H. B. Hughbanks and Ed. S. Fish, for appellant. John T. Little, Atty. Gen., and John A. Murray, for the State.

con

ALLEN, J. The defendant was convicted on 13 counts of unlawful sales of intoxicating liquor. Many errors are assigned and urged on our consideration. On the other hand, the sufficiency of the bill of exceptions and record to present any of these questions is challenged on numerous grounds, but the principal one is that no part of the evidence, and none of the preliminary motions or rulings, are tained in the bill of exceptions. An examination of the record shows this claim to be correct. The only thing purporting to be a bill of exceptions is placed in the midst of the papers, which the clerk has certified to as a transcript, and does not contain any evidence, or anything else but recitals of what had been done. What purports to be a transcript of the testimony follows this bill of exceptions, and thereafter come what appear to be instructions, etc., but neither the papers preceding nor those following the bill of exceptions are referred to in any manner by the bill, nor does it attempt even by reference to make them a part of the bill of exceptions. It has been decided over and over again by this court that in order to have the testimony in a case considered by this court it must be included in a bill of exceptions. Merely attaching it to one furnishes no authentication. State v. McClintock, 37 Kan. 40, 14 Pac. Rep. 511; State v. Carr, 37 Kan. 421, 15 Pac. Rep. 603; State v. Tilney, 44 Kan. 581, 24 Pac. Rep. 945. As none of the matters complained of are presented by a proper record, there is no question for our consideration, and the appeal will be dismissed. All the justices concurring.

(52 Kan. 23)

STATE v. DUGAN. (Supreme Court of Kansas. Oct. 7, 1893.) LIQUOR NUISANCE-VERIFICATION OF INFORMATION -EVIDENCE-NEW TRIAL-SEPARATION OF JURY.

1. Where a county attorney files an information charging the defendant with keeping a nuisance, and positively verifies the same "as true in substance and in fact," motions to quash the warrant and the information, and a plea in abatement, upon the ground that the information is not properly verified, and that the county attorney has no personal knowledge of the facts alleged therein, are properly overruled.

2. A defendant may be convicted of keeping a nuisance upon evidence showing that he is a keeper of a "resort" where intoxicating liquors are kept by him for sale as a beverage. State v. Reno, 21 Pac. Rep. 803, 41 Kan. 674.

3. A mere separation of the jury, after they have retired to consider of their verdict, in trials for misdemeanor, where no injury results, is no cause for a new trial. Section 275, Code Crim. Proc.

(Syllabus by the Court.)

Appeal from district court, Sumner county; James A. Ray, Judge.

Bill Dugan was convicted of maintaining a common nuisance, and appeals. Affirmed.

D. C. Caldwell, and James Lawrence, for appellant. John T. Little, Atty. Gen., C. J. Garver, and John A. Murray, for the State.

HORTON, C. J. The district court of Sumner county adjourned from the 26th day of October to the 10th day of November, 1892. The county attorney filed in the clerk's office an information charging the defendant, Bill Dugan, in twelve counts with the unlawful sales of intoxicating liquors, and in the thirteenth count with keeping a common nuisance. The defendant was on that day arrested, and gave bond for his appearance at the November term, 1892, of the court, which began on the 15th day of November, 1892, and on the 16th day of November, 1892, he filed motions to quash the warrant, the information, to compel the county attorney to attach to the information the testimony of witnesses examined before him, and also a plea in abatement; each of which was overruled, and exceptions saved. Thereupon the defendant, being arraigned, stood mute, and a plea of not guilty was entered for him by the court. He was convicted on the nuisance count only, and sentenced to pay a fine of $200, and to be confined 60 days in the county jail. The motions to quash the warrant and information, and also the plea in abatement, seemed to have been presented upon the grounds that the information was not properly verified; and, further, that the county attorney had no personal knowledge of the facts alleged therein. The information was positively verified by the county attorney. Being thus verified, the court committed no error in overruling the motions and plea, and also in overruling the motion to compel the county attorney to attach to the information the testimony of certain witnesses he had examined. Again, before the motion to set aside the warrant was filed, the defendant had entered into a recognizance for his appearance at a subsequent time, and thereby he waived all irregularity, if any, of the warrant and arJunction City v. Keeffe, 40 Kan. 275, 19 Pac. Rep. 735. The defendant was convicted for maintaining a common nuisance only, and the objections to various counts alleging the unlawful sales of intoxicating liquors are not now material. See, however, State v. Schweiter, 27 Kan. 499. The court committed no error in permitting the county attorney to indorse the names of additional witnesses upon the information, and then to allow such witnesses to testify. State v. Teissedre, 30 Kan. 476, 2 Pac. Rep. 650. Notwithstanding the defendant was acquitted upon the counts in the information charging him with the unlawful sales of intoxicating liquors, that would not prevent him

