The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1895-06-15

the June session:
No: 1929. Seth ". Chase. warden of the Kan
tors of the Kansas state penitentiary Original
proceedings IN mandamus. Judgment for de-
The warden of the penitentiary can not by
mandamuS compel the board of directors of
and accounts of the warden incurred in carry
ing on the business of the peni Tertiary and in
same, me duty OF the board in the premises be-
ing to the public rather than TO the warden.
All the Justices cOncurring.
No. 1852 R. L. Walker VS.. R. R. Coleman and
Z: l. Lynch Error from tn court of common
pleas of Sedgwick county. Reversed. Martin,
c. j.
1.-The mere fact that the defendant is a Uni
TED states marshal Justlfying under a writ of
attachment issued from the federal court from
this district does not confer upon him any right
OF the removal of the cause to that court
2-M here the judge during the progress of
trial before jury aSSaiS one of the counsel for
defendant with offensive language and such
as to imply that he is an intruder in court and
this bearing of the judge probably had an infiu-
enee upon the jury prejudicaI to the defendant.
and the verdict was against him, a trial
should be granted on the ground of irregularity
in the proceedings of the court.
All the justices cOncurring.
No: 749s. Henry Keys VS.. Henry Lardner ct
al sln E Error ). from Lyon county Reversed Mar
|; In an action upon certain promissory notes
and two mortgages to secure the anne where
the description of the land in the petition and
the mortgages was defective and a party made
land filed motion to require the plaintiff to
make his petition more definite and certain by
giving good and sufficient description of the
real estate on which he claimed mortgage liens
which motion was overrued, and sucn party
then answered to the effect thai he was the
owner of a certain tract of about twenty acres
| specifically described and that this tract was
not included within the description of the mort
g2ged land. and the Plaintiff filed no reply, and
the court treated said answer disclaimer.
and rendered Judgment for the plaintiff on the
pleadings but in the decree of foreclosure so
amended the description as to show that the
tract was included in the mOrtgaged land,
Tor.
| 2. Where prOmisSory note drawing interest
at per cent provides that upon default of in
terest the entire principal and interest shall at
! the option OF the legal holder become at once
due and payable without further notice, and
| shall bear IL per cent after maturity, but
mortgage gwen to secure the same contains
clause to the effect that in case of such default
| interest shall be computed at II per cent from
date held that the terms of this note the prin CT
| pal oDIlgatlon, govern those OF the mortgage,
which Is merely Incidental thereto, and interest
| must be calculated in accordance with the
| dlllonS OF tne note ana not those OF the mort
| gage. but if the note becomes due by reason of
! default and the option of the legal holder, the
higher rate is recoverable from the date of the
| exercise of said option. which may he made eff
fectlve by the commencement of a suit.
All the Justices concerning.
No. 1872. w. w. Cook and T. A. Brace VS..
! George I. ChalliS. Error from AtchiSon county;
| dismissed. Martin c. j.
! When review is sought on a transcript of
the record the clerk of a district court is not
authorized to determine what are or what are
not material acts and proceedings of the
| COURT but should make a full and correct
transcript of the record and proceedings in the
cause and certify the same such, and where
he has not substantially done so the petition III
error will be dismissed.
| All the justices concurring.
No 9951. The State of Kansas on the Rela-
! ton of John I. Little, Attorney General,
Lowell F Wentworth. Original proceeding in
quo wa arr J g{{a en- for defendant
| John L. Little, Attorney General. VS.. T. j.
Hayes. Original proceeding in quo warranto.
Judgment for defendant. Martin, c. j.
Under section 8 of chapter 113 session laws
| 1879 parg. G18S, general statutes of 1880 which
provides that leach insane asylum shall
| have a superintendent, assistant sup
erntendent,' steward and matron. who shall
| be chosen by the board of stees, and shall
hold their Office for the term of three years, no
vacant, uneXpired or2fractional terms are recog-
| nized, and as such officers whenever appointed
| are entitled to hold their respective Offices for
the period of three years from the date that the
appointment of each takes effect.
Johnson j. concurring. Allen, j., dissenting.
No. 7549. The Kansas City, Fort Scott 8.
Memphis Railroad Company VS.. James c. Muir
ray. Error from johnson county. reversed
Johnston, j.
/. Where freight train is stopped at sta
ton to take on four loaded with coal that
conductor being otherwise engaged leaves the
train in charge of brakeman, under whose di-
rection the locomotive is cut off and backed in
upon the siding, where it is attached to the four
cars of coal, and the brakeman then takes po-
SitiOn upon the top of the rear car ready to give
signals to the engineer. and the latter runs the
locomotive and cars forward from the Siding
| and then begins backing them toward the sta,
tionary part of the train at a rate OF about six
miles an hour and when about four hundred feet
| away from that part of the train, toward which
! they moving, the engineer, without any sig
nal or necessity, applies the steam-jam or brake,
causes u sudden stop and a violent jerk which
throws the brakeman off and seriously Injuries
him, it cannot be said that the engineer IS free
from culpable negligence nor that the risk is
one of the ordinary hazards of the business
which is assumed by the brakeman.
.. Missouri Pacific railway company VS..
| Kansas DISTINGUISHED
8. The evidence examined, and it is held that
it cannot be said as a matter of law that the
brakeman was guilty OF contributOry negii-
gence
attend to the wound received by the brakeman
the statements made by the brakeman to the
surgeon with respect to the position which he
occupied Immediately preceding the occurrence
of the accident are not confidential or privil-
eyed under the provisions of section 1923 of the
civil code.
All the justices concurring.
No. 1OlO9. State of Kansas VS.. R. NJ. Young.
Appeal from Cowley county. Reversed. john
son. j.
/. An intention to kill is an essential element
of murder in the second degree in this state,
and where it is not alleged or proven that the
killing was purpoSely done, a conviction for muir
der in the second degree must be set aside
2. In this state there are no common law of
lenses, and there can be no convictions except
for such crimes as are defined by statute.
8. Section 10 of the crimes act, which pro-
vided that every person who shall administer
to any woman, pregnant with quick child any
medicine, drug or substance whatsoever. or
means with intent thereby to destroy such child.
unless the same shall have been necessary to
preserve the life of such mother, or shall have
been advised by physician to be necessary for
that purpose. shall be guilty of manslaughler in
the second Degree is imperative and Invalid.
as it undertakes to establish degree of feIoni-
Ous homicide where neither the death OF the
child or the mother results from the acts COM
mitted. and where there may be no killing or
homicide.
i. The testimony in the case exam
|, ined. and held to be sufficient to war
rant instructions upon the degrees of hom-
icide provided for in sections II and q of the
crimes act.
Statements by the deceased, made some time
before the commission of the alleged OffenSe, to
the effect that the defendant and her husband
, wanted her to have abortion produced but
that she had determined to prevent them from
accomplishing their purpose, were inadmiSsi-
bic; and statements made to others after the
alleged abortion had been produced, and which