a two-story brick hardly be doubted.

hardly be doubted. Defendant kept his probusiness building in the city of Iola. It was visions and cooking materials in an ice chest 25 feet wide at the sidewalk, and extended where more than a full case of bottled beer back 100 feet. The first floor was divided was packed in crushed ice. Evidently he was into three rooms by thin board partitions. either the proprietor or a person who was The front room contained a counter, shelving, actively aiding and assisting another in mainand other fixtures usually found in a small taining a nuisance. In either case, he was restaurant and cigar store. In the other guilty of the offense charged. No other rearooms were ice chests containing bottled beer sonable conclusion can be drawn from the packed in crushed ice, meat, milk, vegetables, facts and circumstances shown. Ile was and other eatables, a gas cooking stove, tables, properly convicted. chairs, about 13 full cases of beer, and fur The judgment is affirmed. All the Justices niture and fixtures. July 14, 1906, the Assist- concurring. ant Attorney General for Allen county, with the sheriff, went to this building for the pur

(76 Kan. 419) pose of arresting the keeper thereof, and to

STATE v. MCKINNEY. seize whatever liquors and other property might be there. The warrant under which

(Supreme Court of Kansas. Oct. 5, 1907.) they acted was issued against Jolin Doe. At

1. CRIMINAL LAW-FORMER ACQUITTAL.

Where the court sustains defendant's obthat time the building was locked, but, hear

jection to proceeding further with a criminal ing considerable noise inside, apparently oc trial in which testimony had been taken because casioned by the moving of furniture, they en of the failure of the court to admonish the tered the building through a window. Inside

jury before a separation and discharges the

jury, such discharge will be deemed to be inade they found the defendant, Jim Corn, with a with the defendant's consent and will not opercolored man, and a boy 15 or 16 years old. ate as an acquittal nor bar a further prosecuThe colored man was carrying cases of beer

tion. into the cellar. Jim Corn did nothing while

[Ed. Note.-For cases in noint, see Cent, Dig.

vol. 14, Criminal Law, § 335.] the officers were there, and denied being the

2. LARCENY-POSSESSION OF STOLEN PROPowner of the property taken; but, in view of

ERTY. the whole situation, the sheriff regarded him

The possession of property recently stolen as the keeper of the place. When removing does not warrant the inference that the person the ice chests, the defendant requested that

in whose possession such property is found is

guilty of larceny. It is the unexplained possesone of them be left “to keep his neats, cook

sion which constitutes prima facie evidence of ing materials, and such stuff in there"; that the offense. otherwise he would have no way to keep [Ed. Note.--For cases in point, see Cent. Dig. them. On one of the shelves behind the coun vol. 32, Larceny, $$ 170-178.] ter in the front room some bills and a book

3. SAME-EVIDENCE: of accounts were found and taken, whereupon

The evidence examined, and held to be in

sufficient to sustain a conviction. the defendant said: “You are not going to

[Ed. Note.-For cases in point, see Cent. Dig. take all the papers, too, are you?" The bills

vol. 32, Larceny, $$ 149–178.] were made in the name of “Titus & Corn,

Johnston, C. J., and Mason and Burch, JJ., Dr.," and indicated the purchase by them of dissenting. liquors by the case, in pint and quart bottles, (Syllabus by the Court.) from "Pabst & Budweiser," "Schlitz," and

Appeal from District Court, Finney Coun"Blatz" to the amount of $19.07 during the

ty; Wm. Easton Hutchison, Judge. months of June and July, 1906, and to the amount of $73.36 in June and July, the year

G. H. McKinney was convicted of larceny,

and appeals. Reversed. not being stated. The admission of these bills and accounts in evidence is assigned as error.

Miller & Foster, for appellant. F. S. JackNothing was shown to connect the defendant son, Atty. Gen., and Albert Hoskinson, for therewith except as above stated. We think

the State. this evidence was admissible, at least for the purpose of showing the kind and character of JOHNSTON, C. J. This is an appeal from the business conducted at that place. Bottles, the conviction of G. H. JcKinney for the

larceny of a mule. He was brought to trial before the court and jury on June 14, 1906, and when the testimony was concluded at 11:30 o'clock in the forenoon the court adjourned until 1:30 in the afternoon, but overlooked the duty of admonishing the jury as to their conduct during adjournment. When the court reconvened the defendant objected "to any further proceedings in this case for the reason that at the adjournment by this court at 11:30 this day the court failed to admonish the jury as required by the statute in such case made and provided.” The court sustained the defendant's objection and discharged the jury because of mistrial. The case was then set down for trial on June 19, 1906, when the defendant raised the question of former jeopardy because of the first proceedings, but it was decided against him, and upon a trial of the merits there was a verdict of guilty. He insists on this appeal that when the jury were impaneled and testimony taken jeopardy attached, that no necessity for the discharge of the jury was shown, and that the discharge of the jury operates as an acquittal.