rest.

from being convicted of keeping a nuisance. Section 392, tit. "Crimes and Punishments," Gen. St. 1889. In cases like the present, a showing of the keeping of intoxicating liquors for sale is sufficient, under the statute, to render the place where the liquors are kept a nuisance, and to render the keeper thereof guilty of keeping a nuisance. State v. Reno, 41 Kan. 674, 21 Pac. Rep. 803. A mere separation of the jury after they had retired to consider of their verdict, in trials for misdemeanor, where no injury results, is no cause for a new trial. 2 Tex. App. 520; State v. 227; State v. Igo, 21 Mo. 459. Caldwell and James Lawrence, attorneys for the defendant, testified that the jury were permitted to separate by the court. Section 275, Code Crim. Proc.

Goode v. State, Barton, 19 Mo. Both D. C.

We do not think that the judgment should be reversed upon the showing that one of the jurors had in his possession a newspaper containing certain articles which it is alleged might have influenced his verdict. D. C. Caldwell testified, among other things, that: "Question. During the progress of the trial, I will ask you if you saw one of the jurors, Henry Ratekin, reading any or having in his possession and reading any paper? Answer. I saw him have in his possession a certain newspaper. Q. Was he apparently reading it? A. He was not at the time I noticed him. Q. What was he doing? A. He had a paper lying in his lap. Q. Do you know whether Mr. Ratekin read any part of the contents of that paper? A. No, sir; I do not." James Lawrence testified: "Question. Do you know anything about the juror Henry Ratekin, during the trial of that case of the State of Kansas against Wm. Dugan, having in his possession or reading any paper called the Weekly Journal, edited by Tinkham Bros., and published in the city of Wellington? Answer. Yes, sir; I saw him have such a paper in his hands, apparently reading it, after the case had been given to the jury, and before they returned their verdict. It was the day following the day upon which the case had been given to them, and they had been permitted to separate, and this was the morning before they convened again. Q. Do you know of your own knowledge whether the juror Henry Ratekin read any part of the contents of that paper? A. Nothing further than I nave said, that I saw him holding it before him." This evidence was given orally before the court, and as against the ruling of the court we cannot say that the juror actually read any of the articles referred to. State v. Miller, 35 Kan. 337, 10 Pac. Rep. 865.

The verdict of the jury was as follows: "We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant guilty on the thirteenth count, as a nuisance." This verdict was sufficiently certain, as the thirteenth count was referred to, to justify the sentence.

We preceive no misconduct on the part of the prosecution in the closing argument sufficient to cause any substantial complaint. It is doubtful if many of the matters discussed are sufficiently before us upon a proper bill of exceptions. The bill was allowed and signed by the judge, but refers only to what follows his signature. In order for a sufficient identification, his signature should have been at the end of the bill, and not at the commencement, or the matter following his signature should have been identified as "Exhibits A, B, C," etc. Railroad Co. v. Wagner, 19 Kan. 335; State v. Gibson, 34 Pac. Rep. 408, (just decided.) The judgment will be affirmed. All the justices concurring.

(52 Kan. 79)

STATE v. BOGUE. (Supreme Court of Kansas. Oct. 7, 1893.) HOMICIDE-EVIDENCE-DECLARATIONS OF ACCOMPLICE-WITNESS-CODEFENDANT-ACQUITTAL OF CODEFENDANT NOT A BAR.

1. K. & B. were jointly charged by information with the crime of manslaughter, and separate trials were demanded. On the trial of B., there was evidence tending to show that K. was principal, and B. accessory before the fact, in the commission of the offense, Held, that evidence of declarations made by K., in the absence of B., long after the consummation of the alleged criminal acts, was inadmissible. 2. Where two persons are charged as principals in the commission of a felony, and, at their request, separate trials are had, before the conviction of either one defendant is a competent witness for the other.

3. On the trial of B., who is jointly charged with K. with the crime of manslaughter, the evidence tended to show that K. was guilty as principal, and B. as accessory before the fact. Held, that the acquittal of K. is not a bar to a prosecution against B. under the information.

(Syllabus by the Court.)

Appeal from district court, Ellis county; S. J. Osborn, Judge.

Charles Bogue was convicted of manslaughter, and appeals. Reversed.

The other facts fully appear in the following statement by ALLEN, J.:

The defendant and one Nathaniel Kidd were jointly charged by information in 16 counts with the crime of manslaughter in the first degree. A separate trial was demanded. The defendant was convicted on the thirteenth count, and sentenced to 15 years in the penitentiary. Afterwards, and at the same term of court, Kidd was tried and acquitted. The crime with which Bogue and Kidd were charged was causing the death of Pauline Sweitzer, by the use of instruments and the administration of certain drugs, for the purpose of procuring an abortion. The verdict was rendered on the 21st day of January, 1893. On the same day a motion was filed for a new trial, upon the following grounds: "(1) Because the court erred in permitting illegal testimony to be given to the jury herein, over the objections of the defendant. (2) That the ver

dict has been decided by means other than a fair expression of opinion on the part of all the jurors (3) That the court misdirected the jury in material matters of law, over the objections of the defendant, which were duly excepted to by him at the time. (4) The verdict is contrary to law and evidence." This motion was heard and overruled, and, on the same day that the verdict was rendered, the defendant was sentenced. Afterwards, on the 30th day of January, counsel who appear here came into the case, and another motion for a new trial was filed, alleging, among other grounds, the rejection of legal testimony offered by the defendant, and setting up various matters as an excuse for the failure of defendant's counsel to include certain grounds in his first motion for a new trial. On this motion testimony was introduced, and the motion was overruled by the court.

Afterwards, on the 15th day of March, 1893, at an adjourned session of the same term of court, a further motion was filed by the defendant, alleging that Nathaniel Kidd was charged as principal in the crime, and Bogue as accessory; that, since the conviction of Bogue, Kidd had been tried and acquitted; and asking the court, for that and other reasons stated in the motion, to set aside the judgment. On the hearing of this motion, the journal entry. showing the trial and acquittal of Kidd on the 7th of February, 1893, was introduced in evidence. This motion was also overruled. On the trial, H. B. Kohl, the coroner, who had held an inquest on the body of Pauline Sweitzer, testified, over the objection of the defendant, as follows: "Question. Now, did Dr. Kidd come before that coroner's inquest? Answer. He came there. He was a voluntary witness, not on a subpoena. Q. What happened after he got there? What was said? State all that was said. A. Dr. Kidd was asked what Pauline Sweitzer died of. His answer was, first, of heart failure. One of the jurors, M. M. Fuller, asked the doctor, 'What did you do for that? What did she die with? What was the cause of her death? He says, 'Heart failure.' 'Did you give her medicine? Fuller asked,-which I do believe I don't knowThe court may censure me- Q. What did he say to that? A. He says, 'Yes, sir; I gave her some medicine.' The juror asked, 'What did you give her?' He says, 'Anti pyrine, anti kamnia, subnitrate of bismuth, sulphate of morphia, sulphate of quinine, phenacitine.' At the time that- Q. Did Doctor Kidd say anything else at that time? A. Yes, sir. Q. What was it? A. He said that he had been called the day before, and that Pauline was troubled with heart failure, and that on arriving there he found she bad inflammation of what he called the stomach. Q. Which he called inflammation of the stomach,-was that all? A. He says he was there only twice, and that he could not do very much for her. Q. Anything else? A. He said her heart failed to act, and he