It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarily operate as a bar to further prosecution. Here, however, there was consent, or the equivalent of consent, by the defendant, and it is well settled that if a jury is discharged at the instance of the de fendant himself he cannot set up that fact as a bar to a subsequent prosecution. It is argued by defendant that he only interposed an objection and did not express any consent or intend to waive any of his rights. He objected, however, to proceeding further in the case because of a disqualification of that jury. The discharge of the jury was the necessary result of sustaining his objection, and he has no right to complain that the court took the action which he invited. In a similar case in Ohio, a question arose as to the qualification of a juror after the beginning of the trial, and the defendant objected to proceeding further before that jury, specifically stating that he did not intend to waive any of his rights, but it was held that “the discharge of the jury first impaneled was the necessary result of sustaining the objection interposed by the defendant himself and so did not take place without his consent, but was an act done at his own instance and would not therefore operate as an acquittal nor bar a further proceeding." Stewart v. State, 15 Ohio St. 155. In People v. Gardner, 62 Mich. 307, 29 N. W. 19, a defendant objected to a jury before whom he stood in jeopardy and coupled with the objection a statement that he did not intend to waive any of his rights. When the jury was discharged, at his instance, he claimed that the discharge operated as an acquittal, but the court ruled that his action amounted to consent, saying that: “There were but two pos

sible courses for the court to pursue at the time the objection was made by the respondent; one was to go on against the respondent's objection and try the case before the jury then impaneled, and the other was to accede to the objection made and discharge the jury. The discharge of the jury under the circumstances of the case must be deemed to have been upon the request of the respondent and with his consent. He has no right to complain that his objection was sustained, and the discharge of the jury, with his consent, cannot be set up as an acquittal," See, also, Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; State v. Hibbard (just decided) 92 Pac. 30+; Commonwealth v. Sholes, 13 Allen (Mass.) 554; Peiffer v. Commonwealth, 15 Pa. 468. 53 Am. Dec, 605; Hughes v. State, 35 Ala. 351; State v. Davis, 80 N. C. 384; State v. Coleman, 54 S. C. 282, 32 S. E. 406; Arcia v. State, 28 Tex. App. 198, 12 S. W. 599; Commonwealth v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; Rex v. Stokes, 6 C. & P. 151; and Kinlock's Case, Foster 16.

It is next argued that the evidence does not support the conviction. It seems that the testimony offered in behalf of the state is singularly meager, less, it appears, than was produced on the first hearing. There was little, if any, testimony connecting the de fendant with the offense than his possession of the animal soon after it was stolen. It was shown that the mules had been kept in a pasture in Finney county. Mr. Williams, the owner, saw them in the pasture April 8, 1906, and when he visited the pasture again on April 11, 1906, he observed that they had been taken out. On April 12, 1906, the mule was in the possession of the defendant in Sherman county, more than 100 miles from the pasture. The animal was not found by Williams until April 20, 1906, and then was in the possession of a man named Stevens in Wallace county. There was no attempt to show that the defendant had been in Finney county or had even been absent from his home at the time of the larceny. No incriminating circumstances were shown, unless they are to be found in his statements explaining his possession of the mule. Recent possession alone does not warrant an inference of guilt. It is the unexplained possession which constitutes prima facie evidence of a larceny, and here there was an explanation, which, read from the record, appears to be consistent with honesty. The presumption of guilt arising from the recent possession of the stolen property by the defendant is weakened to some extent by the lapse of time, as it appears that four days elapsed after the mule was last seen in the pasture before it was shown to be in the possession of the defendant. Just when it was taken from the pasture does not appear from the testimony. Looking at the testimony of the defendant explaining how he came into possession of the mule, and measuring it as

testimony is ordinarily measured, we cannot say that the recent possession of the stolen property was unexplained, nor that the scant testimony offered in behalf of the state is sufficient to uphold a verdict.

The verdict will therefore be reversed, and a new trial awarded.

SMITH, PORTER, GRAVES, and BENSON, JJ., concur. BURCH, J., dissents.

sion of stolen property and were informed that a conviction could not rest upon the recent possession of stolen property unless it was unexplained. The verdict, which was approved by the court, means that the defendant failed in his explanation. His claim that the mule was purchased by lamp light from a stranger with so little inquiry or information as to his coming or going, or how the mule had been obtained, as well as the early sale to another may have seemed peculiar to the jury and in some measure led them to discredit his explanation. It may be admitted that the verdict would have been more satisfactory if there had been more direct and positive testimony of the larceny, but that which was offered seems to have been sufficient to satisfy the understanding and consciences of the jury that the defendant was guilty, and since it had a better opportunity to determine the truth than this court has I think that the verdict should not be overthrown.

MASON, J., joins in this dissent.

JOHNSTON, C. J. (dissenting). I am unable to concur in the conclusion that the testimony is insufficient to support the verdict of the jury and the judgment of the trial court. The conviction, it is true, rests mainly upon the recent possession of the animal by the defendant, but there is coupled with it the inferences to be drawn from the explanations made by the defendant with reference to his possession of the mule. He stated to Williams and testified at the trial that he purchased the mule by lamp light, at 8:30 o'clock in the evening of April 12. 1906. from a stranger. He described the appear. ance of this man, but testified that he did not ask him where he came from, or where he was going. Neither did he ask him any questions as to where he obtained the mule. He made the further statement that the stranger prepared a formal bill of sale, signing and delivering it to the defendant. Then there was the additional circumstance of the sale of the mule within three or four days after he acquired it. But if it could be said that the only matter for the jury to consider was the unexplained recent possession of the stolen property, tbe verdict cannot well be overturned. It has frequently been decided that the unexplained possession of property found to have been recently stolen is evidence from which a jury may infer that the person in whose possession such property is found is guilty of larceny. State v. Cassady, 12 Kan. 550; State v. Ingram, 16 Kan. 14; State v. Henry, 24 Kan. 457; State v. Hoffman, 53 Kan. 700, 37 Pac. 138.

Here the possession was recent, only four days after the mule was last seen in the pasture by Williams and within a day of the time that he missed it. This much without explanation made a prima facie case from which the defendant's guilt might be inferred. Explanations were made by the defendant, but evidently the jury did not credit them. How much credence should be given to his statements was for the jury to decide. They were not compelled to accept his statements as true, and his appearance and manner in testifying may have been such as to have led them to the belief that his explanations were untrue. It would be an invasion of the province of the jury to hold that the prima facie case, established by the state, had been overcome by the defendant's testimony which the jury must have found was unworthy of belief. The jury were properly instructed upon the rule of recent posses

(76 Kan. 392) FIRE ASS'N OF PHILADELPIIIA V. TAY

LOR. (Supreme Court of Kansas. Oct. 5, 1907.) 1. INSURANCE-POLICY-CONSTRUCTION.

A policy of insurance, being an instrument prepared by the insurer, should, in case of doubt as to its provisions, be strictly construed against the insurer and liberally in favor of the insured. The object of the contract being for indemnity against loss, it will be so construed, in case of doubt, as to support rather than defeat the indemnity; as, however, in contracts jointly prepared by the parties thereto, if the terms of a policy are clear and unambiguous, they will be taken in their plain and ordinary sense and no construction is necessary.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $$ 292, 294, 295.] 2. SAME-CONSTRUCTION BY PARTIES.

If the parties to an ambiguous contract have subsequently acted upon it in such manner as to indicate their mutual intent therein or understanding thereof, a court, in construing such contract, should as a rule adopt the construction indicated by such action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $ 315.] 3. SAME-LOSS-ADJUSTMENT BY AGENT.

When property upon which there is insurance is destroyed by fire, and the insured informs the insurer thereof, and soon thereafter a person appears at the scene of the fire and adjusts and pays the loss and takes from the insured a receipt for the payment, in the name of the insurer, it will be presumed that such person is the agent of the insurer, and that the insurer had notice and knowledge of such facts as came to the notice and knowledge of such agent affecting the busines so done by the agent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28. Insurance, $ 1412.]

(Syllabus by the Court.)

Error to District Court, Morris County: 0. L. Moore, Judge.

Action by S. E. Taylor against the Fire Association of Philadelphia. Judgment for

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