was there in the morning, and found Pauline very low. No more questions were asked Doctor Kidd after that." The defendant was not present at the time these statements were made by Dr. Kidd, and the admission of all this testimony was duly excepted to. The defendant afterwards offered Dr. Kidd as a witness in his behalf, but his testimony was excluded, on the ground that he was incompetent to testify.

J. G. Mohler, for appellant. John T. Little, Atty. Gen., Wm. L. Aaron, and Chas. A. Hiller, for the State.

We

ALLEN, J., (after stating the facts.) We think the refusal of the court to permit Dr. Kidd to testify as a witness for the No defendant was manifestly erroneous. The distincland v. State, 19 Ohio, 131. cases tion sought to be drawn between where defendants jointly indicted are jointly tried and those where they are separately tried has no foundation in reason, nor do we think that it has any sanction in law. also think section 210 of the Criminal Code authorizes the granting of new trials for like causes as in civil cases, and that section 275 in no way prejudices the defendant's rights in that particular. But the ruling of the court in this respect, though most prejudicial to the substantial rights of the defendant, is not properly before us for review, because not included in the only motion for a new trial which was filed within the time required by law. The admission of the declarations of Dr. Kidd before the coroner's jury, in the absence of the defendant, was error. Whatever might be said in favor of the admissibility of such testimony under the common-law practice where one is indicted as principal and another as accessory, in this state, where accessories before the fact are charged and tried as principals. and where defendants are permitted to testify in their own behalf, we think the reason. if any there might be, for the admission of such testimony, fails. We, of course, are not here considering declarations of cocon spirators, or of persons engaged in a com mon criminal enterprise before or during the perpetration of their crime, but declarations of one of two defendants jointly charged as principals, made long after the offense, if We are clearly of any, was consummated. the opinion that the testimony was inadmis sible. 1 Whart. Crim. Law, (8th Ed.) § 237: Ogden v. State, 12 Wis. 532.

Was it so material as to require a reversal: The theory of the prosecution was that the defendant had seduced the deceased girl, and that she was pregnant by him; that he em ployed Kidd, who was a doctor, to procure an abortion; that Kidd used instru ments, and administered drugs, and thereby did produce an abortion, and did also cause the death of Pauline Sweitzer. Under this

theory, which was followed throughout the trial and in the instructions of the court, the guilt of Bogue was necessarily dependent on that of Kidd. If the theory of the prosecution was true, Dr. Kidd was guilty of procuring an abcrtion, not of doctoring a girl who had inflammation of the stomach. The information charged that he administer ed aloine, ergot, ergotine, sulphate of morphia, subnitrate of bismuth, and other noxious and abortifacient drugs. The chemist who analyzed the stomach, etc., of the deceased girl, testified to the discovery of aloine, ergotine, and subnitrate of bismuth. If the theory of the prosecution was true, and the result of the chemist's analysis is correct, Dr. Kidd's statements before the coroner's jury were false, and the jury would naturally, almost necessarily, have inferred that Dr. Kidd made false statements before the coroner's jury, for the purpose of misleading them and concealing his crime. It cannot be said that this testimony was unimportant. It appears to us that it might have been, and probably was, highly prejuIdicial to the defendant. If the jury was convinced that Dr. Kidd made these statements, and that they were false, they would much more readily attribute guilt to hin than if no such statements had been made. These and other statements of Dr. Kidd, made after the death of Pauline Sweitzer, were testified to by several witnesses. We think this error for which a new trial must be awarded, and its gravity is much increased by the refusal of the court to permit Dr. Kidd to testify as a witness. If Dr. Kidd was guilty, there is abundant evidence in the record to connect the defendant with the crime.

It is contended that the subsequent acquittal of Dr. Kidd compels the vacation of the judgment against the defendant, and his discharge from further prosecution. It may bo conceded that at common law the acquittal of the principal acquitted the accessory also, and that the conviction of the principal must precede or accompany that of one charged as an accessory. 1 Whart. Crim. Law, § 237; 1 Bish. Crim. Law, § 667. Section 115 of the Criminal Code provides: "Any person who counsels, aids, or abets in the commission of any offense, may be charged, tried, and convicted in the same manner as if he were principal." The evident purpose of the legislature of our own and other states where similar statutes have been enacted was to do away with those subtle distinctions of the common law between principals in the first and second degree and accessories before the fact, and to permit the trial of participants in the crime, independently of each other, so that each should suffer punishment for his own guilt, without being dependent on the result of the prosecutions against others. Of course, if the crime be committed through

the instrumentality of another, the acts of such instrument essential to establish the guilt of the person on trial must be shown. The statute does not in any manner enlarge or diminish the essential elements of criminality. It merely does away with a somewhat arbitrary nomenclature, which has come down from English jurisprudence, and has been found to be a serious stumbling block in the administration of criminal justice. We think a guilty accessory may be punished, even though the principal escape. As was said in State v. Mosley, 31 Kan. 355, 2 Pac. Rep. 782, a record showing the conviction of the principal is prima facie evidence of that fact, but is not conclusive of it on the trial of the accessory. We think our view of the law on this branch of the case is fully sustained by the decisions of those states having similar statutory provisions to our own. Noland v. State, supra; Hanoff v. State, 37 Ohio St. 178; Goins v. State, 46 Ohio St. 457, 21 N. E. Rep. 476; State v. Phillips, 24 Mo. 475; State v. Ross, 29 Mo. 32. The provision of the Indiana statute, quoted in the case of McCarty v. State, 44 Ind. 214, is different from ours. We have said so much with reference to a prosecution of the defendant as though he were but an accessory. He stands charged, however, as principal, and, being so charged, of course the mere fact of the acquittal of his codefendant could not, ipso facto, entitle him to a discharge. Judgment is reversed, and a new trial awarded. All the justices concurring.

(52 Kan. 69)

STATE v. MOULTON. (Supreme Court of Kansas. Oct. 7, 1893.) INTOXICATING LIQUORS-CRIMINAL PROSECUTIONDEFINITENESS OF ELECTION AS TO KIND OF LIQCOR-INTENT.

1. The cases of State v. O'Connell, 2 Pac. Rep. 579, 31 Kan. 383, and State v. Guettler, 9 Pac. Rep. 200, 34 Kan. 582, followed. 2. Where an intoxicating liquor, called "Rock & Rye," was sold in violation of the prohibitory liquor law, it is no excuse upon the part of the defendant to allege that he did not know it was intoxicating.

(Syllabus by the Court.)

Appeal from district court, Norton county; G. Webb Bertram, Judge.

George Moulton was convicted on several counts for selling intoxicating liquors unlawfully, and appeals. Judgment modified.

J. R. Hamilton, L. H. Wilder, and S. W. McElroy, for appellant. John T. Little, Atty. Gen., C. D. Jones, and L. H. Thompson, for the State.

HORTON, C. J. George Moulton was prosecuted upon an information containing 12 counts, charging the unlawful sales of in-. toxicating liquors. He was convicted on the third, seventh, eighth, and tenth counts. On motion he was granted a new trial on the